The California Court of Appeals for the Fourth Appellate District has ruled this week that a lower court erred, for the second time, in dismissing a lawsuit brought by David Ohton, a strength and conditioning coach at San Diego State University (SDSU). In 2003, Ohton had filed an official report detailing NCAA violations, drunkenness and other misconduct by the school’s athletic officials. He provided the information to a state auditor. One of those officials got the report and distributed it to the other accused officials. Thereafter, the football coach made hostile statements about him, reduced his duties, and changed his hours to 6 am to 2 pm. The audit led to the ouster of three athletic officials, Sing-On San Diego reports.

University officials concluded that Ohton’s complaint was not made in "good faith" because it was "hearsay and fully refuted." The Court made clear that "good faith is properly determined based on whether the complainant believed it was true or had reason to believe it was true at the time it was made."

Thus, hearsay is an adequate basis for a good faith belief, and a refutation does not defeat a "good faith" belief.  It is up to the investigator to determine the facts, and that investigator needs to get all the information, refuted or not, to make that determination. The Court also rejected the idea that a complainant’s motives must, "be pure, or untainted by a personal or vindictive agenda." Instead, all that is required is "an honest belief in the truth of the allegations."

The Court faulted the university for failing to pursue criminal charges against the officials who retaliated against Ohton. The university had dismissed the idea on grounds that the retaliation was "minor," but the Court said that the law contained no exception for "minor" retaliation. The Court explains:

The Legislature designated such retaliation as a criminal offense. Therefore, when CSU makes a finding of retaliation, to satisfactorily address the whistleblower complaint, its determination letter must state whether the matter was referred to criminal prosecution, and if not why not. Anything short of this defeats the protections created by
the statute.

This holding is better than what whistleblowers get in federal courts.  Under Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), adverse actions must be "material" meaning they are sufficient to deter others from engaging in the protected activity. It is good that this California court sees that there really is no "immaterial" retaliation.  Any hostility that makes whistleblowers stand out as disfavored is enough to work against the public interest in getting information to government investigators.

The case is Ohton v. California State University of San Diego, case number D053738 (Jan. 12, 2010), and has been certified for publication. Ohton’s lawyer, Dennis Schoville, told Sign-On San Diego:

One man with integrity and a determination to do what is right for the student athletes at San Diego State University has endured criminal retaliation, intimidation and fraudulent conduct committed at the highest levels of the CSU and SDSU administrations. This unanimous decision by three of our brightest, most experienced justices will now allow coach David Ohton to have his day in court. The illegal and fraudulent conduct by university administrators at the highest level will finally be exposed.

The university’s lawyer declined to comment.