Winslow v. Aroostook County , 736 F.3d 23 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 13-1319
DENA WINSLOW,
Plaintiff, Appellant,
v.
AROOSTOOK COUNTY,
Defendant,
NORTHERN MAINE DEVELOPMENT COMMISSION, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Arthur J. Greif, with whom Julie D. Farr and Gilbert & Greif,
P.A. were on brief, for appellant.
Philip J. Moss, with whom Melinda J. Caterine and Fisher &
Phillips LLP were on brief, for appellee Northern Maine Development
Commission, Inc.
Peter T. Marchesi, Cassandra S. Shaffer, and Wheeler & Arey,
P.A., on brief for appellee Aroostook County.
November 15, 2013
LYNCH, Chief Judge. Dena Winslow appeals from the
district court's grant of summary judgment in favor of the Northern
Maine Development Commission, Inc. ("NMDC") on her claim that
NMDC's failure to hire her when it became the fiscal agent for the
Workforce Investment Act grant constituted whistleblower
retaliation under the Maine Whistleblowers' Protection Act
("MWPA"), Me. Rev. Stat. tit. 26, § 831 et seq. We agree with the
district court that, on the undisputed facts, Winslow is not a
whistleblower under the MWPA and so affirm.
I.
Because this case comes before us on appeal from summary
judgment, we recite the facts in the light most favorable to
Winslow. See Valley Forge Ins. Co. v. Field, 670 F.3d 93, 96-97
(1st Cir. 2012).
A. Background
This case stems from a report done by a federal agency
reviewing a local area federal grant sub-recipient in Maine for
compliance with program requirements. Under the Workforce
Investment Act of 1998 ("WIA"), 29 U.S.C. § 2801 et seq., Maine has
obtained federal funding to strengthen local workforces and career
opportunities. As a condition of eligibility, Maine was required
to establish a state workforce investment board. The governor then
designated local workforce investment areas in which WIA activities
are administered. 29 U.S.C. § 2831(a)(1)(A).
-2-
Aroostook County is in Local Area I, the largest
workforce investment area in the state, and is under the authority
of the Local Area I Workforce Investment Board ("LWIB"). From 1999
until early 2010, Aroostook County was the grant sub-recipient for
the LWIB. In that capacity, the County acted as the fiscal agent
for the grant and oversaw the administrative and financial
operations of the relevant WIA programs.
In March of 2008, Winslow was hired as the Executive
Director of the LWIB. Consistent with the job description in place
at the time, Winslow reported to and was supervised by Doug
Beaulieu, the Aroostook County Administrator. She received her
salary and benefits from Aroostook County, and the County used WIA
funds for this purpose. But apparently there was no explicit
fiscal agent agreement between the LWIB and the County and this
raised concerns. Winslow claims to have been a whistleblower as to
those concerns.
B. Federal Monitoring Visit
In November 2009, federal monitors from the Department of
Labor undertook a compliance review of the WIA grants in Maine,
including of the LWIB. The monitors found that Winslow's job
description was not in compliance with federal program
requirements1 because, absent an express agreement between the LWIB
1
Following the visit, the Department of Labor ultimately
issued a report to the Maine Department of Labor outlining its
findings. The report was issued on April 13, 2010, slightly over
-3-
and Aroostook County, it was improper for Winslow to report to the
County rather than to the LWIB. On November 19, the federal
monitors conducted a preliminary exit interview at the office where
Beaulieu and Winslow worked, which Winslow attended. After the
exit interview, federal monitor Tim Theberge went to Beaulieu and
told him of the monitors' findings. Beaulieu then spoke to Winslow
and instructed her to type up her notes from the exit interview
meeting and email them to him. These exit interview notes included
a section on findings, which stated, as item number five: "My job
description indicates I am supervised by the County Administrator,
however, I work for the Board, who supervise me. This is reflected
in 117D3Bii."2 The exit interview notes included a separate
section on "Areas of Concern." They also stated that the federal
monitors would meet with the State during the week of January 6-7,
and that the state would then draft a formal response, after which
there would be a formal federal response. As to the local report,
officials would be given until January 30 to resolve these
findings.
a month before Winslow initiated this suit.
2
Apparently the exit interview notes' reference to "117D3Bii"
is a reference to section 117(d)(3)(B)(ii) of the Workforce
Investment Act of 1998. That section reads: "The functions of the
local board shall include the following: . . . (ii) Staff. The
local board may employ staff." Workforce Investment Act of 1998,
Pub. L. No. 105-220, 112 Stat. 936, 957-58 (codified at 29 U.S.C.
