| Morris glad district not liable Coach's $1.2 million jury award reversed District cannot be held liable in firing By Greg Moran San Diego Union Tribune March 22, 2007 A $1.2 million jury verdict awarded to a fired Escondido Union High School District basketball coach was reversed by a San Diego appeals court yesterday. The 4th District Court of Appeals ruled that the verdict in favor of James “Ted” Carter had to be overturned because the district could not be held liable for firing him in 2002. Carter, the former boys basketball coach at Orange Glen High School, claimed his firing was mainly prompted by an earlier dispute he had at another high school in Spring Valley. Carter had told Monte Vista High School officials that Ed Carberry, then the football coach at the Spring Valley school, had urged a player to take a legal, weight- gaining nutritional supplement. No action was taken against the football coach. Carter then got a position at Orange Glen. But after he accepted, the school hired a new principal – Diana Carberry, Ed Carberry's wife. After two years at Orange Glen, Carter said he was fired, based in large part on Diana Carberry's recommendation to the school board. He contended his firing was largely retaliation for his report against Ed Carberry. In a 3-0 ruling written by Associate Justice Joan Irion, the appeals court said the verdict could not be upheld because under the law the school district could not be held liable. Carter contended his firing violated a section of the state education code that allows school personnel to administer medication to students with the permission of a doctor or their parents. Employees like Carter can't be fired if their termination violates public policy that is fundamental and well-established. In this case, Irion said that the education code section cited by Carter does not explicitly cover the legal, weight-gaining supplement that the football coach recommended. The education code covers “medication” prescribed by a doctor, and allows school personnel to assist a student in taking it. Irion wrote that nutritional supplements are not medication. In this instance it was not prescribed by a doctor. In fact, Carberry only “recommended” that the student take it, and the coach did not assist the student, Irion said. Therefore, she concluded, “the statute cannot form the basis for Carter's wrongful termination action.” Irion also said that Carter could not claim he was a whistle-blower and wrongly fired on that basis. “There may indeed be sound policy reasons to bar football coaches from recommending weight gaining substances to high school students, but as there is currently no law that does so, any such prohibition must be enacted explicitly by the Legislature, not implicitly by the courts,” she wrote. Jeffrey Morris, the lawyer for the Escondido school district, welcomed the decision. “The court agreed that the statute they relied upon (at trial) doesn't say what they claimed it said,” Morris said. “It's a good result for the district, and at the end of the day this is something that really should not have been allowed to go to trial.” Lawyers for Carter could not be reached for comment yesterday. Diana Carberry has since left Orange Glen, and her husband has left Monte Vista and is the head coach at Mt. San Jacinto College in Riverside. |
| How good is lawyer Daniel Shinoff? The Carter Case In 2000, James “Ted” Carter was the basketball coach at Monte Vista High School in Spring Valley. He informed administrators when football coach Ed Carberry urged a student to take weight-gaining supplements. When it became clear that the school had no problem with this, Carter took a job at Orange Glen High School in Escondido. The student, Harlan Edison, was eventually hospitalized with kidney failure. Carter began to have problems at his new school when Dianna Carberry, the wife of the coach who urged the supplements, became principal of Orange Glenn. Dianne Carberry fired Coach Carter. In the lawsuit that followed, jurors found that Carter's reporting of his concerns ultimately led to his firing as an act of retaliation by the wife of coach Ed Carberry. Dianna Carberry swore under oath that she knew nothing about any problems between her husband and Carter, or that any such disagreement affected her decision to fire Carter. Not a single juror believed her. They decided Escondido Union School district should pay verdict on the $1.18 million to Carter. Who represented Escondido School District? None other than our own GUHSD attorney Daniel Shinoff. |
| What are the hidden costs of lawyers like Dan Shinoff? Why did school administrators in the Carter case allow a coach to harm a child's health? Why did they fire a good employee who blew the whistle? Why did school board members in Escondido prefer to pay hundreds of thousands of dollars to lawyers Shinoff and Morris when James Carter would almost certainly have been willing to settle for an amount similar to, or, more likely, less than what the lawyers were paid in this case? Because school administrators and school board are influenced by the lawyers who work for insurance companies and joint powers authorities. When the Carter verdict came out, Shinoff should have said to the Escondido school board: “Look. You’ve spent lots of money on my services, which just got you bad publicity. Don’t spend more on me. Use the money to settle with Carter. This is very bad for schools to treat good employees like this, and to spend huge amounts of money to defend bad employees like Carberry.” Instead, Shinoff recommended an appeal. Shame on you, Dan. Your advice is not only bad for schools, it doesn’t even pass the human decency test. |
| Logan Jenkins said in a San Diego Union Tribune piece on April 9, 2005: “If I were the district's attorney, I'd advise this simple…action plan to be completed before the end of the school year: You lost. Settle.” But Shinoff doesn’t believe in doing right by good school employees. He prefers to protect bad ones like Dianna Carberry and her husband. One of his favorite tactics is bankrupting the opposition, who so often tend to be middle-income school employees. The North County Times reported on April 6, 2005: “During the three years since his termination [Carter] has been unable to get a job interview at any school district in the region. Carter said the court battle has cost him about $300,000 in legal fees, and that he has had to refinance his La Mesa home a few times. Instead of settling, Shinoff recommended that Escondido School District appeal the case. That would push Carter even further into financial difficulties. Did Shinoff think he had any basis on which to appeal? Apparently not. After another year and a half, on December 20, 2006, Shinoff’s partner Jeffery Morris wrote to the Court of Appeal that he had recently begun settlement talks with Carter. What was the purpose of Stutz law firm’s strategy, other than to enrich themselves, waste taxpayer dollars and burden the overcrowded court system? The purpose was to make a good man desperate to settle, so desperate that he would settle for less than he was entitled to. And probably a lot less than the district paid to Shinoff and Morris. Lawyers like Shinoff and Morris are not clearly working to benefit the schools, the students or the taxpayers. Who are they working for? Themselves, and the school board members who care more about maintaining their own power than they care about anything else. |
| Jeffery Morris and Dan Shinoff try to force winners into bankruptcy |
| Coach James "Ted" Carter |
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| Jury awards $1.18 million to former Orange Glen High coach North County Times By: TERI FIGUEROA April 6, 2005 A jury Tuesday ordered the Escondido Union High School District to pay a former basketball coach nearly $1.2 million for wrongfully firing him. The district's top administrator said he will push to appeal the jury's decision in the civil trial. Former basketball coach James "Ted" Carter said he was "blown away" by the verdict and money award. Carter sued the Escondido Union High School District over his claims that he was fired because he'd had a rift with the husband of the principal of Orange Glen. "Vindication is the word," Carter said "I kept telling everybody that this happened, and I got 12 people to believe me." Officials with the Escondido Union High School District maintain that Carter was fired before receiving tenure because his teaching skills were mediocre. District Superintendent David Hughes said in a phone interview Tuesday afternoon that he is going to recommend to the school board that it appeal the outcome of the three-week trial. "I totally disagree with the verdict," Hughes said. School district attorney Daniel Shinoff said he also will recommend that the board appeal. The jury "had a different view of the case than we did," Shinoff said in a phone interview. The jury unanimously found in Carter's favor, although the panel was in slightly less agreement on the amount of damages to award the coach. |
Unlike jury verdicts in criminal cases, civil verdicts only need nine
members of the 12-person panel to agree on a verdict.
Jurors voted 10-2 to award Carter $885,258 for lost wages, past
and future. They also voted 10-2 to give him $300,000 for
emotional distress.
"We would have gone for more, but we were concerned they
might appeal and tie it up in court," jury forewoman Gennifer
Rangel of Carlsbad said of the amount of damages for emotional
distress they settled on.
The amount tallies up to $1,185,258 ---- the size of the award
Carter's attorney asked for when she made her closing
arguments Monday afternoon.
Carter claimed that his lawsuit against the school district has
effectively blacklisted him in the teaching profession, and that
during the three years since his termination he has been unable
to get a job interview at any school district in the region.
"I don't think any district will touch me with a 10-foot pole," Carter
said.
Robert Lear of Rancho Bernardo ---- one of the jurors who voted
against the large money awards ---- said he felt that Carter might
still be able to jet a teaching job.
The years-long battle between Carter and the school district
traces its roots to Carter's time as a coach at a Spring Valley high
school.
Carter was the basketball coach and Ed Carberry was the football
coach at Monte Vista High School in Spring Valley in 2000. Carter
claims that, early that year, he reported concerns about Carberry's
coaching.
Carter left the Spring Valley school for a teaching and coaching
job at Orange Glen in the summer of 2000. Soon after his hiring,
Dianna Carberry, the wife of Ed Carberry, was named Orange
Glen's principal.
Less than two years later, Dianna Carberry fired Carter.
Dianna Carberry denied in court that she knew about any alleged
rift between her husband and Carter, or that any such quarrel
clouded her judgment when she evaluated and fired Carter, the
attorneys said.
Dianna Carberry was not in court for the verdict and could not be
reached late Tuesday afternoon.
Jurors found that Carter had
reported his concerns
about Ed Carberry ----
including an allegation
that the football coach told
a student to take
a substance to help him
gain weight to play football ----
to a Monte Vista administrator.
That student, Harlan Edison,
was later hospitalized with
kidney failure.
