Penn State lawyer: McQueary whistle-blower lawsuit ‘devoid of’ legal merit

mdawson@centredaily.comFebruary 22, 2013 

Penn State wants a judge to throw out Mike McQueary’s whistle-blower lawsuit against the university, as an attorney wrote in court papers Thursday that the former assistant football coach’s claims lack legal merit.

University lawyer Nancy Conrad filed a 33-page legal brief that reiterates the arguments she made last month against McQueary’s claims.

Conrad also asked out-of-county Judge Thomas Gavin to dismiss McQueary’s claims for punitive damages, saying the lawsuit is “devoid of” facts to show former athletic director Tim Curley, former vice president for finance Gary Schultz or Penn State were reckless.

McQueary has accused the former university president, Graham Spanier, of defaming him after Spanier released a statement in November 2011 pledging support for embattled senior university leaders Curley and Schultz, who were indicted on charges they lied to a grand jury investigating abuse allegations against Jerry Sandusky. McQueary claims the university terminated him because he cooperated with investigators and that Curley and Schultz intentionally misrepresented how they would take care of the incident involving Sandusky that McQueary witnessed in 2001.

McQueary’s suit claims he has been branded as part of the alleged cover-up and cannot find work coaching football, so he is seeking $4 million in punitive damages.

Conrad’s challenge to McQueary’s claims in the brief will likely provide a glimpse into the arguments she will make during a court hearing March 18 at the Centre County Courthouse in Bellefonte.

McQueary’s lawyers have until March 8 to supply their own legal brief in support of their arguments.

McQueary was a fixed-term employee whose contract was not renewed when it expired June 30, 2012, but Conrad wrote in the court papers that McQueary’s claims are not enough to establish a whistle-blower claim or a wrongful discharge claim. Further, she said, wrongful discharge claims do not extend to contracted employees.

Conrad said the words in Spanier’s statement of support for Curley and Schultz were not defamatory or malicious and the statement does not even mention McQueary. Further, she argued, the context of the statement would not make it defamatory either.

“Mere embarrassment or annoyance is not enough,” Conrad wrote.

Conrad said state law will show there is no support for McQueary’s misrepresentation claim, regarding how Curley and Schultz promised to take care of the report he made in 2001. Conrad said a broken promise is not intentional misrepresentation.

Curley, Schultz and Spanier are awaiting court hearings related to what former state attorney general Linda Kelly said was a “conspiracy of silence” to cover up allegations of abuse against Sandusky more than a decade ago.

The men’s attorneys have maintained that their clients are innocent.

The high-profile case now is being handled by new Attorney General Kathleen Kane.

Mike Dawson can be reached at 231-4616. Follow him on Twitter @MikeDawsonCDT.

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