OHTON v. BOARD OF TRUSTEES OF THE CALIFORNIASTATEUNIVERSITY

Filed 3/16/07

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William R. Nevitt, Jr., Judge. Reversed and remanded with instructions.

Schoville & Arnell, Dennis A. Schoville, Louis G. Arnell, James S. Iagmin;

Ross, Dixon & Bell, Jon R. Williams and Lindsay J. Reese for Plaintiff and Appellant.

Rothner, Segall & Greenstone, Glenn Ellis Rothner and Bernhard Rohrbacher for California Faculty Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Gordon & Rees, Christopher B. Cato and Eric M. Volkert for Defendants and Respondents.

David Ohton, a strength and conditioning coach at San Diego State University (SDSU), a California State University, filed an internal administrative complaint alleging that the head football coach, Tom Craft, and other members of the athletic department retaliated against him in violation of the California Whistleblower Protection Act (CWPA) (Government Code^[1] 8547 et seq.) because he reported to a university auditor information critical of various athletic department personnel and practices. The Board of Trustees of California State University (CSU) investigated Ohton's complaint and timely issued a final decision. Ohton subsequently filed a civil action against CSU and six individually-named defendants and sought "economic, non-economic damages according to proof," and "punitive damages as provided by law."

The defendants moved for summary judgment, arguing Ohton was prohibited from bringing the civil action because (1) CSU timely addressed his complaint under section 8547.12^[2], subdivision (c); (2) Ohton failed to challenge CSU's decision through a writ of mandate; and (3) he failed to exhaust administrative remedies. The court granted the motion on the sole basis that CSU timely addressed Ohton's complaint.

Ohton contends he was entitled to bring the civil action because, notwithstanding CSU's timely administrative decision, his claim of retaliation was not "satisfactorily addressed" within the meaning of section 8547.12, subdivision (c); he was not required to challenge CSU's decision through a writ of mandate because CSU's proceedings were not

conducted in good faith and did not provide him adequate due process;^[3]and he was not required to exhaust the administrative remedy before alleging new acts of retaliation in the civil lawsuit. We address each of Ohton's contentions, notwithstanding the limited nature of the trial court's ruling, because the parties fully briefed each contention in the trial court and on appeal.^[4] We agree with Ohton that the court erred in finding that CSU satisfactorily addressed his complaint. We reverse and remand the matter with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

Ohton's Administrative Complaint

We summarize Ohton's allegations of retaliation as set forth in the August 2003, administrative complaint and the civil complaint. In 2002, Michael Redmond, director of CSU's office of auditors, initiated an audit of the athletic department and sought input from the departmental personnel. Ohton relied on Redmond's assurances of confidentiality and in October 2002, he reported that various members of the athletic department engaged in "serious mishandling and [misappropriation] of athletic department property." In February 2003, Ohton responded to Redmond's requests for additional information with a 103-page, wide-ranging report (Ohton Report) that alleged, among other things, violations of the rules of the National Collegiate Athletic Association (NCAA) regarding the conduct of football practices. Ohton also reported to Redmond that he did not travel with the SDSU Aztecs football team to out-of-state games during the 2002-2003 season, but a team booster told him that he saw Craft drunk in public the night before one such game. The auditor's report was issued on April 30, 2003.

On May 9, 2003, CSU's president issued a memorandum to the department of athletics employees that stated, "As we begin to receive more specific information with regard to the auditor's findings, it is possible that information will emerge about colleagues in the department that have been interviewed by the auditor. I want to make it absolutely clear that there must be no retaliation in any way against people who have done a public service to the citizens of California, to this university, and to the department of athletics by calling these problems to the attention of the auditor. I want everyone on notice that if there are any retaliatory actions taken toward employees who have cooperated in this audit, those retaliating will be subject to disciplinary action."

On the subject of reprisals or retaliation, Ohton alleged that by the second week of June 2003, the department personnel managed to identify him as someone who cooperated with the audit, and Craft obtained a copy of Ohton's confidential report and circulated it to others in the athletic department; consequently, the individual defendants retaliated against Ohton in differing ways. Specifically, in the last week of June 2003, Craft met with the football team and asked the members about their opinions of Ohton's performance as strength coach because, Craft claimed, Ohton had "turned in" their program to the NCAA, and "was out to get them." According to Ohton, Craft told them, "Ohton is trying to fuck me and I'm going to fuck him twice." Also, despite an earlier understanding that Ohton would assist with two high school football camps in July 2003, he was not invited to participate in the camps.

