Mike McQueary

A senior judge has found in favor of Mike McQueary on the last pending count of the former Penn State's coach's whistebower action against Penn State.

(Associated Press)

A senior judge has found in favor of Mike McQueary on the last pending count of the former Penn State assistant football coach's whistebower action against the university.

Judge Thomas Gavin's order assesses $4,974,000 in additional damages, bringing the total award in the case to more than $12.3 million after counsel fees are factored in.

Gavin found that McQueary had shown he was treated differently from other PSU employees after it became publicly known that he was a witness against Penn State administrators in the Jerry Sandusky child sex abuse case.

Penn State, the judge ruled, did not make its case that that different treatment pertained solely to the unique world of big-time college football.

How was McQueary treated differently?

Gavin found several reasons, starting from the announcement of charges against then-Athletic Director Tim Curley and Senior Vice President Gary Schultz:

* Then PSU-President Graham Spanier immediately issued a statement in defense of Curley and Schultz, who were charged with perjury and failing to take McQueary's eyewitness account of a shower room assault to police or child welfare authorities.

No such statement of support was ever made on behalf of McQueary.

* When McQueary was put on administrative leave for the remainder of the football season, he lost all access to the PSU football offices and facilities. In December 2011, he was asked to clean out his office.

Those were, Gavin found, evidence of de facto termination.

* Unlike other Paterno assistants, he was not put on the list for courtesy interviews by incoming head football coach Bill O'Brien in January 2012.

* Gavin found Athletic Director Dave Joyner was not credible when he refused to renew McQueary's contract - he was still formally on leave - in the spring of 2012 because "there was no work for him."

Gavin noted that McQueary had received sterling work reviews to that point, and that there were other non-coaching positions in the athletic department that he could have filled.

Joyner, the judge wrote, "simply chose to ignore the facts to arrive at the desired outcome."

As for Penn State's defense that assistant football coaches generally don't survive a change at the top, Gavin found that while true, that argument was irrelevent in McQueary's case.

That's because no one at Penn State, from then-head coach Joe Paterno on down, was likely to be fired in the midst of an 8-1 season.

"On Nov. 4, there was no need for 'new blood,'" Gavin wrote. "However on Nov. 5 (the date that the Sandusky presentment was publicly released), 'blood' was needed, and people had to go to satisfy the public outcry.

"The objective evidence is that Mr. McQueary would not have been removed from his coaching position but for his involvement in the "Sandusky matter" once it became public knowledge," Gavin continued.

"I conclude... that Mr. McQueary's career in football is over not because of his lack of a network (in the field) but because of the cloud over his involvement in the Sandusky matter. A cloud created and reinforced by Penn State's public actions taken against him which made him persona non grata in the football world."

In assessing damages, Gavin assessed $3,974,000 against Penn State based on the wages McQueary has sacrificed by losing a likely career as an assistant at a top-flight Division I program.

There is a separate $1 million award for non-economic damages.

Gavin assessed that award to compensate McQueary for public humiliation and damage to reputation that he suffered, in part because no one at Penn State ever acknowledged that McQueary's fully complied with all reporting requirements at the time.

Gavin seemed particularly struck by McQueary's emotional testimony about his post-scandal job search, including that he didn't even get a call back when he applied for a floor job at a State College Rite Aid.

In his testimony, McQueary stated:

"I didn't handle this quote unquote situation perfectly, but I did a darn good thing. All right. I testified in that courtroom right there. I stood up and I did it, and I can't get a job at Rite Aid, working a cash register?...

"I mean, that's humiiating. That's humbling. I'm biased. I know it. I get it. (But) That's not fair. It wasn't me who did it (committed sex crimes against children). All right? It wasn't."

Here, again, the judge took the university to task for never standing up for McQueary:

"A reasonable inference arising from Penn State's failure to correct the misinformation (about McQueary's action) is that if it did so, it would have had to explain why it had not referred the information to its or any other police agency."

The final pieces of the damage decision include a bonus payment for McQueary for Penn State's end-of-season appearance in the 2012 Ticket City Bowl - which all other Paterno-era coaches received - and the assignment of certain counsel fees to Penn State.

Gavin's award follows a Centre County's jury's Oct. 27 award of $7.3 million in damages to McQueary on separate counts of defamation and legal misrepresentation.

Efforts to reach Penn State officials on the latest decision were not immediately successful. The university has already filed an appeal of the jury verdict, however, so no actual payment of damages appears imminent.

The first appeal is to direct to Gavin, a retired Chester County judge specially appointed to hear the McQueary case. If the university is unsuccessful there, it could also take the case to state appellate courts.

McQueary, now 42, saw his life as a hometown hero in State College blow up with the Sandusky case in late 2011.

Some reviled him for not personally doing more to stop Sandusky when he witnessed the shower-room incident in 2001. Others cast blame on him for the sudden ouster of his longtime mentor, Paterno.

McQueary, in his suit, blamed Penn State for helping to create the atmosphere for those narratives to harden.

Aside from his chosen field of coaching football, McQueary testified at trial that he also had not been able to land jobs in a variety of other fields, he believes, because of the taint from the Sandusky scandal.

Attempts to reach both McQueary and his attorney, Elliot Strokoff, were not successful for this report.

McQueary Order Filed Nov. 30, 2016 by PennLive on Scribd