McQueary's whistleblower suit against Penn State allowed to proceed, judge rules

By Jon Campisi | Dec 21, 2012

A senior Pennsylvania judge has refused to put on hold a lawsuit initiated against Penn

A senior Pennsylvania judge has refused to put on hold a lawsuit initiated against Penn

State University by the former assistant football coach who was integral in the state’s child molestation case against former Nittany Lions defensive coordinator Jerry Sandusky.

Michael McQueary, who was a prosecution witness in the Sandusky child sex-abuse case, is suing his former employer over claims that the school defamed him and fired him from his position in retaliation for his cooperation with prosecutors building their case against Sandusky, who, following a June jury trial, was convicted on 45 child molestation counts and sentenced to between three and six decades in prison.

McQueary, who was fired from his job this past summer, filed suit against Penn State in October, over claims of defamation and wrongful termination.

Penn State lawyers subsequently filed court papers seeking to have the courts halt McQueary’s civil suit until the resolution of the criminal charges against former university administrators Gary Schultz, Timothy Curley, and Graham Spanier.

The defense lawyers argued that the litigation should be stayed because there are overlapping factual and legal issues arising out of the pending criminal prosecutions of Schultz, Curley and Spanier, who was formerly the university’s president.

In his Dec. 20 opinion, Judge Thomas G. Gavin, a senior state judge who formerly served on the Chester County Court of Common Pleas, denied Penn State’s motion for a stay, determining that while there may be overlapping witnesses in both cases, “there are no overlapping issues in the criminal and civil cases.”

Gavin wrote that if called to testify in McQueary’s civil case, Schultz, Curley and Spanier need not fear that information gathered in the civil case could be used against them in their criminal trials because “the focus in the criminal proceedings is what defendants knew about Sandusky’s improper conduct on the date they appeared before the Grand Jury or met with investigators, not the reason why McQueary was let go.”

As for the defamation count in McQueary’s lawsuit, the judge wrote that the sole issue is whether Spanier’s statement in support of Curley and Schultz defamed McQueary.

“Whether the criminal defendants were truthful in their testimony regarding what they knew about the incident McQueary observed and reported is factually and legally distinct from McQueary’s whistleblower and defamation claims,” the judge wrote.

During Sandusky’s criminal trial in Centre County, McQueary had talked of witnessing the former defensive coordinator for the football team sodomizing a young boy in the athletic shower facilities years back when McQueary was a graduate assistant football coach.

Gavin also wrote that he disagreed with Penn State’s counsel, which argued that the victim-plaintiffs in other civil cases initiated against the university over the scandal would be affected if McQueary’s civil suit proceeds prior to the conclusion of the pending criminal cases.

“Those plaintiffs have not named Curley, Schultz and Spanier as defendants,” Gavin wrote. “The Sandusky conviction is clearly admissible against him and McQueary has already testified in the Sandusky trial as to what he saw, who he told and when.

“To the extent that the McQueary trial or discovery process readdresses that testimony, no information not already publicly known would be disclosed,” the opinion continues. “Accordingly, the victim-plaintiff involved in the McQueary testimony suffers no harm by allowing this case to proceed.”

Sandusky was convicted of sexually abusing 10 underage boys during a 15-year time period.

Judge John M. Cleland sentenced Sandusky to between 30 and 60 years in state prison back in October.

Sandusky’s lawyers have since appealed both the conviction and sentence, seeking a new trial over claims that they were not given adequate time by which to prepare a proper criminal defense given the plethora of evidence and discovery to sift through.

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