Harrison v. Granite Bay Care, Inc.

United States Court of Appeals
For the First Circuit
No. 14-1988
TORREY HARRISON,
Plaintiff-Appellant,
v.
GRANITE BAY CARE, INC.,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, Senior U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Maria Fox, with whom Mittelasen, LLC was on brief, for
appellant.
Timothy J. O'Brien, with whom Tyler J. Smith and Libby O'Brien
Kingsley & Champion, LLC were on brief, for appellee.
Barbara Archer, Esq. on brief for Amicus Curiae Maine Human
Rights Commission.
Jeffrey Neil Young and Johnson, Webbert & Yound, LLP on brief
for Amici Curiae Maine State Employees Association and Maine
Employment Lawyers Association.
Jeffrey Neil Young, David G. Webbert, and Johnson, Webbert &
Young, LLP on brief for Amici Curiae Maine State Employees
Association, Maine Education Association, Maine Employment Lawyers
Association, and National Association of Social Workers and its
Maine Chapter.
January 13, 2016
THOMPSON, Circuit Judge. This case requires us to, once
again, interpret and apply Maine's Whistleblower Protection Act,
Me. Rev. Stat. tit. 26, § 833. Appellant Torrey Harrison
("Harrison"), a social worker, wants to be able to tell a jury
that appellee Granite Bay Care, Inc. ("Granite Bay") illegally
fired her in violation of that statute. Her theory is Granite Bay
was getting back at her for reporting what she considered to be
violations of state employment law to her supervisor and, later,
to Maine's Department of Health and Human Services ("DHHS"). She
found herself stymied when, relying on a supposed "job duties
exception" we carved out in Winslow v. Aroostook County, 736 F.3d
23 (1st Cir. 2013), the district court said that Harrison's reports
do not qualify for whistleblower protection.
Today, after clearing the decks of a jurisdictional
issue, we'll explain why Winslow doesn't hand Granite Bay an
automatic victory on the facts in this record.
JURISDICTION
We first address whether we have diversity jurisdiction.
See 28 U.S.C. § 1332(a)(1) (extending federal jurisdiction to civil
actions between "citizens of different states"); see also American
Fiber & Finishing, Inc. v. Tyco Healthcare Group, LP, 362 F.3d
136, 139 (1st Cir. 2004) ("Federal courts are expected to monitor
their jurisdictional boundaries vigilantly and to guard carefully
against expansion by distended judicial interpretation.").
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Harrison, a Maine citizen, filed her suit (which raises
state law claims only) in Maine Superior Court. Granite Bay
evidently preferred to be in federal court and, invoking federal
diversity jurisdiction, removed the action to the Maine district
court. In doing so, Granite Bay held itself out as a New Hampshire
corporation with a principal place of business in Concord, New
Hampshire. Neither Harrison nor the district court challenged the
jurisdictional claims.
"Even though the parties have assumed the existence of
appellate jurisdiction, we enjoy no comparable luxury." Espinal-
Dominguez v. Com. of P.R., 352 F.3d 490, 495 (1st Cir. 2003). Far
from it. "[W]e have an unflagging obligation to notice
jurisdictional defects and to pursue them on our own initiative."
Id. (citing cases); see also United States v. Horn, 29 F.3d 758,
768 (1st Cir. 1994) ("Parties cannot confer subject matter
jurisdiction on either a trial or an appellate court by indolence,
oversight, acquiescence, or consent.").
Our review of the record and our judicial notice of
Granite Bay's filings in another case in the Maine district court,
see Affo v. Granite Bay Care, Inc. et al., No. 11-cv-482, 2013 WL
2383627 (D. Me. 2013), raised a question as to whether Granite Bay
is a citizen of both New Hampshire and Maine. If it is, this would
make the parties non-diverse and render federal jurisdiction
phantasmal. We ordered the parties to brief the jurisdiction issue
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and provided an opportunity for them to submit evidence supporting
their position. Based on the additional briefing and our thorough
consideration of the issue, we are now satisfied that we have
jurisdiction. Certainly, nothing in the additional evidence
provided demonstrates a basis for any jurisdictional concern.1
1. Jurisdictional Facts
Granite Bay runs group homes and provides services for
adults who have cognitive or physical disabilities. Granite Bay
is a New Hampshire corporation, and it maintains its corporate
headquarters in Concord.2 Nevertheless, its group homes are all
in Maine and all of its clients are Maine residents. In addition
to its Concord headquarters, Granite Bay has an administrative
office in Portland, Maine.
1 Harrison does not contend that her whistleblower claim fails
to meet the $75,000 amount in controversy requirement. See 28
U.S.C. § 1332(a). Her complaint presents claims for compensatory
and punitive damages pursuant to Maine law, along with
"reinstatement, appropriate back pay, and reimbursement for lost
health, social security, and other benefits." Given that over
five years have elapsed since Harrison's December 2010
termination, we have no reason to believe this case does not clear
the amount in controversy threshold. See Coventry Sewage Assocs.
v. Dworkin Realty Co., 71 F.3d 1, 6 (1st Cir. 1995) (discussing
how, when a plaintiff's damages claim is made in good faith, the
amount in controversy requirement is satisfied unless "the face of
the complaint reveals, to a legal certainty, that the controversy
cannot involve the requisite amount").
2 When we talk about Concord, we mean the city in New
Hampshire, not the town in Massachusetts.
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Granite Bay is owned by two individuals, Kasai Mumpini
and Caroletta Alicea, both of whom work out of Concord. Since at
least 2009, Mumpini has served as the corporation's President,
with Alicea as its Vice President. Mumpini and Alicea are Granite
Bay's only two officers. And they're the only corporate directors,
to boot. Their role is to maintain a vision for where the company
is going, and to set overall corporate policies.
