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Judge Rules for McQueary on Whistleblower Claim, Adds $5 Million in Damages

by on November 30, 2016 5:45 PM

Updated at 5:45 p.m.

A specially-presiding judge on Wednesday ruled in Mike McQueary's favor on his claim that Penn State violated the state's whistleblower law in its treatment of him and awarded the former Penn State football assistant coach an additional $5 million in damages.

In October, a Centre County jury found in McQueary's favor on claims of defamation and misrepresentation, awarding him $7.3 million in damages. Penn State later filed a motion for that verdict to be set aside.

Judge Thomas Gavin heard the whistleblower claim simultaneously during the two-week trial and said he would issue his ruling at a later date. He awarded McQueary $3.97 million in past and future economic losses and $1 million in non-economic losses for harm to his reputation and humiliation. Penn State also was ordered to pay legal fees and the bonus he would have received for coaching in the 2012 Ticket City Bowl.

McQueary's suit claimed Penn State retaliated against him for cooperating with prosecutors in the child sexual abuse investigation of Jerry Sandusky. McQueary was placed on paid administrative leave in November 2011 after it was revealed he was the witness who testified to a grand jury about having seen Sandusky abusing a boy in a locker room shower in 2001. His contract was not renewed the following spring.

Penn State attorneys argued that McQueary was placed on leave for his own safety after the university received threats directed at him. They said that his contract was not renewed as a result of a coaching change, when Bill O'Brien was hired in January 2012 after Joe Paterno was removed as head coach in November 2011. 

McQueary testified that he has not been able to find work in coaching or virtually any other profession since that time and that Penn State's actions had poisoned his reputation. Penn State countered that McQueary hasn't found work because of public perception that he could have done more to stop Sandusky and because of his limited resume.

His suit also claimed that former administrators Tim Curley and Gary Schultz intentionally misrepresented what they would do with his 2001 report to them. Curley and Schultz were both charged in 2011 for their alleged handling of that incident, and McQueary also said that statements of support by then President Graham Spanier defamed him by implying that Curley and Schultz had been truthful and McQueary had not. Curley and Schultz still await trial in Dauphin County Court and charges of failure to report suspected child abuse and endangering the welfare of a child. 

Pennsylvania's whistleblower law requires an employee of a "public body" to show a preponderance of evidence that he or she reported an instance of wrongdoing to the employer or authorities prior to an alleged reprisal. The employer is then required to prove that the actions taken against the employee were for reasons other than the report of wrongdoing.

Gavin concluded that prior to the release of the grand jury presentment against Sandusky, who was later convicted on 45 counts of child sexual abuse, and charges against Curley and Schultz, Penn State had no grounds to remove McQueary from his position as an assistant football coach. He wrote that the university's conduct against McQueary subsequent to the charges was retaliatory.

As conditions of McQueary's administrative leave, he was required to clear out his office and prohibited from entering university athletic facilities, which Gavin concluded was a de facto termination.

Gavin also stated that former Athletic Director Dave Joyner's assertion that McQueary's contract was not renewed because there was no work for him "is not credible." He wrote that Penn State's reasons for not renewing McQueary's contract were "pretextual" and "not separate and legitimate reasons within the meaning of the Whistleblower Law."

Gavin sided with McQueary's economic expert witness, James Stavros, in calculating economic damages. In awarding damages for harm to reputation and humiliation, Gavin wrote that "Penn State has never publicly acknowledged that Mr. McQueary acted in accordance with university policy," when he reported the 2001 incident to Paterno, who took the matter to Curley and Schultz who then spoke to McQueary.

"Such recognition would have gone a long way toward reducing the opprobrium visited upon him and the resulting humiliation he suffered," Gavin wrote.

During the trial, McQueary testified about his inability to find work, detailing positions in coaching and sales that he sought. He noted that as recently as August he applied for a store clerk job at a State College Rite Aid, a job he did not get.

"The fact that five years post-presentment Mr. McQueary could not be employed as a cashier in a local drug store shows... the extent to which he has been ostracized in the Penn State community," Gavin wrote. 

 



Geoff Rushton is managing editor for StateCollege.com. Contact him at [email protected] or find him on Twitter at @geoffrushton.
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