Jurors also found that Carter's reporting of his concerns
ultimately led to his firing at Orange Glen as an act of retaliation.
Carter said the court battle has cost him about
$300,000 in legal fees, and that he has had to
refinance his La Mesa home a few times.
"I feel like I got a piano lifted off my back," Carter said shortly after
the verdict. "A big piano. A grand piano."
members of the 12-person panel to agree on a verdict.
Jurors voted 10-2 to award Carter $885,258 for lost wages, past
and future. They also voted 10-2 to give him $300,000 for
emotional distress.
"We would have gone for more, but we were concerned they
might appeal and tie it up in court," jury forewoman Gennifer
Rangel of Carlsbad said of the amount of damages for emotional
distress they settled on.
The amount tallies up to $1,185,258 ---- the size of the award
Carter's attorney asked for when she made her closing
arguments Monday afternoon.
Carter claimed that his lawsuit against the school district has
effectively blacklisted him in the teaching profession, and that
during the three years since his termination he has been unable
to get a job interview at any school district in the region.
"I don't think any district will touch me with a 10-foot pole," Carter
said.
Robert Lear of Rancho Bernardo ---- one of the jurors who voted
against the large money awards ---- said he felt that Carter might
still be able to jet a teaching job.
The years-long battle between Carter and the school district
traces its roots to Carter's time as a coach at a Spring Valley high
school.
Carter was the basketball coach and Ed Carberry was the football
coach at Monte Vista High School in Spring Valley in 2000. Carter
claims that, early that year, he reported concerns about Carberry's
coaching.
Carter left the Spring Valley school for a teaching and coaching
job at Orange Glen in the summer of 2000. Soon after his hiring,
Dianna Carberry, the wife of Ed Carberry, was named Orange
Glen's principal.
Less than two years later, Dianna Carberry fired Carter.
Dianna Carberry denied in court that she knew about any alleged
rift between her husband and Carter, or that any such quarrel
clouded her judgment when she evaluated and fired Carter, the
attorneys said.
Dianna Carberry was not in court for the verdict and could not be
reached late Tuesday afternoon.
Jurors found that Carter had
reported his concerns
about Ed Carberry ----
including an allegation
that the football coach told
a student to take
a substance to help him
gain weight to play football ----
to a Monte Vista administrator.
That student, Harlan Edison,
was later hospitalized with
kidney failure.
Jurors also found that Carter's reporting of his concerns
ultimately led to his firing at Orange Glen as an act of retaliation.
Carter said the court battle has cost him about
$300,000 in legal fees, and that he has had to
refinance his La Mesa home a few times.
"I feel like I got a piano lifted off my back," Carter said shortly after
the verdict. "A big piano. A grand piano."
Kronick Moskovitz Tiedemann & Girard
Resource Center
Legal Alerts
Non-reelected Probationary Teacher Did Not
State A Claim For Wrongful Termination In
Violation Of Public Policy Even If The District’s
Decision Was Motivated By The Teacher
Informing An Athletic Director That A Coach Had
Recommended A Nutritional Supplement To A
Student
April 27, 2007 | Bulletin No. 859253.1
In Carter v. Escondido Union High School, (56 Cal.Rptr.3d 262, Cal.
App. 4 Dist., Mar. 21, 2007), a California Court of Appeal recently
considered whether a teacher stated a claim for wrongful discharge
in violation of public policy after the school district he worked for
declined to rehire him after his second year of probationary
employment. The teacher alleged that he was non-reelected
because he informed an athletic director that a football coach had
recommended a nutritional supplement to a student. The Court of
Appeal held that there was no basis for liability because the district’
s reason for terminating the teacher was not prohibited by law and
was not in contravention of well-established public policy.
Facts
During the 1999-2000 school year, James T. Carter (“Carter”)
was a teacher and basketball coach at Monte Vista High School A
student told Carter that the football coach, Ed Carberry, had
suggested that he should drink protein shakes containing
creatine to gain weight. The student became ill after drinking the
shakes. Carter told the school’s athletic director that the student
had been taking a “weight gainer” because of Carberry’s
suggestion. The director told Carter that he would not take any
action against Carberry unless the student’s parents got involved.
Carter informed the director that he would leave Monte Vista and
find another job if the director took no action.
Carter applied for and received a probationary appointment as a
teacher at Orange Glen High School in the Escondido Union High
School District (“District”). After Carter accepted the position, he
learned that Carberry’s wife would be the interim principle at the
school. Carter was employed for the 2000-2001 school year and his
teaching status was renewed again for the 2001-2002 school year.
However, in March 2002, the District informed Carter that his
employment would terminate at the end of the year.
Carter brought a lawsuit against the District alleging that he was
wrongfully terminated in violation of public policy. A jury found that
the District’s decision had been motivated by Carter’s report and
that he was entitled to damages of over $1,000,000. Based on this
finding the trial court entered judgment in favor of Carter.
Decision
The Court of Appeal reversed the lower court’s
judgment. The court found that the District’s
liability was not grounded “on a well-
established, fundamental public policy derived
from a constitutional or statutory provision” and
could not, therefore, support a claim for
wrongful termination in violation of public policy.
Although an employer can discharge an at-will employee for an
arbitrary or irrational reason, or for no reason at all, an employer
cannot discharge an employee “for an unlawful reason or a purpose
that contravenes fundamental public policy.” An employee can state
a claim for wrongful discharge against public policy only if the
discharge “violates a policy that is: (1) delineated in either
constitutional or statutory provisions; (2) ‘public’ in the sense that it
‘inures to the benefit of the public’ rather than serving merely the
interest of the individual; (3) well established at the time of
discharge; and (4) ‘substantial’ and ‘fundamental.’” The policy at
issue must be based on a specific constitutional or statutory
provision so as to “avoid judicial interference with the legislative
domain” and to “ensure that employers have adequate notice of the
conduct that will subject them to tort liability to the employees that
they discharge.”
Carter argued that the District’s liability was based on Education
Code section 49423 which provides that any pupil who is required to
take medication during a regular schoolday “‘may be assisted by the
school nurse or other designated school personnel . . . if the school
district receives’ a ‘written statement from the physician’” which
details the instructions for taking the medication and indicates “‘the
desire that the school district assist the pupil in the matters set forth
in the statement.’” The court concluded that section 49423 could not
be used as a basis for liability because it does not prohibit any
conduct but instead delineates when assistance for the
administration of medication may be given. Furthermore, the protein
shake was not medication that had been prescribed by a physician.
Even though the California Code of
Regulations contains a provision
providing that the definition of
medication includes nutritional
supplements, the court concluded that section 49423 still
did not cover the conduct that was the subject of Carter’s complaint.
[Maura Larkins comment: How on earth did the court
decide that the nutritional supplement wasn't
covered by 49423???? Apparently, the court can
say whatever it wants whether it makes sense or
not.]
The court stated, “In sum, we are unable to discern from
section 49423 and its implementing regulations
any fundamental and well-established public
‘policy against teachers recommending weight-
gaining substances to students’; consequently, the
statute cannot form the basis for Carter’s wrongful termination
action.”
The court also rejected Carter’s implicit argument that the judgment
against the District was supported by Labor Code section 1102.5,
known as the “whistle-blower” statute. Carter did not disclose a
violation of a state or federal law or regulation. His disclosure to the
athletic director amounted to an “internal personnel disclosure,” and
such a disclosure is not protected by the whistle-blower statute.
Resource Center
Legal Alerts
Non-reelected Probationary Teacher Did Not
State A Claim For Wrongful Termination In
Violation Of Public Policy Even If The District’s
Decision Was Motivated By The Teacher
Informing An Athletic Director That A Coach Had
Recommended A Nutritional Supplement To A
Student
April 27, 2007 | Bulletin No. 859253.1
In Carter v. Escondido Union High School, (56 Cal.Rptr.3d 262, Cal.
App. 4 Dist., Mar. 21, 2007), a California Court of Appeal recently
considered whether a teacher stated a claim for wrongful discharge
in violation of public policy after the school district he worked for
declined to rehire him after his second year of probationary
employment. The teacher alleged that he was non-reelected
because he informed an athletic director that a football coach had
recommended a nutritional supplement to a student. The Court of
Appeal held that there was no basis for liability because the district’
s reason for terminating the teacher was not prohibited by law and
was not in contravention of well-established public policy.
Facts
During the 1999-2000 school year, James T. Carter (“Carter”)
was a teacher and basketball coach at Monte Vista High School A
student told Carter that the football coach, Ed Carberry, had
suggested that he should drink protein shakes containing
creatine to gain weight. The student became ill after drinking the
shakes. Carter told the school’s athletic director that the student
had been taking a “weight gainer” because of Carberry’s
suggestion. The director told Carter that he would not take any
action against Carberry unless the student’s parents got involved.
Carter informed the director that he would leave Monte Vista and
find another job if the director took no action.
Carter applied for and received a probationary appointment as a
teacher at Orange Glen High School in the Escondido Union High
School District (“District”). After Carter accepted the position, he
learned that Carberry’s wife would be the interim principle at the
school. Carter was employed for the 2000-2001 school year and his
teaching status was renewed again for the 2001-2002 school year.
However, in March 2002, the District informed Carter that his
employment would terminate at the end of the year.
Carter brought a lawsuit against the District alleging that he was
wrongfully terminated in violation of public policy. A jury found that
the District’s decision had been motivated by Carter’s report and
that he was entitled to damages of over $1,000,000. Based on this
finding the trial court entered judgment in favor of Carter.
