Alan Schorr’s Employment Case of The Week ending October 5, 2012

McQueary v. The Penn State University, Dkt. No 2012-1804, Common Pleas, Centre Co. PA (Filed Oct. 2, 2012).

It seemed inevitable that Mike McQueary would sue Penn State for terminating him after his testimony to the grand jury in the Jerry Sandusky matter ended Joe Paterno’s career, brought Penn State to its knees, and eventually led to McQueary’s suspension and eventual termination from his position as an Assistant Football Coach. That lawsuit was filed this week. I chose it for my Case of the Week not only because it is very interesting in that it is not as easy as it may seem, but also to highlight the differences between whistleblower protection in New Jersey and Pennsylvania.

Mike McQueary alleges that he was a Graduate Assistant Coach for Penn State from 2000-2003. In 2004, he was promoted to full-time Assistant Coach, where he remained until he was placed on administrative leave in November 2011, after his testimony to the grand jury in the Jerry Sandusky case, and was thereafter terminated from employment during the off-season when he was the only assistant coach not interviewed by the new incoming Head Coach, Bill O’Brien. His salary had been $140,400 per year, plus benefits, automobile, and bonuses.

His lawsuit has three Counts:(1) Pennsylvania common law “whistleblowing”; (2) defamation; and (3) misrepresentation. It is unclear in the complaint whether the whistleblower lawsuit was brought under Pennsylvania common law, as the complaint never mentions the statute. Pennsylvania, unlike New Jersey, does not have a whistleblower statute that protects private employees. But McQueary was a public employee, and therefore should have had the protection of Pennsylvania’s whistleblower protection statute, 43 P.S. § 1423, which protects public employees who complain of “wrongdoing or waste”. Under the statute, lawsuits must be brought within 180 days and there are no tort remedies available, only economic damages and reinstatement, if appropriate. In New Jersey, we have the Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq., which provides broad protection to all employees, a one year statute of limitations, and all tort damages.

Pennsylvania does however recognize a common law cause of action for a retaliatory discharge in violation of public policy. Although McQueary’s lawsuit does not so specify, it appears that the “whistleblowing” claim seeks damages under this common law theory. If that is the case, however, it is strange that the Complaint does not seek punitive damages. While, at first thought, McQueary’s case seems like it should be a slam dunk, given that he is the person most closely identified with blowing the whistle on Sandusky, my analysis sees many problems and potential defenses that could make this case a very close call.

The Defendants will undoubtedly argue that McQueary never actually blew the whistle because he only reported internally. In New Jersey, such an internal complaint would clearly be protected. See Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81 (2008). But Pennsylvania law is unclear on whether Courts would require a report to be made outside the public employer itself. The Defendants will also point out some other problems with McQueary’s case. There was evidence in the Sandusky trial that McQueary had continued to attend Sandusky’s golf tournaments and participated in flag football games with Sandusky after he had allegedly witnessed Sandusky assaulting a child.

The Defendants will also argue that they did not retaliate against McQueary when he complained. In fact, the record will show that he was promoted in 2004, well after his complaint. McQueary can hardly argue that he was rewarded for his loyalty in not reporting the matter to the police, because that would imply that he was part of the cover up. McQueary alleges that he did not report the matter to the police because he was not properly trained, but the Defendants can argue that you do not need training to know to call the police if you see a child being raped. The Defendants can also argue that McQueary was not terminated. After all, a new coach came in and hired his own staff. McQueary has an excellent argument there, as he alleges that he was the only assistant that was not interviewed for the assistant coach position.

The defamation and misrepresentation counts are equally problematic. Those counts are based upon statements made by President Graham Spanier supporting his management staff. McQueary’s complaint alleges that by supporting the management that had covered up Sandusky’s actions, Spanier’s support “suggests” that McQueary was lying. Defamation requires more than a suggestion or implication. There must be a false statement of fact, and nothing in the complaint points to any statement made by any Penn State official actually accusing McQueary of lying. The misrepresentation count suffers from the same lack of specificity.

Clearly, McQueary’s career has been destroyed and he is virtually the only person who actually blew a whistle to anybody about anything, so equity should provide him with some relief. The Defendants, of course, will argue that the Defendants already paid McQueary with 18 months of severance that he is receiving pursuant to his contract to the tune of $210,600, even if they paid the money later than it was paid to other coaches that were not retained by O’Brien. It will be interesting to see how this one turns out.

Plaintiff’s Counsel: Elliot A. Strokoff, Strokoff & Cowden, P.C.

Defendant’s Counsel: TBA