Tom Kaumeyer, the football team's defensive coordinator, asked the director of baseball operations his opinion of Ohton, and received a positive response; nonetheless, Kaumeyer manifested his desire to have Ohton removed. On July 18, 2003, two football players told Ohton's assistant, Courtney Bale, that "Ohton needed to get on board with Craft's system or he would be fired soon."

On July 31, 2003, the interim athletic director, Gene Bartow, informed Ohton that Craft wanted his own strength and conditioning coach; therefore, the department would hire a new coach who would report only to football. Bartow tried to convince Ohton to go along with this idea, but Ohton replied this was clear retaliation arising from revelations contained in the Ohton Report.

On August 5, 2003, Craft met with certain football players and instructed them not to talk to Ohton or consult with him about strength and nutrition matters. That same evening, the football program hosted the annual "Big-50" booster dinner, but Ohton was not invited.

On August 6, 2003, Bartow met with Ohton and told him football was a family and he was no longer part of that family; accordingly, Ohton was relieved of all field responsibilities for football; he would no longer stretch the team or be on the field for any responsibilities effective immediately. On August 11, 2003, Ohton learned that SDSU's director of football operations, Dave Powroznik, had visited the coaches for women's soccer and men's golf to ask for a decision to remove Ohton. On August 19, 2003, Rhan Sheffield took over Ohton's strength responsibilities for football. On August 20, 2003, Bartow, in a heated exchange with Ohton, discussed Sheffield's hire and directed Ohton to work from 6:00 a.m. to 2:00 p.m. because, "This way you won't be around the football players or the coaches. These guys don't want you around them."

CSU's Investigation

CSU took the following steps to address Ohton's administrative complaint: On September 5, 2003, the vice chancellor for human resources, Jackie McClain, wrote Ohton acknowledging receipt of the complaint. On September 19, 2003, CSU formally retained outside counsel, John Adler, as investigator. Adler interviewed Ohton in the presence of Ohton's attorney both at the start and near the end of his investigation, reviewed Ohton's written submissions, and interviewed some witnesses Ohton identified. Adler's report was submitted to McClain on October 31, 2003.

Adler's report stated that the auditor's inquiry focused on equipment room improprieties, specifically, whether there were "shoes going out the back door." Adler determined CSU did not retaliate against Ohton in any way because Ohton's Report did not constitute a "protected disclosure" within the meaning of section 8547.12.^[5] Adler delimited the scope of his investigation and conclusions in a section of his report titled, "Statement of Issues Considered and Conclusions Regarding Retaliation." Adler first addressed Ohton's claim that his services were not used for two high school football camps. Adler concluded Ohton's exclusion from the camps was not improper because he was not a "football coach"; moreover, no compensation was paid to any participating coach.

Adler next addressed Ohton's claim that he was removed as strength coach from the football program because he reported NCAA rule violations. Adler concluded, "Some of the personal and program-related allegations and accusations set forth by Mr. Ohton in [the Ohton Report] were a factor in Ohton being removed as the strength and conditioning coach for football. However, the allegations and accusations concerning equipment room improprieties, the specific focus of Mr. Redmond's audit and report, were not a factor and were irrelevant to the removal decision."

As for Ohton's claim he was not invited to the annual "Big-50" booster function. Adler concluded, "The booster function is held at the time student-athletes report for training in August. Coaches are expected to attend this after-practice dinner. As of August 2003, the date of the event, Mr. Ohton was no longer part of the football program. The presence of Mr. Ohton would have been inappropriate as a result of prior decisions made by the University."