Decision
The Court of Appeal reversed the lower court’s
judgment. The court found that the District’s
liability was not grounded “on a well-
established, fundamental public policy derived
from a constitutional or statutory provision” and
could not, therefore, support a claim for
wrongful termination in violation of public policy.
Although an employer can discharge an at-will employee for an
arbitrary or irrational reason, or for no reason at all, an employer
cannot discharge an employee “for an unlawful reason or a purpose
that contravenes fundamental public policy.” An employee can state
a claim for wrongful discharge against public policy only if the
discharge “violates a policy that is: (1) delineated in either
constitutional or statutory provisions; (2) ‘public’ in the sense that it
‘inures to the benefit of the public’ rather than serving merely the
interest of the individual; (3) well established at the time of
discharge; and (4) ‘substantial’ and ‘fundamental.’” The policy at
issue must be based on a specific constitutional or statutory
provision so as to “avoid judicial interference with the legislative
domain” and to “ensure that employers have adequate notice of the
conduct that will subject them to tort liability to the employees that
they discharge.”
Carter argued that the District’s liability was based on Education
Code section 49423 which provides that any pupil who is required to
take medication during a regular schoolday “‘may be assisted by the
school nurse or other designated school personnel . . . if the school
district receives’ a ‘written statement from the physician’” which
details the instructions for taking the medication and indicates “‘the
desire that the school district assist the pupil in the matters set forth
in the statement.’” The court concluded that section 49423 could not
be used as a basis for liability because it does not prohibit any
conduct but instead delineates when assistance for the
administration of medication may be given. Furthermore, the protein
shake was not medication that had been prescribed by a physician.
Even though the California Code of
Regulations contains a provision
providing that the definition of
medication includes nutritional
supplements, the court concluded that section 49423 still
did not cover the conduct that was the subject of Carter’s complaint.
[Maura Larkins comment: How on earth did the court
decide that the nutritional supplement wasn't
covered by 49423???? Apparently, the court can
say whatever it wants whether it makes sense or
not.]
The court stated, “In sum, we are unable to discern from
section 49423 and its implementing regulations
any fundamental and well-established public
‘policy against teachers recommending weight-
gaining substances to students’; consequently, the
statute cannot form the basis for Carter’s wrongful termination
action.”
The court also rejected Carter’s implicit argument that the judgment
against the District was supported by Labor Code section 1102.5,
known as the “whistle-blower” statute. Carter did not disclose a
violation of a state or federal law or regulation. His disclosure to the
athletic director amounted to an “internal personnel disclosure,” and
such a disclosure is not protected by the whistle-blower statute.
| Stutz law firm believes that if you can get away with it, then it's okay. Do we want this type of thinking guiding our schools? |
| Message from Dianna Carberry, Ed Carberry and SDCOE lawyers is clear: If you have reason to believe that a staff member caused a student's kidney failure, don't tell us, or we may fire you. And we won't be held responsible by the Court of Appeal." |
| Ed Carberry told a student to take a substance. |
San Diego
Education Report
Education Report
Link
Filed 3/21/07
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JAMES T. CARTER,
Plaintiff and Appellant,
v.
ESCONDIDO UNION HIGH SCHOOL
DISTRICT,
Defendant and Appellant.
D046833, D047649
(Super. Ct. No. GIN027111)
APPEALS from a judgment of the Superior Court of San Diego County,
Thomas
P. Nugent, Judge. Reversed.
Ross, Dixon & Bell and Jon R. Williams on behalf of Plaintiff and Appellant.
Beverly Tucker and Priscilla S. Winslow for amicus curiae on behalf of
Plaintiff
and Appellant.
Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff, Jeffery A. Morris and Paul V.
Carelli IV on behalf of Defendant and Appellant.
2
James T. Carter sued his employer, the Escondido Union High School
District
(EUHSD), claiming that EUHSD wrongfully terminated his employment in
violation of
public policy. At trial, Carter supported his allegations by presenting
evidence that
EUHSD declined to "reelect" him to his probationary teaching position
because, while
employed as a teacher at another school district, Carter informed the
athletic director
there that the football coach had recommended a nutritional supplement to
a student.
After the jury found that Carter's report to the athletic director had been "a
motivating reason" for EUHSD's adverse job action and that Carter was
entitled to
damages of over $1,000,000, the trial court entered judgment against
EUHSD.
As discussed in more detail below, we are required by controlling precedent
to
reverse. For an employer to be liable for the tort of wrongful termination in
violation of
public policy, the employer's conduct must violate a public policy that is
"'fundamental,'"
"'well established'" and "carefully tethered" to a constitutional or statutory
provision.
(Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090, 1095 (Gantt).) The
public
policy upon which EUHSD's liability was based in the instant case —
characterized by
Carter on appeal as "the policy against teachers recommending weight-
gaining
substances to students" — fails to satisfy these requirements. There may
indeed be sound
policy reasons to bar football coaches from recommending weight gaining
substances to
high school students, but as there is currently no law that does so, any such
prohibition
must be enacted explicitly by the Legislature, not implicitly by the courts.
Thus, while
EUHSD's decision to terminate Carter may have been arbitrary, misguided
and petty, it
3
was not prohibited by law or in contravention of well-established public
policy, and thus
provides no basis for liability under California law.
I
FACTS1
During the 1999-2000 school year, Harlan Edison was a senior at Monte
Vista
High School in the Grossmont Union High School District and a member of
the school's
football and basketball teams. Edison hoped to play college football after
graduation. In
the spring semester, Edison took three weight-training classes with football
coach Ed
Carberry. During that time, Coach Carberry told Edison he was not big
enough to play
division I college football, and suggested that Edison consume protein
drinks containing
creatine to gain weight. Edison subsequently bought a "protein shake"
containing
creatine from a local GNC store and drank the shake while lifting weights at
a friend's
house.2
During that same year, Carter was a teacher and basketball coach at Monte
Vista
High School. Carter, who knew Edison from the basketball team, noticed
during the
spring semester that Edison was gaining weight. Edison told Carter he had
taken "weight
gainer" at the recommendation of Coach Carberry.
1 Certain of the facts recited herein were vigorously disputed by the parties
at trial;
nevertheless, as is customary, we recite the facts in the light most favorable
to the jury's
findings.
2 The parties did not introduce any evidence regarding creatine at the trial.
There is
no dispute, however, that creatine is a lawful dietary supplement that can be
purchased
over the counter at retail stores such as GNC.
4
About a week after drinking the protein shake, Edison began having
problems
with his kidneys and required temporary hospitalization. When Carter heard
about the
hospitalization, he went to see Phil Poist, the school's athletic director.
Carter testified he
did so "because I knew that Harlan had been injured and I wanted to bring it
to [Poist's]
attention." Carter told Poist that he had "learned Harlan Edison was taking a
weight
gainer at the suggestion of Ed Carberry." Poist told Carter that he was not
going to take
any action "unless the parents g[o]t involved"; Carter responded that if no
action was
taken, he would "be leaving Monte Vista if [he] could find a job someplace"
else.
Carter then applied to teach at Orange Glen High School in the Escondido
Union
High School District and received a probationary appointment as a teacher.
After
accepting the position, Carter learned that Diana Carberry, Coach
Carberry's wife, would
be the interim principal at Orange Glen.
Carter taught at Orange Glenn for the 2000-2001 school year, and again
for the
2001-2002 school year after his probationary teaching status was renewed
for a second
year. On or about March 13, 2002, Carter received a letter from EUHSD
informing him
that his employment at Orange Glenn would terminate at the end of the
second
probationary year.
5
Carter subsequently filed suit against EUHSD, alleging that he was unlawfully
terminated in violation of public policy.3 A jury trial was held and, at its
conclusion, the
jury returned a special verdict, answering "Yes" to the following questions:
"Question No. 1: Do you find that Plaintiff reported that he believed Coach
Ed Carberry encouraged a student athlete to use a weight-gaining
substance?"
"Question No. 2: Was the Plaintiff's reporting that he believed Coach Ed
Carberry encouraged a student athlete to use a weight-gaining substance a
motivating reason for the determination to not reelect the plaintiff?"
"Question No. 3: Did the determination to not reelect the Plaintiff cause the
Plaintiff harm?"
Having answered these three questions in the affirmative, the jury calculated
Carter's damages to be $1,185,258. The trial court then entered judgment
against
EUHSD for wrongfully terminating Carter in violation of public policy.4 EUHSD
appeals.
3 Initially, Carter also alleged a claim for wrongful termination against Diana
Carberry and a claim for intentional infliction of emotional distress against
Diana
Carberry and Ed Carberry. The trial court ruled on summary judgment that
Carter had
not adequately supported his claim for intentional infliction of emotional
distress, and
that his wrongful termination claim could go forward only against his
employer, EUHSD.
These rulings are not at issue in the instant appeal.
4 The court also denied EUHSD's motions for a new trial and judgment
notwithstanding the verdict, as it had EUHSD's earlier motion for directed
verdict. In
those motions EUHSD asserted the same grounds it now asserts on appeal.
