Court Revives SDSU Coach’s Wrongful Termination Suit — Again

Feb 12, 2010

For the second time in three years, a California state appeals court has reversed a lower court and breathed new life into the claim of a former strength coach at San Diego State University, who claimed he was fired after he cooperated with investigators, who were looking into improprieties within the SDSU athletic department.
In the latest instance, three appellate justices concluded that the Board of Trustees of California State University “did not satisfactorily address (plaintiff Dave) 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 impetus for the lawsuit was Ohton’s written response to an internal audit in the winter of 2003. Ohton wrote: “I did not travel at all this past year [the 2002-2003 season] and I heard the stories about how [head football] Coach Tom 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. A few boosters informed me that it was a despicable sight to see a drunken Craft being helped through the lobby. The next day, Idaho beat us 48-36, and we were heavily favored to win. Several weeks later, against [sic] some of our football coaches were seen walking out of a strip club at 1a.m. We lost that game 15-8 and again, we were favored. It begs the question, if I know about these drinking episodes and I’m in San Diego, don’t you think our football administrators know [sic]?”
Ohton was fired later that year. He claimed in a lawsuit that “members of San Diego State University’s administration and staff violated Government Code section 8547 and retaliated against one of their colleagues because he cooperated with investigations into SDSU’s athletics department.” Section 8547 guarantees protection against retribution for state employees who report work-place violations.
In addition to Head Football Coach Tom Craft, Ohton named the university and the California State University system as well as the following administrators as defendants: Athletic Director Gene Bartow, Defensive Coordinator Thom Kaumeyer, Director of Football Operations Dave Powroznik, Vice President for Business and Financial Affairs Sally Roush and Director of Human Resources Sue Blair.
The defendants moved for summary judgment. The trial judge granted the motion, finding that CSU met its responsibilities when it investigated the plaintiff’s retaliation claims, which were made after Ohton sought protection under the California Whistleblower Protection Act. Ohton appealed that ruling.
The appeals court disagreed, finding that the defendants did not meet their obligations, and remanded the case.
On remand, Ohton’s amended complaint alleged retaliation, and included a petition for writ of mandate, contending that CSU’s investigation did not comply with section 8547.12, and its findings were arbitrary and capricious and not supported by the evidence. The trial court denied his writ, prompting the instant appeal.
The panel zeroed in on the defendants’ interpretation that Ohton was pursuing “a personal and vindictive agenda against Coach Craft” and that his “statement was not made in good faith and is therefore not a ‘protected disclosure.’ “ It also examined the defendants’ view that Ohton was punished for “independent, non-retaliatory reasons.”
The panel sided with Ohton, finding that the defendants had applied an “incorrect definition of good faith.” Absent that error, held the panel, the defendants “necessarily would have analyzed Ohton’s complaint of retaliation based on his removal as coach to the football team differently, and possibly with a different outcome.”
Ohton was represented by Attorney Dennis Schoville, while SDSU was represented by Attorney Eric Volkert.
David Ohton v. Board of Trustees of The California State University et al.; Ct. App., 4th Cir., Div. 1; D053738; 1/12/10


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