Granite Bay's day-to-day operations -- things like
providing care to its clients and hiring, training, and supervising
employees -- are handled out of the Portland office. An employee
with the title of State Director runs the show in Maine. Since
2009, there have been two State Directors, Gregory Robinson and
Ken Olson, and there are no significant differences between how
each one went about the job. Olson, the current State Director,
divides his work week between the offices in Portland and Concord.
Although he has "significant flexibility" in managing
Granite Bay, Olson nevertheless reports to Mumpini and Alicea.
Indeed, he communicates with them daily and meets with them in
person at least once per week. Olson keeps the owners updated as
to how Granite Bay is doing, and the owners direct him on the
overall strategy he should employ in working towards the company's
future goals. Furthermore, they give Olson "general financial
parameters" in which he may operate, and they give him different
objectives to accomplish.
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The previous State Director, Robinson, held that
position for about seven years before becoming Granite Bay's Chief
Operations Officer. He described C.O.O. as a "transition title,"
and after some time Granite Bay's owners told him they "were
eliminating the position." Following this, he began working for
a separate company, Granite Bay Connections, which was also owned
by Mumpini and Alicea and provided similar services as Granite Bay
did, but to adults in New Hampshire.
Although the parties have submitted additional facts,
including ones from the Affo case, these are enough for us to get
on with the jurisdictional inquiry.
2. Nerve Center Jurisdictional Test
No one doubts that Granite Bay is a citizen of New
Hampshire. After all, when it comes to questions of diversity
jurisdiction, "a corporation shall be deemed to be a citizen of
every State . . . by which it has been incorporated." 28 U.S.C.
§ 1332(c)(1). What we have to worry about is the location of its
principal place of business. See id. (providing that a corporation
is a citizen of the state where it has its principal place of
business). Is Granite Bay's in New Hampshire or Maine?
Some basics first. Because this case does not present
a federal question, the parties' diversity of citizenship is the
only hook for federal jurisdiction. See 28 U.S.C. § 1332(a). "For
federal jurisdictional purposes, diversity of citizenship must be
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determined as of the time of suit." Valentin v. Hospital Bella
Vista, 254 F.3d 358, 361 (1st Cir. 2001). Here, because Granite
Bay removed Harrison's state court case to federal court, we look
at the date of removal instead of the date on which the complaint
was filed.3 See Casas Office Machines, Inc. v. Mita Copystar
America, Inc., 42 F.3d 668, 673 (1st Cir. 1994).
Several years ago, the Supreme Court established beyond
any doubt that federal courts must employ the "nerve center" test
to determine the location of a corporation's principal place of
business. See Hertz Corp. v. Friend, 559 U.S. 77, 80-81 (2010).4
The test is straightforward. A corporation's "nerve center" (i.e.,
its principal place of business) is the particular location from
which its "officers direct, control, and coordinate the
corporation's activities." Id. at 92-93. Generally speaking,
this will "be the place where the corporation maintains its
headquarters -- provided that the headquarters is the actual center
3 Nevertheless, neither party claims that anything bearing on
our analysis has changed between the date of removal and today.
4 In doing so, the Court overruled our application of the
"locus of operations test," which we applied where "the bulk of [a
company's] physical operations [were] in one state," even though
"the corporation's executive offices [were] in another state."
Diaz-Rodriguez v. Pep Boys Corp., 410 F.3d 56, 61 (1st Cir. 2005).
Under that approach, we focused not on the location of a company's
administrative or executive operations, but on its day-to-day
operations. The Supreme Court explicitly rejected this approach
in Hertz. See Hertz Corp., 559 U.S. at 90-91 (describing our
inquiry as "focused more heavily on where a corporation's actual
business activities are located").
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of direction, control, and coordination . . . and not simply an
office where the corporation holds its board meetings (for example,
attended by directors and officers who have traveled there for the
occasion)." Id. at 93.
The party seeking to establish diversity jurisdiction
bears the burden of persuasion, and parties must support their
jurisdictional allegations with "competent proof." See id. at 96-
97 (citing McNutt v. General Motors Acceptance Corp., 289 U.S.
178, 189 (1936)). Although the Supreme Court did not go into depth
about the exact quantum of proof required to meet the burden of
persuasion, it made it clear that run-of-the-mill corporate
filings -- like a Form 10-K -- are not enough on their own to
satisfy it. Id. at 97.
The Hertz Court recognized that, "in this era of
telecommuting, some corporations may divide their command and
coordinating functions among officers who work at several
different locations, perhaps communicating over the Internet."
Id. at 95-96. But even when presented with such a situation, the
nerve center test "nonetheless points courts in a single direction,
towards the center of overall direction, control, and
coordination." Id. at 96. Federal courts must also be on the
lookout for attempts at "jurisdictional manipulation." Id. at 97.
Therefore, "if the record reveals attempts at manipulation -- for
example, that the alleged 'nerve center' is nothing more than a
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mail drop box, a bare office with a computer, or the location of
an annual executive retreat -- the courts should instead take as
the 'nerve center' the place of actual direction, control, and
coordination, in the absence of such manipulation." Id.The test may seem pretty simple, and it is. That's no
accident. "Complex jurisdictional tests complicate a case, eating
up time and money as the parties litigate, not the merits of their
claims, but which court is the right court to decide those claims."
Id. at 94. Complicated tests also engender appeals, "encourage
gamesmanship, and . . . diminish the likelihood that results and
settlements will reflect a claim's legal and factual merits," not
to mention demand the expenditure of judicial resources. Id.Accordingly, the test described by the Supreme Court is intended
to be "relatively easier to apply" than others that could be
imagined.5 Id. at 96.
At its heart, the nerve center test is an inquiry to
find the one location from which a corporation is ultimately
controlled. Put slightly differently, the federal court is to
look for the place where the buck stops. And where it does, well,
that's the corporation's nerve center and principal place of
business.