6
In this consolidated action, Carter also appeals; his sole request is for a
reversal of
the trial court's denial of his motion for attorney fees, pursuant to Code of
Civil
Procedure section 1021.5, as the "successful party" in the lawsuit.5
II
DISCUSSION
EUHSD makes a number of challenges to the judgment on appeal. As we
agree
with EUHSD that the judgment must be reversed because the school
district's liability
was not grounded, as required by our Supreme Court, on a well-
established, fundamental
public policy derived from a constitutional or statutory provision, we reverse
without
reaching the alternative grounds for reversal raised by EUHSD.6
5 Code of Civil Procedure section 2021.5 provides in relevant part: "Upon
motion,
a court may award attorneys' fees to a successful party against one or more
opposing
parties in any action which has resulted in the enforcement of an important
right affecting
the public interest if: (a) a significant benefit, whether pecuniary or
nonpecuniary, has
been conferred on the general public or a large class of persons . . . ."
6 In addition to the challenge identified above, EUHSD contends that: (i)
there was
no substantial evidence to support a finding that Carter's report of
Carberry's conduct led
to his termination; (ii) there was no substantial evidence to support the
jury's damages
calculation; and (iii) in any event, the tort of wrongful termination does not
apply to the
non-reelection of a probationary employee such as Carter. For this last
point, EUHSD
relies on Motevalli v. Los Angeles Unified School Dist. (2004) 122 Cal.App.
4th 97, 111
[holding that teacher who was "employed under an emergency credential"
and could not
"ascend to permanent status merely through the passage of time" could not
sue for
wrongful termination].) The California Teachers Association filed an
application to
appear as amicus curiae on Carter's behalf on this point, contending that
Motevalli "was
wrongly decided" and "should not be followed." As we note above, we need
not, and do
not, reach the question, because even if we agreed that Motevalli was
wrongly decided
(or that its reasoning does not apply), we would still be compelled to reverse
the
judgment because liability in the instant case is not based on a violation of a
constitutional or statutory-based public policy. Consequently, we deny the
application.
7
As a consequence of our reversal of the judgment, we necessarily reject
Carter's
contention in his cross-appeal that the trial court erred in denying his
request for attorney
fees under Code of Civil Procedure section 1021.5.
A. Applicable Legal Principles
An employer may discharge an at-will employee "for no reason, or for an
arbitrary
or irrational reason," but is precluded from doing so "for an unlawful reason
or a purpose
that contravenes fundamental public policy."7 (Gantt, supra, 1 Cal.4th at p.
1094.) A
discharge is actionable as against public policy only if it violates a policy
that is:
"(1) delineated in either constitutional or statutory provisions; (2) 'public' in
the sense that
it 'inures to the benefit of the public' rather than serving merely the interests
of the
individual; (3) well established at the time of the discharge; and (4)
'substantial' and
'fundamental.'" (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 901-
902
(Stevenson).)
The requirement that the policy underlying employer liability be "tether[ed]"
to
"specific constitutional or statutory provisions serves not only to avoid
judicial
interference with the legislative domain, but also to ensure that employers
have adequate
notice of the conduct that will subject them to tort liability to the employees
they
discharge." (Stevenson, supra, 16 Cal.4th at p. 889.) "This limitation
recognizes an
7 As noted in footnote 6 ante, EUHSD contends that Carter has fewer rights
than an
at-will employee. We assume for purposes of this appeal, however, that, as
Carter
contends, his rights as a probationary employee are essentially "identical to
th[ose] of an
at-will employee."
8
employer's general discretion to discharge an at-will employee without
cause . . . , and
best serves the Legislature's goal to give law-abiding employers broad
discretion in
making managerial decisions." (Green v. Ralee Engineering Co. (1998) 19
Cal.4th 66,
79-80, 82.)
Whether the policy upon which a wrongful termination claim is based is
sufficiently fundamental, well-established and tethered to a statutory or
constitutional
provision to support liability is a legal question that we review de novo.8
(Ghirardo v.
Antonioli (1994) 8 Cal.4th 791, 799 (Ghirardo).)
B. EUHSD's Liability Is Not Carefully Tethered to Education Code Section
49423
Carter argues that the pertinent public policy upon which EUHSD's liability
was
based is found in "Education Code section 49423 [restricting school
employees from
assisting in the taking of most medications under most circumstances], plus
California
Code of Regulations, sections 601 and 604" which, he argues, establish
"the policy
against teachers recommending weight-gaining substances to students."
(Alteration in
original.) Carter adds, without elaboration or citation to authority, that this
"policy is,
most definitely, substantial and well-defined."
Education Code section 49423 (section 49423) states that "any pupil who is
required to take, during the regular schoolday, medication prescribed for
him or her by a
8 The trial court ruled, with the agreement of the parties, that the decision
as to
whether the jury's findings established a violation of public policy was a
legal question
for the court to decide. Our review of this legal question, which does not
depend on
resolution of any disputed facts, is de novo. (Ghirardo, supra, 8 Cal.4th at
p. 799.)
9
physician or surgeon, may be assisted by the school nurse or other
designated school
personnel . . . if the school district receives" a "written statement from the
physician
detailing the name of the medication, method, amount, and time schedules
by which the
medication is to be taken and a written statement from the parent . . .
indicating the desire
that the school district assist the pupil in the matters set forth in the
statement of the
physician." (Id., subds. (a), (b).)
Section 49423 does not support EUHSD's liability in the instant case
because the
public policy it establishes was not violated by Carter's termination.
Section 49423 by its terms does not prohibit any conduct. Instead it is
expressly
permissive, delineating a circumstance under which the school nurse "may"
assist in the
administration of medication to a student during the school day. An
accompanying
Education Code section emphasizes that it is "the intent of the Legislature
to provide
positively for the health services, many of which may be performed in the
public schools
only by physicians and school nurses." (Ed. Code, § 49426, italics added.)
As the statute
is explicitly permissive, there is, of course, no delineation of any sanctions
(criminal or
otherwise) that would apply to a failure to abide by its terms. This absence
of any
explicit prohibition of any conduct and the omission of any sanctions for
noncompliance
strongly suggest that section 49423 does not establish a fundamental
public policy that
could support a wrongful termination claim. (Sullivan v. Delta Air Lines, Inc.
(1997) 58
Cal.App.4th 938, 945 & fn. 6 ["the prospect of criminal sanctions to punish
the violation
of a policy has been a significant factor in the determination that a policy is
substantial
and fundamental"].) Instead, as "it is difficult to determine precisely what
employer
10
conduct [section 49423] prohibits" (Sullivan, at p. 945), the statute does not
"sufficiently
describe [any] prohibited conduct to enable an employer to know the
fundamental public
policies that are expressed in that law" as is required for wrongful
termination liability.
(Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1480.)9
Even if we were to assume, as the trial court did, that what the Legislature
really
meant in enacting section 49423 was that "assistance" as described in the
statute is not
discretionary with parental permission, but in fact prohibited without it, the
action
allegedly taken here by Coach Carberry would still not fall within its scope.
In fact,
virtually every portion of the statute is inapplicable. The protein shake was
not
"medication" "prescribed for [Edison] by a physician or surgeon"; Edison
was not
"required to take [the shake], during the regular schoolday"; and Edison
was not
"assisted" in taking it "by the school nurse or other designated school
personnel." (Ed.
Code, § 49423, subd. (a).) Thus, even if the statute is intended to implicitly
prohibit the
9 Despite the fact that the statute does not explicitly prohibit any conduct,
the trial
court read an implied prohibition into the statute, ruling: "Stated another
way," the
statute means that "school personnel are prohibited from assisting a
student in the taking
of medication without a doctor's note and a parent's note." By stating the
statutory text
"another way," we believe the trial court failed to heed our Supreme Court's
direction that
"courts should venture into th[e] area [of declaring public policy], if at all,
with great care
and due deference to the judgment of the legislative branch, 'lest they
mistake their own
predilections for public policy which deserves recognition at law.'" (Gantt,
supra, 1
Cal.4th at p. 1095.) In keeping with our Supreme Court's guidance, courts
assessing
liability in wrongful termination actions should not restate unambiguous
statutory
language "another way," and then assess liability based on a violation of
the restated
statutory text. (See Day v. City of Fontana (2001) 25 Cal.4th 268, 272 ["If
there is no
ambiguity [in a statute], then we presume the lawmakers meant what they
said, and the
plain meaning of the language governs"].)
11
actions it describes absent written parental authorization, those actions
would not include
Coach Carberry's suggestion that a student could improve his college
football recruitment
prospects if he consumed a protein drink at some unspecified time in the
future.
The implementing regulations of the Department of Education do not alter
this
analysis. The only portion of the regulations that strengthen Carter's
contention is found
in California Code of Regulations, title 5, section 601, subdivision (b) which
states, in
pertinent part, that the definition of "medication" includes "over-the-counter
remedies,
nutritional supplements, and herbal remedies."10 While the broadening of
the definition
of "medication" to include "nutritional supplements" helps Carter's claim to
overcome
one hurdle (placing protein shakes more comfortably within the term
"medication"), the
regulatory framework as a whole further demonstrates the inapplicability of
the
underlying statute to this case.
