Ex-Football Coach Wins Whistleblower Appeal

(CN) - California State University did not adequately address a former football coach's claim that he was retaliated against for reporting that San Diego State University's head coach got drunk the nights before games, a state appeals court ruled.

The university did not apply the correct good-faith standard when reviewing the coach's complaint, the 4th District Court of Appeal ruled, reversing a ruling for the university. The school also failed to follow through with a retaliation finding, the appeals court found.

San Diego State strength and conditioning coach David Ohton had claimed that school football coaches retaliated against him after he reported in a university audit that they were getting drunk the nights before games. Ohton said head coach Tom Craft had gotten "seriously drunk" the night before a game against Idaho, and the team lost, despite being heavily favored to win. A few weeks later, Ohton said some of the team's coaches went to a strip club the night before a game, and the team again lost to a lower-ranked team.

When Craft discovered the audit, he showed Ohton's report around the office and told the football team that Ohton was "out to get them," the ruling states. The athletic director allegedly told Ohton that "football was a family and that [he] was no longer a part of that family" and asked him to voluntarily resign his position. When Ohton refused, the director allegedly removed Ohton as the strength and conditioning coach and changed his work hours to 6 a.m. to 2 p.m.

The university's attorney concluded that Ohton's accusation about Craft's drunkenness "was a factor" in Ohton's removal, but that the accusation itself was not made in good faith.

CSU's vice chancellor, Jackie McClain, said Ohton's accusations were not protected under the school's whistleblower provision, because Ohton had a "personal and vindictive agenda against Coach Craft."

But the appeals court found that CSU had applied the wrong definition of good faith. It cited a letter McClain sent to Ohton, stating that the university attorney "did not conclude you were knowingly dishonest." Her letter makes CSU's good-faith finding contradictory, the appeals court ruled, because the law only requires a whistleblower to have "an honest belief in the truth of the allegations" to be protected. Even if Ohton had a personal agenda, as the attorney and McClain claimed, he would still be protected under the whistleblower provision if he thought his allegations were true, the ruling states.

The fact that Ohton's statements were based on hearsay does not mean they made in bad faith, Justice Terry O'Rourke ruled, as whistleblowers often have to rely on hearsay evidence.

The university did make one retaliation finding, but then failed to follow through, the court added. The university attorney had concluded that restricting Ohton's work hours was "unnecessary" and "demeaning," and McClain conceded it was retaliatory, but the university failed to identify which employees retaliated or pursue any punishment or discipline against them.

The justices concluded that CSU "did not satisfactorily address Ohton's complaint."

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