First Circuit Finds No Whistleblowing Where Employee's Report was Part of the Job

Wednesday, January 8, 2014

Here’s a zen koan for today:  “What is the sound of a whistleblower whose job it is to blow the whistle?”  According to the First Circuit U.S. Court of Appeals, which recently meditated on this question, the sound is kind of like one hand clapping.  In Winslow v. Aroostook County, the Court explained that an employee’s report is not whistleblowing if making the report is part of his or her job duties.

The plaintiff in this case, Winslow, was the executive director of a federally-funded state workforce investment board (WIB).  Aroostook County was the grant sub-recipient for the WIB and acted as the fiscal agent for the grant.  As fiscal agent, the County hired Winslow and paid her salary, and Winslow reported to the County.  However, there was no explicit fiscal agent agreement between the WIB and the County.

In November 2009, federal monitors from the Department of Labor undertook a compliance review of its grants in Maine, including the WIB, and determined that it was improper for Winslow to report to the County rather than to the WIB in the absence of an express agreement.  Winslow participated in the compliance review and was directed by her supervisor at the County to prepare a report on the federal monitors’ findings.  Winslow prepared the report and then, at the direction of her supervisor, sent it to members of the WIB.  As a result of the compliance review, the WIB entered into an agreement with a new fiscal agent.  The County then terminated Winslow’s employment, as the County was no longer involved in the administration of the grant.  Although Winslow applied for the position of executive director with the new fiscal agent, she did not get the job.

Winslow then sued the County and claimed that she was terminated in retaliation for blowing the whistle on the absence of a formal fiscal agent agreement.  The First Circuit disagreed and found that Winslow made the report regarding the federal monitors’ findings as part of her job duties and at the request of her supervisor.  Noting 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,” the Court concluded that Winslow had not blown the proverbial whistle.