5 Like Diaz-Rodriguez's locus of operations test, under which
we think the jurisdictional question would have been
extraordinarily close on the facts in this record.
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3. Analysis
Each party has had a full and fair opportunity to submit
evidence and arguments about the jurisdictional issue. Neither
has asked us to send the case back to the district court for
jurisdictional discovery or an evidentiary hearing. We think the
facts in the record are sufficient for us to determine, without
remanding for an evidentiary hearing, that jurisdiction is proper.
See Valentin, 254 F.3d at 364 (noting the "key considerations" in
resolving a jurisdictional dispute on the papers are "whether the
parties have had a full and fair opportunity to present relevant
facts and arguments, and whether either party seasonably requested
an evidentiary hearing"). The competent evidence points towards
Concord as Granite Bay's principal place of business.
Harrison does not contest (or seek to develop additional
evidence to contest) that Granite Bay's owners, although they may
be hands-off when it comes to day-to-day decisions, exercise
"ultimate" control over Granite Bay, and that they do so from
Concord. Granite Bay has supported this assertion through
affidavits and sworn deposition testimony showing that the owners
set overall corporate policy and goals, plus advised and gave
instructions to the State Director as to how to make the owners'
vision a reality.
Moreover, the uncontested evidence shows that the owners
make the call as to just who exactly will be placed in what upper
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management position. For example, they moved Robinson from State
Director in Maine to Chief Operating Officer, then eliminated that
position and transitioned him to a different one. This is a
concrete example of the owners' actual exercise of control over
Granite Bay. And all of the evidence indicates this ultimate
control is wielded from Granite Bay's Concord headquarters.
In sum, the competent evidence in the record establishes
that Granite Bay's principal place of business is in Concord, not
Portland. Accordingly, the parties are diverse, we have
jurisdiction, and we may proceed to the merits.6
FACTS
This is where Harrison finally enters the scene. We
recite contested facts in the light most favorable to Harrison,
the non-moving party at summary judgment. Ponte v. Steelcase Inc.,
741 F.3d 310, 313 (1st Cir. 2014).
Harrison, a Licensed Clinical Social Worker ("LCSW"),
worked for Granite Bay from March through December of 2010. During
her time there, Harrison served as Granite Bay's Training Director,
a position which placed her into the senior management team. She
reported to the Operations Director, Ken Olson who, in turn,
reported to State Director Greg Robinson.
6 That our Hertz analysis is much more straightforward than
it would have been under Diaz-Rodriguez's overruled "locus test"
is, we think, an indication that we are applying the Supreme
Court's test in the way it intended.
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As Training Director, Harrison was responsible for
managing Granite Bay's training department and conducting training
sessions for employees. She performed her job duties "very well"
and was an "excellent" trainer for Granite Bay.
Harrison, like other LCSWs, is a "mandated reporter"
under Maine law. A mandated reporter is (as particularly relevant
to this case) someone who, by virtue of her profession, is in
contact with "incapacitated or dependent adult[s]." Me. Rev. Stat.
tit. 22, § 3477(1). A mandated reporter like Harrison is required
to immediately file a report with Maine's DHHS if she "knows or
has reasonable cause to suspect" that a dependent adult "has been
or is likely to be abused, neglected or exploited." Id.
In May of 2010, something going on at Granite Bay rubbed
Harrison the wrong way. She discovered that one of Granite Bay's
clients (a "dependent adult" under Maine law) who did office and
maintenance work for Granite Bay wasn't getting paid on time for
his services. Harrison expressed concern to her supervisor, Olson.
But speaking with Olson did not have the desired effect.
Granite Bay's client-worker continued to not be paid on time, so
Harrison initiated a follow-up conversation with Olson in August.
This time Harrison also told him that not paying this gentleman
for his work fell under the rubric of exploitation of a dependent
adult. She reminded Olson that she is a mandated reporter and
told him that she did not want to have to report what had been
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going on to DHHS. Olson never responded to Harrison's concerns,
and the worker in question was not paid in full for his work over
a period of approximately three months.
In mid-September 2010, Harrison learned that clients
living in two of Granite Bay's group homes had had their
electricity shut off. This happened, she believed, because Granite
Bay failed to pay the electric bills. Harrison then discovered
that another resident -- whose behavior plan required alarmed
windows to notify staff if he left the home that way -- was at
risk because faulty windows made it impossible to install alarms.
She also learned that the Portland office was understaffed. As it
turned out, an office that called for five employees (four Program
Managers and one Area Director) was being run with only two.
Troubled by what she'd learned, Harrison contacted two
of her LCSW colleagues to sound them out on whether she had to
report any or all of these issues to DHHS. Each one advised
Harrison that, yes, she should report her concerns. We also note
here that one of Granite Bay's internal policies specifically
provided that mandated reporters such as Harrison should file a
report with DHHS directly, without going to their own supervisor
first, unless it was an "emergency crisis."
So it was that, on September 16, 2010, after apparently
concluding that further complaints to Granite Bay would be no more
effective than herding cats, Harrison went to DHHS with her
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suspicions of neglect and exploitation. She informed DHHS about
Granite Bay's failure to pay its client-worker, the electricity
shutoffs at group homes, the lack of required window alarms for
one client, and understaffing in the Portland office. Granite Bay
admits that it did not pay its client-worker in full until after
Harrison's report to DHHS.
When she went into work the next day, Harrison told Olson
what she'd done. Shortly after that, she emailed a summary of her
report to one of the owners, Mumpini. In the email, Harrison
expressed a fear that Robinson (the State Director) wouldn't deal
with what Harrison thought were "systemic issues," and would
instead resort (as she'd seen happen before) to intimidating people
and issuing "corrective actions" to his underlings. Mumpini
instructed Robinson to meet with Harrison to discuss her DHHS
report, but he never did. What did happen was that Olson called
Harrison into a meeting (Granite Bay's Human Resources Director
was there, too) and admonished her for failing to follow the "chain
of command" by sending a summary of the DHHS report to Mumpini
rather than Olson, who she reported to. During that meeting, Olson
told her the issues raised in her report were "being addressed"
and that he had no other complaints about her job performance.
