ANALYSIS: McQueary Files Whistleblower and Defamation Suit Against Penn State

Mike McQueary, a former assistant football coach at Penn State, has filed a $4 million whistleblower and defamation lawsuit against the school.  The suit stems from Penn State’s alleged retaliation against McQueary after he testified against school officials during the child sex abuse scandal.

According to the McQueary Complaint filed in Pennsylvania state court, in 2010, McQueary testified before a grand jury that he saw Jerry Sandusky sexually abusing a child in the showers at Penn State in 2001.  McQueary testified that he reported the abuse to then head coach Joe Paterno the morning after he saw the abuse, and that he reported the abuse nine or ten days later to then athletics director Tim Curley and then vice president Gary Schultz.  According to the complaint, Curley and Schultz told McQueary that they would see that this serious matter was properly investigated and that appropriate action be taken.  However, neither Curley nor Schultz reported the matter to any law enforcement agency or child services agency.

In 2011, the grand jury issued a presentment, finding that Curley and Schultz both made materially false statements to the grand jury concerning McQueary’s report of sexual misconduct to them.  Both men have been criminally charged.

The day after the grand jury’s finding against Curley and Schultz, Penn State’s then president Graham Spanier published a written public statement (attached as Exhibit B to McQueary’s Complaint) in which he said, among other things, “…Tim Curley and Gary Schultz have my unconditional support. … I have complete confidence in how they handled the allegations about a former University employee. … Tim Curley and Gary Schultz operate at the highest levels of honesty, integrity and compassion.  I am confident the record will show that these charges are groundless and that they conducted themselves professionally and appropriately.”  Spanier also held an athletics department staff meeting at which he reiterated his affirmation that the charges against Curley and Schultz were groundless.

Six days after the grand jury’s finding, Penn State banned McQueary from coaching in the upcoming football game and directed him to leave the State College area for the weekend, according to the complaint.  One week after the grand jury’s finding, Penn State placed McQueary on paid administrative leave.  McQueary was prohibited from performing any of his coaching duties and he had to turn in his school-provided vehicle.  He was also allegedly the only assistant football coach who was not invited to interview for a coaching job when Paterno’s successor took over, and the only school employee to whom the school did not offer to reimburse legal fees incurred as a result of the legal processes related to the criminal investigation. Penn State is, however, paying Curley and Schultz’s legal fees for their criminal defense, according to the complaint.

McQueary further alleges that although all the other assistant coaches who were not kept by the new head coach were notified by the end of January 2012 that they would not be retained, McQueary did not find out about his termination until he heard it on TV during a news conference by current president Rodney Erickson on July 5, 2012.

As for the merits of McQueary’s case, the whistleblower claim looks decent.  He paints a nice picture of retaliation, starting the day after the grand jury’s finding against Curley and Schultz.

But the defamation claim looks weak.  The claim is based on Spanier’s written and oral statements in which Spanier expressed his unconditional support for and confidence in Curley and Schultz.  The best defense to defamation is truth:  If the allegedly defamatory statement is true, then it’s not defamation.  Spanier never said McQueary committed perjury.  What he said was, “I have complete confidence in how [Curley and Schultz] have handled the allegations” and “I am confident that … the charges are groundlesss.”  Spanier may very well have been confident in those things.  It would be very difficult for McQueary to prove – or disprove – Spanier’s level of confidence.  I could be confident that the Mets will win the World Series next year, which is about as nonsensical as anyone thinking that Penn State properly investigated or reported Sandusky’s sexual abuse of children, but how are you going to prove that I’m not confident in the Mets?

Another reason that the defamation case is weak is this:  If McQueary’s reputation has been damaged, is it damaged because ex-president Spanier (who himself is allegedly part of the cover up) expressed confidence in Curley and Schultz’s innocence?  Or is it damaged simply because McQueary is one of the names that people associate with Sandusky’s horrible crimes?  I think it’s the latter.  That, and his apparent failure to try to stop the sexual assault when he saw it or report it to the police any time during the nine years between when he saw it 2001 and when he started talking to criminal investigators in 2010.  He did, though, accept a promotion from graduate assistant to full time assistant coach during those nine years.  Those things seem more damaging to his reputation than the ousted president’s vague press release.

It remains to be seen whether the strengths and weaknesses of McQueary’s case will matter.  I’m not sure Penn State wants to go through the discovery process, much less have a jury trial, in any of the sex abuse-related lawsuits (the school hired a law firm to facilitate settlements with the victims), including this one filed by the only (known) person, aside from the victims, to have actually witnessed Sandusky abusing a child.

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