§ 2832).
-4-
Then, also at Beaulieu's direction, Winslow sent the exit
interview notes to Barry McCrum, the LWIB Chairman, along with
Christopher Gardner and Norman Fournier, the two co-Chief Local
Elected Officials ("CLEOs") of the LWIB. The CLEOs (and not the
full LWIB Board) are responsible for designating a WIA fiscal
agent. See 29 U.S.C. § 2832(d)(3)(B)(i)(II). Those exit interview
notes reporting on the federal monitors' findings, circulated at
Beaulieu's request, form the initial basis for Winslow's assertion
that she is a whistleblower. Defendant NMDC is a separate entity,
not involved in the noncompliance findings regarding Aroostook
County.
At a December 2 public Aroostook County Commissioners'
meeting, Beaulieu informed the commissioners of the report from the
federal monitoring visit. The minutes of the meeting reported that
"one of the findings [of the compliance review] is that the
Executive Director should, under the law, report to the [LWIB]
Board," "not the County Administrator." After the minutes were
adopted at a later County Commissioners' meeting on December 16,
they were posted online in full for public review.
During this period, Beaulieu was in discussions with the
two CLEOs and the Chairman of the LWIB about preparing an agreement
making a different entity the new fiscal agent for the LWIB. The
proposal was that defendant NMDC be the fiscal agent. For this
purpose, around December 15, Beaulieu met with Robert Clark, the
-5-
Executive Director of NMDC and also a member of the LWIB Board, to
discuss the transition. In preparation for that meeting, Clark
completed a draft transition plan, which included as part of the
process "Notification of staff termination -- December 31." On
December 28, Beaulieu forwarded to Clark the then-current draft of
the letter that he had previously sent to the CLEOs for them to
send to the Maine Department of Labor. In that email to Clark,
Beaulieu stated: "Note how I dealt with the staffing issue. It
leaves it up to you." The two CLEOs of the LWIB did not object to
the staff termination proposal.
On the broader topic of the transition to a new fiscal
agent, Beaulieu was also in communication with the CLEOs, including
in a series of December 29 emails. Beaulieu indicated that federal
law required there be an agreement between the LWIB and NMDC,
enclosed a draft, and stressed: "this agreement is mandated; it is
not optional. I just want to make sure we are in compliance, so we
don't jeopardize [losing] our local program." (emphasis added).
Winslow played no role in these discussions.
In these December 29 emails, Beaulieu and the CLEOs
agreed that the LWIB Board needed to be kept informed of the
proposed fiscal agent agreement. Beaulieu suggested that "a notice
to the full Board by the CLEOs and the Board Chair would be the
most appropriate route." On the topic of how to communicate the
-6-
information to the full LWIB Board, Beaulieu explained the position
he was in:
It is generally not my function or prerogative
to communicate directly with the Board. That
is a function of the Board Director [Winslow].
As a practical matter, one of the findings of
the Feds, which said that the Board Director
should not report to the County Administrator,
has made my ability to supervise the concerned
individual difficult, if not impossible, to
manage. So, as it relates to the Board
Director, I can happily suggest actions, but I
am unable to ensure compliance with the same.
While Beaulieu was dealing with the LWIB Board leadership
to effectuate a solution to the federal findings, Winslow took
steps on her own. On December 30, Winslow visited Clark's office
unannounced to drop off a CD of WIA financial policies. While
there, Winslow held out her hands, looked up at the ceiling, and
said "So, where are you going to put me?" Clark responded that
they were looking at doing "something different."
Following this encounter, Winslow believed that it was
her responsibility as Executive Director to inform all LWIB members
of her view of the events. To that end, without obtaining
permission from Beaulieu, the LWIB Chairman, or the two CLEOs, on
December 31, she sent all of the LWIB members and "interested
parties" (including Beaulieu) an email she authored entitled
"Opportunity." While it acknowledged that it was the CLEOs who had
authority as to designating the fiscal agent, it nonetheless
informed the other board members about their responsibilities as to
-7-
the fiscal agent. The email also mentioned the proposal that the
NMDC become the fiscal agent. It then outlined the "large amount
of work" ahead, assuming that she would be the person working with
the board.