Despite Olson's assurances about her good job
performance, Harrison felt she was treated differently by her
bosses after her DHHS report. Olson ignored her, wouldn't make
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eye contact, rolled his eyes when he heard her name mentioned,
marginalized her, and became less responsive to emails. On one
occasion, Harrison was in a colleague's office, having a
conversation with her. Olson came in, sat down across from
Harrison without looking at her, and began chatting with Harrison's
colleague. When Harrison said "hello" to him, Olson got up and
walked out of the office. Harrison described this as an example
of the "marked change" in their relationship after she filed her
DHHS report.
And Harrison had little contact with Robinson after her
report. Indeed, Robinson cancelled a meeting with her that had
been scheduled for the end of September, where they were supposed
to talk about revising the training policy. Robinson did not
reschedule the meeting, opting instead to revise the training
policy without any input from Harrison. Furthermore, Olson and
Robinson met regularly and discussed Harrison in a negative
manner.7
Things continued, apparently in a similar vein, until
December 2, 2010, when Harrison attended a meeting of Granite Bay's
senior managers. The meeting was physically held in the Portland
office, but it involved personnel from Concord, who participated
7 Other Granite Bay managers, however, found Harrison to be
very professional, good to work with, and helpful at solving
problems.
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via video teleconference. Before the meeting began, Harrison and
several other employees from the Portland office were chatting,
apparently unaware the video and audio feeds were up and running
in Concord. When Robinson went into the conference room in
Concord, he could hear Harrison talking to the other employees in
Portland.
Harrison, it turned out, was talking about Robinson and
the way he'd been running Granite Bay. Robinson heard her tell
the others that he had a "dictatorial" leadership style, that he
was an obstruction that needed to be removed, and that Granite Bay
could perhaps move to a "consensus building" model (as opposed to
having just one person developing policy) if Robinson were out of
the picture. Although Harrison is the one that Robinson says he
heard, she was not dominating the meeting, leading the discussion
or speaking more than the others. Indeed, during the back and
forth, she shared her feeling that training had been impacted by
a lack of support from upper management towards teamwork
development, answered a question from another manager about
training recertification, and commented that prior to working for
Granite Bay, she'd had experience in other organizations in which
more than one person formulated policies. She didn't phrase her
comments in a negative manner, and none of the substance should
have been new to Robinson either, as she had already discussed
these issues with him and Olson.
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Furthermore, at some point during this discussion,
Robinson texted words to the effect of "I hear you" to one of the
participants. He did not, however, text Harrison to warn her that
he could hear what was being said.
Just days later, December 6, Olson (and the HR Director)
again met with Harrison. By the end of this meeting, she found
herself out of a job. Harrison asked why she was being terminated,
and in response the HR Director told her that Granite Bay did not
have to give her a reason. She was, however, given a letter
stating she was fired for "creating disharmony in the workplace."
In its appeal brief, Granite Bay put it this way: "Harrison's
discharge was the result of an emotional response to an impromptu
instance of insubordination" on December 2.
Aggrieved by her termination, Harrison filed suit. She
alleged Granite Bay illegally retaliated against her, with the
payback culminating in her December 6 sacking, as a result of
having filed those exploitation reports with DHHS in September.
Harrison claimed she was entitled to whistleblower protection for
the DHHS report, as well as the initial reports she made to Olson
before she went to DHHS.
Granite Bay said, however, that because its internal
policies require LCSWs like Harrison to make DHHS reports and
because Maine law itself requires mandated reporters like her to
report suspected exploitation, making such reports to DHHS was,
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simply put, part of her job. Granite Bay pointed to Winslow's
"job duties exception" and argued that, as a matter of law,
Harrison falls squarely within that exception. And so, it
concluded, Harrison does not qualify for protection under the
Whistleblower Act, making Granite Bay's motive for firing her
irrelevant.
Granite Bay's motion for summary judgment on those
grounds was referred to a magistrate judge. Agreeing with Granite
Bay's take on Winslow, the magistrate judge concluded that none of
her reports constituted "protected activity" within the meaning of
the Whistleblower Protection Act. The district judge reviewed the
magistrate's decision de novo and came to the same conclusion.
Accordingly, the district judge allowed Granite Bay's motion for
summary judgment on the grounds that she had not, thanks to
Winslow's job duties exception, engaged in protected
whistleblowing activity.8 This timely appeal followed.
8 Along the way, Harrison moved to certify questions of state
law to the Maine Supreme Judicial Court sitting as the Law Court.
The district judge denied this motion, observing that, "[i]f the
Winslow language potentially misconstrues the Maine statute such
that the issue should be certified to the Maine Law Court, that
. . . is a decision for the First Circuit." On appeal, Harrison
renews her request for certification. We gratefully acknowledge
the amicus brief filed by the Maine State Employees Association
and Maine Employment Lawyers Association, along with the separate
brief filed by the Maine State Employees Association, Maine
Education Association, Maine Employment Lawyers Association, and
National Association Of Social Workers And Its Maine Chapter [sic],
both of which addressed the certification question. Ultimately,
however, we do not find certification necessary.
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STANDARD OF REVIEW
We review "the district court's grant of summary
judgment . . . de novo, and we draw all reasonable inferences in
favor of the nonmoving party." Ponte, 741 F.3d at 319. Here, of
course, the party getting the benefit of reasonable inferences is
Harrison. We affirm only "if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(a).
