The Wellpinit School District (WSD) is located within the Spokane Reservation, and the majority of its students are members of the Spokane Tribe. In September 2022, the federal government awarded the District a Native Youth Community Project Grant intended to help prepare Native American students for college and careers. The District hired David Krzesni under a personnel contract effective January 10, 2023, to serve as Project Director for the grant. Donna Bussell, an employee of the U.S. Department of Education’s Office of Indian Education, served as the District’s primary federal contact for grant-related matters.
Before hiring Krzesni, the District had planned for a group of students and staff to participate in a peer mediation program in Hawaii from March 6 through March 14, 2023. The District believed the trip would further the grant’s objectives. After Krzesni started his employment with the District, he signed a requisition form to fund the trip with grant money. In February 2023, he submitted revisions to the grant budget to Bussell for approval. Bussell responded that the Hawaii travel had not appeared in the original grant application and would not be approved. Krzesni asked whether they could discuss the trip further because the District viewed it as an important activity for meeting the grant’s goals. Bussell said she would discuss the issue with her supervisors and noted that the guidelines on travel are strict.
On March 2, 2023, Krzesni emailed WSD business manager Rainy Anderson and stated, “I think we’ll likely be able to get approval, but it’ll likely be after the trip’s already done. So we definitely need to be careful about when we next draw down funds and what’s included.” From March 6 through March 14, 2023, a group of District students and staff, including Krzesni, attended the Hawaii program. Bussell did not provide approval before the trip.
While in Hawaii, Krzesni emailed Anderson on March 13 and indicated that he was considering leaving his position once he could train a successor. He told Anderson that he hoped to prepare one of the new staff members to assume the Project Director role as soon as that person was ready. When Anderson asked whether he meant that he was preparing to leave, Krzesni confirmed that he was.
After the Hawaii trip, Krzesni contacted Anderson on April 11 concerning the Annual Performance Report (APR), which the District needed to submit to demonstrate compliance with the grant’s terms. Krzesni asked about grant funds that the District had used and noted that the issue was “tricky with the Hawaii trip unresolved.” Anderson told him that she had already drawn down grant funds to pay for the trip. Krzesni then prepared the APR. The report identified $55,011.05 in expenses associated with the Hawaii trip and described the trip as a “unique opportunity for cultural exchange and traditional Hawaiian restorative justice training.” Krzesni explained that the resulting peer mediation program would further the grant’s objectives by helping reduce major disciplinary incidents and, through improved student engagement, improve student attendance and academic performance. Another District employee signed and certified the report, and Krzesni submitted it to the federal government on April 27, 2023.
On May 1, 2023, Superintendent John Adkins contacted WSD’s general counsel about Krzesni. Adkins and counsel discussed not renewing Krzesni’s contract on May 2 and again on May 5. On May 8, general counsel sent Adkins talking points for a meeting with Krzesni concerning the proposed nonrenewal. That same morning, District administrators held an internal meeting and decided not to renew Krzesni’s contract, which was scheduled to expire on September 30, 2023.
Also on May 8, Krzesni spoke with Bussell about the use of federal grant funds for the Hawaii trip. During that conversation, Bussell told him that drawing down grant funds for the trip without prior federal authorization constituted “fraud.” On May 10, Bussell emailed Krzesni and another WSD employee about “some discrepancies” in the APR. In June 2023, the District reimbursed the federal government for the expenses associated with the Hawaii trip.
Krzesni brought an action against the District and Superintendent Adkins in federal district court. He asserted a federal whistleblower retaliation claim under the National Defense Authorization Act for Fiscal Year 2013 (NDAA), 41 U.S.C. section 4712, and a wrongful discharge claim under Washington law. Krzesni alleged that the District unlawfully retaliated against him by refusing to renew his employment contract after he made protected disclosures concerning the District’s use of federal grant money to pay for the Hawaii trip without federal authorization.
The District and Adkins sought summary judgment on both claims. On the federal claim, they argued that Krzesni had not made a protected disclosure within the meaning of section 4712 because, among other reasons, none of his purported disclosures objectively conveyed any suggestion of misconduct. On the state-law claim, they argued that Krzesni could not establish wrongful discharge because the District did not discharge him. Instead, the District allowed him to complete the full term of his contract and simply chose not to renew it. The district court agreed with the District and Adkins and granted summary judgment in their favor on both claims.
Krzesni appealed to the Ninth Circuit and challenged the grant of summary judgment. On his federal claim, he maintained that three communications constituted protected disclosures: (1) his description of the Hawaii trip in the APR, (2) a rhetorical question he directed to a supervisor after learning that the District had drawn down grant funds for the trip, and (3) his May 8 call with Bussell concerning the unauthorized use of those funds. He argued that the District retaliated against him for his protected activity by declining to renew his contract. On his state-law claim, Krzesni argued that the nonrenewal of his contract constituted a wrongful discharge under Washington law.
The Ninth Circuit first considered the substantive requirements for a whistleblower retaliation claim under the NDAA. NDAA section 4712 protects employees of federal contractors and grant recipients from reprisals for making certain protected disclosures. The Ninth Circuit held that a plaintiff must establish four elements to make a prima facie NDAA whistleblower claim: (1) the statute covers the employee; (2) the employee communicated with a person or body identified by the statute; (3) the employee made a protected disclosure; and (4) the employee suffered an adverse employment action as a reprisal for making that disclosure.