Section 49423's implementing regulations are expressly "limited to
addressing a
situation where a pupil's parent or legal guardian has initiated a request to
have a local
educational agency dispense medicine to a pupil . . . , as prescribed by a
physician or
other authorized medical personnel." (§ 49423.6, subd. (b).) Consequently,
like the
statute itself, the regulation speaks solely to the administration by school
medical
personnel of required medical care, and as pertinent here clarifies that if a
student were
10 Carter also references California Code of Regulations, title 5, section
604,
subdivision (a), but that regulation, which states "[a] school nurse may
administer
medication to a pupil or otherwise assist a pupil in the administration of
medication as
allowed by law and in keeping with applicable standards of professional
practice," adds
nothing to his contention.
12
instructed by a physician to take a "nutritional supplement" during the
school day, the
school nurse "may" assist in administering the supplement if the student
submits
appropriate written authorization. As explained above, this pronouncement
of covered
conduct is not sufficiently similar to the actions taken by Coach Carberry to
support
EUHSD's wrongful discharge liability. (See, e.g., Silo v. CHW Medical
Foundation
(2002) 27 Cal.4th 1097, 1110 ["an employer cannot be held liable for
violating a public
policy that was not manifest at the time it committed the alleged tortious
action"]; Foley
v. Interactive Data Corp. (1988) 47 Cal.3d 654, 668 (Foley) [the public
policy supporting
a wrongful termination claim should be "one about which reasonable
persons can have
little disagreement, and which was 'firmly established' at the time of
discharge"].)11
In sum, we are unable to discern from section 49423 and its implementing
regulations any fundamental and well-established public "policy against
teachers
11 Were we to affirm the judgment under Carter's theory that section 49423
prohibits
school personnel from suggesting any "medication," including, as defined in
California
Code of Regulations, title 5, section 601, subdivision (b) "over-the-counter
remedies,
nutritional supplements, and herbal remedies," there is no principled way to
limit this
prohibition to the legal creatine supplement at issue in this case. We would
consequently
be announcing a new and far-reaching prohibition that would include
suggesting that a
student take her vitamins, use Pepto-Bismol for gastrointestinal distress,
calamine lotion
on a rash, or hand lotion on dry skin. There may be sound public policy
reasons for such
a law, but it is the Legislature, not the courts, that must decide that
question. Were we to
do so, our ruling would constitute exactly the kind of "judicial policymaking"
that is
forbidden under Gantt. (Gantt, supra, 1 Cal.4th at p. 1095.)
13
recommending weight-gaining substances to students"; consequently, the
statute cannot
form the basis for Carter's wrongful termination action.12
C. EUHSD's Liability Is Not Carefully Tethered to California's Whistle-blower
Statute
We also reject Carter's implicit argument that the judgment against EUHSD is
supported by California's general whistle-blower statute, Labor Code
section 1102.5
(section 1102.5).13 Section 1102.5 prohibits termination of an employee
"for disclosing
information to a government or law enforcement agency, where the
employee has
reasonable cause to believe that the information discloses a violation of
state or federal
statute, or a violation or noncompliance with a state or federal rule or
regulation."
(§ 1102.5, subs. (b), (d), (e).)
12 Carter's efforts to divine a public policy against teacher's recommending
protein
drinks from the trial testimony are equally unavailing. Carter cites the
testimony of the
commissioner at the California Interscholastic Federation, a nonprofit
organization, who
stated he would not personally "condone" recommending a dietary
supplement to a
student; and the testimony of the superintendent of EUHSD, who testified he
would not
want his teachers to "provide weight-gaining supplements to students."
(Italics added.)
This testimony cannot support a conclusion that there was a well-
established,
fundamental public policy delineated in a statutory or constitutional provision
prohibiting Coach Carberry's conduct. (Turner v. Anheuser-Busch, Inc.
(1994) 7 Cal.4th
1238, 1257 (Turner) ["The tort of wrongful discharge is not a vehicle for
enforcement of
an employer's internal policies or the provisions of its agreements with
others"].)
13 While Carter does not specifically identify the whistle-blower statute as
support
for the judgment, he references whistle-blowing, arguing for example that
"the activity
that Carter engaged in — essentially 'blowing the whistle' on Coach
Carberry" — is "a
matter of fundamental public policy." Despite Carter's failure to make this
contention
explicit, we see no unfairness in evaluating this argument with respect to
EUHSD, as
both EUHSD on appeal and the trial court below recognized the whistle-
blower statute as
a potential basis for liability.
14
Carter's conduct in disclosing to the athletic director that Coach Carberry
had
recommended a protein shake to a student is not protected by section
1102.5. First, as
explained above, the information disclosed by Carter did not "disclose[] a
violation of
state or federal statute, or a violation or noncompliance with a state or
federal rule or
regulation." (§ 1102.5, subd. (b); see Love v. Motion Industries, Inc. (N.D.
Cal. 2004)
309 F.Supp.2d 1128, 1134 ["Plaintiff's disclosure does not meet the
standard for
protected activity under Section 1102.5(b), because the disclosed activity
does not violate
any federal or state statute, rule, or regulation"].) Second, Carter's
conversation with
Poist was not motivated by his belief that a law had been broken. In fact,
Carter took no
action upon learning that Carberry had recommended the shakes; rather,
Carter testified
he went to see Poist after Edison was hospitalized "because [he] knew that
Harlan had
been injured and [he] wanted to bring it to [Poist's] attention." Then, when
Poist stated
that no action would be taken against Carberry, Carter made no further
report. Third,
even if Carter subjectively believed that Carberry had violated a statute or
regulation and
approached Poist for that reason, the record is devoid of anything that
would support a
conclusion that his belief was "reasonable." Protein shakes containing
creatine are not
unlawful under either state or federal law. Consequently, there is no reason
to believe
that merely suggesting that a high school senior drink one at some
unspecified time in the
future is illegal.
As Carter's disclosure was not protected by California's whistle-blower
statute,
EUHSD was not prohibited from discharging him based on that disclosure.
(Foley,
supra, 47 Cal.3d at p. 670 ["No enactment expressly requires an employee
to report
15
relevant information concerning other employees to his employer, and none
prohibits
discharge of the employee for so doing"].)
The situation in the instant case is analogous to that in Patten v. Grant Joint
Union
High School Dist. (2005) 134 Cal.App.4th 1378 (Patten), where our
colleagues in the
Third District rejected a teacher's lawsuit alleging retaliatory firing under
section 1102.5.
In Patten, supra, 134 Cal.App.4th 1378, 1382, the plaintiff/teacher claimed
he was
fired because he brought to the attention of his supervisor: (1) "that a male
physical
education . . . teacher . . . was peering into the girl's locker room"; (2) "an
off-color
remark that a male science teacher . . . had made to a female student"; and
(3) requested
that additional security staff be added after a student was assaulted. The
Patten court
ruled that these disclosures "do not rise to the level of blowing a whistle,"
but were made
in "the context of an internal personnel matter based on a student
complaint, rather than
in the context of a legal violation." (Id. at p. 1385.) The court reasoned:
"To exalt these exclusively internal personnel disclosures with
whistle[-]blower status would create all sorts of mischief. Most
damagingly, it would thrust the judiciary into micromanaging employment
practices and create a legion of undeserving protected 'whistle[-]blowers'
arising from the routine workings and communications of the job site."
(Ibid.)
As in Patten, supra, 134 Cal.App.4th 1378, 1385, Carter's disclosure here
was not
whistle-blowing under section 1102.5, but rather a routine "internal
personnel disclosure"
that was, at its core, a disagreement between the football and basketball
coaches about the
proper advice to give to student athletes. This type of disclosure is not
encompassed by
section 1102.5, and consequently cannot support a wrongful termination
action. (See
16
Patten, supra, 134 Cal.App.4th at p. 1385; Foley, supra, 47 Cal.3d at p.
670 [employer's
firing of employee for reporting that another employee was under
investigation by the
FBI did not support claim of wrongful termination because firing did not
implicate a
"substantial public policy"]; Read v. City of Lynwood (1985) 173 Cal.App.3d
437, 444
["Appellant had every right to oppose the appointment of this developer and
to make her
opposition known. However, appellant forgets that as a probationary
employee she can
be fired for any reason and fails to identify a public policy supported by
statute which
prevents the termination of a probationary employee for opposing a
decision made by her
bosses"]; American Computer Corp. v. Superior Court (1989) 213 Cal.App.
3d 664, 668
[reporting to supervisors of suspected embezzlement within company could
not support
claim for termination in violation of public policy]; Rivera v. National R.R.
Passenger
Corp. (9th Cir. 2003) 331 F.3d 1074, 1080 [rejecting claim where plaintiff's
"situation is
similar to that of the employee in American Computer. If [plaintiff] had
reported the
illegal activities of his co-workers, [he] may have achieved the 'laudable
goal' of
preventing crime, but this is not enough to fit within the narrow confines of
wrongful
termination in violation of public policy"].)14
14 Without specifically arguing that his conduct was protected by the
mandated
reporter obligations of the Penal Code, Carter makes a conclusory
assertion that "he did
nothing more than fulfill his mandatory reporting obligation to his immediate
supervisor." Carter is mistaken. Carter, as a teacher, was a "mandated
reporter" under
Penal Code section 11165.7, and consequently was required by law to
report to police or
the county child welfare agency any "child abuse and neglect" he became
aware of during
the course of his employment. It is undisputed, however, that Carter did not
make any
such report, and, in fact, Carter testified he did not believe Carberry's
conduct constituted
"child abuse." (See §§ 11165.9, 11166, subd. (a), 11165.7 [if a mandated
reporter during
17
In sum, Carter's "failure to identify a statutory or constitutional policy that
would
be thwarted by his . . . discharge dooms his cause of action." (Turner,
supra, 7 Cal.4th at
p. 1257.) "Even if [EUHSD's] decision was misguided or based on an
erroneous factual
premise, that would not eliminate the need for a clear expression of
legislative policy
disfavoring a discharge for this reason to support a wrongful discharge
claim." (Jersey v.
