Ohton v. Board of Trustees of California State University

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.

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.

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. 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 suppleriiental payments were, incorporated into Mr. Ohton’s base salary, no losses have been sustained and Mr. Ohton has benefited from this new compensation structure.”

Adler found that “[sjeveral 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 [director of [e]mployee [Relations, 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, nonretaliatory 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

“According to Mr. Adler, Interim Director Bartow made this organizational change also because ‘the relationship between Coach Craft and Coach Ohton seems strained beyond a tolerable level.’ Coach Craft knew from the time he was hired that you did not support his appointment, something you do not deny. Furthermore, he determined within a few months as coach that you were opposed to his retention of offensive line coach Damon Baldwin. The tension between you and Mr. Baldwin was apparent to the other coaches and to the players, and negatively impacted the football program, [f] . . . [f]

“Mr. Adler corroborated Coach Craft’s assertion that he wanted to change the emphasis of the football team’s conditioning, that you were unwilling to support this change in emphasis, notwithstanding several chances to do so and that you had a general antipathy toward the coach, all of which predates the audit. All of these support the decision to replace you as strength and conditioning coach for the football team. I also note that you remain conditioning coach for the other teams, whose coaches are comfortable with this arrangement.”

However, McClain determined that the decision to reduce Ohton’s work hours was “minor retaliation.” In her words, “Mr. Adler concluded that the decision to restrict your hours in the weight room and on campus was based in part on comments contained in your written audit statement as well as your refusal to ‘voluntarily’ relinquish football. This decision was ostensibly to prevent you from interacting with the football players. Mr. Adler, however, learned that the players practiced until 5:15 [p.m.] or later and were required to workout in the weight room after practice. He therefore concluded that this action was primarily punitive and in response to your non-protected refusal to relinquish football. However, I have concluded you did engage in protected disclosure and since there is no legitimate business reason for this action, I conclude changing your hours was retaliatory.”

Further, Ohton provided deposition testimony of Adler conducted in discovery in the civil suit, that he assigned' a preponderance of the evidence burden of proof to CSU’s claim of justification for its decision to remove Ohton as strength and conditioning coach for the football team and reduce his hours.

The court granted summary judgment on the ground that CSU had timely addressed Ohton’s complaint.

DISCUSSION

“On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 , 334 [ 100 Cal.Rptr.2d 352 , 8 P.3d 1089 ].) This court applies the same analysis as the trial court. We identify the issues framed by the pleadings, determine whether the moving party has negated the nonmoving party’s claims, and determine whether the opposition has demonstrated the existence of a triable issue of material fact. Summary judgment is appropriate if all the papers submitted show there is no triable issue of fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

We review issues of statutory construction de novo. (Amdahl Corp. v. County of Santa Clara (2004) 116 Cal.App.4th 604 , 611 [ 10 Cal.Rptr.3d 486 ].) “Pursuant to established principles, our first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.] Where uncertainty exists

In addressing the meaning of “satisfactorily addressed,” Ohton advances two alternative interpretations. The first is labeled as “the subjective satisfaction of the whistleblower. ... A whistleblower who believes that the decision made by a university does not satisfactorily address his or her complaint would not be precluded from seeking other subsequent remedies.” This appears to be a recasting of the only interpretation Ohton advanced before the trial court: “The requirement of a ‘satisfactory’ result must be in respect to a whistleblower’s decision. Otherwise the statute’s guarantee of a civil remedy would be meaningless.” Ohton’s second interpretation asserts “the use of the term ‘satisfactorily’ in section 8547.12 imputes a clear obligation on CSU to act in objective good faith in fulfilling its duties under the CWPA.”

Ohton’s subjective interpretation of “satisfactorily addressed” can be rejected out of hand. Such an approach would render the statutory and administrative proceedings mandated by section 8547.12 and EO 822 nugatory; a complainant need only assert that he is unhappy with the decision in order to overturn it. We find no indication that the Legislature intended such a farfetched standard. For reasons detailed below, Ohton may be closer to the mark with his “objective good faith standard.”

Contrary to Ohton’s contention, section 8547.12 does not “guarantee” the complainant a civil remedy. Before a civil complaint for damages can proceed, the complainant is required to establish that CSU has not “satisfactorily addressed the complaint.” (§ 8547.1.2, subd. (c).) Ohton is silent on how this is to be accomplished, either in pleading or procedurally. We are not allowed such latitude.