The "Opportunity" email then addressed her proposal that
the LWIB newly schedule an interim meeting, stating:
If you are interested in holding an interim
board meeting prior to our next regularly
scheduled meeting on February 11, please reply
to all on this memo to request it. According
to our Board by-laws, if five Board members
request an interim meeting one will be
scheduled.
This "Opportunity" email provoked responses.
After receiving Winslow's email, Beaulieu emailed Chris
Gardner, a CLEO, and said: "This is insubordination. [LWIB Chair]
Barry McCrum is upset." It was the Chair's responsibility to
schedule meetings, and the next meeting had already been scheduled.
And in a later email exchange with McCrum, Clark wrote about the
"Opportunity" email: "If I was her boss she would be fired
immediately for insubordination."
Beaulieu scheduled a meeting with Winslow on January 4 to
reprimand her for sending the "Opportunity" email. At about nine
that morning, in advance of the meeting, Beaulieu emailed McCrum,
the LWIB Chairman, and the LWIB CLEOs the reprimand memo that he
planned to give Winslow at the meeting. He did not send it to
Clark. That memo objected to the "Opportunity" email in that it
-8-
"essentially solicited interest in an interim board meeting . . .
without the knowledge or approval of our Board Chair, Barry
McCrum." It termed the email "unprofessional, inappropriate and in
direct contradiction to proper protocol" and stated that Winslow
had "created an embarrassing situation for the Board, the County of
Aroostook and the business sector in both counties, in particular."
At 11:30 that same morning, after he met with Winslow,
Beaulieu emailed McCrum and the CLEOs, stating that he had a "long,
productive meeting" with Winslow, and that he had "decided to
rescind" his earlier memo to her. Winslow was copied on this
email.
The next day, on January 5, Winslow sent to Beaulieu,
McCrum, and the CLEOs, and addressed to the Aroostook County
Commissioners a response that outlined her objections to Beaulieu's
memo, now rescinded. In relevant part, Winslow's memo read:
The memo you were copied on yesterday from
Doug is an outrageous attempt to slander me.
There is nothing embarrassing to the County of
Aroostook, nor to any of you, because I
performed my job duties and responded to
requests for information from Board members.
The information I provided (as requested), was
what Federal Law says, and what the Board of
Director's By-laws say. There is nothing
there that should have been an embarrassment,
and certainly nothing that is a secret.
McCrum forwarded Winslow's letter to Clark later that day.
On January 6, Chairman McCrum forwarded Beaulieu's
original reprimand email to Clark, to give Clark some context for
-9-
Winslow's January 5 memo. In reference to Beaulieu's memo, Clark
responded: "Well, that's all true!!" McCrum then responded: "Hard
to argue with the truth."
C. Transition to NMDC
On January 14, 2010, the two CLEOs of the LWIB signed an
agreement designating NMDC as the fiscal agent effective February
15; the agreement included a subagreement that NMDC would "[s]erve
as staff to the Local Area 1 Workforce Investment Board (LWIB) and
perform duties assigned by the CLEOs and [the] LWIB." This was
intended to remedy the compliance issues found by the federal
monitors,3 and the CLEOs informed the Commissioner of the Maine
Department of Labor of the impending transition the next day,
January 15. In signing this agreement for the LWIB, the LWIB CLEOs
knew that NMDC would provide staffing for the LWIB and had planned
to advertise and seek applications for a new Director of Workforce
Development, whose job would encompass the functions of the LWIB
Executive Director.
On January 15, a day after the agreement between NMDC and
the LWIB was signed and two weeks after Winslow had sent the
"Opportunity" email, the LWIB held a board meeting, during which
Winslow served as secretary and, in her capacity as Executive
3
After working with both the federal monitors and Maine
Department of Labor officials to ensure that the new organizational
structure was in compliance with the WIA, NMDC entered into a final
management and services agreement with the CLEOs on April 15, 2010.
-10-
Director, gave a presentation on the federal monitoring visit and
passed out copies of the WIA. At Beaulieu's request, at this
meeting Winslow provided all of the LWIB Board members with copies
of the exit interview notes. (Some members had received them
earlier.) As to what Winslow said during her presentation, Clark
interrupted her at several points to loudly voice disagreement with
what she was saying, and called her "disgusting" during the
meeting. Clark stated that he had read the entire WIA law and that
Winslow had not presented some of the relevant parts.
