Pro Se Extension Motions as Functional Notices of Appeal; Post-Muldrow “Worse Off” Standard Applied to ADEA Without Converting PIPs into Per Se Adverse Actions

1. Introduction

Joanne Walsh, a long-tenured information technology employee in HNTB Corporation’s Boston office, sued her former employer alleging age discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and Massachusetts’s anti-discrimination statute, Mass. Gen. Laws ch. 151B, § 4(18) (“Chapter 151B”). Walsh’s theory centered on HNTB’s decision to place her on a three-month performance improvement plan (“PIP”) in August 2019 and her resignation roughly ten months later, which she characterized as a constructive discharge.

Two issues dominated the First Circuit’s review:

• Appellate jurisdiction/timeliness: whether Walsh’s notice of appeal was timely where she filed a pro se motion to extend the appeal deadline within the initial appeal period but filed her formal notice later, after multiple extensions.
• Merits (summary judgment): whether Walsh produced evidence of an “adverse employment action,” either as (i) discrete actions (the PIP, alleged raise cessation, alleged duty reduction) under the Supreme Court’s new standard in Muldrow v. City of St. Louis, or (ii) a constructive discharge.

2. Summary of the Opinion

The First Circuit held:

• Timeliness: Walsh’s pro se motion to extend the deadline—filed within the original 30-day appeal period—served as the “functional equivalent” of a notice of appeal under Fed. R. App. P. 3 and 4, making the appeal timely.
• Merits: The court affirmed summary judgment for HNTB. Even applying Muldrow v. City of St. Louis to ADEA/Chapter 151B, Walsh failed to show the PIP or other alleged changes left her “worse off” in the “terms [or] conditions” of employment. Her constructive discharge claim also failed under the First Circuit’s demanding objective standard.

3. Analysis

3.1 Precedents Cited

A. Timeliness and the “functional equivalent” of a notice of appeal

• Smith v. Barry, 502 U.S. 244 (1992): The foundational authority for “functional equivalence.” The First Circuit relied on Smith for the proposition that a filing’s label is not dispositive; what matters is whether it was timely and whether it gives the notice Rule 3 requires. The opinion closely tracks Smith’s two-part test: (1) filed within Rule 4’s timeframe, and (2) contains Rule 3’s required notice.
• Campiti v. Matesanz, 333 F.3d 317 (1st Cir. 2003): Used for two related principles: (i) the First Circuit gives “latitude” to “pro se litigant[s]” when assessing whether a filing satisfies Rule 3, and (ii) certain post-judgment filings can “evidence an intention to appeal,” such as a request connected to appellate representation after trial counsel withdraws.
• Cruzado v. Alves, 89 F.4th 64 (1st Cir. 2023): The most directly on-point First Circuit precedent: a motion to extend time can qualify as a functional notice of appeal. The court used Cruzado to structure the inquiry: intent to appeal + “pertinent information” required by Rule 3(c)(1), assessed using “content and surrounding circumstances.”
• Gonpo v. Sonam's Stonewalls & Art, LLC, 41 F.4th 1 (1st Cir. 2022): Cited for the merger principle (via Fed. R. App. P. 3(c)(4)): interlocutory orders merge into final judgment for purposes of appeal, supporting the conclusion that Walsh’s docket-number reference adequately identified the appealed judgment in context.
• Hamer v. Neighborhood Servs. of Chi., 583 U.S. 17 (2017): Mentioned in Walsh’s alternative “equitable tolling” argument. The court expressly declined to reach that theory because it found timeliness through functional equivalence.

B. Summary judgment posture and discrimination framework

• Warner v. DeJoy, 153 F.4th 109 (1st Cir. 2025): Cited for the standard that, on summary judgment, facts are viewed in the light most favorable to the non-movant.
• Johansen v. Liberty Mut. Grp., 118 F.4th 142 (1st Cir. 2024): Cited for de novo review of summary judgment.
• Escribano-Reyes v. Pro. Hepa Certificate Corp., 817 F.3d 380 (1st Cir. 2016) and Del Valle-Santana v. Servicios Legales de P.R., Inc., 804 F.3d 127 (1st Cir. 2015): Used for the summary judgment standard and for articulating the prima facie elements (including “adverse employment action”) in a discrimination claim.
• Adamson v. Walgreens Co., 750 F.3d 73 (2014) and Bennett v. Saint-Gobain Corp., 507 F.3d 23 (1st Cir. 2007): Cited for the proposition that ADEA and Chapter 151B claims may be analyzed together because they are “substantially similar” in relevant respects.
• McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): The applicable burden-shifting framework, with the court focusing on the prima facie requirement of an adverse employment action.