In interpreting the term “satisfactorily addressed” it is critical that we bear in mind that we are dealing with an administrative proceeding. Standards for judging the legal sufficiency of an administrative proceeding are well established under mandamus. “[A] cardinal mle of statutory construction [is]

“Judicial review of most public agency decisions is obtained by a proceeding for a writ of ordinary or administrative mandate. [Citation.] The applicable type of mandate is determined by the nature of the administrative action or decision. [Citation.] Usually, quasiTlegislative acts are reviewed by ordinary mandate and quasi-judicial acts are reviewed by administrative mandate. [Citation.] [][] ‘Generally speaking, a legislative ■ action is the formulation of a rule to be applied to all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts.’ [Citation.] . . . [Administrative mandate is available ‘only if the decision[] resulted from a “proceeding in which by. law: 1) a hearing is required to be given, 2). evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency.” ’ [Citations.] ‘[Ordinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing.’ ” (McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776 , 1785 [ 52 Cal.Rptr.2d 466 ], italics omitted.) “[T]he absence of an evidentiary hearing does not make mandate inapplicable: it merely affects the form of mandate that must be invoked.” (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843 , 849 [4. 1 Cal.Rptr.2d 567 ].)

The standard of review used in an ordinary writ case is abuse of discretion. “The scope of discretion always resides in the particular law being applied, i.e., in the ‘legal principles governing the subject of [the] action . . . .’ Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an ‘abuse’ of discretion.” (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287 , 1297 [ 255 Cal.Rptr. 704 ]; see also Horsford v. Board of Trustees of California State University. (2005) 132 Cal.App.4th 359 , 393 [ 33 Cal.Rptr.3d 644 ] [quoting City of Sacramento v. Drew].) “Unlike the broad scope of review provided in administrative mandamus proceedings, review by ordinary mandamus is confined to an examination of the agency proceedings to determine whether the action taken is arbitrary, capricious or entirely lacking in evidentiary support, or whether it failed to conform to procedures required by law.” (Stauffer Chemical Co. v. Air Resources Board (1982) 128 Cal.App.3d 789 , 794 [ 180 Cal.Rptr. 550 ].)

Code of Civil Procedure section 1094.5 governs judicial review by administrative mandate of any final order or decision rendered by a state or local

The parties have fully briefed the issue of whether Ohton was required to exhaust his judicial and administrative remedies before pursuing an action for damages. We reject Ohton’s contention that he was not required to challenge the CSU proceeding and final decision by filing a petition for writ of mandate. There is no indication from the statute or its legislative history that an exception to the requirement for a writ of mandate was contemplated when section 8547.12 was enacted. CSU correctly notes “courts should not presume the Legislature in the enactment of statutes intends to overthrow long-established principles of law unless that intention is made clearly to appear either by express declaration or by necessary implication.” (Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771 , 779 [ 63 Cal.Rptr.2d 859 , 937 P.2d 290 ].) Abandonment of the mandamus requirement is not implied by the granting of a civil remedy because the statute requires the complainant to establish that CSU has not “satisfactorily addressed” his complaint as a condition precedent to sue for damages. We note that there is no procedural bar to combining a petition for mandamus with a complaint for damages. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725 , 735 [ 29 Cal.Rptr.2d 804 , 872 P.2d 143 ] [the court raised no objection to this practice, this case is cited with approval in Cal. Civil Writ Practice (Cont.Ed.Bar 3d Ed. 2006) § 6.54, p. 256].) Further, Ohton’s claim that writ proceedings were not contemplated under section 8547.12 must be rejected because such an interpretation would act to deprive many complainants of the protection of the statute. Not all complainants seek only damages: Some may seek only to compel CSU to restore privileges and positions removed by retaliation; others may seek to compel both restoration and damages.

The California Supreme Court discussed the purpose of such writ review in terms of exhaustion of judicial remedies as follows: “[I]n Westlake Community Hosp. v. Superior Court [(1976)] 17 Cal.3d 465 [ 131 Cal.Rptr. 90 , 551 P.2d 410 ] . . . , this court held that unless a party to a quasi-judicial proceeding challenges the agency’s adverse findings made in that proceeding,

The public policies that support the doctrine of res judicata include, “giving certainty to legal proceedings, preventing parties from being unfairly subjected to repetitive litigation, and preserving judicial resources.” (Johnson v. City of Loma Linda, supra, 24 Cal.4th at p. 77.) Moreover, “[Refusing to give binding effect to the findings of administrative agencies in quasi-judicial proceedings would . . . undermine the efficacy of such proceedings, rendering them in many cases little more than rehearsals for litigation.” (Id. at p. 72.)

