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 
- 3 - 

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."). 
- 4 - 

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." EspinalDominguez 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 
- 5 - 

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. 
- 6 - 

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. 
- 7 - 

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 
- 8 - 

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"). 
- 9 - 

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 
- 10 - 

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. 
- 11 - 

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 
- 12 - 

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. 
- 13 - 

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 
- 14 - 

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 
- 15 - 

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 
- 16 - 

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. 
- 17 - 

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. 
- 18 - 

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, 
- 19 - 

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. 
- 20 - 

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. 

10 We'll refer to the statute as either the Whistleblower Act 

or sometimes as just the Act. 
- 21 - 

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. 
- 22 - 

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 

 12 Technically, 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. 
- 23 - 

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 
- 24 - 

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. 
- 25 - 

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. 
- 26 - 

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 
- 27 - 

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 
- 28 - 

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 
- 29 - 

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. 
- 30 - 

 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." 
- 31 - 

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 
- 32 - 

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 
- 33 - 

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 
- 34 - 

(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." 
- 35 - 

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 
- 36 - 

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

 17 Our 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, 
- 37 - 

 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. 
- 38 - 

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.