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Trial Set to Begin for McQueary Lawsuit Against Penn State

by on October 16, 2016 7:30 PM

Barring a last-minute settlement deal, Mike McQueary's lawsuit against Penn State is set to begin Monday morning in Centre County Court.

McQueary, 42, is seeking $4 million in damages on whistleblower, defamation and misrepresentation claims. The former Penn State football assistant coach argues that the university discriminated against him for cooperating with prosecutors in the Jerry Sandusky child sexual abuse case by placing him on administrative leave and later choosing not to renew his contract after Bill O'Brien was hired to succeed the late Joe Paterno as Nittany Lion head coach in 2012.

The $4 million represents "reasonably anticipated future earnings over the course of the next 25 years in the profession of football coaching," McQueary's attorney wrote when the suit was filed in October 2012. McQueary says he was the only member of Paterno's final coaching staff not to be offered an interview with O'Brien and that he was the only university employee not reimbursed for legal expenses related to the the Sandusky investigation.

The university has argued that McQueary had a contract which was not renewed only as a result of the coaching change, not as a form of retaliation.

McQueary also charges that he was defamed by verbal and written statements from university administrators which he says suggested he had lied about what he had seen and told them in grand jury testimony. His complaint specifically cites the Nov. 5, 2011 statement issued by former Penn State President Graham Spanier which expressed "unconditional support" for former vice president Gary Schultz and athletic director Tim Curley, who were charged with perjury and failure to report suspected child abuse at the same time Sandusky was charged. Spanier expressed confidence in the integrity and honesty of both men in a published statement and again at a staff meeting on Nov. 7.

Prosecutors had alleged that Curley and Schultz lied in their grand jury testimony about what they were told about and how they had handled a 2001 report from McQueary, a graduate assistant at the time, that he had witnessed Sandusky engaged in sexual contact with a boy in a locker room shower at the Lasch Football Building on campus. The perjury charges against Curley and Schultz, as well as later charges of conspiracy and obstruction have since been dismissed.

McQueary also says Curley and Schultz misrepresented to him that they would see the reported incident would be investigated. He says the university's actions have damaged his reputation and prevented him from securing another coaching job.

The university contends that Spanier's statements never mentioned McQueary and that his statement of support for Curley and Schultz was not the same as saying McQueary had lied. The school also has argued that the misrepresentation claim is legally insufficient.

It is unlikely that Curley or Schultz will be called to testify at the civil trial. Both asserted their Fifth Amendment privilege in pre-trial depositions. At jury selection last week, a list of potential witnesses included O'Brien, members of the Paterno family, Sandusky and his wife Dottie, Spanier, former Penn State president Rodney Erickson, Temple coach Matt Rhule, and former Penn State assistant and current UCLA defensive coordinator Tom Bradley.

Opening arguments are scheduled to begin Monday morning at the Centre County Courthouse Annex in Bellefonte. Chester County Judge Thomas Gavin is specially presiding.

McQueary, a State College native and quarterback for Penn State from 1994-1997, testified at Sandusky's 2012 trial that on a night in February 2001 he went into the support staff locker room and heard a "skin-on-skin smacking sound." He said that looking at a mirror from a 45-degree angle, he twice glanced Sandusky, by then retired as Penn State's defensive coordinator, in the shower standing behind a boy he thought to be 10 to 12 years old who had his hands propped up against the wall. Each glance lasted one to two seconds he said. McQueary testified that he slammed his locker to make noise, saw that Sandusky and the boy were no longer in the position and left, discussing the incident with his father, John, and a family friend, Dr. Jonathan Dranov, that night. The next morning he informed Paterno, though he said he did not go into specific detail. 

The grand jury presentment on the Sandusky investigation in November 2011 summarized McQueary's testimony as explicitly stating McQueary had witnessed Sandusky sodomizing a boy.

Paterno then informed Curley, his immediate superior. Curley and Schultz, who acted as Curley's superior and who had administrative oversight of Penn State Police, met with McQueary a week later. A week after that, McQueary testified, Curley called him and told him that matter had been looked into.

Curley testified to the grand jury that McQueary did not tell them that he believed he witnessed intercourse and that his recollection was that it had been described as "kind of wrestling... horsing around." Schultz testified that McQueary was not specific about what he had witnessed and that Schultz had the impression it was "inappropriate" and that "there was perhaps some kind of wrestling around activity."

Curley reported the incident to Jack Raykovitz,  the director of Sandusky's Second Mile charity for at-risk youth, and told Sandusky that he was not to bring children into Penn State facilities. Spanier, who was later charged, has testified that Curley and Schultz only described the incident to him as horseplay.

McQueary, who was 28 at the time of the incident, has been criticized for not physically intervening. At Sandusky's trial he testified. "I was making decisions on the fly. I picked up the phone and called my father to get advice from the person I trusted most in my life, because I just saw something ridiculous." He has also said that by reporting the incident to Schultz, who oversaw university police, he believed the matter had been reported to law enforcement.

The identity of the boy in the shower remains in dispute. Known as Victim 2 in Sandusky's trial, he did not testify and prosecutors contend his identity remains unknown. In that case, Sandusky was found not guilty of involuntary deviate sexual intercourse, though he was found guilty of four other counts related to Victim 2. Sandusky was found guilty on 45 of 48 counts in all and is serving a 30-60 year sentence.

Sandusky is seeking a new trial under the Post Conviction Relief Act and his current attorneys argue that prosecutors and Sandusky's trial attorneys did know the identity of the boy in the shower. A man, who previously had been interviewed by investigators during the course of the Sandusky investigation, came forward and said he was the boy McQueary saw in the shower and that nothing inappropriate had ever happened with Sandusky. 

The man later, however, hired a civil attorney and claimed he had in fact been abused by Sandusky. Trial prosecutors and state investigators testified at a recent hearing for Sandusky's PCRA bid that they considered the man's testimony unreliable because his stories had changed and because he could not accurately draw a basic diagram of the configuration of the locker room in question.  

Curley, Schultz and Spanier have had felony charges of perjury, conspiracy and obstruction dismissed. They still face misdemeanor charges in Dauphin County Court of failure to report suspected child abuse and endangering the welfare of children. All three have filed to have the remaining charges dismissed.

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