John Muir Medical Center (2002) 97 Cal.App.4th 814, 825.)
the course of employment obtains "knowledge of or observes a child whom
the mandated
reporter knows or reasonably suspects has been the victim of child abuse
or neglect," the
teacher is mandated to report that abuse or neglect "to any police
department or sheriff's
department, not including a school district police or security department . . .
, or the
county welfare department"].) Instead, Carter reported Carberry's actions to
his
supervisor Poist, a course of action the Legislature has specifically stated
does not
constitute compliance with the mandated reporter statute. (§ 11166, subd. (i)
(3)
["Reporting the information regarding a case of possible child abuse or
neglect to an
employer, supervisor, school principal, school counselor, coworker, or other
person shall
not be a substitute for making a mandated report"].) Consequently, Carter's
conversation
with Poist is not protected by the mandated reporter statute. (§ 11166,
subd. (c) [failure
to make required report is a misdemeanor].)
18
DISPOSITION
The judgment is reversed. Escondido Union High School District to recover
costs on appeal.
CERTIFIED FOR PUBLICATION
IRION, J.
WE CONCUR:
MCCONNELL, P. J.
BENKE, J.
Filed 3/21/07
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JAMES T. CARTER,
Plaintiff and Appellant,
v.
ESCONDIDO UNION HIGH SCHOOL
DISTRICT,
Defendant and Appellant.
D046833, D047649
(Super. Ct. No. GIN027111)
APPEALS from a judgment of the Superior Court of San Diego County,
Thomas
P. Nugent, Judge. Reversed.
Ross, Dixon & Bell and Jon R. Williams on behalf of Plaintiff and Appellant.
Beverly Tucker and Priscilla S. Winslow for amicus curiae on behalf of
Plaintiff
and Appellant.
Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff, Jeffery A. Morris and Paul V.
Carelli IV on behalf of Defendant and Appellant.
2
James T. Carter sued his employer, the Escondido Union High School
District
(EUHSD), claiming that EUHSD wrongfully terminated his employment in
violation of
public policy. At trial, Carter supported his allegations by presenting
evidence that
EUHSD declined to "reelect" him to his probationary teaching position
because, while
employed as a teacher at another school district, Carter informed the
athletic director
there that the football coach had recommended a nutritional supplement to
a student.
After the jury found that Carter's report to the athletic director had been "a
motivating reason" for EUHSD's adverse job action and that Carter was
entitled to
damages of over $1,000,000, the trial court entered judgment against
EUHSD.
As discussed in more detail below, we are required by controlling precedent
to
reverse. For an employer to be liable for the tort of wrongful termination in
violation of
public policy, the employer's conduct must violate a public policy that is
"'fundamental,'"
"'well established'" and "carefully tethered" to a constitutional or statutory
provision.
(Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090, 1095 (Gantt).) The
public
policy upon which EUHSD's liability was based in the instant case —
characterized by
Carter on appeal as "the policy against teachers recommending weight-
gaining
substances to students" — fails to satisfy these requirements. There may
indeed be sound
policy reasons to bar football coaches from recommending weight gaining
substances to
high school students, but as there is currently no law that does so, any such
prohibition
must be enacted explicitly by the Legislature, not implicitly by the courts.
Thus, while
EUHSD's decision to terminate Carter may have been arbitrary, misguided
and petty, it
3
was not prohibited by law or in contravention of well-established public
policy, and thus
provides no basis for liability under California law.
I
FACTS1
During the 1999-2000 school year, Harlan Edison was a senior at Monte
Vista
High School in the Grossmont Union High School District and a member of
the school's
football and basketball teams. Edison hoped to play college football after
graduation. In
the spring semester, Edison took three weight-training classes with football
coach Ed
Carberry. During that time, Coach Carberry told Edison he was not big
enough to play
division I college football, and suggested that Edison consume protein
drinks containing
creatine to gain weight. Edison subsequently bought a "protein shake"
containing
creatine from a local GNC store and drank the shake while lifting weights at
a friend's
house.2
During that same year, Carter was a teacher and basketball coach at Monte
Vista
High School. Carter, who knew Edison from the basketball team, noticed
during the
spring semester that Edison was gaining weight. Edison told Carter he had
taken "weight
gainer" at the recommendation of Coach Carberry.
1 Certain of the facts recited herein were vigorously disputed by the parties
at trial;
nevertheless, as is customary, we recite the facts in the light most favorable
to the jury's
findings.
2 The parties did not introduce any evidence regarding creatine at the trial.
There is
no dispute, however, that creatine is a lawful dietary supplement that can be
purchased
over the counter at retail stores such as GNC.
4
About a week after drinking the protein shake, Edison began having
problems
with his kidneys and required temporary hospitalization. When Carter heard
about the
hospitalization, he went to see Phil Poist, the school's athletic director.
Carter testified he
did so "because I knew that Harlan had been injured and I wanted to bring it
to [Poist's]
attention." Carter told Poist that he had "learned Harlan Edison was taking a
weight
gainer at the suggestion of Ed Carberry." Poist told Carter that he was not
going to take
any action "unless the parents g[o]t involved"; Carter responded that if no
action was
taken, he would "be leaving Monte Vista if [he] could find a job someplace"
else.
Carter then applied to teach at Orange Glen High School in the Escondido
Union
High School District and received a probationary appointment as a teacher.
After
accepting the position, Carter learned that Diana Carberry, Coach
Carberry's wife, would
be the interim principal at Orange Glen.
Carter taught at Orange Glenn for the 2000-2001 school year, and again
for the
2001-2002 school year after his probationary teaching status was renewed
for a second
year. On or about March 13, 2002, Carter received a letter from EUHSD
informing him
that his employment at Orange Glenn would terminate at the end of the
second
probationary year.
5
Carter subsequently filed suit against EUHSD, alleging that he was unlawfully
terminated in violation of public policy.3 A jury trial was held and, at its
conclusion, the
jury returned a special verdict, answering "Yes" to the following questions:
"Question No. 1: Do you find that Plaintiff reported that he believed Coach
Ed Carberry encouraged a student athlete to use a weight-gaining
substance?"
"Question No. 2: Was the Plaintiff's reporting that he believed Coach Ed
Carberry encouraged a student athlete to use a weight-gaining substance a
motivating reason for the determination to not reelect the plaintiff?"
"Question No. 3: Did the determination to not reelect the Plaintiff cause the
Plaintiff harm?"
Having answered these three questions in the affirmative, the jury calculated
Carter's damages to be $1,185,258. The trial court then entered judgment
against
EUHSD for wrongfully terminating Carter in violation of public policy.4 EUHSD
appeals.
3 Initially, Carter also alleged a claim for wrongful termination against Diana
Carberry and a claim for intentional infliction of emotional distress against
Diana
Carberry and Ed Carberry. The trial court ruled on summary judgment that
Carter had
not adequately supported his claim for intentional infliction of emotional
distress, and
that his wrongful termination claim could go forward only against his
employer, EUHSD.
These rulings are not at issue in the instant appeal.
4 The court also denied EUHSD's motions for a new trial and judgment
notwithstanding the verdict, as it had EUHSD's earlier motion for directed
verdict. In
those motions EUHSD asserted the same grounds it now asserts on appeal.
6
In this consolidated action, Carter also appeals; his sole request is for a
reversal of
the trial court's denial of his motion for attorney fees, pursuant to Code of
Civil
Procedure section 1021.5, as the "successful party" in the lawsuit.5
II
DISCUSSION
EUHSD makes a number of challenges to the judgment on appeal. As we
agree
with EUHSD that the judgment must be reversed because the school
district's liability
was not grounded, as required by our Supreme Court, on a well-
established, fundamental
public policy derived from a constitutional or statutory provision, we reverse
without
reaching the alternative grounds for reversal raised by EUHSD.6
5 Code of Civil Procedure section 2021.5 provides in relevant part: "Upon
motion,
a court may award attorneys' fees to a successful party against one or more
opposing
parties in any action which has resulted in the enforcement of an important
right affecting
the public interest if: (a) a significant benefit, whether pecuniary or
nonpecuniary, has
been conferred on the general public or a large class of persons . . . ."
6 In addition to the challenge identified above, EUHSD contends that: (i)
there was
no substantial evidence to support a finding that Carter's report of
Carberry's conduct led
to his termination; (ii) there was no substantial evidence to support the
jury's damages
calculation; and (iii) in any event, the tort of wrongful termination does not
apply to the
non-reelection of a probationary employee such as Carter. For this last
point, EUHSD
relies on Motevalli v. Los Angeles Unified School Dist. (2004) 122 Cal.App.
4th 97, 111
[holding that teacher who was "employed under an emergency credential"
and could not
"ascend to permanent status merely through the passage of time" could not
sue for
wrongful termination].) The California Teachers Association filed an
application to
appear as amicus curiae on Carter's behalf on this point, contending that
Motevalli "was
wrongly decided" and "should not be followed." As we note above, we need
not, and do
not, reach the question, because even if we agreed that Motevalli was
wrongly decided
(or that its reasoning does not apply), we would still be compelled to reverse
the
judgment because liability in the instant case is not based on a violation of a
constitutional or statutory-based public policy. Consequently, we deny the
application.