On January 25, Winslow was formally informed that NMDC
intended to advertise for a new Executive Director after it became
the fiscal agent for the LWIB. At least by this point, if not
before, Winslow knew that the new fiscal agent would not
necessarily employ her. As said, she met with Clark unannounced on
December 30 and received no assurance she would be rehired. She
sent her "Opportunity" email on December 31.
In January, NMDC posted a job listing for a position it
termed Director of Workforce Development; in addition to several
other responsibilities, this Director would also serve as the
Executive Director of the LWIB. While the Director of Workforce
Development position had the responsibilities of the LWIB Executive
Director, the two positions were not identical. In addition to
LWIB Executive Director responsibilities, the Director of Workforce
development would "provide professional management and
-11-
administrative services at the board level in directing fiscal
planning, budgeting, contract development, and assessment of
Workforce Investment Act (WIA) programs in Local Area 1." The
listing stated that "[i]nterested applicants should possess a
Masters Degree in public administration, or related field, or a
combination of a Bachelors Degree and related experience in
economic development, workforce development, and public
administration." The application deadline was February 10.
On February 4, Beaulieu, on behalf of Aroostook, informed
Winslow via email that:
Because the County of Aroostook will no longer
be involved with the administration of this
program, at the February 3, 2010 County
Commissioners' Meeting, the Aroostook Board of
County Commissioners approved the termination
of your employment as Executive Director of
Workforce Investment Act Program for Local
Area 1 effective February 12, 2010.
NMDC's assumption of responsibilities as the fiscal agent was to
become effective on February 15. Winslow applied for NMDC's
Director of Workforce Development position. She was interviewed,
although she did not have a Master's Degree in this field.
On February 17, Clark and Ruby Bradbury of NMDC
interviewed Winslow and three other applicants for the new job:
Patricia Boucher (the LWIB's Executive Director for five years
before Winslow's tenure), Arthur Faucher, and Ryan Pelletier.
Interview notes indicate that "have to" was written next to
Faucher's and Winslow's names, and "interview but no" was written
-12-
next to Boucher's name. Ultimately, NMDC hired Pelletier, who was
also an NMDC board member. NMDC's stated reasons for hiring
Pelletier were that he (1) had a Master's Degree in Public
Administration; (2) had eleven years of management experience in
local government; (3) served in other positions on various state
and local boards and committees; (4) had business contacts in the
area; and (5) possessed an understanding of the WIA mission.
Winslow was notified by a letter dated February 22, 2010
that she did not get the job. She filed this MWPA action on May
26, 2010, originally suing both Aroostook County and NMDC for
violating the whistleblower law. The district court granted NMDC's
motion for summary judgment on February 15, 2013.4 Winslow timely
appealed; she has apparently resolved her dispute with Aroostook
and only her whistleblower claims against NMDC remain.
II.
A. Standard of Review
We review a district court's grant of summary judgment de
novo. Fontánez-Núñez v. Janssen Ortho LLC, 447 F.3d 50, 54 (1st
Cir. 2006). We have carefully viewed the entire record "in the
light most hospitable to the party opposing summary judgment,
4
In the district court, Winslow also brought a claim that
NMDC refused to employ her because of her physical disabilities in
violation of the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12101 et seq. The district court granted summary judgment in
favor of NMDC on that claim, and Winslow does not appeal that
portion of the district court's decision.
-13-
indulging all reasonable inferences in that party's favor." Suarez
v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000) (quoting
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)) (internal
quotation mark omitted).
B. Maine Whistleblowers' Protection Act
As we understand it, Winslow's state whistleblower claim
against NMDC is that, but for her "whistleblowing" about the
violation of federal law inherent in Aroostook County being her
employer absent a separate fiscal agent agreement, NMDC (a separate
entity) would have hired her in its position of "Director of
Workforce Development."
The MWPA states, in relevant part:
No employer may discharge, threaten, or
otherwise discriminate against an employee
regarding the employee's compensation, terms,
conditions, location or privileges of
employment because . . . [t]he employee,
acting in good faith, . . . 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 . . . the United
States.
Me. Rev. Stat. tit. 26, § 833(1)(A). The Supreme Judicial Court of
Maine has held that this subsection, when read alongside the rest
of section 833, "unambiguously limit[s] the protection afforded by
the [M]WPA to (1) employees (2) who report to an employer5 (3)
5
There is no individual supervisor liability under the MWPA.
See Fuhrmann v. Staples Office Superstore E., Inc., 58 A.3d 1083,
1098 (Me. 2012).