ANALYSIS9
Because this is a diversity case, the substantive law of
Maine controls. The relevant provisions of Maine's Whistleblower
Protection Act10 provide the following:
Discrimination against certain employees
prohibited
1. DISCRIMINATION PROHIBITED. No employer may
discharge, threaten or otherwise discriminate
against an employee regarding the employee's
compensation, terms, conditions, location or
privileges of employment because:
A. The employee, acting in good faith, or a
person acting on behalf of the employee,
reports orally or in writing to the employer
or a public body what the employee has
reasonable cause to believe is a violation of
a law or rule adopted under the laws of this
9 We acknowledge and thank Amicus Curiae Maine Human Rights
Commission for its cogent and informative amicus brief.
10We'll refer to the statute as either the Whistleblower Act
or sometimes as just the Act.
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State, a political subdivision of this State
or the United States;11
. . .
2. INITIAL REPORT TO EMPLOYER REQUIRED;
EXCEPTION.
Subsection 1 does not apply to an employee who
has reported or caused to be reported a
violation, or unsafe condition or practice to
a public body, unless the employee has first
brought the alleged violation, condition or
practice to the attention of a person having
supervisory authority with the employer and
has allowed the employer a reasonable
opportunity to correct that violation,
condition or practice.
Prior notice to an employer is not required if
the employee has specific reason to believe
that reports to the employer will not result
in promptly correcting the violation,
condition or practice.
3. REPORTS OF SUSPECTED ABUSE.
An employee required to report suspected
abuse, neglect or exploitation under Title 22,
section 3477 or 4011-A, shall follow the
requirements of those sections under those
circumstances. No employer may discharge,
threaten or otherwise discriminate against an
employee regarding the employee's
compensation, terms, conditions, location or
privileges of employment because the employee
followed the requirements of those sections.
Me. Rev. Stat. tit. 26, § 833. The parties do not dispute that
Harrison, as a mandated reporter, is "[a]n employee required to
report suspected abuse, neglect or exploitation" within the
11 This section goes on to list four other protected
activities, none of which is alleged to be relevant here.
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meaning of § 833(3). See generally Me. Rev. Stat. tit. 22, § 3477
(requiring social workers to report suspected exploitation of
incapacitated or dependent adults to DHHS).
Maine's Law Court has explained the three elements of a
successful Whistleblower Act claim: a plaintiff must show that
(1) she engaged in activity protected by the statute; (2) she
suffered an adverse employment action; and (3) there was a causal
link between the protected activity and the adverse employment
action. Costain v. Sunbury Primary Care, P.A., 954 A.2d 1051,
1053 (Me. 2008). Further, "Maine law provides a private right of
action for a violation of the [Act],"12 Murray v. Kindred Nursing
Centers West LLC, 789 F.3d 20, 25 (1st Cir. 2015) (citing Me. Rev.
Stat. tit. 5, §§ 4572(1)(A), 4621; Costain, 954 A.2d at 1053 &
n.2), so Harrison has standing.
The parties' flagship arguments are derived not from the
language of the Act itself, but from their interpretations of
Winslow's effect on the first prong of a Whistleblower Act claim,
which requires a showing that the employee engaged in protected
12Technically, the Whistleblower Act does not actually grant
an employee a cause of action. It is the Maine Human Rights Act
that "provides a right of action to persons who have been subject
to unlawful discrimination, including whistleblowers who have
suffered retaliatory discharge or other adverse employment
actions." Costain, 954 A.2d at 1053. Though the Human Rights Act
is the source of an employee's "right of action," id., "the
requirements that must be met for an action to be afforded
protection stem from the [Whistleblower Act]," id. at 1053 n.2.
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activity. In fact, the parties have framed this appeal even more
narrowly as presenting the question whether Winslow, when applied
here, entitles Granite Bay to judgment as a matter of law. So we
focus our attention on this specific question.
Granite Bay believes Winslow -- which did not involve a
whistleblower claim made by a mandated reporter like Harrison --
stands for the proposition that the Whistleblower Act provides no
protection for an employee whose official job description and
responsibilities include reporting illegalities (or suspected
illegalities) internally or to the government. Granite Bay directs
our attention to its internal policies requiring all employees to
report suspected exploitation of dependent adults. From this,
Granite Bay concludes that Harrison's reports were nothing more
than "part and parcel" of her job responsibilities notwithstanding
any statutory reporting mandate applicable to her, and so she can't
get Whistleblower Act protection based on Winslow's carve-out.
Harrison, too, assumes Winslow recognized a job duties
exception, but she says the exception doesn't apply to mandated
reporters. In her view, this is because the Whistleblower Act's
§ 833(3) expressly provides specifically-tailored protections for
mandated reporters like herself13 and, as importantly, the Act's
13 Section 833(3) applies to employees "required to report
suspected abuse, neglect or exploitation under Title 22, section
3477 or 4011-A," and states that "[n]o employer may discharge,
threaten or otherwise discriminate against an employee regarding
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plain language does not include a job duties exception. According
to Harrison, the Maine Law Court implicitly held as much in the
case of Blake v. State, 868 A.2d 234 (Me. 2005).14 Thus, in her
view, reading a job duties exception into the statute would render
meaningless the very protections explicitly written in by the Maine
Legislature and acknowledged by Maine's highest court.
As a fallback, Harrison says that even if Winslow's job
duties exception applies to mandated reporters, it is not a blanket
exception that an employer can lean on anytime it feels like it by
creating internal policies generally requiring its employees to
come forward to report a potential illegality. Per Harrison, even
under the broadest reading of Winslow, the job duties exception
applies only to "employees whose regular job responsibilities
include reporting the specific wrongdoing in question and/or whose
supervisors directed them to make the report." Appellant Br. at
the employee's compensation, terms, conditions, location or
privileges of employment because the employee followed the
requirements of those sections." Me. Rev. Stat. tit. 26, § 833(3).
