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Ohton v. California State University of San Diego
Filed January 12, 2010, Fourth District, Div. One
Cite as 2010 SOS 120


Employee’s Complaint not Successfully Addressed

In reply to San Diego State University (SDSU) audit, David Ohton, a strength and conditioning coach of said university, asserted violations and other athletic department irregularities.

Particulary, Ohton cited Coach Tom Craft’s drinking episodes causing the football’s team to lose despite the team’s heavy favor.

After the audit report was published, Ohton claimed that he was identified to have cooperated in circulating the report. Thereafter, Coach Craft informed interim athletic director, Gene Bartow that he wanted his own strength coach. Ohton was also informed that he would no longer be tasked to stretch the team or be on any filed responsibility.

Subsequently, Ohton filed an administrative complaint under California State University (CSU) Executive Order No. 822 (EO 822). He alleged that the athletic department retaliated against him in violation of the California Whistleblower Protection Act (CWPA) because of the audit information he provided.

To investigate Ohton’s complaint, CSU engaged the services of attorney John Adler. Adler reported that Ohton was removed due to personal and program-related allegations and accusations. Further, Adler found that Ohton’s removal was not made in good faith.

However, CSU’s final letter stated that Ohton’s removal was due to non-retaliatory reasons.

Othon, thereafter, filed an action for damages in the superior court against CSU and certain individuals. When CSU successfully moved for summary judgment, Ohton appealed.

The California Court of Appeal, Fourth District, in reversing the judgment, made the following findings:

  • California State University acted arbitrarily and capriciously when it determined that Ohton’s accusations of Craft’s public drunkenness during road trips were not in made in good faith. Therefore, such accusations were not "protected disclosures" under California Whistleblower Protection Act.

  • University’s determination of whistleblower complaint was inadequate because it failed to address whether Craft’s retaliation against Ohton who made protected disclosures was referred for criminal prosecution or disciplined by it.
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