|San Diego Education Report
|Lawyer glad district not liable
Coach's $1.2 million jury award
District cannot be held liable in
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
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
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
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
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
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,
Therefore, she concluded, “the statute
cannot form the basis for Carter's wrongful
Irion also said that Carter could not claim he
was a whistle-blower and wrongly fired on
“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
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
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
When it became clear that the school
had no problem with staff pushing
supplements on athletes, 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
Dianna Carberry swore
under oath that she knew
nothing about any
problems between her
husband and Carter, or
that any such
her decision to fire
Not a single juror
believed her. They
decided Escondido Union
School district should pay
verdict on the $1.18
million to Carter.
|What are the hidden costs of school district lawyers?
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 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
When the Carter verdict came out, lawyers 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 us. 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 employees like Carberry.”
Instead, lawyers recommended an appeal. This 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
“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 EUHSD doesn’t believe in doing
right by good school employees. It
prefers to protect ones like Dianna
Carberry and her husband.
One of the favorite tactics of school
district lawyers 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, lawyers
recommended that Escondido School
District appeal the case. That would
push Carter even further into
What was the purpose of the school
district's legal strategy other than to
channel taxpayer dollars to outsiders
and burden the overcrowded court
School board members obviously
care more about maintaining their
own power than they care about
maintaining a healthy student body
and responsible staff.
School district opponents
forced into bankruptcy
Coach James "Ted" Carter
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
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
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
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
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
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
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
"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
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
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.
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.
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
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
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.
|School districts believe that if they
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 can count on the
Court of Appeal to protect school districts rather than students and
Ed Carberry told a
student to take a
caused kidney failure.
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
JAMES T. CARTER,
Plaintiff and Appellant,
ESCONDIDO UNION HIGH SCHOOL
Defendant and Appellant.
(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
Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff, Jeffery A. Morris and Paul V.
Carelli IV on behalf of Defendant and Appellant.
James T. Carter sued his employer, the Escondido Union High School District
(EUHSD), claiming that EUHSD wrongfully terminated his employment in
public policy. At trial, Carter supported his allegations by presenting evidence
EUHSD declined to "reelect" him to his probationary teaching position because,
employed as a teacher at another school district, Carter informed the athletic
there that the football coach had recommended a nutritional supplement to a
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
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
public policy, the employer's conduct must violate a public policy that is
"'well established'" and "carefully tethered" to a constitutional or statutory
(Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090, 1095 (Gantt).) The
policy upon which EUHSD's liability was based in the instant case —
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
high school students, but as there is currently no law that does so, any such
must be enacted explicitly by the Legislature, not implicitly by the courts. Thus,
EUHSD's decision to terminate Carter may have been arbitrary, misguided and
was not prohibited by law or in contravention of well-established public policy,
provides no basis for liability under California law.
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
football and basketball teams. Edison hoped to play college football after
the spring semester, Edison took three weight-training classes with football
Carberry. During that time, Coach Carberry told Edison he was not big enough
division I college football, and suggested that Edison consume protein drinks
creatine to gain weight. Edison subsequently bought a "protein shake"
creatine from a local GNC store and drank the shake while lifting weights at a
During that same year, Carter was a teacher and basketball coach at Monte
High School. Carter, who knew Edison from the basketball team, noticed during
spring semester that Edison was gaining weight. Edison told Carter he had
gainer" at the recommendation of Coach Carberry.
1 Certain of the facts recited herein were vigorously disputed by the parties at
nevertheless, as is customary, we recite the facts in the light most favorable to
2 The parties did not introduce any evidence regarding creatine at the trial.
no dispute, however, that creatine is a lawful dietary supplement that can be
over the counter at retail stores such as GNC.
About a week after drinking the protein shake, Edison began having problems
with his kidneys and required temporary hospitalization. When Carter heard
hospitalization, he went to see Phil Poist, the school's athletic director. Carter
did so "because I knew that Harlan had been injured and I wanted to bring it to
attention." Carter told Poist that he had "learned Harlan Edison was taking a
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
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
High School District and received a probationary appointment as a teacher.
accepting the position, Carter learned that Diana Carberry, Coach Carberry's
be the interim principal at Orange Glen.