Ohton also claimed retaliation based on his reduced work hours and order to leave the campus by 2:00 p.m. daily. Adler concluded this restriction "was a re-assignment and job modification taken against Mr. Ohton due to his refusal to voluntarily relinquish football responsibilities and due to the perceived antagonism of Mr. Ohton towards the current football program, as illustrated by some of the allegations and accusations in the Ohton Report." Adler elaborated in another section of his report that Bartow's stated reason for this action was, "the relationship between Coach Craft and Coach Ohton seem[ed] to be strained beyond a tolerable level." According to Adler, "The time restriction on Ohton had the effect of adversely impacting the ability of Ohton to work with sixteen athletic teams, other than football, and served as a punitive, message-packed restriction: don't mess with football. This unnecessary, demeaning act was in response to Ohton's rejecting Bartow's request that he voluntarily relinquish football responsibilities and in response to Craft and Powroznik's desire to keep Ohton far away from the football student-athletes to prevent Ohton from obtaining information and prevent Ohton from undermining the coaches. . . . By all accounts, even if Ohton remained in the weight room and on campus until 5:00 p.m. each day, he would not encounter the football student-athletes, who are on the field until 5:15 p.m. or later each practice day."

Ohton claimed additional acts of retaliation in the Ohton Report; specifically, "threat to job by former Athletic Director Rick Bay for Mr. Ohton's truthful answers to NCAA investigator's questions; [and] inaccurate performance evaluation and unwarranted issuance of counseling Memorandum." Adler concluded, "Mr. Ohton relates numerous allegations and accusations of wrongful conduct, including events that extend back in time for over a decade. Although Mr. Ohton contends he raised such issues in a timely fashion, his responsibility to do so extended beyond casual comments to his supervisors. Mr. Ohton's long-term gathering of data and insufficient, or non-disclosure, of such information caused the performance evaluation to be written as it was, and caused the Memorandum to be issued. Further, Mr. Ohton was not the only employee to be issued a counseling Memorandum; thus, he was not singled-out for such treatment. As to the alleged threat by Mr. Bay, his resignation in May, 2003, and his non-influential status as to the University, has eliminated the possibility of any adverse action being attributable to any such threat, even if made. This issue is, therefore, moot."

Ohton claimed SDSU failed to honor its contract with supplemental payments of $6,000.00. Adler concluded, "Any delay was due to the University's concern about entitlement, characterization and source of funds. This matter is no longer in issue. The supplemental payments were incorporated into Mr. Ohton's base salary, no losses have been sustained and Mr. Ohton has benefited from this new compensation structure."

Finally, Ohton, claimed in an October 6, 2003, letter to CSU's president, that Mike Bohn, the incoming athletic director, was influenced against Ohton in a way that was inappropriate and unwarranted. Adler concluded, "With no prejudice to the position or rights of Mr. Ohton, Mr. Bohn was advised of pending athletic department issues, including the football team's change regarding its strength and conditioning program. Mr. Bohn also received favorable comments from athletic department personnel concerning Mr. Ohton. Mr. Bohn approaches his position with no adverse feelings or opinions concerning Mr. Ohton."

Adler found that "[s]everal months after Redmond's receipt of the Ohton Report the matters were brought to the attention of the campus and investigated internally. As a result, certain highly-placed individuals came to learn of Ohton's identity as the source of the allegations. However, direct disclosure of Ohton as the whistleblower did not occur until reported in the media around July 30, 2003, following the media's access to Redmond's investigative files. Prior to that time, the personal and program-related issues raised by Ohton were being investigated and the issues raised caused those in the football program to reasonably believe that Ohton, at least in part, was the source."

McClain forwarded Adler's report to Ohton on November 5, 2003. On December 1, 2003, McClain received Ohton's seven-page response requesting that CSU disregard Adler's conclusions and reopen the investigation, find that Ohton's disclosures were protected, and immediately produce Adler's entire investigation file. McClain forwarded Ohton's letter to Adler for his response and also sought clarification of certain issues mentioned in Adler's report. Adler replied to McClain in a 10-page letter. McClain sent CSU's final decision letter to Ohton on December 19, 2003.

Contrary to Adler, McClain determined Ohton's Report was a protected disclosure. She wrote to Ohton, "In this case, according to Mr. Adler, your written audit statement was primarily personal in nature and touched upon statutorily protected matters in only a most limited sense and are, as a whole, unprotected. Although I don't entirely disagree with this characterization of your written audit statement, I take note of Mr. Redmond's communication with you that led you to conclude your statement was protected. Specifically, I note you submitted your table of contents to him prior to submitting your statement, and that he pursued various issues through follow-up questions on many more issues than the 'shoes going out the back door' mentioned in Mr. Adler's report. I also note you asked for and received assurances from Mr. Redmond that you could not be retaliated against for your participation in the audit. Based on these facts, including some information possibly unknown to Mr. Adler, I disagree with Mr. Adler's conclusion that your written audit statement as a whole is not a 'protected disclosure.'

