Catherine R. Locallo, Robbins Schwartz, Chicago
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Post-Muldrow Decision Addresses Evaluations and PIPs as Adverse Employment Actions
In Arnold v. United Airlines, Inc., No. 24-2179, 2025 WL 1778643 (7th Cir. June 27, 2025), the plaintiff worked for United Airlines for 16 years. She filed a lawsuit alleging age discrimination, retaliation, hostile work environment, and constructive discharge after United made changes to her job responsibilities and placed her on a performance improvement plan (PIP) following complaints she made about discrimination and harassment.
The United States District Court for the Northern District of Illinois granted summary judgment in favor of United on the plaintiff’s claims of discrimination, retaliation, and hostile work environment and dismissed the constructive discharge claim without prejudice.
The United States Court of Appeals for the Seventh Circuit affirmed the district court’s decision, holding that the plaintiff did not provide sufficient evidence to show that she suffered adverse employment actions due to age discrimination. Further, the plaintiff’s retaliation claim failed because the actions taken by United were not materially adverse. Additionally, the court held that the plaintiff did not demonstrate a hostile work environment based on age, as the incidents alleged were not severe or pervasive enough to meet the legal standard. The dismissal of her constructive discharge claim was also upheld.
Background Facts
Plaintiff Mary Ann Arnold worked in communications at United from March 14, 1994, until May 20, 2020. Between 2017 and 2018, she made several complaints to United, including age discrimination, failure to promote, retaliation, harassment, hostile work environment, and sexual harassment by her supervisor. None of the claims were substantiated, and her supervisor was not disciplined. 2025 WL 1778643 at *1.
The plaintiff’s 2018 mid-year review was conducted by the supervisor she claimed sexually harassed her. She was rated “on track with peers.” Id. The plaintiff’s 2018 year-end and her 2019 mid-year reviews were conducted by different supervisors because of the sexual harassment investigation, though her primary supervisor was consulted. The reviews included positive and critical feedback. Specifically, the 2018 year-end review said that the plaintiff should take “[a] more assertive role and proactively build strategic comms [sic] plans. . . . You have a passion for making sure the frontline gets what they need to be effective in their jobs, but you need to be proactive in identifying and solving the problems so that our business partners can achieve that goal.”The 2019 mid-year review also noted that the plaintiff should work on certain time management skills. Id.
In September 2019, United reorganized its communications functions. As part of this reorganization, the plaintiff and her team were moved to the Corporate Communications Department. The plaintiff’s title was also changed from “Senior Staff Representative” to “Senior Writer.” The plaintiff claimed that this change altered her role from “project-based” to “data entry” work, resulted in “far less visibility and partner interaction,” and greatly increased her workload. United’s position was that the basic function of the position was unchanged in that she still dealt with internal corporate communications. Id. The plaintiff was also moved from a project called “Core4,” and two younger employees were added to the project. 2025 WL 1778643 at *2.
In October 2019, there was an email exchange among United’s human resources department. The participants discussed a seating change for the plaintiff and mentioned offering the plaintiff an exit package. The exit package was not pursued, and the human resources employees decided to focus on the plaintiff’s performance. Id.
Later in 2019, the plaintiff received her first negative performance review. Her supervisors criticized her time and project management and also noted that she had difficulty meeting deadlines. The plaintiff claims that she was never informed of or coached about the deficiencies before the review. Id.
The plaintiff was immediately placed on a PIP. She claimed that the PIP “constitute[d] an adverse action because it worsened [her] employment with its excessive workload, unrealistic deadlines, public criticism, [and] reductive administrative tasks.” She also claimed that her supervisors “regularly corrected her in front of business partners and United leaders who previously approved and praised her work.” She believes that she was generally treated unfairly. Id.
There was disagreement over whether the plaintiff successfully completed the PIP. Both United and the plaintiff acknowledge that during the PIP they discussed instances of subpar performance. The final meeting under the PIP was planned for May 2020. The meeting was rescheduled multiple times. The plaintiff ultimately resigned on May 20, 2020, before she had her final PIP meeting. The plaintiff referred to her resignation as an “involuntary retirement.” Id.
The plaintiff filed a lawsuit against United alleging age discrimination, retaliation, hostile work environment, and constructive discharge. Id. She believed that the PIP was abusive treatment, in response to the complaints she made, and used as a plan to force her exit. The plaintiff also claimed that a younger employee had similar performance issues but was not placed on a PIP. 2025 WL 1778643 at *3.
District Court Decision
The district court dismissed the plaintiff’s age discrimination and retaliation claims. Specifically, on the age discrimination claim, the court held that United had not subjected her to materially adverse employment actions. Further, United had given legitimate, nondiscriminatory reasons for its actions, and the plaintiff failed to establish that these proffered reasons were pretextual. Id.
The district court also dismissed the plaintiff’s hostile work environment claim because she had not submitted evidence to show a sufficiently severe work environment and had not demonstrated causation. Finally, the constructive discharge claim was dismissed because the plaintiff failed to exhaust her administrative remedies. Id.
