UNIVERSITY PARK — Former Penn State assistant football coach Mike McQueary’s $4 million defamation and whistleblower lawsuit against the university will not be stayed, a judge ruled Thursday.
Senior Judge Thomas Gavin’s decision is a blow to Penn State and a victory for McQueary, whose suit seeks to recover lost wages and other monetary damages from Penn State after the university did not renew his contract this summer. McQueary claims the university let him go because he cooperated with prosecutors who indicted ex-administrators Tim Curley and Gary Schultz.
Penn State’s attorneys asked for a stay, or a delay, on the civil suit, saying the pending criminal cases against Curley, Schultz and former university president Graham Spanier should be resolved first and that litigating McQueary’s suit would be a burden.
Gavin, from Chester County, said disagreed with Penn State in a 14-page opinion, saying the criminal cases are irrelevant to McQueary’s civil suit. His decision comes more than a month after the attorneys for McQueary and Penn State made oral arguments in front of him in a Bellefonte courtroom.
A Penn State spokesman declined to comment.
Gavin said he reviewed the Freeh report and the grand jury presentments, and he said he decided that Penn State would not be burdened by the McQueary case going forward. On the contrary, a delay in the case could mean financial hardship for McQueary, whose severance from Penn State runs out in January 2014, Gavin said.
Gavin said the perjury and failure to report abuse cases against Curley and Schultz pertain to what the men knew about the shower incidents, not the reason why McQueary was let go. The defamation count pertains to something separate, Gavin said — whether Spanier defamed McQueary when he issued a statement last year voicing support for Curley and Schultz when the scandal was just starting to explode.
“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,” Gavin wrote. “Simply put, while there may be overlapping witnesses, there are no overlapping issues in the criminal and civil cases.”
Gavin said Penn State should have no trouble turning over documentation about why McQueary was let go given that the university retrieved more than 3.5 million pieces of electronic materials to turn over to the investigative team led by Louis Freeh.
Gavin is the first judge to deny one of Penn State’s requests for stays in civil cases that have arisen out of the Sandusky scandal. Civil lawsuits filed against Penn State by men alleging they were abused by Sandusky, and even one by Aaron Fisher, Victim No. 1 in the criminal case, have all been stayed.
Gavin said those civil cases will have no effect on McQueary’s suit, as Penn State had argued.
McQueary is receiving severance pay from Penn State that will end in January 2014, and Gavin said there is the possibility that McQueary could run out of money if the case is delayed until after the criminal cases play out.
“If this case is stayed, McQueary may well find himself without funds to live on and/or to prosecute his claim which, to me, rises to the level of economic harm,” Gavin wrote.
McQueary testified to the grand jury, at a preliminary hearing for Curley and Schultz, and at Sandusky’s trial about the now-infamous shower incident in February 2001.
McQueary has said he did not see intercourse, but he thought what he saw was sexual in nature because of how close Sandusky was to the boy and because he heard slapping sounds.
A Centre County jury acquitted Sandusky of the most serious count from that incident, involuntary deviate sexual intercourse, but the jury convicted Sandusky on the lesser counts from that incident like child endangerment and corruption of minors.
In McQueary’s suit, he said his association with the case has ruined his reputation and that the university has branded him as part of the alleged cover-up. He said Penn State tried to make him the scapegoat, too.
The university put McQueary on administrative leave Nov. 13, 2011, and his job ended when the university let his contract expire June 30. McQueary’s suit said he did not know that was happening, as he found out about it on TV when the topic was addressed by President Rodney Erickson after a board of trustees meeting a few days later.
Curley’s and Schultz’s trial for perjury and failure to report abuse counts has been delayed indefinitely.
The two men and Spanier are awaiting a preliminary hearing stemming from their indictments last month based on evidence from the Freeh investigation that was turned over to prosecutors from the state Attorney General’s Office.
The attorneys for all three men say their clients are innocent.