C. Defining “adverse employment action” after Muldrow

• Muldrow v. City of St. Louis, 601 U.S. 346 (2024): The key doctrinal update: rejects a “materiality” requirement in the Title VII context and replaces it with the statutory-text standard—whether the employee is “worse off” in the “terms [or] conditions” of employment, regardless of severity. The First Circuit treated Muldrow as the governing standard for “adverse action” analysis here.
• Morales-Vallellanes v. Potter, 605 F.3d 27 (1st Cir. 2010) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998): Provided the pre-Muldrow framing of actionable employment changes (e.g., hiring, firing, reassignment with significantly different responsibilities, significant benefit changes).
• Marrero v. Goya of P.R., Inc., 304 F.3d 7 (1st Cir. 2002); Cherkaoui v. City of Quincy, 877 F.3d 14 (1st Cir. 2017); Caraballo-Caraballo v. Corr. Admin., 892 F.3d 53 (1st Cir. 2018): These cases reflect the First Circuit’s earlier “material adversity” line—conduct must be more disruptive than inconvenience or minor duty alteration—explicitly superseded in relevant part by Muldrow for statutes using “terms [or] conditions” language.
• Arnold v. United Airlines, Inc., 142 F.4th 460 (7th Cir. 2025); Milczak v. Gen. Motors, LLC, 102 F.4th 772 (6th Cir. 2024); Yates v. Spring Indep. Sch. Dist., 115 F.4th 414 (5th Cir. 2024): Cited as examples of other circuits extending Muldrow to the ADEA because of similar statutory phrasing.
• Rios v. Centerra Grp., Inc., 106 F.4th 101 (1st Cir. 2024): The First Circuit’s own post-Muldrow application in another statutory context, supporting cross-statute portability where text aligns.
• Yee v. Mass. State Police, 121 N.E.3d 155 (Mass. 2019) and O'Horo v. Bos. Med. Ctr. Corp., 131 F.4th 1 (1st Cir. 2025): The court acknowledged Massachusetts appellate courts had not adopted Muldrow for Chapter 151B and that Massachusetts law still required “materiality” under Yee. It nonetheless assumed Muldrow applied to Chapter 151B for purposes of this case because it is more favorable to the plaintiff, and still found no adverse action.
• National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) and Rae v. Woburn Pub. Schs., 113 F.4th 86 (1st Cir. 2024): Used to reject the appellant’s suggestion that Muldrow eliminates the discrete-act/hostile-environment distinction drawn in Morgan.

D. PIPs, raises, and duty changes

• McNeal v. City of Blue Ash, 117 F.4th 887 (6th Cir. 2024): Used for the post-Muldrow notion that “documented counseling” is unlikely to be an adverse action absent a terms/conditions change.
• Murray v. Warren Pumps, LLC, 821 F.3d 77 (1st Cir. 2016): Cited for Massachusetts at-will employment principles, underscoring why the PIP’s reference to possible termination did not itself change Walsh’s employment terms.
• Geoffroy v. Town of Winchendon, 959 F.3d 1 (1st Cir. 2020): Cited for waiver: Walsh’s pay-raise theory was not presented in the district court as an “adverse action,” so it was forfeited on appeal.
• Mancini v. City of Providence, 909 F.3d 32 (1st Cir. 2018): Used to reject conclusory assertions of lost duties: plaintiffs must identify evidence and specifics sufficient to create a triable dispute.