Ohton steadfastly claims the procedural deficiencies of- EO 822 excuse his failure to seek writ review. Ohton relies on Payne v. Anaheim Memorial Medical Center, Inc. (2005) 130 Cal.App.4th, 729 , 741 [ 30 Cal.Rptr.3d 230 ] (Payne) to support his contention CSU denied him due process protections and the right to actually litigate his claims. We evaluate Ohton’s criticisms of EO 822 in light of the standards for due process in the administrative setting. “ ‘To be adequate, a remedy must afford the individual fair procedur[al] rights. [Citation.] ... At a minimum, however, fair procedure requires adequate notice of the administrative action proposed or taken by the group or institution and a reasonable opportunity to be heard.’ ” (Payne, at p. 741.)

Ohton’s attempts to compare CSU’s procedure to. that in Payne are unavailing. The plaintiff in that case, an African-American medical doctor, complained about wrongdoing at Anaheim Memorial by a radiologist, Dr. Siegel, and other personnel. (Payne, supra, 130 Cal.App.4th at pp. 733-734.) The court of appeal concluded that under the applicable regulations, “Payne had only the right to complain about . . . Siegel’s comment, and about his general perception that hospital personnel were discriminating against him (and his patients) based upon racial considerations. He did so, both directly and through his attorney. However, once he had done so, the medical staff bylaws guaranteed him nothing more. He had no right to compel anyone to take his assertions seriously, let alone to examine them in the context of a quasi-judicial proceeding.” (Id. at

In contrast to the absence of remedies in Payne, supra, 130 Cal.App.4th at page 743, EO 822 offered Ohton a remedy: CSU was obligated to comprehensively investigate his complaint and arrive at a final decision. In relying upon Payne to excuse his failure to seek review by mandate, Ohton confuses the procedures provided by EO 822 with the actual manner in which he claims the investigation was conducted and a final decision made.

Ohton “cannot circumvent administrative mandamus review by seeking redress for alleged procedural and due process deficiencies in the dismissal process. That is precisely the purpose of mandamus review—to ferret out such flaws and rectify them.” (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967 , 978 [ 125 Cal.Rptr.2d 115 ].) Ohton’s failure to exhaust his judicial remedies had the effect of establishing the propriety of CSU’s action. (Accord, Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235 , 243 [ 244 Cal.Rptr. 764 ].)

With respect to Ohton’s claims of retaliation arising after CSU’s final decision, we summarily dispose of Ohton’s contention he was not required to exhaust his administrative remedies. In his civil complaint for damages, filed on February 13, 2004, he alleged CSU engaged in “continuing retaliation,” and he adduced incidents that arose after CSU issued its final decision letter and restored his work schedule in the weight room. Specifically, he alleged that on February 11, 2004, he received an “inaccurate and unjustified performance evaluation.” He also alleged that “recently [he] has learned that SDSU is seeking applicants in order to hire another strength and conditioning coach and [he] is informed and believes that SDSU intends to supplant [him] with the new hire on several major Division I athletic teams, including soccer, in an attempt to further limit [his] responsibilities and to further retaliate against him.” Section 8547.12, subdivision (a) requires Ohton to file an administrative complaint “within 12 months of the most recent act of reprisal complained about.”

It is axiomatic that, “ ‘[W]here an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.’ [Citation.] The rule ‘is not a

This court has the inherent power to remand this matter back to the trial court to give Ohton an opportunity to seek leave to amend to add a petition for writ of mandate. (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235 , 238-239 [ 46 Cal.Rptr.3d 66 , 138 P.3d 214 ] (Branick)) We believe it is appropriate under the unusual circumstances of this , case to remand. This is the first case arising under section 8547.12, .subdivision (c). The term “satisfactorily addressed” has not been previously interpreted, and its application has proved troublesome to both parties and the trial court.

Although CSU claims Ohton can only challenge its actions by writ of mandate, it prevailed below by convincing the court to read the words “satisfactorily addressed” out of the statute. Under this approach, the issue is resolved not by writ of mandate, but by consulting a calendar. Ohton’s “objective good faith” standard hints at the standards applicable under mandate. Indeed, the final pages of appellant’s opening brief read like a memorandum of points and authorities in support of a petition for writ of mandate.

Whether Ohton may amend cannot be determined at this stage of the proceedings because Ohton had not yet filed a motion for leave to amend. On remand, should Ohton “in fact file a motion to amend, the superior court should-decide the motion by applying the established rules governing leave to amend [citation] and the relation back of amended complaints.” (Branick, supra, 39 Cal.4th at p. 239.) To avoid prejudicing the trial court’s decisions, we will not attempt to render an advisory opinion on a motion Ohton has not yet filed. (See Branick, at p. 243.)

The judgment is reversed and remanded. The trial court shall give Ohton an opportunity to seek leave to amend to add a petition for writ of mandate and decide all issues arising from the same.

McConnell, P. 1, and Huffman, J., concurred.

A petition for a rehearing was denied April 10, 2007.