| 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. |