E. Constructive discharge standard

• Suárez v. Pueblo Int'l, Inc., 229 F.3d 49 (1st Cir. 2000): The central articulation of constructive discharge: working conditions must become “so onerous, abusive, or unpleasant” that a reasonable person would feel compelled to resign; law prohibits employers from doing indirectly what they cannot do directly.
• Stratton v. Bentley Univ., 113 F.4th 25 (1st Cir. 2024): Reinforced the rigor of the standard and explained that discrimination laws do not guarantee a workplace free of ordinary workplace frictions; also noted Muldrow is not relevant where the employee resigned (constructive discharge has its own doctrinal test).
• Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41 (1st Cir. 2008): Used as a comparator: even age-related comments (e.g., “dinosaur,” lacking “energy”) may be insufficient for constructive discharge; also cited for the proposition that apprehension of future termination is not enough.
• Marrero v. Goya of P.R., Inc., 304 F.3d 7 (1st Cir. 2002) and Keeler v. Putnam Fiduciary Tr. Co., 238 F.3d 5 (1st Cir. 2001): Quoted for the ultimate question: whether conditions are so unpleasant that remaining while seeking redress would be intolerable.
• Calhoun v. Acme Cleveland Corp., 798 F.2d 559 (1st Cir. 1986) and Back v. Hapoalim, 24-1064-cv, 2024 WL 4746263 (2d Cir. Nov. 12, 2024): Cited for the principle that constructive discharge must be assessed holistically, considering conduct “in the aggregate.”
• Landrau-Romero v. Banco Popular de P.R., 212 F.3d 607 (1st Cir. 2000): Used to discount stale events: conduct occurring many months before resignation generally cannot be the causal impetus for constructive discharge.
• Gerald v. Univ. of P.R., 707 F.3d 7 (1st Cir. 2013) and Roman v. Potter, 604 F.3d 34 (1st Cir. 2010): Cited to distinguish objective conditions from “subjective beliefs”; constructive discharge is evaluated objectively.
• Ahern v. Shinseki, 629 F.3d 49 (1st Cir. 2010): Used (via Stratton) for the idea that “generally disagreeable behavior” is not enough.
• Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77 (1st Cir. 2018): Cited for a contrasting scenario: repeated statements that an employee “will be fired” may support constructive discharge—then distinguished because the record here lacked such evidence.

3.2 Legal Reasoning

A. Timeliness: why the extension motion counted as a notice of appeal

The court’s timeliness analysis is both practical and rule-bound. It does not relax Rule 3 and Rule 4; rather, it enforces them through Smith v. Barry’s functional-equivalence doctrine.

Step 1: Rule 4 timing. Walsh filed her pro se motion to extend time on January 19, 2024, within the original 30-day appeal window under 28 U.S.C. § 2107(a) and Fed. R. App. P. 4(a)(1)(A). This satisfied the timing predicate recognized in Cruzado v. Alves.

Step 2: Rule 3 notice content + intent to appeal. Applying liberal construction (especially for pro se litigants per Campiti v. Matesanz), the court found:

• Intent to appeal: Walsh said her former firm “does not handle appeals” and she was “actively searching for a firm to represent [her]” on appeal—more than mere contemplation.
• Parties: The caption identified Walsh and HNTB.
• Appellate destination: Even without naming the First Circuit, the destination was functionally obvious because the District of Massachusetts judgment could “only be appealed to this Court,” consistent with Cruzado v. Alves and Campiti v. Matesanz.
• Judgment/order identified: Though it did not expressly cite the summary judgment order, the motion included the docket number; the docket revealed the summary judgment ruling was the only substantive ruling and final judgment followed, with interlocutory matters merging into final judgment under Gonpo v. Sonam's Stonewalls & Art, LLC.

Crucially, the court framed this as a contextual determination (“content and surrounding circumstances”) rather than a formalistic checklist. This is consistent with Rule 3(c)(7)’s admonition that appeals should not be dismissed for “informality of form or title.”

B. Merits: applying Muldrow to ADEA/Chapter 151B while insisting on a terms/conditions change

On the adverse-action question, the court made three moves:

• Doctrinal update: It adopted Muldrow v. City of St. Louis’s “worse off in the terms [or] conditions” standard for ADEA claims, citing other circuits’ post-Muldrow ADEA cases (Arnold v. United Airlines, Inc., Milczak v. Gen. Motors, LLC, Yates v. Spring Indep. Sch. Dist.) and its own cross-statute application (Rios v. Centerra Grp., Inc.).
• State-law caution: It noted Massachusetts’s existing “materiality” requirement (Yee v. Mass. State Police) but assumed Muldrow applied to Chapter 151B for argument’s sake because it is more favorable to Walsh.
• Fact-specific application: Even with the lowered “severity” threshold, Walsh still had to show an actual deterioration in employment terms or conditions, not merely distress, suspicion, or stigma.

