News

Morris and Carelli Quoted in the News -- "Coach's $1.2 Million Jury Award Reversed"

March 28, 2007

Union-Tribune
By Greg Moran
March 22, 2007

DOWNTOWN SAN DIEGO - 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 expicitly 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 schol 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.

North County Times
By Teri Figueroa
March 22, 2007

SAN DIEGO - An Appellate court ruling Wednesday wiped out a nearly $1.2 million jury verdict awarded to a former Orange Glen High School coach who sued the high school district, claiming that the then-principal fired him in retaliation for a complaint he'd once made against her husband.

The coach argued he should have been protected from firing as a whistle-blower, someone who reports illegal behavior in the workplace.

A panel of three justices from the 4th District Court of Appeals, Division 1 found that the original complaint that James "Ted" Carter levied against the principal's husband did not rise to a level affording Carter protected status as a whistle-blower, because the behavior Carter complained about was not illegal in the first place.

As such, the San Diego-based panel reversed the judgment entered in the trial court against Escondido Union High School District.

"While EUHSD's decision to terminate Carter may have been arbitrary, misguided and petty, it was not prohibited by law," Associate Justice Joan Irion wrote in the decision. Presiding Justice Judith McConnell and Associate Justice Patricia Benke concurred.

The appellate court decision comes two years after a North County jury unanimously sided with Carter in his claim of wrongful termination. The jury awarded Carter $1.18 million.

Paul Carelli, the attorney representing the school district in the appeal, said the court's finding is the same argument the district had raised from the start.

"It's been vindicating for the court of appeal to recognize that the district was right," Carelli said.

Neither Carter nor his appellate attorney could be reached for comment.

School district Superintendent Ed Nelson said he was "very pleased" with the court's finding and called it "vindication" for those named in the suit.

"I think what the appellate court decision does do is it validates the thoroughness of the legal system and the complexity of the legal system," Nelson said.

The years-long battle between Carter and the school district dates to 2000, when Carter was a basketball coach at Monte Vista High School in Spring Valley.

Early that year, Carter reported concerns about football coach Ed Carberry, claiming that Carberry suggested to a student athlete that he take a dietary supplement known as creatine. That student ended up hospitalized with kidney failure.

In the summer of 2000, not long after complaining about Carberry, Carter left the Spring Valley school for a teaching and coaching job at Orange Glen.

As it happened, soon after Carter took the Orange glen job, the wife of Ed Carberry was named Orange Glen's principal. Less than two years later, Dianna Carberry fired Carter.

Officials at the Escondido Union High School District have maintained in the court proceedings that the district did not fire him, it simply elected not to give Carter a tenured position because his teaching skills were mediocre.

Among the arguments the school district raised in appealing the jury's verdict was the contention that there is no law against suggesting that a student take a legal substance.

The appellate court found that Carter's decision to report Carberry was no an act of whistle-blowing, but was, "at its core, a disagreement between the football and basketball coaches about the proper advice to give student athletes."

The court found that while "there may indeed be sound policy reasons" to bar football coaches from recommending weight-gaining substances to high school students, there is currently no law prohibiting such.

"Any such prohibition must be enacted explicitly by the legislature, not implicitly by the courts," Irion wrote in the court ruling.

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