7
As a consequence of our reversal of the judgment, we necessarily reject
Carter's
contention in his cross-appeal that the trial court erred in denying his
request for attorney
fees under Code of Civil Procedure section 1021.5.
A. Applicable Legal Principles
An employer may discharge an at-will employee "for no reason, or for an
arbitrary
or irrational reason," but is precluded from doing so "for an unlawful reason
or a purpose
that contravenes fundamental public policy."7 (Gantt, supra, 1 Cal.4th at p.
1094.) A
discharge is actionable as against public policy only if it violates a policy
that is:
"(1) delineated in either constitutional or statutory provisions; (2) 'public' in
the sense that
it 'inures to the benefit of the public' rather than serving merely the interests
of the
individual; (3) well established at the time of the discharge; and (4)
'substantial' and
'fundamental.'" (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 901-
902
(Stevenson).)
The requirement that the policy underlying employer liability be "tether[ed]"
to
"specific constitutional or statutory provisions serves not only to avoid
judicial
interference with the legislative domain, but also to ensure that employers
have adequate
notice of the conduct that will subject them to tort liability to the employees
they
discharge." (Stevenson, supra, 16 Cal.4th at p. 889.) "This limitation
recognizes an
7 As noted in footnote 6 ante, EUHSD contends that Carter has fewer rights
than an
at-will employee. We assume for purposes of this appeal, however, that, as
Carter
contends, his rights as a probationary employee are essentially "identical to
th[ose] of an
at-will employee."
8
employer's general discretion to discharge an at-will employee without
cause . . . , and
best serves the Legislature's goal to give law-abiding employers broad
discretion in
making managerial decisions." (Green v. Ralee Engineering Co. (1998) 19
Cal.4th 66,
79-80, 82.)
Whether the policy upon which a wrongful termination claim is based is
sufficiently fundamental, well-established and tethered to a statutory or
constitutional
provision to support liability is a legal question that we review de novo.8
(Ghirardo v.
Antonioli (1994) 8 Cal.4th 791, 799 (Ghirardo).)
B. EUHSD's Liability Is Not Carefully Tethered to Education Code Section
49423
Carter argues that the pertinent public policy upon which EUHSD's liability
was
based is found in "Education Code section 49423 [restricting school
employees from
assisting in the taking of most medications under most circumstances], plus
California
Code of Regulations, sections 601 and 604" which, he argues, establish
"the policy
against teachers recommending weight-gaining substances to students."
(Alteration in
original.) Carter adds, without elaboration or citation to authority, that this
"policy is,
most definitely, substantial and well-defined."
Education Code section 49423 (section 49423) states that "any pupil who is
required to take, during the regular schoolday, medication prescribed for
him or her by a
8 The trial court ruled, with the agreement of the parties, that the decision
as to
whether the jury's findings established a violation of public policy was a
legal question
for the court to decide. Our review of this legal question, which does not
depend on
resolution of any disputed facts, is de novo. (Ghirardo, supra, 8 Cal.4th at
p. 799.)
9
physician or surgeon, may be assisted by the school nurse or other
designated school
personnel . . . if the school district receives" a "written statement from the
physician
detailing the name of the medication, method, amount, and time schedules
by which the
medication is to be taken and a written statement from the parent . . .
indicating the desire
that the school district assist the pupil in the matters set forth in the
statement of the
physician." (Id., subds. (a), (b).)
Section 49423 does not support EUHSD's liability in the instant case
because the
public policy it establishes was not violated by Carter's termination.
Section 49423 by its terms does not prohibit any conduct. Instead it is
expressly
permissive, delineating a circumstance under which the school nurse "may"
assist in the
administration of medication to a student during the school day. An
accompanying
Education Code section emphasizes that it is "the intent of the Legislature
to provide
positively for the health services, many of which may be performed in the
public schools
only by physicians and school nurses." (Ed. Code, § 49426, italics added.)
As the statute
is explicitly permissive, there is, of course, no delineation of any sanctions
(criminal or
otherwise) that would apply to a failure to abide by its terms. This absence
of any
explicit prohibition of any conduct and the omission of any sanctions for
noncompliance
strongly suggest that section 49423 does not establish a fundamental
public policy that
could support a wrongful termination claim. (Sullivan v. Delta Air Lines, Inc.
(1997) 58
Cal.App.4th 938, 945 & fn. 6 ["the prospect of criminal sanctions to punish
the violation
of a policy has been a significant factor in the determination that a policy is
substantial
and fundamental"].) Instead, as "it is difficult to determine precisely what
employer
10
conduct [section 49423] prohibits" (Sullivan, at p. 945), the statute does not
"sufficiently
describe [any] prohibited conduct to enable an employer to know the
fundamental public
policies that are expressed in that law" as is required for wrongful
termination liability.
(Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1480.)9
Even if we were to assume, as the trial court did, that what the Legislature
really
meant in enacting section 49423 was that "assistance" as described in the
statute is not
discretionary with parental permission, but in fact prohibited without it, the
action
allegedly taken here by Coach Carberry would still not fall within its scope.
In fact,
virtually every portion of the statute is inapplicable. The protein shake was
not
"medication" "prescribed for [Edison] by a physician or surgeon"; Edison
was not
"required to take [the shake], during the regular schoolday"; and Edison
was not
"assisted" in taking it "by the school nurse or other designated school
personnel." (Ed.
Code, § 49423, subd. (a).) Thus, even if the statute is intended to implicitly
prohibit the
9 Despite the fact that the statute does not explicitly prohibit any conduct,
the trial
court read an implied prohibition into the statute, ruling: "Stated another
way," the
statute means that "school personnel are prohibited from assisting a
student in the taking
of medication without a doctor's note and a parent's note." By stating the
statutory text
"another way," we believe the trial court failed to heed our Supreme Court's
direction that
"courts should venture into th[e] area [of declaring public policy], if at all,
with great care
and due deference to the judgment of the legislative branch, 'lest they
mistake their own
predilections for public policy which deserves recognition at law.'" (Gantt,
supra, 1
Cal.4th at p. 1095.) In keeping with our Supreme Court's guidance, courts
assessing
liability in wrongful termination actions should not restate unambiguous
statutory
language "another way," and then assess liability based on a violation of
the restated
statutory text. (See Day v. City of Fontana (2001) 25 Cal.4th 268, 272 ["If
there is no
ambiguity [in a statute], then we presume the lawmakers meant what they
said, and the
plain meaning of the language governs"].)
11
actions it describes absent written parental authorization, those actions
would not include
Coach Carberry's suggestion that a student could improve his college
football recruitment
prospects if he consumed a protein drink at some unspecified time in the
future.
The implementing regulations of the Department of Education do not alter
this
analysis. The only portion of the regulations that strengthen Carter's
contention is found
in California Code of Regulations, title 5, section 601, subdivision (b) which
states, in
pertinent part, that the definition of "medication" includes "over-the-counter
remedies,
nutritional supplements, and herbal remedies."10 While the broadening of
the definition
of "medication" to include "nutritional supplements" helps Carter's claim to
overcome
one hurdle (placing protein shakes more comfortably within the term
"medication"), the
regulatory framework as a whole further demonstrates the inapplicability of
the
underlying statute to this case.
Section 49423's implementing regulations are expressly "limited to
addressing a
situation where a pupil's parent or legal guardian has initiated a request to
have a local
educational agency dispense medicine to a pupil . . . , as prescribed by a
physician or
other authorized medical personnel." (§ 49423.6, subd. (b).) Consequently,
like the
statute itself, the regulation speaks solely to the administration by school
medical
personnel of required medical care, and as pertinent here clarifies that if a
student were
10 Carter also references California Code of Regulations, title 5, section
604,
subdivision (a), but that regulation, which states "[a] school nurse may
administer
medication to a pupil or otherwise assist a pupil in the administration of
medication as
allowed by law and in keeping with applicable standards of professional
practice," adds
nothing to his contention.
12
instructed by a physician to take a "nutritional supplement" during the
school day, the
school nurse "may" assist in administering the supplement if the student
submits
appropriate written authorization. As explained above, this pronouncement
of covered
conduct is not sufficiently similar to the actions taken by Coach Carberry to
support
EUHSD's wrongful discharge liability. (See, e.g., Silo v. CHW Medical
Foundation
(2002) 27 Cal.4th 1097, 1110 ["an employer cannot be held liable for
violating a public
policy that was not manifest at the time it committed the alleged tortious
action"]; Foley
v. Interactive Data Corp. (1988) 47 Cal.3d 654, 668 (Foley) [the public
policy supporting
a wrongful termination claim should be "one about which reasonable
persons can have
little disagreement, and which was 'firmly established' at the time of
discharge"].)11
In sum, we are unable to discern from section 49423 and its implementing
regulations any fundamental and well-established public "policy against
teachers
11 Were we to affirm the judgment under Carter's theory that section 49423
prohibits
school personnel from suggesting any "medication," including, as defined in
California
Code of Regulations, title 5, section 601, subdivision (b) "over-the-counter
remedies,
nutritional supplements, and herbal remedies," there is no principled way to
limit this
prohibition to the legal creatine supplement at issue in this case. We would
consequently
be announcing a new and far-reaching prohibition that would include
suggesting that a
student take her vitamins, use Pepto-Bismol for gastrointestinal distress,
calamine lotion
on a rash, or hand lotion on dry skin. There may be sound public policy
reasons for such
a law, but it is the Legislature, not the courts, that must decide that
question. Were we to
do so, our ruling would constitute exactly the kind of "judicial policymaking"
that is
forbidden under Gantt. (Gantt, supra, 1 Cal.4th at p. 1095.)
