• University Applied Incorrect Standard to Evaluate Whether Employee's Disclosure Was Made in Good Faith and Was Thus Protected by the Whistleblower Protection Act
  • March 8, 2010 | Authors: Laura A. Izon; Bruce A. Scheidt; David W. Tyra
  • Law Firm: Kronick Moskovitz Tiedemann & Girard, A Law Corporation - Sacramento Office
  • In Ohton v. California State University of San Diego, (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., January 12, 2010), a California Court of Appeal considered whether a trial court erred in denying an employee’s petition for writ of mandate to allow him to proceed with a civil action for retaliation against his employer. The Court of Appeal found the trial court erred because the employer did not satisfactorily address the employee’s complaints where the employer applied an incorrect standard to evaluate whether the employee’s disclosure was made in good faith and was thus protected by the California Whistleblower Protection Act (“CWPA”).

    David Ohton (“Ohton”), who is employed by San Diego State University (“SDSU”) as a strength and conditioning coach, filed an internal complaint alleging retaliation. The Board of Trustees of California State University (“CSU”) conducted a timely investigation. Ohton filed a civil action for damages against CSU. The trial court granted summary judgment in favor of CSU and Ohton appealed. The Court of Appeal reversed the summary judgment but held that, before Ohton could file a civil action for damages, he was required to first file a petition for a writ of mandate so the trial court could determine whether CSU had satisfactorily addressed Ohton’s complaint pursuant to Government Code section 8547.12, subdivision (c). On remand, the trial court denied Ohton’s petition for writ of mandate.

    Ohton’s retaliation claim arose after he responded to an SDSU athletic department audit in February 2003. Ohton submitted a 103-page document in which he reported National Collegiate Athletic Association (“NCAA”) violations and other irregularities in the athletic department. In the report, Ohton claimed a few boosters had told him the head football coach, Tom Craft (“Craft”), “got seriously drunk the night before the Idaho game (in Idaho) and he had to be assisted by several of his assistants back to the hotel.” Ohton also claimed some of the football coaches were seen several weeks later walking out of a “stripper club” at 1:00 a.m.

    Ohton filed an internal administrative complaint in August 2003 in which he claimed Craft and other members of the athletic department retaliated against him in violation of the California Whistleblower Protection Act (“CWPA”) because of his report to a university auditor. Ohton claimed that by June 2003, Craft had obtained a copy of the confidential report submitted during the audit by Ohton. Craft met with the football team and told them that Ohton had turned them in to the NCAA and that Ohton “was out to get them.” Gene Bartow (“Bartow”), the interim athletic director, told Ohton, “Football was a family and that [Ohton] was no long a part of that family.” Bartow also told Ohton he was relieved of all field responsibilities for football. Baton later changed Ohton’s work hours.

    CSU hired John Adler (“Adler”) to investigate Ohton’s complaints. Adler concluded Ohton was not removed from his duties as strength coach for the football program because he reported NCAA violations. Adler, however, concluded that some of Ohton’s personal and program-related accusations were a factor in his removal as the strength and conditioning coach for the football team. Adler determined the work hour restrictions were a re-assignment and job modification resulting from Ohton’s refusal to voluntarily relinquish football responsibilities. Adler found Ohton’s claim about Craft’s public drunkenness was based on hearsay and the accusations had been fully refuted. Adler found Ohton’s accusations regarding Craft were not made in good faith.

    CSU’s vice-chancellor, Jackie McClain (“McClain”), sent Ohton a final “letter of determination,” in which McClain concluded Ohton’s statements about Craft were not made in good faith and did not qualify as a protected disclosure. McClain concluded Ohton was removed as the football team’s strength and conditioning coach for legitimate non-retaliatory reasons. McClain concluded the restriction of Ohton’s hours in the weight room was retaliatory and in response to his refusal to voluntarily relinquish his football duties. McClain, however, did not address in the letter the matter of discipline and punishment for the persons who retaliated against Ohton.

    The Court of Appeal held “CSU did not satisfactorily address Ohton’s complaint because it applied an incorrect standard in evaluating whether Ohton’s retaliation claims were made in good faith, and also failed to address the matter of discipline and punishment despite having found retaliation.” The Court of Appeal ordered the trial court to enter an order granting Ohton’s petition for writ of mandate.

    The CWPA, at Government Code section 8547.2, defines the term “protected disclosure” as “any good faith communication that discloses or demonstrates an intention to disclose information that may evidence (1) an improper government activity or (2) any condition that may significantly threaten the health or safety of employees of the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.” The CWPA does not define “good faith communication.” The court concluded that the good faith requirement for a protected disclosure requires “a complainant to submit a sworn statement attesting his or her complaint is true or believed by the affiant to be true, under penalty of perjury, and to provide the investigator with honest information.”

    Adler did not conclude Ohton was knowingly dishonest when he made the statement about Craft being drunk. The court found that “for CSU to conclude that Ohton did not have a good faith basis for reporting the allegations is on its face contradictory, and leads to the inference that CSU acted arbitrarily and capriciously.”

    Adler concluded that because Ohton’s disclosure was hearsay and had been fully refuted, Ohton did not act in good faith. The court disagreed “that a whistleblower’s reliance on hearsay precludes a finding the complaint was a good faith protected disclosure.” The court stated, “Improper governmental activity is frequently difficult to uncover and whistleblowers will often need to rely on hearsay evidence, in part out of the informants’ fear of reprisals.” The court opined that “[t]o impose on whistleblowers the burden of reporting solely their percipient knowledge would inhibit them from freely reporting improper governmental activity” and would undermine the CWPA’s purpose.

    Lack of good faith may also not be imputed to a complainant based on the fact that an investigation reveals the improper activity to be “fully refuted.” A determination of whether a disclosure is made in good faith must be “based on whether the complainant believed it was true or had reason to believe it was true at the time it was made.” Accordingly, the court concluded CSU applied the wrong legal standard to determine if Ohton acted in good faith.

    The court also concluded “CSU’s final determination letter did not satisfactorily address Ohton’s complaint because it failed to identify the retaliators and address punishment and discipline.” Government Code section 8547.12 subdivision (b) provides that a person who retaliates against a CSU employee is subject to a fine not to exceed $10,000 and imprisonment in the county jail for up to one year. An employee who engages in retaliation “shall also be subject to discipline by the university.”

    CSU’s final determination letter failed to state whether any employee “who intentionally retaliated against Ohton was punished or disciplined in any manner, and if not, why not.” The court found that because the Legislature designated retaliation as a criminal offense, “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.” Because CSU was silent on the issue of punishment and discipline, it did not satisfactorily address Ohton’s complaint of retaliation.