One of the two referenced statutes requires a social worker like
Harrison to report to DHHS (under certain circumstances) when she
"knows or has reasonable cause to suspect that an incapacitated or
dependent adult has been or is likely to be abused, neglected or
exploited." See id. tit. 22, § 3477(1). Granite Bay does not
dispute that Harrison is required to report suspected abuse,
neglect, or exploitation pursuant to § 3477.
14 The logical conclusion of this argument, although not
stated as such in Harrison's brief, is that Blake trumps Winslow
to the extent there is any conflict between them.
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18. Because no one told her to report to Olson or to DHHS, and
because her "detailed job description does not include filing DHHS
reports [on] any of the substantive issues she reported to DHHS,"
id. at 20, the job duties exception does not bar her claim.15
Harrison and Granite Bay clearly have different
conceptions of what we held in Winslow. And neither they nor the
district judge are the only ones in Maine to have read Winslow as
enshrining a job duties exception to the Act. See, e.g., Pippin
v. Boulevard Motel Corp., No. 14-cv-00167, 2015 WL 4647919 (D. Me.
2015). Yet, we never so much as uttered the phrase "job duties
exception" in Winslow, and Granite Bay's arguments in particular
are based on a distorted understanding of that case. Accordingly,
we must dive back into Winslow to clarify what it does and does
not stand for.
Our opinion in Winslow set forth its facts in pretty
exacting detail, so we will repeat only those needed for our
analysis. Winslow v. Aroostook County, 736 F.3d 23 (1st Cir.
15
Harrison's arguments rely exclusively on her reports (both
internal and external) regarding the potential employment law
violation, namely, Granite Bay's failure to pay its client-worker
on time. She has opted to forgo any argument that her reports
about the electricity shutoffs, missing window alarms, or
understaffing in Portland count, too, so we deem waived any
potential argument along those lines. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived."). Thus, we focus solely on the
wage issue.
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2013), involved the Executive Director of Aroostook County's Local
Area I Workforce Investment Board, a state-created entity that
received and administered certain federal funds. 736 F.3d at 24-
25. The Board had been set up in such a way that Winslow reported
directly to the County instead of the Board itself. Id. at 25.
Government regulators discovered this when they performed a
compliance review and concluded the arrangement violated federal
regulations: Winslow should have been reporting to the Board, not
the County. Id.
The key facts for our purposes are that the government,
not Winslow herself, uncovered the potential violation of federal
policies, and the government brought this to the attention of
Winslow and her supervisor. See id. Winslow's own supervisor
took steps to notify the relevant decisionmakers in the County and
with the Board. Id. He instructed Winslow to disseminate her
notes of the very meeting at which the government advised them of
the reporting snafu. Id. This was followed up with a public
meeting at which the issue was discussed, and the meeting minutes
were posted on the internet soon afterwards. Id. at 26.
In her suit, Winslow identified two communications she
thought qualified for Whistleblower Act protection. The first was
that email to Board members attaching her notes from the meeting
with federal regulators at which they disclosed the problem. See
id. at 25-26. The second was another email she sent to Board
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members a couple weeks after the public meeting in which she
expressed her thoughts about the situation. Id. In her suit, she
alleged she was a whistleblower because the Board would not have
known of the potential violation but for these two emails. Id. at
32.
We soundly rejected this argument based on the facts in
the record. After all, the evidence showed that Winslow sent her
first email not because she wanted to expose an illegality, but
because her supervisor (who, don't forget, was aware of it as well)
told her to. And she sent this first email to exactly the people
she had been instructed to loop in on the situation. Thus, because
the only evidence was that Winslow was doing what she was told,
there was nothing from which a finder of fact could infer she
personally intended to blow the whistle or expose an illegality by
sending this particular email.
By the time she sent the second email, the problem had
been discussed in a public forum and the minutes of the meeting
had been posted online for all the world to see. Indeed, "the
undisputed facts" made it clear that Winslow's supervisor, along
with the County itself and others involved with the Investment
Board, "were not trying to bury the problem of the violation"
discovered and reported to them by the feds, "but to acknowledge
it and deal with it." Id. at 32. Therefore, Winslow's second
email, addressed as it was to individuals who were already (or who
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easily could have become) aware of the problem, was clearly not
intended to expose a potential illegality. Rather, Winslow's
intent was to make sure her voice was heard and her opinion
considered.
In sum, the lack of evidence in the record showing that
Winslow was motivated by whistleblowing concerns, and not some
broad-based job duties exception, is why we concluded no reasonable
jury could find that she had engaged in protected whistleblowing
activity.
Moreover, none of the cases we relied on in Winslow to
buttress our reasoning espoused a judicially-created "job duties
exception" to a whistleblower protection statute. Nor do any of
those cases support concluding that the nature of an employee's
job duties, standing alone, may make that employee ineligible as
a matter of law for whistleblower protection. We'll explain.
Winslow cited the district court's decision in Capalbo
v. Kris-Way Truck Leasing, Inc., 821 F. Supp. 2d 397, 419 (D. Me.
2011), for the proposition that "the usual rule in Maine is that
a plaintiff's reports are not whistleblowing if it is part of his
or her job responsibilities to make such reports, particularly
when instructed to do so by a superior." Winslow, 736 F.3d at 32.
Describing this as the "usual rule," however, is far from holding
that an employee is, as a matter of law, wholly ineligible for
- 28 -
statutory whistleblower protection whenever her employer
implements its own reporting requirements.
