WHISTLEBLOWER RETALIATION CLAIM FAILED WHERE DISCLOSURES DID NOT “BLOW THE WHISTLE”
In Krzesni v. Wellpinit Sch. Dist., 182 F.4th 1147 (9th Cir. 2026), the Ninth Circuit affirmed summary judgment for defendants Wellpinit School District (“WSD”) and Superintendent John Adkins in a whistleblower retaliation action brought by David Krzesni under the National Defense Authorization Act for Fiscal Year 2013 (“NDAA”), 41 U.S.C. § 4712, and Washington state law.
1. Background
WSD is located within the Spokane Reservation. In September 2022, the federal government awarded WSD a “Native Youth Community Project Grant” to help prepare American Indian students for college and careers, and WSD hired Krzesni as Project Director in connection with the grant. Before Krzesni was hired, WSD had planned a student trip to Hawaii to participate in a peer mediation program. Although the federal grant contact advised that the trip had not been included in the original grant application and would not be approved, Krzesni and other WSD students and staff attended the program in March 2023.
Upon returning, Krzesni prepared the Annual Performance Report (“APR”), noting the trip expenses incurred ($55,011.05) and describing how the trip furthered various grant objectives, and submitted the APR to the government on April 27, 2023. On May 1, 2023, Superintendent Adkins contacted WSD’s general counsel about Krzesni, and the next day the two discussed not renewing his contract. On May 8, WSD administrators held an internal meeting and decided not to renew it. That same day, separately, Krzesni had a call with Bussell, the federal grant contact, who told him that drawing down grant funds for the Hawaii trip without prior authorization constituted “fraud.”
Krzesni sued, alleging he was unlawfully terminated in retaliation for making protected disclosures about WSD’s purported misuse of federal grant money—specifically, that WSD had used grant money to fund the Hawaii trip without the requisite federal authorization. He also brought a wrongful discharge claim under Washington law. The district court granted summary judgment on both claims, and Krzesni appealed.
2. The Ninth Circuit’s Decision
a. The Federal Whistleblower Claim
In its opinion, the Ninth Circuit first articulated the framework for a prima facie whistleblower claim under the NDAA. To prevail, a covered employee must show that: (1) the employee is covered by the statute; (2) the employee communicated to a qualified person or body; (3) the employee made a protected disclosure; and (4) the employee suffered an adverse employment action as a reprisal for making that disclosure. Once a prima facie claim is established, the employer may rebut it with clear and convincing evidence that it would have taken the same personnel action even if the protected disclosure had not occurred.
The court then addressed each of the three disclosures Krzesni alleged were protected.
(1) The Annual Performance Report: Krzesni argued that reporting the Hawaii trip in the APR constituted a protected disclosure. The court disagreed, holding that a descriptive account of the trip, without any explicit or implicit suggestion of misconduct, cannot objectively qualify as a protected disclosure. The APR described the trip as “a unique opportunity for cultural exchange and traditional Hawaiian restorative justice training” and affirmatively sought to justify the trip as furthering grant objectives.’ Because a disinterested observer with knowledge of the operative facts would not reasonably conclude that the disclosure evidenced any misconduct, the APR was not a protected disclosure.
(2) The Rhetorical Question: Krzesni also argued that his rhetorical question to a supervisor upon learning that grant funds had been drawn down without prior authorization (“So this is how we do things?”) constituted a protected disclosure. The court rejected this argument. As a threshold matter, Krzesni had not advanced this theory before the district court, and the court was not required to consider it. On the merits, the rhetorical question did not convey any “information” relating to misconduct as the statute requires, and a disinterested observer with knowledge of the operative facts could not reasonably conclude that it evidenced misconduct.
(3) The Call with the Federal Grant Contact: Krzesni argued that his May 8, 2023, call with Bussell, in which she characterized the unauthorized drawdown of grant funds as “fraud,” constituted a protected disclosure. The district court assumed a protected disclosure might have been made in that call but concluded it could not have been the basis for the adverse employment action, because WSD had already decided not to renew Krzesni’s contract before the call occurred. The Ninth Circuit agreed: because the decision not to renew Krzesni’s contract was initiated on May 1, 2023, before his May 8 call with Bussell, the adverse action could not have been taken in retaliation for that disclosure. An adverse action that precedes a purported disclosure cannot have been taken as a reprisal for it.
b. The State Law Wrongful Discharge Claim
The court separately affirmed summary judgment on the state law claim. Krzesni argued that the nonrenewal of his contract constituted wrongful discharge under Washington law, but the court held that the tort of wrongful discharge in violation of public policy applies only where an employee has been discharged. Because Krzesni was not discharged—his contract simply was not renewed—his state law claim failed as a matter of law.
3. Practical Considerations
Although the underlying facts arose in Washington, the Ninth Circuit’s interpretation of the NDAA’s protected-disclosure standard is binding precedent throughout the circuit, including in California, and the NDAA applies to all employers who receive federal grants or contracts regardless of state. Thus, this decision offers several practical lessons for California employers.
First, employees who describe a potentially problematic activity in internal or government reports, without any explicit or implicit suggestion of wrongdoing, are unlikely to be deemed whistleblowers under the NDAA. The disclosure must actually blow a whistle.
Second, vague, rhetorical, or ambiguous communications that do not convey specific information about misconduct will not satisfy the protected disclosure requirement, even if the employee harbored subjective concerns.
Third, the timing of an adverse employment decision is critical: where an employer initiates the adverse action before any protected disclosure is made, there can be no causal link sufficient to establish retaliation. Employers should therefore document the timing and basis for employment decisions carefully and contemporaneously.
Fourth, under Washington law, the nonrenewal of a fixed-term contract is not a “discharge” for purposes of a wrongful discharge in violation of public policy claim. This is an important distinction for Washington employers who use term-limited employment arrangements.
To read more articles like this one, subscribe to the ALERT Newsletter today!About The Author
Rachel Schuster is an associate in Sheppard’s Labor and Employment Practice Group in the firm’s San Diego (Del Mar) office. Ms. Schuster defends employers of all sizes in a broad range of employment matters, including claims of discrimination, retaliation, harassment, wrongful termination, wage and hour disputes, and contract issues. She has experience handling single-plaintiff lawsuits, class actions, and PAGA cases in both state and federal courts, as well as representing clients in mediation and arbitration. In addition to her litigation practice, Rachel conducts workplace investigations, conducts employment law training sessions, and advises employers on compliance with wage and hour laws, Cal/OSHA regulations, and other employment-related requirements. She drafts, reviews, and updates employee handbooks and workplace policies to ensure legal compliance and best practices.
She has written a number of articles for the Sheppard Labor and Employment Blog and is a contributing author of the ALERT Newsletter.
Ms. Schuster received her law degree, as well as her undergraduate degree, from the University of California, Berkeley.