The Ninth Circuit addressed each requirement in order. First, section 4712 covers employees of contractors, subcontractors, grantees, subgrantees, and personal services contractors. The parties did not dispute that Krzesni qualified as a covered employee.
Second, the employee must make the disclosure to a person or entity identified in section 4712. Those recipients include a federal employee responsible for grant oversight or management and certain management officials or employees of the grantee who have responsibility to investigate, discover, or address misconduct. The parties agreed that Bussell qualified because she was the Department of Education employee responsible for oversight of the District’s grant. Krzesni also claimed that he made a protected disclosure to Anderson, the District’s business manager.
Third, the employee must make a “protected disclosure.” NDAA section 4712 defines a protected disclosure as one containing information that the employee reasonably believes evidences gross mismanagement of a federal contract or grant, gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of a law, rule, or regulation related to a federal contract or grant.
The Ninth Circuit held that section 4712 incorporates an objective reasonable-belief standard. Relying on past case law which interpreted identical or similar language in other federal whistleblower statutes, the Ninth Circuit concluded that a whistleblower’s belief in misconduct must be objectively reasonable. Under that standard, a disinterested observer with knowledge of the operative facts must be able to reasonably conclude that the disclosure evidences misconduct. The inquiry therefore focuses on the content of the disclosure and whether it conveys sufficient information to indicate wrongdoing. A communication that merely describes events without indicating wrongdoing does not qualify.
Fourth, the employee must suffer an adverse employment action in reprisal for making the protected disclosure. Although the parties agreed that the nonrenewal of Krzesni’s contract constituted an adverse employment action, Krzesni still had to show that a protected disclosure contributed to that decision. If an employee establishes the four elements of a prima facie claim, the employer may rebut the claim with clear and convincing evidence that it would have taken the same personnel action absent the protected disclosure. The Ninth Circuit then applied this framework to Krzesni’s three alleged disclosures.
Krzesni first argued that reporting the Hawaii trip in the APR constituted a protected disclosure. The Ninth Circuit disagreed because the APR did not explicitly or implicitly suggest misconduct. Instead, it affirmatively characterized the trip as a legitimate grant activity, describing it as a “unique opportunity for cultural exchange and traditional Hawaiian restorative justice training.” The APR further explained that the resulting peer mediation program would further the grant’s objectives by reducing major disciplinary incidents and, through improved student engagement, improving attendance and academic performance.
The Ninth Circuit concluded that a disinterested observer with knowledge of the operative facts would not reasonably understand the APR as evidencing misconduct. Therefore, Krzesni’s description of the Hawaii program in the APR was not a protected disclosure.
Krzesni next argued that after learning the District had drawn down grant funds for the Hawaii trip without prior authorization, he made a protected disclosure by rhetorically asking a supervisor, “So this is how we do things?” The Ninth Circuit noted that Krzesni had not presented this theory to the district court but nevertheless considered and rejected it on the merits.
The Ninth Circuit concluded that the question conveyed no “information” relating to misconduct, as section 4712 requires. Because it neither disclosed information nor identified wrongdoing, a disinterested observer could not reasonably conclude that the question evidenced misconduct. It therefore was not a protected disclosure.
Krzesni’s third alleged disclosure arose from his May 8, 2023 call with Bussell concerning the District’s unauthorized use of grant funds. During that conversation, Bussell characterized the District’s use of federal grant funds for the Hawaii expenses without prior authorization as “fraud.” The district court concluded that Krzesni might have made a protected disclosure during the call but that the disclosure could not have caused the adverse employment action because the District had already decided not to renew his contract.
The Ninth Circuit assumed without deciding that Krzesni made a protected disclosure during the call but concluded that he could not establish reprisal. Krzesni acknowledged that Adkins initiated the nonrenewal process on May 1, and the record showed that District administrators decided not to renew his contract on the morning of May 8. Because the record contained no evidence that the District knew of Krzesni’s protected activity when it made that decision, the alleged disclosure could not have contributed to the nonrenewal.
The Ninth Circuit next considered Krzesni’s argument that the District’s decision not to renew his employment contract constituted wrongful discharge under Washington law. The Ninth Circuit relied on the Washington Supreme Court’s decision in Roberts v. Dudley, which held that the tort of wrongful discharge in violation of public policy applies only when an employer discharges an employee. The Ninth Circuit also noted that Washington courts distinguish between a “discharge” and a “nonrenewal.” The District did not terminate Krzesni before the end of his contract. Instead, his contract ran through its term, and the District declined to renew it. Because a nonrenewal could not establish the prima facie element of discharge, Krzesni’s state law wrongful discharge claim failed.
The Ninth Circuit affirmed the district court’s grant of summary judgment in favor of the District and Superintendent Adkins on both Krzesni’s federal whistleblower retaliation claim and his Washington state wrongful discharge claim.
Krzesni v. Wellpinit Sch. Dist. (9th Cir. July 27, 2026, No. 25-3308) 2026 LX 318632.