Carter taught at Orange Glenn for the 2000-2001 school year, and again for
2001-2002 school year after his probationary teaching status was renewed for
year. On or about March 13, 2002, Carter received a letter from EUHSD
that his employment at Orange Glenn would terminate at the end of the second
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
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
"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
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
EUHSD for wrongfully terminating Carter in violation of public policy.4 EUHSD
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
not adequately supported his claim for intentional infliction of emotional
that his wrongful termination claim could go forward only against his employer,
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
those motions EUHSD asserted the same grounds it now asserts on appeal.
In this consolidated action, Carter also appeals; his sole request is for a
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
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
was not grounded, as required by our Supreme Court, on a well-established,
public policy derived from a constitutional or statutory provision, we reverse
reaching the alternative grounds for reversal raised by EUHSD.6
5 Code of Civil Procedure section 2021.5 provides in relevant part: "Upon
a court may award attorneys' fees to a successful party against one or more
parties in any action which has resulted in the enforcement of an important
the public interest if: (a) a significant benefit, whether pecuniary or
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
no substantial evidence to support a finding that Carter's report of Carberry's
to his termination; (ii) there was no substantial evidence to support the jury's
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,
relies on Motevalli v. Los Angeles Unified School Dist. (2004) 122 Cal.App.4th
[holding that teacher who was "employed under an emergency credential" and
"ascend to permanent status merely through the passage of time" could not
wrongful termination].) The California Teachers Association filed an application
appear as amicus curiae on Carter's behalf on this point, contending that
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
(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
As a consequence of our reversal of the judgment, we necessarily reject
contention in his cross-appeal that the trial court erred in denying his request
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
or irrational reason," but is precluded from doing so "for an unlawful reason or
that contravenes fundamental public policy."7 (Gantt, supra, 1 Cal.4th at p.
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
it 'inures to the benefit of the public' rather than serving merely the interests of
individual; (3) well established at the time of the discharge; and (4) 'substantial'
'fundamental.'" (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 901-902
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
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
7 As noted in footnote 6 ante, EUHSD contends that Carter has fewer rights
at-will employee. We assume for purposes of this appeal, however, that, as
contends, his rights as a probationary employee are essentially "identical to th
[ose] of an
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
making managerial decisions." (Green v. Ralee Engineering Co. (1998) 19 Cal.
Whether the policy upon which a wrongful termination claim is based is
sufficiently fundamental, well-established and tethered to a statutory or
provision to support liability is a legal question that we review de novo.8
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
assisting in the taking of most medications under most circumstances], plus
Code of Regulations, sections 601 and 604" which, he argues, establish "the
against teachers recommending weight-gaining substances to students."
original.) Carter adds, without elaboration or citation to authority, that this
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
for the court to decide. Our review of this legal question, which does not
resolution of any disputed facts, is de novo. (Ghirardo, supra, 8 Cal.4th at p.
physician or surgeon, may be assisted by the school nurse or other designated
personnel . . . if the school district receives" a "written statement from the
detailing the name of the medication, method, amount, and time schedules by
medication is to be taken and a written statement from the parent . . . indicating
that the school district assist the pupil in the matters set forth in the statement
physician." (Id., subds. (a), (b).)
Section 49423 does not support EUHSD's liability in the instant case because
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
Education Code section emphasizes that it is "the intent of the Legislature to
positively for the health services, many of which may be performed in the public
only by physicians and school nurses." (Ed. Code, § 49426, italics added.) As
is explicitly permissive, there is, of course, no delineation of any sanctions
otherwise) that would apply to a failure to abide by its terms. This absence of
explicit prohibition of any conduct and the omission of any sanctions for
strongly suggest that section 49423 does not establish a fundamental public
could support a wrongful termination claim. (Sullivan v. Delta Air Lines, Inc.
