Pennsylvania Whistleblower Law Provides Substantial Damages for Public Employees Who Report Wrongdoing . . . as McQueary Trial Shows

Former Penn State assistant football coach Mike McQueary’s Whistleblower lawsuit against Penn State demonstrates that the Pennsylvania Whistleblower Law provides substantial damages and protection to employees who report wrongdoing and then suffer retaliation at the workplace. In McQueary v. Penn State University, C.C.P. Centre Cty. no. 2012-1804 (Gavin S. J.), the trial judge awarded nearly $5 million in whistleblower damages to the former employee with attorney’s fees and costs incurred to be added at a later date.

McQueary witnessed retired Penn State football coach Jerry Sandusky engage in inappropriate sexual activity with a young boy in Penn State’s athletic facility. McQueary, after consultation with his father and a family friend, reported what he saw to his immediate supervisor, head football Coach Joe Paterno the next morning. Thereafter, McQueary met with the Athletic Director and a Penn State Administrator and repeated what he had told Paterno. Thereafter, the incident was reported to Penn State’s President. Ten years later, an Investigating Grand Jury’s presentment was released and public outcry and backlash erupted. Within days the Board of Trustees removed Coach Paterno and President Spanier from their positions. McQueary was then summoned to a meeting where the Acting Athletic Director placed McCreary on administrative leave with pay and stated, “your future status has not been determined.” McCreary was also informed that “all athletic facilities associated with the Penn State Football program” were off-limits, he was not permitted access to his office and he was required to tum in his keys, cell phone, and vehicle. One month later, McQueary was required to clean out his office and the following month, McQueary learned through a press conference given by the new Penn State President that he was no longer a Penn State employee.

McQueary filed a lawsuit under Pennsylvania’s Whistleblower Law asserting the termination of his employment was a wrongful discharge by his employer for his role in providing testimony to the investigating Grand Jury which charged Sandusky, and Penn State administrators with criminal offenses. Penn State asserted that McQueary was an at will employee whose employment was not renewed and that its decision was legitimate.

In order to prevail in a claim under the Pennsylvania Whistleblower Law, an employee must prove that (1) the employee performed services for wages for a public body, and (2) prior to the alleged reprisal (i.e. retaliatory action), the employee reported an instance of wrongdoing to the employer or appropriate authority. If the employee meets his burden, then the burden of proof shifts to the employer to prove that the employer took the action for separate and legitimate reasons which are not merely pretextual.

The court found that McQueary met his burden of proof because he was an employee who observed the interaction between Sandusky and the boy which constitutes wrongdoing as the conduct was a violation of the penal code of Pennsylvania; McQueary’s report of the conduct he observed to his employer was a good faith report; McQueary was requested to testify before the Investigating Grand Jury looking into the conduct of Sandusky; and McQueary’s employment contract was not renewed by Penn State after the presentment was made public.

Penn State’s defense was that McQueary’s contract expired and that new Head Football Coach did not have a place on his coaching staff for him, and/or McQueary’s contract was not renewed, as there was no other work for him and either/both of the decisions were based on legitimate reasons. The court held that Penn State’s asserted defenses must be analyzed in the context of its conduct both pre-and post-Grand Jury Presentment “as this is a case where actions speak louder than words.” The court held that McQueary fully cooperated with legal authorities which led in part, to criminal charges against Sandusky and Penn State administrators, and when the charges became public, threats were made which raised safety concerns. The response of Penn State was that McQueary’s job duties were changed, he was banned from his usual work place, benefits associated with his position were taken away, and his prospects for advancement destroyed. Further, while the Penn State President expressed his support for the administrators, he made no mention of support for McCreary, the employee who had come forward to report the inappropriate conduct. The court found that the “unmistakable conclusion to be drawn from his failure to mention Mr. McQueary is that he was not being supported by the University and that members of the athletic department should not support him either.” Other evidence relied upon by the court included a decision by the interim President that McQueary would not coach in a game against Nebraska without even seeking the input of the Interim Head Coach; the associate athletic director had previously given McQueary the highest possible performance rating; and there were open positions in the athletic department which McQueary was qualified to perform.

The Pennsylvania Whistleblower law requires an employee to come forward with “some evidence” of a connection between the report and retaliation by the employer. The court found that the objective evidence is that McQueary would not have been removed from his coaching position but for his involvement in the “Sandusky Matter” once it became public knowledge; Penn State had no cause grounds to terminate him; and the assertion that McQueary’s contract was not renewed for lack of available work is not credible. Thus, Penn State’s stated reasons for not renewing his contract are not separate and legitimate reasons within the meaning of the Whistleblower Law. Instead, Penn State’s stated reasons for not renewing its employee’s contract were pretextual; and McQueary was terminated in retaliation for his having reported what he saw and for cooperating with legal authorities.

As to damages, the Whistleblower Law provides for the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of those remedies; costs of litigation, and attorney fees. The Court considered expert witness reports and awarded McQueary $3,974,048.00 for past and future lost wages and related tax consequences, and an undetermined amount of a Ticket City Bowl game bonus paid to the other assistant football coaches but not McQueary. In addition, the court awarded McQueary $1,000,000.00 in non-economic damages, citing the maxim that “A good reputation is more valuable than money”; finding that McQueary was well-respected in the community and had a good reputation; Penn State knew that he had acted in accordance with its policy by reporting what he saw to Coach Paterno, Penn State decided not to set the record straight causing McQueary’s reputation to suffer, and that Penn State’s support of others and not McQueary caused him humiliation. The court has also permitted McQueary to submit to a detailed statement of the counsel fees, witness fees and costs of litigation to add to the recovery at a later date. In addition, to the whistleblower damages, an earlier jury verdict awarded McQueary $7.3 million for his separate defamation and misrepresentation claims.

Andrew Abramson and Abramson Employment Law represents employees who have whistleblower and employment termination claims. For more information on the Pennsylvania Whistleblower law, see


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