APPEAL from a judgment of the Superior Court of San Diego County, Charles R. Hayes, Judge. Reversed with directions. (Super. Ct. No. GIC825574).
The opinion of the court was delivered by: O'rourke, J.
CERTIFIED FOR PUBLICATION
This case is before us a second time. In Ohton v. Board of Trustees of Cal. State University (2007) 148 Cal.App.4th 749, 769 (Ohton I), David Ohton, a strength and conditioning coach at San Diego State University (SDSU), filed an internal complaint alleging retaliation, which the Board of Trustees of California State University (CSU) timely investigated. Thereafter, he filed an action for damages in superior court against CSU and certain individuals. CSU successfully moved for summary judgment. We reversed, but held that before proceeding with a civil action for damages Ohton was required to first file a petition for a writ of mandate in the trial court for a determination of whether CSU had "satisfactorily addressed" his complaint within the meaning of Government Code section 8547.12, subdivision (c).*fn1 (Ohton I, supra, at p. 769.) We remanded the case for Ohton to seek leave to amend his complaint to add a petition for writ of mandate in the superior court. (Ohton I, supra, at p. 771.) Neither Ohton nor CSU appealed Ohton I.
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. Specifically, he alleged CSU erred in concluding he had not made certain protected disclosures in good faith; it applied an unduly restricted definition of "retaliation"; CSU did not apply the statutorily mandated "clear and convincing standard" in evaluating CSU's justifications for its adverse employment actions; CSU did not comply with the statute's requirements regarding punishment; and CSU's investigation denied him due process of law by denying him meaningful notice and an opportunity to be heard, an opportunity to confront evidence against him and develop and present evidence and testimony of his own, and a neutral fact finder. Ohton sought leave to file a civil action for damages. The trial court denied his writ petition.
Ohton contends we should abandon Ohton I and our conclusion that he was required to obtain a writ of mandate before proceeding with a civil action for damages. Alternatively, he contends (1) the trial court erred by not admitting his extra-record evidence; (2) CSU's investigation denied him due process of law, and (3) CSU's investigation and findings were contrary to law and arbitrary and capricious.
We conclude, based upon the administrative record before the trial court, 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. Accordingly, we reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Ohton's Protected Disclosure
In or around February 2003, Ohton responded to an SDSU athletic department audit by submitting a 103-page document (the Ohton Report) asserting National Collegiate Athletic Association (NCAA) violations and other athletic department irregularities. He 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 stripper club at 1:00 a.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 knows [sic]?" The auditor's report was issued in April 2003.
Ohton's Retaliation Complaint
In August 2003, Ohton filed an internal administrative complaint under CSU's Executive Order No. 822 (EO 822).*fn2 He claimed that Tom Craft and other members of the athletic department retaliated against him in violation of the California Whistleblower Protection Act (CWPA) (§ 8547 et seq.) because he reported to a university auditor information critical of various athletic department personnel and practices.
Ohton further claimed that by the second week of June 2003 the athletic 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 the athletic department members; 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 according to Craft Ohton had "turned in" their program to the NCAA, and "was out to get them."
Ohton claimed that on July 31, 2003, the interim athletic director, Gene Bartow, informed him that Craft wanted his own strength and conditioning coach and that the department would hire a new coach who would report only to football. Bartow tried to convince him to go along with this idea, but Ohton replied this was clear retaliation arising from revelations contained in the Ohton Report.
Ohton finally claimed that on August 6, 2003, Bartow and Dave Powroznik met with him, and Bartow explained that 'Football was a family and that [he] was no longer a part of that family.' Bartow told Ohton that effective immediately Ohton was relieved of all field responsibilities for football, and they did not want him to stretch the team or be on the field for any responsibilities. On August 20, 2003, Bartow instructed Ohton his new work hours were from 6:00 a.m. to 2:00 p.m.
CSU retained attorney John Adler to investigate Ohton's complaints. Adler concluded in his report that Ohton was not removed as strength coach from the football program because he reported NCAA rule violations. Adler stated: "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."
Adler found as follows regarding Ohton's work hours reduction: "On July 7, 2003, [Bartow] began his three month interim term of service to the University. Craft and Powroznik immediately presented Bartow with their concerns about Ohton continuing to serve as the strength and conditioning coach for football . . . . Craft told Bartow he had taken a year to evaluate certain people and that he now wanted a 'different look' in strength and conditioning for the team, with a focus on speed and quickness. . . . [¶] At or about this time, Bartow already knew Ohton had made allegations about the football program, but Bartow felt Craft's request was for the purpose of trying to win football games. . . . Bartow actually sought to end the appointment of Ohton, a request that was promptly rejected by [CSU]. [¶] . . . [¶] . . . Bartow involuntarily removed Ohton from any involvement with football and advised him that his work hours were now set at 6:00 a.m. to 2:00 p.m. Monday through Friday. Bartow directed Ohton to be out of the ...