A lawyer representing Penn State has asked a Pennsylvania judge to dismiss a lawsuit filed by the university’s former assistant football coach, Mike McQueary, asserting McQueary’s defamation and misrepresentation claims are not supported by Pennsylvania law while the entirety of his claims, including a whistleblower count, lacks specificity.
McQueary, who was a graduate assistant when he claims he saw the school’s former defensive coordinator, Jerry Sandusky, sexually assault a young boy, is better known for his role as one of the state’s key witnesses in the prosecutions against Sandusky and three high-ranking administrators also facing charges, than he is for his coaching experience at the school.
McQueary has claimed in court filings that he lost his job with the university because he chose to come forward about Sandusky, who is serving a lengthy prison sentence for convictions on dozens of counts of child sex-abuse. He has also claimed that, by initially backing former athletic director Tim Curley and former vice president of business and finance Gary Schultz, Penn State and its president, Graham Spanier, defamed him and painted him as a liar.
The university lodged preliminary objections Tuesday taking a different position, arguing that McQueary did not allege per se defamation, nor did his October 2, 2012, complaint support a claim of defamation by innuendo.
“To arrive at an innuendo suggested by [McQueary] — i.e., that [McQueary] lied and committed perjury — a reader must take the statements concerning Curley and Schultz out of context and ascribe a meaning which contravenes the ordinary meaning and usage of the words set forth in the statements,” the university’s court filing said.
The statements at issue came from Spanier, who is also facing charges related to the reporting of Sandusky’s conduct, right after Schultz and Curley were first charged with failure to report child sex-abuse and perjury.
In his defamation claim, McQueary argued that two statements made by Spanier as the sex-abuse scandal was breaking in November 2011 “clearly suggest” McQueary was lying in his accounts regarding the now-notorious “shower incident.” In one of the statements, released on Penn State’s website, Spanier vows his “unconditional support” to Schultz and Curley, to whom McQueary reported the allegations back in 2001.
At the time, Schultz and Curley told McQueary they would follow up on his allegations about Sandusky, alleged statements that are the linchpin of Count III of McQueary’s lawsuit. McQueary claimed in his complaint the administrators misrepresented their intentions to him in 2001 by telling him they would see to it that his allegations would be appropriately handled.
Instead, McQueary pleaded, the officials decided to “pursue a course of action that would avoid an investigation by any law enforcement investigator or other trained investigator.” In essence, the lawsuit alleged, the administrators buried McQueary’s report and the underlying incident to avoid tarnishing the school’s reputation.
Prosecutors, in a revised set of charges against Schultz, Curley and now Spanier, allege the three men engaged in a “conspiracy of silence” to protect the school’s reputation.
But, as to McQueary’s misrepresentation, the university responded that the mere breach of a “‘future promise’” does not support a misrepresentation claim. Additionally, the university argued the claim should be dismissed because the statements of Curley and Schultz are “too remote” to the harm McQueary is alleging.
For example, the preliminary objections note, McQueary claimed he was “labeled and branded as being part of a cover-up” and has suffered anxiety, distress and humiliation as a result.
But Penn State countered McQueary lacks proximate cause tying the administrators’ alleged statements and McQueary’s harm suffered. The university said McQueary did not aver sufficient facts to support an intentional misrepresentation or negligent misrepresentation claim, and would later argue McQueary inadequately pleaded his claim.
Back in October, McQueary sued the university for $4 million — his projection of his own earnings over 25 years coaching Penn State football. He has also claimed the school wrongfully fired him only as a result of his cooperation with investigators, as authorities built and brought a case against Sandusky.
Penn State also responded Tuesday that all of the counts of McQueary’s lawsuit lack specificity and therefore should be dropped.
The school’s 27-page court filing, signed by White and Williams attorney Nancy Conrad, detailed why each of McQueary’s three counts were not detailed enough.
For example, the whistleblower count did not identify the Pennsylvania Whistleblower Law by name, making it unclear whether McQueary was asserting a whistleblower claim or one under the state’s wrongful discharge law.
If the latter were the case, Penn State pleaded, that claim would fail for legal insufficiency, as well.
The same pertained to the defamation and misrepresentation claims.
For example, the university contended McQueary appeared to be asserting an intentional misrepresentation claim, but that was not entirely clear from his pleading. With that in mind, Penn State said it did not have an adequate framework upon which it could prepare for trial.
In any event, the filing said, McQueary wasn’t on solid legal ground for an intentional or negligent misrepresentation claim.
Penn State closed by asking the court to drop the punitive damages claim asserted by McQueary, claiming he did not have the facts to back it.
Conrad, Penn State’s lawyer, did not return a call requesting comment.
McQueary’s attorney, Elliot A. Strokoff of Strokoff & Cowden in Harrisburg, did not return a call.
Michael J. Salmanson, who specializes in employment-related claims, said some of McQueary’s claims are more viable than others, but the complaint needs to be amended to add in some particulars.
“On the whistleblower claim, I think it falls within the parameters of the statute,” Salmanson said. “But Penn State’s right, he’s got to specify which,” whistleblower or wrongful discharge.
“If you take his allegations at face value, he made a good-faith report, verbally, to an appropriate authority in regards to an instance of wrongdoing,” he added.
The misrepresentation claim, Salmanson said, is probably McQueary’s biggest hurdle. He said Penn State is correct; McQueary has to prove that, at the same time Schultz and Curley promised they would conduct an investigation, they had no intentions of ever doing so.
As for the defamation claim, Salmanson said it comes down to context, which he added was missing from McQueary’s complaint.
“It’s somewhat dependant on the nature of the charges to which President Spanier was responding when he issued the press release,” Salmanson said. “It may be that, if the facts necessarily create a dichotomy between Curley and Schultz’s integrity on the one hand and McQueary’s on the other, a reasonable viewer could conclude that Spanier was implying Curley and Schultz were telling the truth and McQueary was not.”