Cal.App.4th 938, 945 & fn. 6 ["the prospect of criminal sanctions to punish the
of a policy has been a significant factor in the determination that a policy is
and fundamental"].) Instead, as "it is difficult to determine precisely what
conduct [section 49423] prohibits" (Sullivan, at p. 945), the statute does not
describe [any] prohibited conduct to enable an employer to know the
policies that are expressed in that law" as is required for wrongful termination
(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
allegedly taken here by Coach Carberry would still not fall within its scope. In
virtually every portion of the statute is inapplicable. The protein shake was not
"medication" "prescribed for [Edison] by a physician or surgeon"; Edison was
"required to take [the shake], during the regular schoolday"; and Edison was
"assisted" in taking it "by the school nurse or other designated school
Code, § 49423, subd. (a).) Thus, even if the statute is intended to implicitly
9 Despite the fact that the statute does not explicitly prohibit any conduct, the
court read an implied prohibition into the statute, ruling: "Stated another way,"
statute means that "school personnel are prohibited from assisting a student in
of medication without a doctor's note and a parent's note." By stating the
"another way," we believe the trial court failed to heed our Supreme Court's
"courts should venture into th[e] area [of declaring public policy], if at all, with
and due deference to the judgment of the legislative branch, 'lest they mistake
predilections for public policy which deserves recognition at law.'" (Gantt,
Cal.4th at p. 1095.) In keeping with our Supreme Court's guidance, courts
liability in wrongful termination actions should not restate unambiguous
language "another way," and then assess liability based on a violation of the
statutory text. (See Day v. City of Fontana (2001) 25 Cal.4th 268, 272 ["If there
ambiguity [in a statute], then we presume the lawmakers meant what they said,
plain meaning of the language governs"].)
actions it describes absent written parental authorization, those actions would
Coach Carberry's suggestion that a student could improve his college football
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
pertinent part, that the definition of "medication" includes "over-the-counter
nutritional supplements, and herbal remedies."10 While the broadening of the
of "medication" to include "nutritional supplements" helps Carter's claim to
one hurdle (placing protein shakes more comfortably within the term
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
other authorized medical personnel." (§ 49423.6, subd. (b).) Consequently, like
statute itself, the regulation speaks solely to the administration by school
personnel of required medical care, and as pertinent here clarifies that if a
10 Carter also references California Code of Regulations, title 5, section 604,
subdivision (a), but that regulation, which states "[a] school nurse may
medication to a pupil or otherwise assist a pupil in the administration of
allowed by law and in keeping with applicable standards of professional
nothing to his contention.
instructed by a physician to take a "nutritional supplement" during the school
school nurse "may" assist in administering the supplement if the student
appropriate written authorization. As explained above, this pronouncement of
conduct is not sufficiently similar to the actions taken by Coach Carberry to
EUHSD's wrongful discharge liability. (See, e.g., Silo v. CHW Medical
(2002) 27 Cal.4th 1097, 1110 ["an employer cannot be held liable for violating
policy that was not manifest at the time it committed the alleged tortious
v. Interactive Data Corp. (1988) 47 Cal.3d 654, 668 (Foley) [the public policy
a wrongful termination claim should be "one about which reasonable persons
little disagreement, and which was 'firmly established' at the time of
In sum, we are unable to discern from section 49423 and its implementing
regulations any fundamental and well-established public "policy against
11 Were we to affirm the judgment under Carter's theory that section 49423
school personnel from suggesting any "medication," including, as defined in
Code of Regulations, title 5, section 601, subdivision (b) "over-the-counter
nutritional supplements, and herbal remedies," there is no principled way to
prohibition to the legal creatine supplement at issue in this case. We would
be announcing a new and far-reaching prohibition that would include
suggesting that a
student take her vitamins, use Pepto-Bismol for gastrointestinal distress,
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
forbidden under Gantt. (Gantt, supra, 1 Cal.4th at p. 1095.)
recommending weight-gaining substances to students"; consequently, the
form the basis for Carter's wrongful termination action.12
C. EUHSD's Liability Is Not Carefully Tethered to California's Whistle-blower
We also reject Carter's implicit argument that the judgment against EUHSD is
supported by California's general whistle-blower statute, Labor Code section
(section 1102.5).13 Section 1102.5 prohibits termination of an employee "for
information to a government or law enforcement agency, where the employee
reasonable cause to believe that the information discloses a violation of state
statute, or a violation or noncompliance with a state or federal rule or
(§ 1102.5, subs. (b), (d), (e).)
12 Carter's efforts to divine a public policy against teacher's recommending
drinks from the trial testimony are equally unavailing. Carter cites the testimony
commissioner at the California Interscholastic Federation, a nonprofit
stated he would not personally "condone" recommending a dietary supplement
student; and the testimony of the superintendent of EUHSD, who testified he
want his teachers to "provide weight-gaining supplements to students." (Italics
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)
1238, 1257 (Turner) ["The tort of wrongful discharge is not a vehicle for
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
for the judgment, he references whistle-blowing, arguing for example that "the
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
explicit, we see no unfairness in evaluating this argument with respect to
both EUHSD on appeal and the trial court below recognized the whistle-blower
a potential basis for liability.