-14-
about a violation (4) committed or practiced by that employer."
Costain v. Sunbury Primary Care, P.A., 954 A.2d 1051, 1054 (Me.
2008).6
The MWPA 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." Fuhrmann v. Staples Office Superstore E.,
Inc., 58 A.3d 1083, 1097 (Me. 2012) (quoting Bard v. Bath Iron
Works Corp., 590 A.2d 152, 156 (Me. 1991))(internal quotation mark
omitted).
To prevail on a claim of whistleblower discrimination
under the MWPA, a plaintiff must show that she "engaged in activity
protected by the [M]WPA, she experienced an adverse employment
action, and a causal connection exists between the protected
activity and the adverse action." Fuhrmann, 58 A.3d at 1090. Part
of the plaintiff's burden of demonstrating that her activity was
protected is to show that the plaintiff and defendant have a
relationship that falls within the ambit of the MWPA.
The parties have not focused on whether NMDC, as opposed
to Aroostook County, was ever Winslow's "employer," or whether her
6
The MWPA does not provide whistleblowers with a direct cause
of action. The Maine Human Rights Act (MHRA) provides a right of
action to individuals "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 (citing Me. Rev. Stat. tit. 5,
§ 4572(1)(A)).
-15-
complaints were about violations which were committed or practiced
by NMDC. At oral argument, Winslow contended that NMDC had an
obligation to hire her when it took over as the fiscal agent.
There is no evidence in the record to support her contention that
NMDC had any such obligation. And given the Department of Labor's
ultimate approval of the NMDC agreement, including the job
description for the Director of Workforce Development, there can be
no claim that NMDC violated federal law in its decision to hire a
new person for the new position.
By its terms, the MWPA only prohibits certain actions
taken by an "employer." Me. Rev. Stat. tit. 26, § 833(1); see
Costain, 954 A.2d at 1054 (requiring that in order to be protected
by the MWPA, a whistleblower's report must be made to an employer
about a violation that was committed by that employer). The
assumption of fiscal agent responsibilities by NMDC required a new
contract between the LWIB and NMDC which became effective on
February 15, 2010, after Winslow was terminated by Aroostook
County. We express doubt that NMDC ever was Winslow's employer
within the meaning of the MWPA.
In the absence of any articulation by Winslow, we assume,
as the district court did, that Winslow's claim against NMDC is
instead based on a failure to hire an applicant theory. That claim
would arise under § 4572(1)(A) of the Maine Human Rights Act
(MHRA), which prohibits employers from "fail[ing] . . . to hire" an
-16-
"applicant for employment . . . because of previous actions taken
by the applicant that are protected" under the MWPA. Me. Rev.
Stat. tit. 5, § 4572(1)(A).
We affirm the district court's finding Winslow did not
engage in whistleblower conduct and so has no claim against NMDC
under either section.
We start with the assumption, in Winslow's favor, that
the federal monitor's conclusion that Aroostook could not be
Winslow's employer unless it had a separate fiscal agent agreement
was a "violation of a law or rule" within the meaning of the MWPA,
committed by her employer (Aroostook County). Nonetheless, the
combination of several factors from the undisputed facts require
the conclusion that she was not a whistleblower under Maine law.
It was the federal monitors who uncovered the "violation"
of the regulations, and not Winslow. They also eventually
published a formal report of their findings. It was the monitors
who initially reported the findings to Beaulieu;7 Winslow did not
7
In Winslow's brief, she asserts that she was the one who
urged Theberge to disclose the findings of the monitoring visit to
Beaulieu. The district court explicitly refused to consider this
assertion, as it had previously granted NMDC's motion to strike on
the grounds that the statement was contrary to Winslow's previous
deposition testimony. Winslow argues this exclusion was error;
NMDC disputes Winslow's continued reliance on this assertion,
arguing that the district court did not abuse its discretion in
declining to consider the statement. See Poulis-Minott v. Smith,
388 F.3d 354, 357 (1st Cir. 2004) ("We will reverse the district
court's evidentiary rulings only where there is an abuse of
discretion."); see also Cleveland v. Policy Mgmt. Sys. Corp., 526
U.S. 795, 806-07 (1999) (holding that a "party cannot create a
-17-
do so. The federal monitors met promptly with Beaulieu to notify
him directly of the "violation" and the need for corrective action,
and it was Beaulieu who took action to correct the problem. Even
assuming an MWPA plaintiff need not be the one to find the original
violation or even the first to report it to the employer in other
circumstances,8 that does not help Winslow. Winslow was not even
the one who published the results of the monitoring visit.