C. Why the PIP was not an adverse action here

The opinion rejects both extremes: it does not say PIPs are never adverse actions, nor does it accept Walsh’s implied per se rule that a PIP is inherently adverse. Instead, it adopts a fact-intensive, PIP-specific approach, consistent with Muldrow’s text-focused inquiry.

Here, the PIP was characterized as “documented counseling” (invoking McNeal v. City of Blue Ash) because it:

• stated it was an “opportunity to correct” performance;
• required improvements that did not impose new duties outside the job’s normal scope (e.g., being proactive, cleaning/organizing the IT room);
• did not change title, pay, benefits, or internal mobility;
• did not meaningfully change job security for an at-will employee (the plan’s reference to potential termination did not alter baseline at-will status, per Murray v. Warren Pumps, LLC).

Even if the PIP were motivated by age bias, the court treated motive as analytically distinct from the threshold requirement that an actionable event must affect “terms [or] conditions.” This reflects a discipline common to prima facie analysis: the “what happened” question (adverse action) must be satisfied before motive and pretext are litigated.

D. Why the raise and duty-change theories failed

• Raises: Waived under Geoffroy v. Town of Winchendon because it was not argued below as an adverse action. On the merits, Walsh was at the top of the TSR II range; speculation about a possible “market adjustment” did not create a genuine dispute (the court analogized to entitlement reasoning in Milczak v. Gen. Motors, LLC).
• Duties: Walsh did not identify which duties she lost, offering only conclusory statements rejected under Mancini v. City of Providence. Record citations suggested only intermittent “takeover” by a supervisor, with responsibilities restored when problems arose—insufficient to show she was “worse off” in job conditions.

E. Constructive discharge: holistic review, but still no objectively intolerable conditions

Walsh’s second path to an “adverse action” was constructive discharge. The court accepted Walsh’s methodological critique—that a constructive discharge assessment must consider conduct “in the aggregate” (Calhoun v. Acme Cleveland Corp.; Back v. Hapoalim)—but still concluded the evidence did not meet the First Circuit’s stringent objective standard.

PIP-era comments. Clark’s “shut up” remark was deemed harsh but context-bound to Walsh’s attempts to identify complaining employees—more consistent with workplace conflict than intolerable abuse. Vealey’s “younger, cheaper people” remark could suggest age animus, but it was temporally remote and did not compel resignation, especially given Walsh continued working for many months (consistent with Landrau-Romero v. Banco Popular de P.R. and the broader principle that stale conduct is weak constructive-discharge evidence).

Post-PIP supervision. Walsh’s post-PIP complaints largely described management style (micromanagement, credit-taking, pressure to respond quickly, being told not to say “no” without checking). The court treated these as insufficient under the objective test and too intertwined with subjective perception (Gerald v. Univ. of P.R.; Roman v. Potter). Even a supervisor’s occasional yelling and disagreeable behavior did not reach the “so onerous” threshold (Ahern v. Shinseki; Stratton v. Bentley Univ.).

No credible “imminent firing” record. Walsh asserted she believed she would be fired, but apprehension is not enough (Torrech-Hernández v. Gen. Elec. Co.; Stratton v. Bentley Univ.). Unlike Rivera-Rivera v. Medina & Medina, Inc., there was no evidence of repeated threats of termination. Walsh completed the PIP, had a mixed but partially positive review, was never told to leave, and chose the timing of resignation.

3.3 Impact

A. Appellate practice: reinforcing a safety valve for pro se litigants without rewriting jurisdictional deadlines

This opinion strengthens (and operationalizes) the First Circuit’s line—particularly Cruzado v. Alves and Campiti v. Matesanz—that a timely pro se filing may preserve appellate rights even when mislabeled. Its practical impact is likely to be felt in cases where counsel withdraws after judgment and litigants file extension motions to buy time to retain appellate counsel.