"That being said, I do not agree that everything an employee says in the course of an official investigation is under all circumstances, a protected disclosure. Generally, I disagree with the principle that false information knowingly and maliciously given is protected disclosure merely because it was communicated to an investigator or an auditor."

Relying on the above caveat, McClain concluded Ohton's disclosure regarding his allegation Craft was seen drunk in public was not protected disclosure. She wrote, "Vice President Sally Roush, justifiably concerned about potential misconduct, personally examined this allegation and concluded it was inaccurate and false. According to . . . Roush, [Ohton] admitted only one booster brought this alleged incident to [his] attention, not the 'few' specifically mentioned in [Ohton's] written statement. When . . . Roush contacted this booster, he denied having 'seen' the alleged incident and referred . . . Roush to other individuals, who also denied witnessing any such incident. [] Roush nevertheless interviewed SDSU employees who traveled with the football team to ask whether they had any information about the coach drinking before games. [] Roush concluded this incident did not happen. Based on the information provided by Mr. Adler and a separate interview of . . . Roush, by Ms. Maria Santos, [s]enior [d]irector of [e]mployee [r]elations, I am confident that . . . Roush's inquiry and her conclusion were reasonable.

"I can think of no legitimate reason for you to distort the truth in this manner, particularly with respect to an inflammatory accusation that could ruin a coach's career. It lends credence to Mr. Adler's conclusion that you were pursuing a personal and vindictive agenda against Coach Craft."

McClain also concluded Ohton was removed as strength and conditioning coach for the football team for independent, legitimate non-retaliatory reasons. She explained, "Mr. Adler concluded the decision to remove you as strength and conditioning coach for the football team and restricting your hours on campus were based, at least in part, on specific comments contained in your written audit statement. Specifically, your factually false comments about the coach's intoxication at an away game were central to the University's decision to take the action it did.

"I have previously concluded that your comments about Coach Craft were factually false, not made in good faith and therefore not 'protected disclosures.' The decisions to remove you as the strength and conditioning coach of the football team and restrict your hours in the weight room and on campus were based in part on these comments and therefore are not retaliatory. Further, in the summer of 2003, a movement existed within the SDSU Athletic Department, and specifically the football program, to remove you as strength and conditioning coach for football or not renew your employment with the University. Mr. Adler's report found that in his first meeting with the Interim Athletic Director Bartow, Coach Craft stated that he wanted 'his own people in the field,' wanted to develop his players' speed and quickness, and wanted 'different strength and conditioning.' Although you were not removed as football strength and conditioning coach at that time, Interim Director Bartow subsequently asked you to 'voluntarily' relinquish your football responsibilities. When you refused, he removed you from any involvement with football and advised you that your new work hours would be from 6:00 a.m. to 2:00 p.m., Monday through Friday. He further directed you to be out of the weight room by 2:00 p.m. daily.

TO BE CONTINUED AS PART II..

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^[1] All statutory references are to the Government Code unless otherwise stated.

^[2] Section 8547.12 states in part, "(a) A California State University employee, including an officer or faculty member, or applicant for employment may file a written complaint with his or her supervisor or manager, or with any other university officer designated for that purpose by the trustees, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts for having made a protected disclosure, together with a sworn statement that the contents of the written complaint are true, or are believed by the affiant to be true, under penalty of perjury. The complaint shall be filed within 12 months of the most recent act of reprisal complained about.

"(b) Any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a California State University employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure, is subject to a fine not to exceed ten thousand dollars and imprisonment in the county jail for up to a period of one year. Any university employee, including an officer or faculty member, who intentionally engages in that conduct shall also be subject to discipline by the university.