The Seventh Circuit’s Analysis Applying Muldrow
On appeal, the plaintiff claimed that the district court employed the incorrect definition of an “adverse” employment action by failing to apply the Supreme Court’s decision in Muldrow v. City of St. Louis, Missouri, 601 U.S. 346, 218 L.Ed.2d 322, 144 S.Ct. 967 (2024).
In response to United’s argument, the Seventh Circuit made clear that Muldrow is not limited to job transfers. The Seventh Circuit also found that the district court incorrectly applied a pre-Muldrow “materially adverse” standard. The Seventh Circuit was therefore left to decide whether the plaintiff can prevail under the more lenient standard of Muldrow. Id.
While Muldrow has been confronted infrequently, the Seventh Circuit has applied its new standard by focusing on whether the harm was to “an identifiable term or condition of employment.” 2025 WL 1778643 at *4, quoting Muldrow, supra, 144 S.Ct. at 974. While the harm need not be “material” or “significant,” the harm must affect the “terms or conditions of employment.” 2025 WL 1778643 at *4, quoting Muldrow, supra, 144 S.Ct. at 976. In Thomas v. JBS Green Bay, Inc., 120 F.4th 1335 (7th Cir. 2024), the Seventh Circuit considered a Title VII of the Civil Rights Act of 1964 (Title VII), Pub.L. No. 88-352, Title VII, 78 Stat. 253, claim of employment discrimination and held that, under the Muldrow “some harm” standard, delaying training, denying vacation times, transferring shifts, and considering family circumstances in a biased way are all adverse actions. 120 F.4th at 1336 – 1337. These decisions by the employer adversely affect the terms and conditions of employment because employers “must distribute fringe benefits equally” and “[d]eferred training can mean deferred promotions or deferred raises.” 120 F.4th at 1337. By contrast, in Phillips v. Baxter, No. 23-1740, 2024 WL 1795859 (7th Cir. Apr. 25, 2025), the Seventh Circuit held, albeit in an unpublished order, that a swapped role that was in the same building and did not affect the employee’s “position, job duties, salary, or benefits” was not an adverse action. 2024 WL 1795859 at *3. The court further explained that even when there were changes in the employee’s duties, those changes were within the scope of his role and were “mostly temporary inconveniences.” Id.
Here, even under the more generous standard of Muldrow and considering the facts in the light most favorable to the plaintiff, the Seventh Circuit can maintain only that she was placed on a PIP and that the reorganization brought about some changes in her daily responsibilities. She remained a member of the same team and continued to work in the communications department of United’s operation. Her compensation, benefits, vacation times, and working hours were not affected. Nor did she provide any evidence that her assignments while on the PIP were impossible for her to complete. She was given some additional assignments, and some of her assignments changed. But these changes were all within the normal scope of her employment and thus did not adversely affect the terms and conditions of her employment. “The record hardly describe[d] an adverse action under the standard articulated in Muldrow.”Arnold, supra, 2025 WL 1778643 at *5.
The Seventh Circuit held that even if the plaintiff could establish that United subjected her to an adverse employment action, she has not shown that United treated her differently from other employees who were similarly situated except for age. Id.
The remaining prong of establishing a prima facie case was whether the plaintiff met her employer’s legitimate expectations. United maintained that the plaintiff’s performance was deficient and that this was the reason she was placed on a PIP. As the district court did, the Seventh Circuit proceeded directly to considering whether United’s reasons for instituting the PIP were pretextual. See Vichio v. US Foods, Inc., 88 F.4th 687, 691 (7th Cir. 2023) (allowing courts to “skip the McDonnell Douglas [Corp v. Green, 411 U.S. 792, 36 L.Ed.2e 668, 93 S.Ct. 1817 (1973),] prima facie analysis if the employer raises the employee’s performance as the reason for the adverse employment decision” and go directly to pretext). Arnold, supra, 2025 WL 1778643 at *6.
“To establish pretext, an employee must ultimately show by a preponderance of the evidence either ‘(1) that the employer was more likely motivated by a discriminatory reason, or (2) that the employer’s proffered reason is unworthy of credence.’ ” Id., quoting McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 372 (7th Cir. 1992). The plaintiff claimed that the performance deficiencies were pretextual and untrue, as she was meeting United’s expectations, no one had discussed any deficiencies prior to the 2019 year-end review, and it came on the heels of an email about focusing on her performance versus offering an exit package. However, the plaintiff did not offer anything to suggest that her performance did not display the deficiencies claimed by United. United’s explanation therefore remained unrebutted, and the plaintiff did not demonstrate pretext or that she had performed to United’s legitimate expectations. Furthermore, the ADEA requires not just “that age was a motivating factor. The plaintiff must prove that, but for his age, the adverse action would not have occurred.” [Emphasis in original.] Arnold, supra, 2025 WL 1778643 at *7, quoting Martino v. MCI Communications Services, Inc., 574 F.3d 447, 455 (7th Cir. 2009). The Seventh Circuit explained that the plaintiff’s arguments would require significant speculation and assumption of ulterior motive. As such, she could not establish a prima facie case of discrimination under McDonnell Douglas. Id.
The Seventh Circuit upheld summary judgment on the other claims and the dismissal of the constructive discharge claim.
The Arnold decision proves helpful to employers as they navigate employment discrimination claims in a post-Muldrow environment.
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