to counties job duties tasks to mandated reporters and the error was in not even considering an entire subsection of the whistleblower protection act section eight thirty three three which is intitled reports of suspected abuse and which addresses exactly the situation in this case when there is an employee who is nan dated to report suspected abuse or neglect or exploitation of either  child or or an alleged or a disabled or elderly individual these folks are wired by law to make these reports and there is a stressful section for them under the act which wasn't even statute it has to be interpreted broadly and it's exceptions to be interpreted narrowly now looking at the whistleblower protection act and the structure of it the question's position is that it's clear that winslow does not provides that an employee who voluntarily reports is entitle to protection from retaliation by their employer that looks at whether or not the voluntary report was somehow opposition has to have been somehow inconsistent with the employer's interests which is why subsection chew requires that when you're dealing with subsection one cases the employee first except in a very limited circumstance needs to go to their employer and give their employer an opportunity to correct the situation for subsection three the employee has no choice the state has already made a decision that these folks are required to report and it been terms of your appearance here to vindicate the role and and position of the commission if a ruling came from this quart that left winslow intact but found that subsection three was yet an exception to the interplay between one and two that would be ok with you i think that that would decide this case certainly but are you asking for something more than  not i don't think it's necessary in this case i think that read broadly winslow could swallow parts of section eight thirty three said one because employers can and broad policies that essentially swallow the whistleblower protection act but i don't think you need to get there in the strict particular case it please the court my name is maria fox and i represent tori harrison in her appeal of the district court summary judgment order in favor of her former employer here i would like to reserve two minutes for rebuttal if i may yes thank you we are asking the court to reverse and we nand or in the alternative that the court certify the question of the existence and scope of any job responsibilities exception to the main whistleblowers protection act to the main supreme judicial court sitting as a l the standard for certification is met here there's nothing in the language of the act that speaks to the job responsibilities exception there is no clear controlling precedent issued by the law court on this issue and it's determinative of this case while we are requesting certification we don't believe that this court needs to disturb the holding in winslow to find that ms harrison engaged in protected activity as counsel for the main human rights commission indicated the plain language of subsection three of the act squarely in campuses d h h s reports as protected activity and that's what occurred here that was the protected activity there were also some internal reports of section three decision it looks to me at least like what the district courts idea of what winslow means you're going to lose in summary judgment on the non subsection three but you know a district court that unless there's some reason to think otherwise so i guess i'm just wondering what we really want us to do what i would really like this court to do is to find that subsection three covers the  reports that's part one of her protected activity i also think that the winslow without disturbing it can be clarified and let me explain why the reason is that that the w wholly distinguishable on its facts and also the holding we think was much much more broadly stretched by the district court interpretation of when slow to reach the facts of this case in winslow the job did the job responsibilities exception really relates to specifically assigned job duties to an employee not general obligations required of all employees in winslow the plaintiff employee was an executive director and the communications that she pointed to as protected activity were communications that she was specifically directed to make by her supervisor and then communications that she made to her board of directors that related to organizational compliance issues report whatever wrongdoing they're now pointing to as the protected activity here ms harrison was the training director for granted here and there is nothing nothing unique about her position as a training director that made her more required to deal with mandated reporting than any other employee of the year her duties to report really stems from her obligations under her social worker license and mandated reporter laws relating to people there they're wage an hour issues these are employment law violations that she's raising she raised they are also suspected exploitation but they this is why they they fall also under subsection one of the act as well as of section three so when you say also and so while i believe they're going to argue that she had requirements to report internally suspected exploitation and this was also that there's nothing in the amended report a policy that gran promulgated nothing in her job description that specifically says that she's uniquely in charge of that kind of reporting so far for those reasons we just don't think this gets the job responsibilities exception that winslow created and so therefore for both of those reasons subsection three being so clear on the application to the h h s records and then the holding as we read it and that that we believe should be read just does not reach the facts of this case she there's evidence that she was admonish relating to the filing of the d h h s report by her supervisor that the state director was upset in relation to this d h h s report that there was a sea change in her work environment following that to get  that they claim that she was a ring leader and leading the charge and all her workers were nodding along there are witnesses that say that's not what happened there is a conversation that was going back and forth other people were equally or more vocal than she was  disputed facts that need to be sorted out by a jury in addition if you look at how she was terminated when they brought her in to fire her they refused to give her a reason for the termination and then he issued her a letter that said that the reason was that she had created disharmony in the workplace and referred to reasons plural and events leading to the decision to terminate the standard on causation for the protection that claims is that there must be a substantial  activity must be a substantial factor but not