Retaliation
Ninth Circuit Sets the NDAA Whistleblower Standard and Affirms Nonrenewal
In Krzesni v. Wellpinit School District, the Ninth Circuit set out the elements of a whistleblower retaliation claim under the National Defense Authorization Act for Fiscal Year 2013 and affirmed summary judgment for the employer. The court held that none of the plaintiff’s three alleged disclosures supported a claim, and that the nonrenewal of his contract was not a discharge under Washington law.
Background
David Krzesni worked as project director for a federal grant awarded to the Wellpinit School District, which serves students on the Spokane Reservation. His federal contact for grant matters was an official at the Department of Education’s Office of Indian Education.
Before Krzesni was hired, the district had planned a trip to Hawaii for a peer mediation program. The federal contact told him that the travel was not in the original grant application and would not be approved, but the district drew down grant funds and took the trip anyway in March 2023.
In April 2023, Krzesni prepared the grant’s Annual Performance Report, noting the roughly $55,000 in trip expenses and describing how the trip advanced grant objectives. In early May, district administrators began the process of not renewing his contract and decided on May 8 to let it expire in September.
Separately on May 8, the federal contact told Krzesni in a call that drawing down funds for the trip without authorization was “fraud.” He sued in the Eastern District of Washington, which granted the district summary judgment on both his federal and state law claims.
What the Court Held on the NDAA Whistleblower Claim
The court reviewed the summary judgment de novo. Reading the statute’s text alongside related whistleblower caselaw, it set out a four-part test: the plaintiff must be a covered employee who communicated to a qualified person or body a protected disclosure and then suffered an adverse employment action as a reprisal for that disclosure.
Under Labor Code—here, 41 U.S.C. section 4712, subdivision (a)(1)—a disclosure is protected only if it contains information the employee reasonably believes is evidence of misconduct. The court held that this belief must be objectively reasonable: a disinterested observer knowing the operative facts would have to conclude the disclosure evidences misconduct. Once a prima facie claim is shown, the employer may rebut it with clear and convincing evidence that it would have taken the same action anyway.
Applying that standard, the court found the Annual Performance Report was not a protected disclosure, because it described the trip as a legitimate grant activity with no suggestion of wrongdoing. Krzesni’s rhetorical question to a supervisor—“So this is how we do things?”—conveyed no information about misconduct and was also raised for the first time on appeal.
As for his May 8 call with the federal contact, the court assumed a protected disclosure might have occurred but held it could not have caused the nonrenewal, because the district had already begun that process before the call. An adverse action that precedes a disclosure cannot be a reprisal for it.
A whistleblower claim under section 4712 requires a protected disclosure whose content, viewed by a disinterested observer, objectively evidences misconduct. A descriptive report or a rhetorical question that conveys no such information does not qualify, and an adverse action taken before a disclosure cannot be a reprisal for it.
What the Court Held on the State Law Claim
Krzesni also brought a wrongful discharge claim under Washington law. The court explained that, under Washington precedent, the tort of wrongful discharge in violation of public policy applies only where an employee has actually been discharged.
Washington courts distinguish a discharge from a nonrenewal. Because Krzesni completed his contract and the district simply chose not to renew it, there was no discharge, and the state law claim failed as a matter of law. The court affirmed in full.
What This Means for You
This decision establishes the elements of a whistleblower retaliation claim under the NDAA and holds that a protected disclosure must, on its content, objectively convey evidence of misconduct. It also confirms, under Washington law, that a contract nonrenewal is not a discharge for purposes of a wrongful discharge claim.
I write these summaries as general information about developments in California employment law. They are not legal advice and don’t create a mediator–client relationship. For guidance on a specific matter, consult a qualified attorney.