And Capalbo did not suggest that this should be so. In
Capalbo, the district court reviewed the record evidence and
concluded that "[n]o reasonable trier of fact could conclude that
the reports . . . which [the employer] required of [the plaintiff],
constituted conduct in opposition to an unlawful employment
practice of [the employer]." Capalbo, 821 F. Supp. 2d at 419. We
find the "in opposition to" concept and phraseology helpful in
this arena because an employee who passes on information as nothing
more than a required step of carrying out his or her job duties
intends to do her job, not blow the whistle on a potential or
actual illegality. Capalbo's review and analysis of the record
evidence before it simply underscores the need 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. It did not purport to recognize a broad
job duties exception to the Act's protections. Thus, Winslow's
citation to Capalbo cannot be construed as an endorsement of the
job duties exception espoused by Granite Bay.
Furthermore, Winslow looked to several non-Maine cases
as persuasive authority, but the reasoning in those cases does not
support the creation of a job duties exception. We'll go through
them one by one to explain why not.
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Winslow first pointed to the Minnesota Supreme Court's
opinion in Kidwell v. Sybaritic, Inc., 784 N.W.2d 220 (Minn. 2010),
as standing for the proposition that, "when a company's in-house
counsel advises the company on compliance issues, 'the lawyer is
not sending a report for the purpose of exposing an illegality and
the lawyer is not blowing the whistle.'" Winslow, 736 F.3d at 32
(quoting Kidwell, 784 N.W.2d at 231). The Minnesota court relied
on the facts that the alleged whistleblowing consisted of an email
that in-house counsel sent to members of management, and that he
"had previously discussed legal matters" with each of these people.
Kidwell, 784 N.W.2d at 230-31. Therefore, "no inference can be
drawn that his purpose was other than to do his job" of advising
his client. Id. at 231. The court was quick to point out that
the plaintiff "presented no evidence that he sent the email to law
enforcement or to the government," id., an observation which raises
the possibility that a report along those lines (i.e., an external
report) could have constituted protected whistleblowing activity.
Moreover, the Kidwell court made it clear that its
conclusion was dictated by the facts in the record rather than a
general exception to whistleblower protection. It began its
analysis by "reject[ing] as too broad the . . . conclusion that,
as a matter of law, an employee does not engage in protected
conduct under the [Minnesota] whistleblower act if the employee
makes a report in fulfillment of the duties of his or her job."
- 30 -
Id. at 226-27 (internal quotation marks omitted). The court also
stated in no uncertain terms that, while the nature of an
employee's job duties may have some bearing on whether she had
engaged in protected conduct, "the whistleblower statute does not
contain a job duties exception." Id. at 227 (emphasis added).
Obviously then, when we cited Kidwell we did not thereby
graft onto Maine's Whistleblower Act a job duties exception
squarely rejected by that case. Nor could we have relied on its
reasoning to craft a job duties exception of our own making.
Winslow next looked at a case out of the Federal Circuit
interpreting the federal whistleblower protection act. We
described the case as holding that a plaintiff whose job was to
monitor and report on farms' compliance with federal law "did no
more than carry out his required everyday job responsibilities"
when he reported some farms as being out of compliance with
governmental conservation plans. Winslow, 736 F.3d at 32 (quoting
Willis v. Dep't of Agric., 141 F.3d 1139, 1144 (Fed. Cir. 1998)).
In that case, the Federal Circuit recognized that the federal
whistleblower protection act "is intended to protect government
employees who risk their own personal job security for the
advancement of the public good by disclosing abuses by government
personnel." Willis, 141 F.3d at 1144. The plaintiff's job as a
District Conservationist with the United States Department of
Agriculture required him "to review the conservation compliance of
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farms within his area." Id. The plaintiff inspected 77 farms,
found that 16 of them were not in compliance with the USDA's
conservation plans, and then tried to assert a whistleblower claim
based upon his announcement of the non-compliance findings.
The court was unimpressed with the plaintiff's
whistleblower claim and observed that, "[i]n reporting some of
[the farms] as being out of compliance, he did no more than carry
out his required everyday job responsibilities." Id. at 1144.
Thus, "in no way did [his report] place [the plaintiff] at personal
risk for the benefit of the public good and cannot itself
constitute a protected disclosure under the [whistleblower
protection act]." Id. In other words, the facts there would not
have allowed the jury to find that the plaintiff was motivated by
any desire to blow the proverbial whistle.
Finally, we cited our own opinion in Claudio-Gotay v.
Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102-03 (1st Cir. 2004),
a case interpreting the Federal Fair Labor Standards Act ("FLSA")
and involving reports of alleged overtime violations, to say that
"an employee who reports violations of laws or other requirements
as part of his job is not engaging in protected activity for the
purposes of an anti-retaliation provision." Winslow, 736 F.3d at
32. But in Claudio-Gotay, the plaintiff's job duties "included
approving invoices documenting the [employees'] hours worked and
their corresponding pay," and when he reported potential
- 32 -
violations of the FLSA, he made them to his employer and "in
furtherance of his job responsibilities." 375 F.3d at 102. The
evidence in that case showed that he "was concerned with protecting
[his employer], not asserting rights adverse to" it. Id.Accordingly, we concluded that he did not engage in protected
activity under the FLSA. Id. at 103.
Importantly, none of these three cases relied on a
generally-applicable exception to whistleblower protection.
Kidwell expressly repudiated even the notion of such an exception.
Instead, in each of these cases the court looked at the actual
evidence speaking to an employee's motivation in making each report
at issue. Each report was made internally, not to a governmental
agency with oversight authority. The common refrain is that each
plaintiff couldn't get whistleblower protection because he or she
failed to present evidence that a report was made to shed light on
and "in opposition to" an employer's potential illegal acts rather
than as simply part of his or her everyday job duties.