Further, it was Beaulieu who directed Winslow to
distribute the interview notes to LWIB Chairman McCrum and to
Gardner and Fournier, the CLEOs of the LWIB. Only days later, on
December 2, the Aroostook County Commissioners discussed the
problem in a public session, at Beaulieu's insistence. Plainly,
genuine issue of fact sufficient to survive summary judgment simply
by contradicting his or her own previous sworn statement . . .
without explaining the contradiction or attempting to resolve the
disparity"). Winslow merely disagrees with the district court's
holding at length and presents no reasoned argument that the
district court abused its discretion in this instance. We will not
disturb the district court's determination. However, even if we
were to accept Winslow's assertion on this point, it would not
change our underlying analysis.
8
To the extent that Winslow relies on Parks v. City of
Brewer, 56 F. Supp. 2d 89 (D. Me. 1999), in support of her claim
that the MWPA protects reports even where the information in the
report is known and reported on by others, that reliance is
unavailing. In Parks, the court denied the defendant's motion for
summary judgment on an MWPA claim even where it acknowledged that
the plaintiff was the second person to raise the issue of the
relevant violation. Id. at 103. However in that case, the first
"report" of the violation was in the form of another employee
seeking approval from the defendant Brewer City Council for actions
that would have violated a local ordinance; it was not a report of
wrongdoing for the purpose of correcting the problem. Id. The
facts here are plainly distinguishable.
-18-
there was no suppression by Beaulieu or Aroostook of the existence
of a violation.
From the undisputed facts it is clear Beaulieu and
Aroostook County were not trying to bury the problem of the
violation reported to Beaulieu by the federal monitors but to
acknowledge it and deal with it. The same is true of the Chairman
of the LWIB and the two LWIB CLEOs, who had the authority to choose
the next fiscal agent and who were involved in both structuring the
agreement with NMDC and obtaining approval of the new
organizational structure.
Winslow makes the claim, plainly refuted by the record,
that the LWIB would not have known of the violation but for her
reporting it to them. It was Beaulieu who reported the information
to the leadership of the LWIB, particularly those who held the
responsibility to pick a new fiscal agent, and it was Beaulieu who
urged a report to the full Board (although some other members, like
Clark, obviously were already aware).
To the extent Winslow communicated information, she did
so as part of her job responsibilities, either under direct
instructions from Beaulieu, or as to the "Opportunity" email
because she thought it was among her responsibilities to do so.
Though there may be exceptions, 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,
-19-
particularly when instructed to do so by a superior. See, e.g.,
Capalbo v. Kris-way Truck Leasing, Inc., 821 F. Supp. 2d 397, 419
(D. Me. 2011) (granting summary judgment in favor of defendant
where plaintiff's MWPA claim was based on reports he made at the
direction of his employer). That is also true elsewhere. See,
e.g., Kidwell v. Sybaritic, Inc., 784 N.W.2d 220, 231 (Minn. 2010)
(stating 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"); Willis v. Dep't of Agric., 141 F.3d 1139, 1144 (Fed.
Cir. 1998) ("In reporting some of the [] [farms that plaintiff
monitored] as being out of compliance, [plaintiff] did no more than
carry out his required everyday job responsibilities . . . and
[that] cannot itself constitute a protected disclosure under the
[federal] WPA."). Similarly, in the Fair Labor Standards Act
context, we have held 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. Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375
F.3d 99, 102-03 (1st Cir. 2004). We see no reason to depart from
that rationale here.
From the time the violation was uncovered by the federal
monitors until the final management and services agreement was
signed with NMDC, Winslow's superiors--at both the LWIB and
-20-
Aroostook County--were engaged in an effort to bring about
compliance with the WIA. In spite of Winslow's protestations to
the contrary, the facts are clear: she was only one of several
people who transmitted results of the federal monitoring visit, and
she did so largely at Beaulieu's direction. Winslow did not
"actually blow[] the proverbial whistle," Tripp v. Cole, No. Civ.
03-289-PS, 2004 WL 2185840, at *4 (D. Me. Sept. 24, 2004), on any
violations of law.
III.
We affirm entry of summary judgment. Costs are awarded
to NMDC.
-21-