What the Arbitrator said v. The Deaf Bee, Board Byline

This section is word for word what Douglas Noll wrote in his decision paper. The words in red is what DHHSC quoted without including the words in green.  Noll never said that the agency had legitimate reasons to fire Nancy Carroll.  

THE LAW:

As the parties and counsel know, the controlling case is Cotran v. Rollins Hudig Hall International, Inc. (1998) 17 Cal.4th 93.  In Cotran, the California Supreme Court established the standards under which an employee who can only be terminated for good cause may be terminated.  The court stated:

"We give operative meaning to the term 'good cause' in the context of implied employment contracts by defining it, under the combined Scott-Pugh standard, as fair and honest reasons, regulated by good faith on part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual.  A reasoned conclusion, in short supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond/" 17 Cal.4th 107-108)."

In this case, the board had legitimate reasons for terminating Ms. Carroll had she been given notice of the board's concerns, had a reasonable opportunity to correct or change her behavior, failed to do so, and such failures documented by an independent Cotran investigation with notice and opportunity to be heard granted to Ms. Carroll.  The uncontroverted evidence establishes that the board failed to provide formal written evaluations to Ms. Carroll (that could have included concerns about her failure to cooperate with the evaluation process), met covertly to orchestrate Ms. Carroll's termination, and made a mistake of law concerning her employment status.  The arbitrator therefore concludes that the employment contract was breached by defendant VACC.

DAMAGES:

The general rule of remedies is the rightful position standard. That is, plaintiffs should be placed in their rightful position had the injury not occurred. Of course, this is a remedial goal that is often difficult to fulfill in practice. In considering damages for a breach of employment contract, several factors are considered. First the length of employment must be considered. In this case, Ms. Carroll was employed as Executive Director from 1987 to 2000, a term of 12 years. Second, the compensation package earned by the employee must be considered. In this case, Ms. Carroll's total compensation package was $XX.XXX. Third, assuming that the board wished to terminate Ms. Carroll for cause and had honest and good faith reasons to do so, the length of time the termination process would have taken must be considered. No evidence was presented on this factor, but considering that Ms. Carroll had been a successful director for over 12 years, and considering that performance issues centered around board relationships, the process would have taken up to a year. Finally, the degree to which terminated employee mitigates damages by seeking employment must be considered. Mitigation must take into account the age, training, and experience of the employee, the nature of the position, and the employment market. Generally, employees are not required to relocate great distances to mitigate damages. Ms. Carroll established that she engaged in a diligent search for employment, attended interviews, and reasonably declined a position on the East coast, sought employment in the Bay Area and otherwise acted in good faith to mitigate her damages. In addition, her testimony, not controverted by the defendants, created an implication that her job prospects in the Central Valley were limited. Because the deaf community is tight knit and because leaders of the deaf community largely sat on the VACC board, Ms. Carroll's termination probably poisoned her chances for similar professional employment in the valley.

Taking all of these factors into consideration, the arbitrator determines that Ms. Carroll is entitled to damaged equal to one year of her total compensation plus interest at 10 percent from February 16, 2000.

Defendant VACC shall therefore pay to plaintiff, Nancy Caroll, the sum of XX,XXX. (damages plus accrued prejudgment interest) plus $XX.XX per day until this award is confirmed to judgment. Plaintiff is the prevailing party and therefore entitled to costs. No attorney's fee clause exists; therefore, each side shall bear its own attorney's fees.

This award is intended to resolve all issues between the parties.

Date: June 10, 2002

Douglas E. Noll, Esq,
Arbitrator