necessarily the only factor in the decision to terminate so a reasonable jury clearly could find you know based on that that evidence that the terminations letter itself indicates you know it and it was really because she made discipline policies which reserves termination for people who have had notice which she didn't have or extreme six extreme situations and that this wasn't one of those cases nobody else involved in the conversation that over which they said she was terminated was even disciplined much less terminated no one else had been fired for creating disharmony in the workplace or for insubordination unless they had been given some sort of prior notice or had some other types of performance issue please the court tyler smith on behalf of granite care interpretating paragraph three subsection eight thirty eight thirty three as an independent section of the of the whistleblower protection act is likely to cause unintended consequences is irreconcilable authority from the law court and is contrary to stated legislative intent regarding the mandated reporter language now although this case comes before the court in the context of the job duties its exception the result of reading section three is a stand alone provision is that every mandated report of the state of maine will set the trigger for a whistleblower claim even under circumstances where the mandated report was motivated by self serving or even a malicious purpose now let me give according to sample of how that could play out for example in this case let's say the case did go to a jury and the jury concluded that s was not intended to expose exploitation but rather it was to serve as an opportunity or excuse me as an excuse to send an email to one of cares owners drawing upper management of care indiscriminately as the court will note from that e mail which is in the record if you basically indicates to one of kerry's owners that she's made this response she characterizes it as a courtesy notification and then she goes on to make a number of remar state robinson and how she believes he will be addressing the situation so in other words if there is if there is a malicious intent or improper or self serving purpose behind the report itself that will still be a protected activity which is not what the whistle blower protection act is intended to do and that analogy can go one step further even if an employer it's faced with a situation where they learn a mandated reporter is misusing their duties in that type of fashion that employer is locked into employment with that employee they wouldn't be able to discharge or discipline them because if you read section eight thirty three three as a standalone provision good faith is read out of the claim so even if the employer that this misuses ongoing there's essentially nothing that they will be able to do about it now in the briefing there was also the issue that what there is right there because of that so if you can demonstrate that it and that's absolutely correct however if you have the situation where the employer knows that the employee is misusing that reporting duty somehow the employer would not be able to take any action on that fact and frankly that would be a very good reason for an employer to hear that discharge or discipline an employee that is knowing that the employee is taking their mandated reporting duties and using them for self serving purposes now when we brought work does section three do with it if it does not overcome the good faith exception section one well that that the answer that question is in committee amendment a which was the amendment the legislative amendment that actually added that excuse me bring the condition to the attention of its employer and then afford the employer a reasonable opportunity to correct the situation now in the briefing there was the argument raised that  job duties exception would essentially create a situation where an employer can immunize themselves from whistleblower claims now setting aside the fact that that argument is more of an attack on winslow than really on this particular case that type of argument has been raised and rejected in other contexts where job duties exceptions have been recognized for instance and the guard said diversity abos case which was a united states supreme court case which recognized the job duties exception to first amendment claims the employee made that very same argument and what the supreme court said was the test isn't just what's written in the policy the test is what are the practical expectations of the employer of the employee in other words is the is the policy and custom of the employment such that these reports are actually made was the employee ever discouraged or told not to make these particular reports or is this just something that is in a job description that's uninformed and that's an important distinction in this case because here there is no evidence that this was a policy that was not being enforced granite bay care has hundreds of mandated reports by employees every single year and there 's no evidence in the record that any employee has been disciplined or discharged for making such records and in fact it provides individual provides training to all employees on affecting mandated or implementing peny who is one of the two owners which she characterized as a courtesy e mail in the body indicating that she had in fact made the d h s s report she went on to characterize how she felt mr robinson who is care of state director at the time would deal with the situation so that i could be construed as that sort of a situation and that's and when you look at that e mail that goes back to my analogy earlier about what would happen if section eight thirty three is actively effectively trumps the good faith choir means now not only do we have can you explain how you read the text i understand the point you make that section three does additional work because of the getting rid of the notice but section three does not have a requirement like section one even though section three does not all preface this by saying that the x certainly itself is not a model of clarity but when you look at the way that it's structured section one provides a variety of areas of s protected some of them including a good faith exception some of them not a good faith requirement excuse me subsection two is indicated in the legislative history serves as a limitation on that protection by requiring certain internal reporting requirements and also requiring reasonable lawyers now section three as stated by the law court in the costing case is an exception to subsection to use internal reporting required that's just the first sentence of section that that's that's correct or wrong that's what the first sentence does and what the second chance does is it recognises that mandated reporters may not necessarily there