Today in Pennsylvania county court, former Penn State assistant football coach Mike McQueary filed whistleblower, defamation and misrepresentation lawsuit against Penn State University.
In the lawsuit, McQueary alleges that on February 9, 2001 he witnessed Jerry Sandusky engaging in illegal sexual conduct with a young boy in the showers in the Penn State football building. According to McQueary, prior to this time he had not received any training from Penn State, its employees or agents with respect to police department’s various jurisdictions or requirements for reporting suspended sexual misconduct under the Clery Act. According to the lawsuit, McQueary reported what he saw take place in the showers to Joe Paterno the next morning. Paterno told McQueary he would tell some other people about what was reported to him and follow back up with McQueary. Shortly thereafter, according to the lawsuit, Paterno told McQueary that he reported the incident to then Penn State athletics director Tim Curley. Nine or ten days following the incident, McQueary alleges that he met with Curley and then senior vice president Gary Schultz to discuss the incident. The two men allegedly ensured McQueary that an investigation would take place and necessary action would be taken. According to the lawsuit, McQueary relied upon these statements that a proper investigation would take place and appropriate action would be taken.
McQueary’s lawsuit alleges that neither Curley nor Schultz reported his allegations to the Penn State Police Department, State College Police Department, Pennsylvania Police Department or the Centre County Children and Youth Services. Subsequently, in November 2011, a Pennsylvania grand jury issued a presentment of finding that Curley and Schultz made material false statements to the grand jury regarding McQueary’s report of sexual misconduct by Sandusky to them. Curley and Schultz were subsequently charged with crimes as a result of the grand jury’s presentment. After Curley and Schultz were charged, McQueary alleges that former Penn State president Graham Spanier made numerous public remarks in support of Curley and Schultz’s and calling the charges against them groundless.
Subsequent to the charges filed against Sandusky, Curley and Schultz, on November 10, 2011, McQueary was told that Penn State was prohibiting McQueary from coaching in that week’s upcoming game. McQueary was also allegedly told to leave the State College area. According to the lawsuit, on November 11, 2011, McQueary was placed on paid administrative leave. In a meeting on November 13, 2011 describing the terms of his paid administrative leave, McQueary allegedly told Penn State that he was ready, willing and able to continue working as an assistant football coach and that he did not believe he was negligent in his job responsibilities.
In his first cause of action under Pennsylvania’s whistleblower statute, McQueary alleges that he was terminated from his employment for cooperating with investigators and subsequently testifying in criminal preliminary hearings against Curley and Schultz. The lawsuit also proffers that McQueary is expected to be a key prosecution witness in the trials against Curley and Schultz. Furthermore, McQueary claims that due to this, he suffered discriminatory treatment at the hands of Penn State. That discriminatory treatment includes allegations that being put on administrative leave prevented him from collecting a bonus from coaching in the Ticket City Bowl and access to a university issued vehicle. McQueary also alleges that he believes he was the only then-present staff member present under Paterno’s tenure that wasn’t interviewed for an assistant coaching position under Bill O’Brien. The lawsuit also claims that McQueary is the only Penn State employee that the university did not offer to reimburse for legal fees incurred as a result of the surrounding legal proceedings. McQueary also alleges that while other former assistant football coaches displaced from their jobs as a result of O’Brien’s hiring received their severances on July 31, 2012, he did not receive his until September 17, 2012. McQueary alleges that not receiving his severance in July forced him to draw money from his retirement account. During that same period, McQueary alleges that the other former coaches received COBRA healthcare rights paid by the university, whereas McQueary did not until September 15, 2012. Furthermore, McQueary claims that while other coaches were told that they were not being retained by O’Brien were told by January 31, 2012, McQueary did not know he wasn’t retained until a news conference was held on July 5, 2012 announcing he was no longer employed by Penn State. Ultimately, McQueary claims that this discrimination caused him “much distress, anxiety and embarrassment.” With respect to the whistleblower claim, McQueary seeks damages totaling the amount of a bonus he would’ve received from the Ticket City Bowl, $4,250 for the rental value of his Penn State issued vehicle, reimbursement of legal fees, back pay and benefits, the amount of tax penalty he’ll have to pay for drawing from his retirement fund, prejudgement interest and reinstatement to his position or front pay plus general damages.
The timing McQueary’s whistleblower lawsuit is notable, as both Curley and Schultz still face trial on charges arising from their alleged inaction in reporting McQueary’s allegations to authorities. Thus, one can expect the allegations raised by McQueary to outline his possible testimony in the pair’s trials. Additionally, it is likely that lawyers for Curley and Schutlz will focus largely upon the filing of this lawsuit during the course of cross examination.
Next, McQueary alleges a cause of action for defamation. Essentially, McQueary alleges that a written statement issued and verbal statement made by former president Graham Spanier suggested that McQueary lied about telling Curley and Schultz what he witnessed in the football facility shower. The lawsuit alleges that these statements were widely published and were made by Spanier with actual malice and reckless disregard for the truth to fully support the reputation of Penn State and its employees. McQueary alleges that these statements irreparably harmed his reputation and ability to earn a living. According to the lawsuit, McQueary earned $140,400.00 in base salary during the 2011-12 season. On top of that, there was a discretionary/bowl bonus and fringe benefits including health insurance and a pension. The lawsuit alleges that as of November 2011, the present value of McQueary’s future earnings in the profession of football coaching over 25 years would have been $4 million. Thus, for his cause of action of defamation, McQueary is seeking damages in the amount of $4 million.
The issue with this cause of action, is that the statement published by Spanier does not directly state that McQueary did not report the incident to Curley and Schultz. Rather, it states that Spanier had confidence in how Curley and Schultz handled the allegations regarding Sandusky’s conduct. Thus, it will be difficult for McQueary to prove how this statement discredits what he allegedly told Curley and Schultz and subsequently, is defamatory.
Finally, McQueary raises a cause of action for misrepresentation. In this cause of action, he alleges that Curley and Schultz misrepresented to him in their meeting that they believed his allegations were serious, that they would investigate the matter and take appropriate action. McQueary alleges that Curley and Schultz attempted to keep the incident a secret and did not report it to outside investigators. According to the lawsuit, McQueary alleges that this misrepresentation was made to induce McQueary not to report the incident any further. McQueary claims that these misrepresentations caused him to be labeled a “cover-up” which has irepparably harmed his ability to earn a living. He again seeks damages in the amount of $4 million.
Ultimately, it is unlikely that McQueary will obtain $4 million from this lawsuit. Rather, Penn State will likely settle the matter out of court for a fraction of that amount. However, McQueary arguably has significant reasoning to take the matter all the way to trial, so that he can clear his name with the end goal of attaining another job coaching football.