Former Penn State assistant football coach Mike McQueary filed a whistleblower lawsuit against the university. McQueary alleges that, rather than having been invited to interview to succeed Joe Paterno as Penn State’s head football coach, he was first placed on administrative leave and then summarily shown the door. McQueary is seeking $4 million dollars in compensatory damages which, he alleges, equates to what he would earn in a professional lifetime as a Penn State football coach.
It seems likely that McQueary will be found to qualify as a “whistleblower.” McQueary testified before a grand jury that he witnessed what he believed to have been a sexual encounter between Jerry Sandusky and boy in the Penn State locker room showers. Distressed and shaken by what he saw, McQueary reported the incident, first to his father and then directly to Joe Paterno.
It is McQueary’s belief, embodied in his lawsuit, that his act of stepping forward and setting in motion some (perhaps all) of the events which would eventually lead to Paterno’s downfall, Sandusky’s conviction, the shaming of a university, and the NCAA imposition of a near death penalty for Penn State football was the proximate cause of his dismissal. He argues, perhaps correctly, that the Penn State scandal has marked him in such a way that he will never be able to find a job in coaching.
The basis of his suit lies in federal and state statutory protection of whisteblowers, based and expanding upon the Whistleblower Protection Act of 1989 (5 U.S.C. Section 1201). These whistleblower statutes provide protection for employees who report abuse, statutory violations, and criminal actions from being penalized by their employer for doing so. An employer who retaliates against a so-called whistleblower by taking adverse actions such as demotion, curtailment of responsibilities, or termination can be found liable for back wages, prospective wages, and attorney’s fees.
The problem now being faced by Penn State (one of the many) is that McQueary may, indeed, have been a whistleblower…but they had to fire him anyway. Can you imagine the fallout if Mike McQueary, a central figure in the Sandusky child abuse scandal that nearly brought down the university, became the weekly face of that university every Saturday afternoon from September through December? How could Penn State ever hope to distance itself from the scandal when, every week, one of the prime actors was patrolling the sidelines?
Now, don’t get me wrong. I’m not saying that Mike McQueary participated or is, in any way, guilty of the horrible crimes for which Jerry Sandusky has been convicted. I am, however, saying that the back-breaking baggage McQueary must carry around is the widespread belief that he failed those children who later became Sandusky’s victims. Many believe that, having witnessed something so disturbing, so horrible, and so shocking, that a reasonable person could not have stopped at reporting it to one person…even if that person was Joe Paterno. Many believe, and I happen to be one of them, that McQueary’s responsibility to the children overrode everything, even his chain of command. There came a time, after all, when he knew that no action had been taken and yet, he continued to work daily in order to build a fatally flawed program.
What his lawsuit misses is that Penn State has made a determination that it must, going forward, embrace the value of the greater good even at the expense of present image, power, and structure. For whatever reason, McQueary did not make that assessment. He blew the whistle and then stood silent.
So here stands McQueary. Damaged, to be sure. Out of work, and not just for the short term. Denied his chosen profession without having committed a criminal act or broken the law in any respect whatsoever.
And on the other sideline stands Penn State. Shamed and sullied, but determined to start now to exemplify the values it claims to champion. The two cannot co-exist – not on the same field. McQueary had to go. And because of that, Penn State found itself between a rock and a hard place. It had to fire a whistleblower.
In the end, barring the release of facts we do not now know, the university will have to pay the man. The alternative would have been worse.