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.
explained above, the information disclosed by Carter did not "disclose a
state or federal statute, or a violation or noncompliance with a state or federal
regulation." (§ 1102.5, subd. (b); see Love v. Motion Industries, Inc. (N.D. Cal.
309 F.Supp.2d 1128, 1134 ["Plaintiff's disclosure does not meet the standard
protected activity under Section 1102.5(b), because the disclosed activity does
any federal or state statute, rule, or regulation"].) Second, Carter's
Poist was not motivated by his belief that a law had been broken. In fact, Carter
action upon learning that Carberry had recommended the shakes; rather,
he went to see Poist after Edison was hospitalized "because [he] knew that
been injured and [he] wanted to bring it to [Poist's] attention." Then, when Poist
that no action would be taken against Carberry, Carter made no further report.
even if Carter subjectively believed that Carberry had violated a statute or
approached Poist for that reason, the record is devoid of anything that would
conclusion that his belief was "reasonable." Protein shakes containing creatine
unlawful under either state or federal law. Consequently, there is no reason to
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.
supra, 47 Cal.3d at p. 670 ["No enactment expressly requires an employee to
relevant information concerning other employees to his employer, and none
discharge of the employee for so doing"].)
The situation in the instant case is analogous to that in Patten v. Grant Joint
High School Dist. (2005) 134 Cal.App.4th 1378 (Patten), where our colleagues
Third District rejected a teacher's lawsuit alleging retaliatory firing under
In Patten, supra, 134 Cal.App.4th 1378, 1382, the plaintiff/teacher claimed he
fired because he brought to the attention of his supervisor: (1) "that a male
education . . . teacher . . . was peering into the girl's locker room"; (2) "an off-
remark that a male science teacher . . . had made to a female student"; and (3)
that additional security staff be added after a student was assaulted. The
ruled that these disclosures "do not rise to the level of blowing a whistle," but
in "the context of an internal personnel matter based on a student complaint,
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."
As in Patten, supra, 134 Cal.App.4th 1378, 1385, Carter's disclosure here was
whistle-blowing under section 1102.5, but rather a routine "internal personnel
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
section 1102.5, and consequently cannot support a wrongful termination
Patten, supra, 134 Cal.App.4th at p. 1385; Foley, supra, 47 Cal.3d at p. 670
firing of employee for reporting that another employee was under investigation
FBI did not support claim of wrongful termination because firing did not
"substantial public policy"]; Read v. City of Lynwood (1985) 173 Cal.App.3d
["Appellant had every right to oppose the appointment of this developer and to
opposition known. However, appellant forgets that as a probationary employee
be fired for any reason and fails to identify a public policy supported by statute
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
[reporting to supervisors of suspected embezzlement within company could not
claim for termination in violation of public policy]; Rivera v. National R.R.
Corp. (9th Cir. 2003) 331 F.3d 1074, 1080 [rejecting claim where plaintiff's
similar to that of the employee in American Computer. If [plaintiff] had reported
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
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
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
such report, and, in fact, Carter testified he did not believe Carberry's conduct
"child abuse." (See §§ 11165.9, 11166, subd. (a), 11165.7 [if a mandated
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
p. 1257.) "Even if [EUHSD's] decision was misguided or based on an erroneous
premise, that would not eliminate the need for a clear expression of legislative
disfavoring a discharge for this reason to support a wrongful discharge claim."
John Muir Medical Center (2002) 97 Cal.App.4th 814, 825.)
the course of employment obtains "knowledge of or observes a child whom the
reporter knows or reasonably suspects has been the victim of child abuse or
teacher is mandated to report that abuse or neglect "to any police department
department, not including a school district police or security department . . . , or
county welfare department"].) Instead, Carter reported Carberry's actions to his
supervisor Poist, a course of action the Legislature has specifically stated does
constitute compliance with the mandated reporter statute. (§ 11166, subd. (i)(3)
["Reporting the information regarding a case of possible child abuse or neglect
employer, supervisor, school principal, school counselor, coworker, or other
not be a substitute for making a mandated report"].) Consequently, Carter's
with Poist is not protected by the mandated reporter statute. (§ 11166, subd.
to make required report is a misdemeanor].)
The judgment is reversed. Escondido Union High School District to recover
costs on appeal.
CERTIFIED FOR PUBLICATION
MCCONNELL, P. J.
|San Diego Education Report
Escondido Union High School District