Employment Law Daily First Circuit’s prior decision did not create ‘job duties exception’ to Maine whistleblower law
Monday, January 18, 2016

First Circuit’s prior decision did not create ‘job duties exception’ to Maine whistleblower law

By Brandi O. Brown, J.D. In a case involving the termination of a social worker who reported suspected abuse, the First Circuit clarified that an earlier decision—in which it found that an employee who merely relayed information as instructed by a supervisor was not entitled to whistleblower protection—did not carve a "job duties exception" out of Maine's Whistleblower Protection Act. Because the district court had relied on a misconception concerning the prior appellate decision, its order granting summary judgment for the employer in this case was vacated (Harrison v. Granite Bay Care, Inc., January 13, 2016, Thompson, O.). Failure to pay a client-worker. In the short months in which the licensed clinical social worker was a training director for the employer, which runs group homes and provides services for adults with disabilities, she developed concerns about the residents. She was a "mandated reporter" under state law because of her licensure and was required to immediately file a report with the state's health and human services department if she knew or had reasonable cause to believe that an adult was being abused, exploited, or neglected. Specifically, she learned that one of the clients, who also worked for the employer, was not getting paid in a timely manner. She told her supervisor, the operations director, to no avail. The client-worker continued to have trouble being paid. The employee followed up with her supervisor, reminding him that she was a mandated reporter and that this could constitute exploitation, and he still failed to respond. Report to DHHS. Shortly thereafter, she learned that clients in two of the employer’s group homes had their electricity shut off and that the windows of another resident were not alarmed as required by his behavior plan. She also learned that one of the offices was understaffed. After contacting social worker colleagues for advice, she went to the Department of Health and Human Services (DHHS). In fact, the employer's internal policies required mandated reporters to file reports with DHHS directly, except in certain circumstances. The next day, the employee told her boss what she had done and, shortly thereafter, she sent an email to one of the owners summarizing her report. Although the owner told the state director to meet with the employee, he did not. Instead, the employee was called into a meeting with her boss and the HR Director and admonished for reaching out directly to the owner. She was told that the issues she raised were "being addressed" and she was assured that there were no complaints about her work. Nevertheless, she claimed she was treated differently thereafter. Her boss ignored her and rolled his eyes at her. She also had more limited contact with the state director, who cancelled a meeting to discuss revising the training policy and, instead, did it without her. Moreover, her supervisor and the state director discussed her in a negative manner during regular meetings. Then, in December, her comments to other managers before a meeting were overheard by her supervisor. She was discussing his leadership style and although she was not the only one speaking and was not dominating the discussion, he contended that he heard her statements. Although she complained that his leadership style was "dictatorial," she did not phrase her comments in a negative way and did not say anything she had not already discussed with him. Although he warned another participant via text that he could hear the comments, he did not warn the employee in the same way. Termination, lawsuit. A few days later, the employee was fired. She was later told it was for "creating disharmony in the workplace" and the employer stated that it was a "the result of an emotional response to an impromptu instance of insubordination" on the date in question. The employee filed suit, alleging retaliation and claiming she was entitled to whistleblower protection for her report to DHHS, as well as her internal reports. Granting summary judgment, the district court found that the employee had not engaged in protected activity because of the job duties exception found in the First Circuit's decision in Winslow v. Aroostook County in 2013. The employee appealed. Winslow misunderstood. Vacating and remanding, the appeals court addressed a misconception over its decision in Winslow. In short, the problem in Winslow, the court explained, was the lack of evidence showing that the purported whistleblower in that case was actually "motivated by whistleblowing concerns." The plaintiff in that case was simply conveying information as she had been told to do by her supervisor and there was no evidence she desired to "expose an illegality." Winslow was not concerned with "some broad-based job duties exception" and never used such language, the court averred. No "job duties exception." In fact, the court explained, none of the cases it had cited in Winslow "espoused a judicially-created 'job duties exception'" and none of them supported the conclusion that "the nature of an employee's job duties, standing alone, may make that employee ineligible as a matter of law for whistleblower protection." Instead, those decisions made clear that the courts needed "to look at the unique facts of each case bearing on an employee's motivation in making a report that is later claimed to have constituted protected whistleblowing activity." None of the decisions, the court reiterated, relied on a “generally-applicable exception to whistleblower protection.” Motivation is key. Moreover, the court added, its fact-based determination and reasoning was in keeping with a more recent decision from Maine's state courts in Cormer v. Genesis Healthcare LLC. In that decision, Maine's Law Court "reaffirmed the importance of an employee's motivation in making a putatively-protected report." Thus, the First Circuit was "confident" in concluding that the crucial point in analyzing whether the plaintiff has engaged in a protected whistleblowing activity is the "employee's motivation in making a particular report or complaint." Thus, while the employee's job duties might be relevant they were not dispositive to that question. Remand. Here, because of its misunderstanding of Winslow's holding, the district court concluded that because of the employer's reporting requirements as a “mandated reporter,” she was not entitled to whistleblower protection and the court did not analyze the record evidence to understand the employee's motivation. However, because the existence of such a policy was not dispositive, the appeals court concluded that the case should be remanded for the district court to re-analyze the employee's claims.

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