At the same time, the decision does not dilute Rule 4’s timing requirement: the functional-equivalent document still must be filed within the original appeal window. The “liberal construction” operates within the jurisdictional time boundary, not outside it.

B. Employment discrimination: Muldrow’s lower “severity” threshold is not a free pass

On the merits, the opinion is a cautionary guide to litigants invoking Muldrow v. City of St. Louis. The First Circuit confirms Muldrow applies to the ADEA (and assumes its application to Chapter 151B for now), but it emphasizes that plaintiffs must still identify an employment event that made them “worse off” in “terms [or] conditions.” Mere workplace friction, stigma, or fear—without an actual alteration of job conditions—will not suffice.

C. PIPs specifically: fact-intensive inquiry, no categorical rule

The opinion implicitly establishes a working framework for PIP litigation post-Muldrow:

• A PIP can be adverse if it tangibly changes job conditions (e.g., imposes meaningfully different tasks, blocks transfer/promotion, changes compensation, or otherwise alters employment conditions).
• A PIP is not adverse when it functions as performance counseling without altering the employee’s terms/conditions (as in Walsh’s case).

That approach will likely shape pleadings and discovery: plaintiffs will be pressed to develop evidence of concrete downstream effects of a PIP (eligibility for raises, promotion holds, transfer blocks, bonus ineligibility, scheduling burdens, heightened surveillance tied to discipline) rather than relying on the PIP’s existence as inherently adverse.

D. Constructive discharge: continued rigor and objective framing

The constructive discharge portion reiterates that even when age-tinged comments exist, courts will look for sustained, objectively intolerable conditions and a close causal link to resignation. The emphasis on remaining employed “while seeking redress” (quoting Marrero v. Goya of P.R., Inc./Keeler v. Putnam Fiduciary Tr. Co.) signals that plaintiffs who do not use internal complaint channels, or who resign long after the most egregious events, may face an uphill battle absent escalating conduct.

4. Complex Concepts Simplified

• “Functional equivalent” of a notice of appeal: Even if a document is not titled “Notice of Appeal,” it can count as one if it is filed on time and conveys the essentials: who is appealing, what judgment is being appealed, and (often by context) which appellate court is involved.
• Rule 3 vs. Rule 4: Rule 4 is mainly about when you must appeal; Rule 3 is mainly about what information your notice must contain. A timely but imperfect filing can still be enough under Rule 3’s liberal construction.
• “Adverse employment action” after Muldrow: The action need not be “materially” harmful, but it must still make the employee “worse off” with respect to the “terms [or] conditions” of employment—something about the job must actually change for the worse.
• PIP (Performance Improvement Plan): A structured plan setting performance expectations and monitoring improvement. It can be benign coaching or a disciplinary step. Legally, whether it is “adverse” depends on what it changes (pay, duties, opportunities, conditions), not simply on its label.
• McDonnell Douglas burden-shifting: A method for proving discrimination indirectly. The employee must first show basic elements (including an adverse action). Only then does the employer explain its reason, and the employee tries to show that reason is a pretext for discrimination.
• Constructive discharge: When an employee quits but the law treats it like a firing because working conditions were objectively so intolerable that a reasonable person would feel forced to resign.
• Waiver/forfeiture on appeal: Arguments not presented to the district court generally cannot be raised for the first time on appeal.

5. Conclusion

Walsh v. HNTB Corporation delivers two practical lessons. Procedurally, it confirms that a timely pro se motion to extend the appeal deadline can preserve appellate rights as the functional equivalent of a notice of appeal when it signals intent to appeal and supplies Rule 3’s essential information. Substantively, it clarifies that while Muldrow v. City of St. Louis lowers the “severity” bar for adverse actions, plaintiffs must still identify a real, negative change in the “terms [or] conditions” of employment; a PIP, without tangible consequences, is not automatically actionable. Finally, the opinion reiterates the First Circuit’s demanding objective standard for constructive discharge: workplace conflict, managerial harshness, or fear of future termination—without objectively intolerable conditions—will not convert a resignation into an adverse employment action.