In a case involving a San Diego State strength coach’s whistleblower testimony about the head football coach, the appeals court held that an allegation based on hearsay was made in good faith and revived the coach’s suit against the university. -DB
January 13, 2010
By Kenneth Ofgang
The Fourth District Court of Appeal yesterday revived a whistleblower suit by a former strength coach for the San Diego State University football team, who claims he lost that position because of his role in a university audit of the program, including his statements that the head coach was publicly intoxicated on a couple of road trips.
The university erred in finding that David Ohton’s accusations were not protected by the California Whistleblower Protection Act because they were based on hearsay, Justice Terry O’Rourke wrote for Div. One.
Contrary to the university’s understanding, the justice said, the act’s requirement of a “good faith communication” may be met where a statement is made under oath on the basis of a belief supported by “honest information.”
Retaliation Claimed
Ohton, who has worked for the university’s athletic department since 1986, has been working for teams in other sports since 2003. He claims that he lost the football position, and was subjected to a restriction on his working hours, after he was identified as the source of a 103-page audit response lambasting then-head coach Tom Craft and others for mismanagement.
Under the CWPA provisions relating to the California State University, attorney John Adler was retained to investigate Ohton’s internal retaliation complaint.
Adler rejected Ohton’s claim that the loss of his football job, which the university attributed to Craft’s desire to have his own strength coach who would only work for the football team, was based on allegations of mismanagement.
Adler found that the loss of the coaching assignment was based in part on the claim that Craft had been drunk in public on trips to Idaho and New Mexico during the 2002 season, but that the accusation did not qualify for whistleblower protection because it was “hearsay and fully refuted”—Ohton did not travel with the team that season—and possibly motivated by personal animus against Craft.
‘Punitive Act’
Adler did find that the work-hours restriction, effectively banning Ohton from campus after 2 p.m., was a “punitive…unnecessary, demeaning act” designed to deliver the message “don’t mess with football.”
Based on Adler’s report, the university issued a final determination under the CWPA, concluding that Ohton had been subject to “minor” retaliation. To the extent that his removal from the football position was retaliatory, the university concluded, it was in response to the “factually false” and “not made in good faith” accusations of Craft’s intoxication.
The university agreed with Adler that the work-hours restriction was retaliatory, and rescinded it.
Ohton then sued the university, which initially prevailed on summary judgment. The Court of Appeal, in Ohton v. Board of Trustees of Cal. State University (2007) 148 Cal.App.4th 749, reversed, but held that Ohton could not state a claim for damages on remand unless the court granted a writ of mandate finding that the internal review process had not “satisfactorily addressed” the complaint, as required by the CWPA.
On remand, San Diego Superior Court Judge Charles Hayes denied the writ petition.
O’Rourke, however, writing for the Court of Appeal, said the denial of whistleblower protection with regard to the intoxication allegation was arbitrary and capricious because it relied on an erroneous definition of “good faith communication.”
Emphasizing that the court was making no finding on the merits of the drunkenness allegation, O’Rourke said the finding of bad faith was inconsistent with the university’s determination that Ohton was not “knowingly dishonest” in leveling the accusation.
That the allegation was hearsay and not sustained on the merits, the justice continued, did not preclude a finding of good faith because “that standard, logically extended, would require whistleblowers to report solely on matters they themselves perceived,” which is not a requirement of the statute.
O’Rourke noted the university’s concession in court, although it was not in the determination letter, that a booster acknowledged telling Ohton that he had seen Craft drunk on the New Mexico trip.
The justice went on to say that the university had violated the statute by failing to advise Ohton, as part of its determination, whether it had referred the perpetrators of what it found to be retaliation to the prosecutor’s office or had disciplined them internally.
“The Legislature designated such retaliation as a criminal offense,” O’Rourke wrote. “Therefore, when CSU makes a finding of retaliation, to satisfactorily address the whistleblower complaint, its determination letter must state whether the matter was referred to criminal prosecution, and if not why not. Anything short of this defeats the protections created by the statute. Here, because of CSU’s silence on the issue of punishment and discipline, CSU did not satisfactorily address Ohton’s complaint.”
The case is Ohton v. California State University of San Diego, 10 S.O.S. 120.
Copyright 2010 Metropolitan News Company