are to me their duties under the reporting was not necessarily track what is required under the whistleblower statute for example the situation of where mandated reporter may be required to take photographs of visible trauma or make a telephone call to the police or to the district attorney under certain circumstances those may not know that that's the problem i mean it is a good articulation of the problem which is subsection three seems to be contemplating activity mandated reporting that is not encompass by subsection one subsection three then import the good faith requirement that it does not have with respect to that activity as you put it does not track section one activity well texturally get off i do agree that it is a difficult all but the substantive basis of the claim is under section one and when you look at the way the law court has read subsection three it has called it an exception now the issue with the additional things that are mandated reporter may be external the ones to africa d h s s whatever were is your contention that all of that activity she could have brought as a section one claim let's correct that could be a suction section one claim in this in this particular instance if you look at the way her claim is structured i need her i understand her argument here to be that you don't even need to consider subsection one at least for most fact the d h s s report because it was your view and that my view on that is you have to consider a certain one or not i think you do have to consider subsection one because that's the operative basis and to the extent there is an ambiguity the looking at the legislative history the legislative history is very clear that the committee madmen that actually added the mandated reporter language was not intended to enable a new class of whistleblower complainants it was a limitation on who can bring a whistleblower claim namely when the for act was first proposed in the legislature it was just essentially the the subsection one language and then there was testimony from an employer union mutual who agreed with the policy of the act but indicated that the employer should be given a reasonable opportunity to correct the situation and that led to committee amendment a which and that included both the internal reporting requirement and the mandated reporter language as so as a result of that the the committee amendment the legislative intent here was not to expand the scope of actionable or the scope of potential plaintiffs for these types of cases instead it was a limitation and it was simply a recognition the the procedural problem that it mandated reporter would face when their reporting duties overlap with their whistleblower activities and additionally on that point with respect to the way the three parts of the statute work together texturally miss harrison's reported view of the statu reads section three stand along which has nothing to do with paragraph water paragraph two when you look at the legislative history in the statement of facts the legislative history the statement of fact states expressly that even though a mandated reporter does not need to afford a reasonable opportunity to correct the situation the mandated reporter still needs to notify her employer is soon as possible of the unsafe condition itself so the legislative history shows that they do contemplate that there is this crossover in that the mandated reporter language itself is not a standalone provision now i do want to touch on the issue of causation because before you before you go there i just think i have one more question about the  good faith issue wouldn't it be the case if we accept your reading of winslow that that an employer could simply make all state mandated reporting  job requirement and and then read section three protections out of the statute for purposes of that in that employer that business well if an employer was trying to do that the purpose of that policy would be to basically to quash mandate reports oh no you could just have a rule saying it will be one of the job duties of every employee will be to comply with mandated reporting requirements or comply with all state laws well that would go back to the what was recognized in the guard said he her see obvious case where it was discussed that the test isn't just what's written in employment mean and when that's not what we're arguing here today the test is what are the duties that are actually expected of the employee and as applied to this case the duties that are expected of the employee do involve actually making mandated reports it's an important policy protecting its clients from things such as exploitation is the very thing that carries in the business of doing this is different from say the federal court cases with the federal whistleblower act that involved a situation where someone argues that there is a federal regulation that requires them to disclose waste or  court and then second how would you classify those internal reports i don't recognize that that particular distinction i use is it is your position is that there's no is if it's job duties or job duty whether it's a significant one or a  let me rephrase that i don't agree that there's a per se job duty exception what there is however it's the test of whether or not it's actually those are actually duties that are expected of under the circumstances and i believe there's one other in these record testimony attached to our state facts fourteen and fifteen in the record the reason why that's important is the state of maine has a very limited number of limited amount of resources to investigate exploitation the only way that karen knows these issues get addressed is if they're reporting in terms thank you very different than the proverbial whistle blower this is protection for someone who actually has the job responsibility to make the report in so doing they reference the mandated reporting statutes themselves which deal with the issue of good faith the adult protective services act which is referenced there are deals with it in relationship to immunity from from liability that that good fa and the child protective act that's also referenced in subsection three has the addresses it a little bit differently there's actually a section of that man if you report a law that specifically says that the employee is required that an employer may not discriminate against an employee for good faith reporting and and following of that statute my point being that when the legislature enacted the main whistleblowers protection act and it act unambiguous and we don't need to go to the legislative history to try to figure out what it means because it is so clear but if you do go to the legislative history you'll see that there are there are letters and information that really do support the  substantive aspect of subsection three and the need for that