"(c) In addition to all other penalties provided by law, any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a university employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party. Punitive damages may be awarded by the court where the acts of the offending party are proven to be malicious. Where liability has been established, the injured party shall also be entitled to reasonable attorney's fees as provided by law. However, any action for damages shall not be available to the injured party unless the injured party has first filed a complaint . . . and the university has failed to reach a decision regarding that complaint within the time limits established for that purpose by the trustees. Nothing in this section is intended to prohibit the injured party from seeking a remedy if the university has not satisfactorily addressed the complaint within 18 months.

"(d) This section is not intended to prevent a manager or supervisor from taking, directing others to take, recommending, or approving any personnel action, or from taking or failing to take a personnel action with respect to any university employee, including an officer or faculty member, or applicant for employment if the manager or supervisor reasonably believes any action or inaction is justified on the basis of evidence separate and apart from the fact that the person has made a protected disclosure.

"(e) In any civil action or administrative proceeding, once it has been demonstrated by a preponderance of the evidence that an activity protected by this article was a contributing factor in the alleged retaliation against a former, current or prospective employee, the burden of proof shall be on the supervisor, manager, or appointing power to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order. If the supervisor, manager, or appointing power fails to meet this burden of proof in an adverse action against the employee in any administrative review, challenge, or adjudication in which retaliation has been demonstrated to be a contributing factor, the employee shall have a complete affirmative defense in the adverse action."

^[3] In 2002, CSU implemented section 8547.12, subdivision (c) by issuing Executive Order No. 822 (EO 822), which "establishes a procedure for responding to complaints filed with the Office of the Chancellor of CSU campuses by employees or applicants for employment who allege they have been retaliated against for having engaged in protected disclosure under the [CWPA]." The purpose of EO 822 is "to provide a timely and effective procedure for the resolution of such complaints."

Under EO 822, the vice chancellor of human resources is designated to receive and make decisions regarding written complaints of retaliation. At the vice chancellor's discretion, the investigation may be conducted by an external investigator. The complainant is obligated to cooperate with the investigator, and in an initial interview with the investigator has the opportunity to present a list of witnesses and documentary evidence in support of the complaint. The investigator must interview the complainant, review any supporting documentation supplied by the complainant and any response to the complaint supplied by the campus or employees alleged to have taken retaliatory action, interview witnesses, and take any other action the investigator deems appropriate. The investigation must be completed no later than 60 days prior to the expiration of 18 months from the date the complaint was filed. "The vice chancellor for human resources shall transmit the summary and conclusion of the investigation to the complainant within ten (10) days of the vice chancellor's receipt of them from the investigator(s). The complainant may file a written response to the summary and conclusion with the vice chancellor within fourteen (14) days of receipt of the summary and conclusion." Thereafter, "The vice chancellor of human resources shall respond to the complainant with a letter of decision within fourteen (14) days of receipt of the complainant's written response or the expiration of the time limits for the complainant to file a response . . . This letter of decision will constitute the final CSU decision regarding the complaint, pursuant to [] section 8547.12 (c)."

^[4] "As a corollary of the de novo review standard, the appellate court may affirm a summary judgment on any correct legal theory, as long as the parties had an adequate opportunity to address the theory in the trial court." (CaliforniaSchool of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.)

^[5] Section 8547.2 defines several terms used in section 8547.12, including the term "protected disclosure," which "means any good faith communication that discloses or demonstrates an intention to disclose information that may evidence (1) an improper governmental activity or (2) any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition." ( 8547.2, subd. (d).)

Ohton's Report is described by Adler as a "broad-based challenge to athletic department management . . . containing data dating back, in some cases, over a decade. Much of the Ohton Report addresses internal decisions by others that Ohton characterizes as worn or 'gray'; much of the report addresses past grievances that have been long-resolved; and much of the report addresses Ohton's personal goals, accomplishments, philosophy and opinions." Adler continued, "The context of the Ohton Report is the most puzzling element. By January, 2003, the auditor had already completed his interviews and was known to be focusing only on the equipment room issues. Ohton had little first hand knowledge of such matters. . . . It was as if Ohton saw the equipment room audit and his access to Redmond, as an opportunity to air all of his complaints, some a decade old, to a CSU official. And, it appears that the purpose of this airing of grievances was primarily personal. The over-arching context is that the people making athletic department decisions are incompetent, vindictive, manipulative and/or self-promoting they should not have been hired and should be immediately removed."