Golden West College Completes Investigation of Schubert: Lawsuit Impact

by Ceci Christy 7

December 10th, 2012 National, News

As we reported earlier, on September 17 Dia Rianda filed a lawsuit against Golden West Swim Club (“GWSC”), Mark Schubert, and Golden West Swim Club Support Group (“GWSCSG”) seeking monetary damages for wrongful termination, breach of her employment contract, and for retaliation.  This civil case is pending in the Superior Court of Orange County, California.  A hearing is scheduled for December 17 on Mr. Schubert’s motion to dismiss the lawsuit. 

The activity in the case has been minimal since the filing, but we have received copies of letters dated November 30 from Wes Bryan, President of Golden West College, addressed to GWSC Board of Directors and Mr. Schubert.  These letters reference an independent administrative investigation focusing on the allegations in the complaint concerning Coach William Jewell’s inappropriate conduct with members of the GWSC and Mr. Schubert’s failure to report those alleged instances to the College. 

GWSC is based out of the Golden West College aquatic facility, which is located in Huntington Beach.  Ms. Rianda did not name the College as a plaintiff in her suit.  The only mention of the College in her complaint references the origins of GWSC.  GWSC first operated under the College Community Services Division, but in 1988 became an independent nonprofit organization, according to the complaint.  Additionally, Mr. Jewell is not a party to the suit, but Ms. Rianda does state that Mr. Jewell behaved inappropriately with athletes of GWSC on numerous occasions.  She raises these allegations to show that Mr. Schubert, the head coach of GWSC during the period of her employment, was aware of “known or suspected improper conduct occurring between any GWSC coach, manager or volunteer and any participating athlete” and that as the head coach Mr. Schubert had the obligation to report such suspected improper conduct to USA Swimming.  Ms. Rianda alleges that Mr. Schubert did not report Mr. Jewell’s purported inappropriate misconduct.

Given the allegations in the complaint, the College states in its letters that “while the allegations were not directed toward the College or those acting during the course of their employment with [the College] specifically,” the College decided to investigate the allegations.  According to the letter, the College hired a licensed independent investigator, Norman A. Traub Associates, to conduct an administrative investigation into the allegations raised against Mr. Jewell that he may have been involved in any inappropriate conduct with a member of the GWSC swim team or a member of the GWC swim team.  We do not have a copy of the investigative report.  The letter we received from Mr. Schubert’s attorney summarizes the findings of the investigation. 

The letters claim that the investigator contacted over 100 students and their parents from GWSC and the College.  Further, the letters state that a misconduct reporting hotline and email address were publicized.  According to the letters, there were no allegations of misconduct received on the hotline or through the email address.  Additionally, the letters conclude that the investigation did not uncover any evidence to “substantiate” the allegations of inappropriate conduct by Mr. Jewell raised in the complaint.  Based upon this investigation, the College reached the conclusion that the allegations of Mr. Schubert failing to report such inappropriate conduct also were unfounded. 

So the question is this:  How does this investigation impact the lawsuit?  The short answer is that the investigation will have no impact in the courtroom, as the Superior Court is highly unlikely to allow these letters or the investigator’s report to be presented as evidence in the case.  There is an evidentiary rule which states that any evidence presented in court must come from the original source.  These letters are not the original source, but the synopsis and opinion of the College who requested the investigation.  The content of the letters is “hearsay,” which means that the information is not from the original source.  This same rule will apply to the actual investigator’s report.  The report summarizes the information collected from other people and documents.  The report itself is also opinion and synopsis based and proves or disproves nothing relating to the allegations in the lawsuit.  Again, the contents of the report are hearsay and inadmissible. 

Mr. Schubert may attempt to call the investigator as a witness to validate the report.  But the same evidentiary problem exists.  The investigator would be retelling what he was told, which is hearsay.  The investigator is not the police department that is sanctioned by the state to conduct investigations and to uncover evidence to gather the “truth” in a case.  This investigator was retained by an interested party in the lawsuit to ensure that the College had performed its duties to its students and athletes as relating to GWSC.  The College is to be commended for taking this action, and the results of the investigation purportedly show that the College did all it should have done regarding Mr. Jewell and Mr. Schubert according to the College’s policies. 

As to the lawsuit, however, the report purportedly says that no evidence was found supporting Ms. Rianada’s allegations.  But from what sources?  Are the sources credible?  Maybe the hotline did not reach all possible affected parties?  Maybe the affected parties do not have email?  Did the investigator speak to all the athletes coached by Mr. Jewell during the time period the lawsuit covers?  And what does the report actually prove?  These questions and more are the ones Ms. Rianda’s attorney will be asking the court should Mr. Schubert’s attorney ask the court to allow the letters or the report or the testimony of the investigator into evidence. 

As we all know, each party to a lawsuit wants to bolster their credibility and exonerate themselves.  These letters attempt to do that for Mr. Schubert.  The College reaches a conclusion based on the investigation that “the allegations levied against Mr. Schubert for failure to report inappropriate conduct are also unfounded.”   This conclusion is not evidence that can be used in court.  It is simply an opinion of the College and will play no part in the court’s determination of the issues in the lawsuit.  The letters may provide some relief to Mr. Schubert and Mr. Jewell in the community, but this effect will not carry over into the courtroom.

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Swim Coaching is probably the single most public profession in which a teacher/coach can engage. Coaches work with developing athletes at all levels of physical, mental, emotional, and spiritual maturity. Anyone who thinks highly effective coaches can simply work on the physical training and biomechanics of the people they serve is simply without the wisdom that comes with knowing the foundations of excellence in general. Is it possible that Bill Jewell acted inappropriately? Is it possible that over four decades of experience left Mark Schubert less than shocked by a back massage at the pool, which this poor woman claims is “inappropriate”? Perhaps. But if it’s illegal, why aren’t the parents of the athletes filing suit? Or some authority? Though… Read more »

coacherik

S,o what if she’s right?

coacherik

if she is wrong, there are policies in place for such an event (should be found to be unsubstantiated and if done so maliciously) within USA Swimming for a ban from coaching/membership. Wouldn’t Mr. Schubert have a case against her if it was found that her intentions were just retaliatory? As for your comment: “Is it possible that over four decades of experience left Mark Schubert less than shocked by a back massage at the pool, which this poor woman claims is “inappropriate”? ” – Article 305.2 Any rubdown or massage performed on an athlete by any adult member or Participating Non-Member, excluding the spouse, parent, guardian, sibling, or personal assistant of such athlete, is prohibited unless such adult is… Read more »

jeantuehl

You are way off on this particular case Erik. This is simply a vendettta by a disgruntled employee. The families and swimmers on GWSC have already put this to rest, because there was no issue in the first place.

Anonymous
jeantuehl

Case should have already been thrown out, period!

Nancy

Actually, the private investigator can be called as an expert witness, and as such, he would not be bound by the hearsay evidence rules. Any reasonable attorney would drop this lawsuit and apologize.

About Ceci Christy

Ceci Christy is the mother of two teenage daughters and has held the proud title of swim mom for nine years. She volunteers extensively at her daughters' swim club in Atlanta. While being a mother is her most rewarding job, Ceci also serves as a pro bono child advocate in …

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