So, having gone through our Winslow opinion and the cases
on which we relied there, we can see that under Winslow -- properly
understood -- the employee's motivation in making a report is
critical. This reading of Winslow is in accordance with Maine
law, as Maine's Law Court recently reaffirmed the importance of an
employee's motivation in making a putatively-protected report. In
Cormier v. Genesis Healthcare LLC, No. CUM-14-216, 2015 WL 8730694- 33 -
(Me. Dec. 15, 2015), the court had the opportunity to discuss
Section 833(1)(B) of the Act, which provides protection to a
whistleblower who, "acting in good faith" reports "what the
employee has reasonable cause to believe is a condition or practice
that would put at risk the health or safety of any other
individual."16 See id. at *3. Maine's highest court explained
that "[a] complaint is made in good faith if the employee's
motivation is to stop a dangerous condition." Id. (emphasis
added). We are, therefore, confident in our conclusion that the
critical point when analyzing whether a plaintiff has made out the
first element of a Whistleblower Act claim -- engaging in activity
protected by the Act -- is an employee's motivation in making a
particular report or complaint.
Thus, and although a particular employee's job duties
may be relevant in discerning his or her actual motivation in
reporting information, those duties are not dispositive of the
question. In other words, if an employee is just doing his or her
job by passing information to others in the organization, he or
she may not have intended to engage in protected whistleblowing
activity by bringing to light an unlawful (or potentially unlawful)
activity or occurrence. This interpretation is, we believe,
16
We note that this "good faith" requirement (which appears
throughout Section 1 of the Act) is the only conceivable textual
hook for a possible "job duties exception."
- 34 -
consistent not only with Cormier, but also with the policy goals
underlying Maine's enactment of the Whistleblower Act. After all,
and as we recognized in Winslow, the Act "embodies Maine's larger
'statutory public policy against discharge in retaliation for
reporting illegal acts, a right to the discharged employee, and a
remedial scheme to vindicate that right.'" Winslow, 736 F.3d at
30 (quoting Fuhrmann v. Staples Office Superstore E., Inc., 58
A.3d 1083, 1097 (Me. 2012)) (further citations omitted).
Indeed, we noted in Winslow that the plaintiff's emails
were sent "either under direct instructions from" her supervisor
(i.e., the first one) or "because she thought it was among her
responsibilities to do so" (i.e., the second one letting everyone
know what she thought about the situation). See 736 F.3d at 32.
With respect to the first email, Winslow did not go out on a limb
and risk her job by complying with her supervisor's instructions,
see Willis, 141 F.3d at 1143 (observing that the federal
whistleblower act "is designed to protect employees who risk their
own personal job security for the benefit of the public"), and
there was no evidence to conclude that either email constituted
conduct "in opposition to" an unlawful employment practice, see
Capalbo, 821 F. Supp. 2d at 419. At bottom, we upheld summary
judgment in Winslow not because of a job duties exception, but
because Winslow failed to come forward with evidence from which a
- 35 -
reasonable jury could conclude that she had intended to engage in
any protected whistleblower conduct.
Now, getting back to Harrison's claim, it is apparent
that the district court (working, of course, without the benefit
of the Maine Law Court's Cormier opinion) simply misunderstood,
perhaps understandably so, what we actually held in Winslow.
Proceeding from its view that Winslow turned on the nature of the
plaintiff's job duties, the district court concluded that Harrison
is not entitled to whistleblower protection thanks to the
uncontested evidence that Granite Bay's reporting policies are
applicable to all employees. As such, the judge did not find it
necessary to analyze the record evidence bearing on Harrison's
motivation in making her internal and DHHS reports. But the
existence of such a general reporting policy, though perhaps
relevant, is not dispositive on the question of whether a plaintiff
has engaged in protected whistleblowing activity. The district
judge's erroneous shortcutting of the analysis requires us to
remand for the district court to re-analyze Harrison's claims with
the aid of today's clarification of Winslow.17
17Our explanation of Winslow renders it unnecessary for us
to consider Granite Bay's or Harrison's other arguments premised
on the existence of a job duties exception. Specifically, we have
no need to determine under which specific section of the
Act -- Section 1 or Section 3 -- Harrison's claims fall, or whether
some reports are governed by Section 1 and others by Section 3.
Because these questions are beyond the scope of what we decide
today, we do not address whether or how our reasoning in Winslow,
- 36 -
Before concluding, we note that Granite Bay also relies
on the long-standing principle that we may affirm a result on any
grounds supported by the record. In doing so, it argues that
Harrison's claim nevertheless fails for lack of evidence on the
third prong. That is, Granite Bay says Harrison has not come
forward with evidence that would allow a reasonable jury to find
a causal connection between any protected whistleblowing activity
and her termination.
Harrison disagrees. She argues that the relatively
short time that elapsed between her reports and her termination
goes towards showing that she was fired because of her protected
activity. She also tells us the evidence shows that her concerns
were ignored; that she experienced shoddy treatment from Olson and
Robinson following her DHHS report; that when Robinson finally did
sit down with her, it was not to discuss the substance of her
concerns (as Mumpini had instructed him to do) but to admonish her
for emailing Mumpini to let him know of her report; and that she
was singled out for termination after the December meeting, even
though she was just one of multiple people participating in the
conversation and despite Granite Bay having told her that she was
doing good work. Harrison believes these facts, when viewed
which was confined to Section 1 claims, see 736 F.3d at 30, may
bear on the analysis of a mandated reporter's claim for
whistleblower protection under the Act's Section 3.
- 37 -
together, would allow a jury to conclude that Granite Bay
terminated her as payback for her protected activity in violation
of the Act.
We do not reach these arguments in light of our
conclusion that the district court committed an error of law with
respect to its analysis of the first prong of Harrison's claim.
Because this error requires a "re-do" on the first prong, it makes
no sense for us to skip ahead and talk about the third. And we
decline to do so.
CONCLUSION
For the foregoing reasons, the district court's grant of
summary judgement is vacated and this matter is remanded for
further proceedings consistent with this opinion. Costs are
awarded to appellant.
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