13
recommending weight-gaining substances to students"; consequently, the
statute cannot
form the basis for Carter's wrongful termination action.12
C. EUHSD's Liability Is Not Carefully Tethered to California's Whistle-blower
Statute
We also reject Carter's implicit argument that the judgment against EUHSD is
supported by California's general whistle-blower statute, Labor Code
section 1102.5
(section 1102.5).13 Section 1102.5 prohibits termination of an employee
"for disclosing
information to a government or law enforcement agency, where the
employee has
reasonable cause to believe that the information discloses a violation of
state or federal
statute, or a violation or noncompliance with a state or federal rule or
regulation."
(§ 1102.5, subs. (b), (d), (e).)
12 Carter's efforts to divine a public policy against teacher's recommending
protein
drinks from the trial testimony are equally unavailing. Carter cites the
testimony of the
commissioner at the California Interscholastic Federation, a nonprofit
organization, who
stated he would not personally "condone" recommending a dietary
supplement to a
student; and the testimony of the superintendent of EUHSD, who testified he
would not
want his teachers to "provide weight-gaining supplements to students."
(Italics added.)
This testimony cannot support a conclusion that there was a well-
established,
fundamental public policy delineated in a statutory or constitutional provision
prohibiting Coach Carberry's conduct. (Turner v. Anheuser-Busch, Inc.
(1994) 7 Cal.4th
1238, 1257 (Turner) ["The tort of wrongful discharge is not a vehicle for
enforcement of
an employer's internal policies or the provisions of its agreements with
others"].)
13 While Carter does not specifically identify the whistle-blower statute as
support
for the judgment, he references whistle-blowing, arguing for example that
"the activity
that Carter engaged in — essentially 'blowing the whistle' on Coach
Carberry" — is "a
matter of fundamental public policy." Despite Carter's failure to make this
contention
explicit, we see no unfairness in evaluating this argument with respect to
EUHSD, as
both EUHSD on appeal and the trial court below recognized the whistle-
blower statute as
a potential basis for liability.
14
Carter's conduct in disclosing to the athletic director that Coach Carberry
had
recommended a protein shake to a student is not protected by section
1102.5. First, as
explained above, the information disclosed by Carter did not "disclose[] a
violation of
state or federal statute, or a violation or noncompliance with a state or
federal rule or
regulation." (§ 1102.5, subd. (b); see Love v. Motion Industries, Inc. (N.D.
Cal. 2004)
309 F.Supp.2d 1128, 1134 ["Plaintiff's disclosure does not meet the
standard for
protected activity under Section 1102.5(b), because the disclosed activity
does not violate
any federal or state statute, rule, or regulation"].) Second, Carter's
conversation with
Poist was not motivated by his belief that a law had been broken. In fact,
Carter took no
action upon learning that Carberry had recommended the shakes; rather,
Carter testified
he went to see Poist after Edison was hospitalized "because [he] knew that
Harlan had
been injured and [he] wanted to bring it to [Poist's] attention." Then, when
Poist stated
that no action would be taken against Carberry, Carter made no further
report. Third,
even if Carter subjectively believed that Carberry had violated a statute or
regulation and
approached Poist for that reason, the record is devoid of anything that
would support a
conclusion that his belief was "reasonable." Protein shakes containing
creatine are not
unlawful under either state or federal law. Consequently, there is no reason
to believe
that merely suggesting that a high school senior drink one at some
unspecified time in the
future is illegal.
As Carter's disclosure was not protected by California's whistle-blower
statute,
EUHSD was not prohibited from discharging him based on that disclosure.
(Foley,
supra, 47 Cal.3d at p. 670 ["No enactment expressly requires an employee
to report
15
relevant information concerning other employees to his employer, and none
prohibits
discharge of the employee for so doing"].)
The situation in the instant case is analogous to that in Patten v. Grant Joint
Union
High School Dist. (2005) 134 Cal.App.4th 1378 (Patten), where our
colleagues in the
Third District rejected a teacher's lawsuit alleging retaliatory firing under
section 1102.5.
In Patten, supra, 134 Cal.App.4th 1378, 1382, the plaintiff/teacher claimed
he was
fired because he brought to the attention of his supervisor: (1) "that a male
physical
education . . . teacher . . . was peering into the girl's locker room"; (2) "an
off-color
remark that a male science teacher . . . had made to a female student"; and
(3) requested
that additional security staff be added after a student was assaulted. The
Patten court
ruled that these disclosures "do not rise to the level of blowing a whistle,"
but were made
in "the context of an internal personnel matter based on a student
complaint, rather than
in the context of a legal violation." (Id. at p. 1385.) The court reasoned:
"To exalt these exclusively internal personnel disclosures with
whistle[-]blower status would create all sorts of mischief. Most
damagingly, it would thrust the judiciary into micromanaging employment
practices and create a legion of undeserving protected 'whistle[-]blowers'
arising from the routine workings and communications of the job site."
(Ibid.)
As in Patten, supra, 134 Cal.App.4th 1378, 1385, Carter's disclosure here
was not
whistle-blowing under section 1102.5, but rather a routine "internal
personnel disclosure"
that was, at its core, a disagreement between the football and basketball
coaches about the
proper advice to give to student athletes. This type of disclosure is not
encompassed by
section 1102.5, and consequently cannot support a wrongful termination
action. (See
16
Patten, supra, 134 Cal.App.4th at p. 1385; Foley, supra, 47 Cal.3d at p.
670 [employer's
firing of employee for reporting that another employee was under
investigation by the
FBI did not support claim of wrongful termination because firing did not
implicate a
"substantial public policy"]; Read v. City of Lynwood (1985) 173 Cal.App.3d
437, 444
["Appellant had every right to oppose the appointment of this developer and
to make her
opposition known. However, appellant forgets that as a probationary
employee she can
be fired for any reason and fails to identify a public policy supported by
statute which
prevents the termination of a probationary employee for opposing a
decision made by her
bosses"]; American Computer Corp. v. Superior Court (1989) 213 Cal.App.
3d 664, 668
[reporting to supervisors of suspected embezzlement within company could
not support
claim for termination in violation of public policy]; Rivera v. National R.R.
Passenger
Corp. (9th Cir. 2003) 331 F.3d 1074, 1080 [rejecting claim where plaintiff's
"situation is
similar to that of the employee in American Computer. If [plaintiff] had
reported the
illegal activities of his co-workers, [he] may have achieved the 'laudable
goal' of
preventing crime, but this is not enough to fit within the narrow confines of
wrongful
termination in violation of public policy"].)14
14 Without specifically arguing that his conduct was protected by the
mandated
reporter obligations of the Penal Code, Carter makes a conclusory
assertion that "he did
nothing more than fulfill his mandatory reporting obligation to his immediate
supervisor." Carter is mistaken. Carter, as a teacher, was a "mandated
reporter" under
Penal Code section 11165.7, and consequently was required by law to
report to police or
the county child welfare agency any "child abuse and neglect" he became
aware of during
the course of his employment. It is undisputed, however, that Carter did not
make any
such report, and, in fact, Carter testified he did not believe Carberry's
conduct constituted
"child abuse." (See §§ 11165.9, 11166, subd. (a), 11165.7 [if a mandated
reporter during
17
In sum, Carter's "failure to identify a statutory or constitutional policy that
would
be thwarted by his . . . discharge dooms his cause of action." (Turner,
supra, 7 Cal.4th at
p. 1257.) "Even if [EUHSD's] decision was misguided or based on an
erroneous factual
premise, that would not eliminate the need for a clear expression of
legislative policy
disfavoring a discharge for this reason to support a wrongful discharge
claim." (Jersey v.
John Muir Medical Center (2002) 97 Cal.App.4th 814, 825.)
the course of employment obtains "knowledge of or observes a child whom
the mandated
reporter knows or reasonably suspects has been the victim of child abuse
or neglect," the
teacher is mandated to report that abuse or neglect "to any police
department or sheriff's
department, not including a school district police or security department . . .
, or the
county welfare department"].) Instead, Carter reported Carberry's actions to
his
supervisor Poist, a course of action the Legislature has specifically stated
does not
constitute compliance with the mandated reporter statute. (§ 11166, subd. (i)
(3)
["Reporting the information regarding a case of possible child abuse or
neglect to an
employer, supervisor, school principal, school counselor, coworker, or other
person shall
not be a substitute for making a mandated report"].) Consequently, Carter's
conversation
with Poist is not protected by the mandated reporter statute. (§ 11166,
subd. (c) [failure
to make required report is a misdemeanor].)
18
DISPOSITION
The judgment is reversed. Escondido Union High School District to recover
costs on appeal.
CERTIFIED FOR PUBLICATION
IRION, J.
WE CONCUR:
MCCONNELL, P. J.
BENKE, J.