We have been following the sexual harassment lawsuit filed by former George Mason Clinical professor Kyndra Rotunda (wife of constitutional law professor Ron Rotunda) against George Mason Law School and Dean Daniel Polsby (left). This week, U.S. District Judge Leonie Brinkema not only dismissed the sexual harassment claims against Polsby and the school but barred Rotunda from amending her complaint.
The controversy over the alleged sexual harassment ultimately led to the resignation of not just Kyndra Rotunda but Ronald Rotunda (left), a conservative law professor who once taught at University of Illinois. They both transferred to Chapman University, which (like George Mason) is a school known for its distinctively conservative faculty.
When the school recruited Ronald Rotunda, it also hired Kyndra Rotunda to serve as director of a legal assistance clinic for military service personnel, but she alleged that she was harassed by clinic director Joseph Zengerle. The allegations in her EEOC lawsuit included, but were not limited to, (1) she was paid less than Zengerle; (2) he called himself her “knight and protector”; (3) he bought her a scarf and suggested how she should wear it; (4) invited her to drinks alone at his house and became upset when she did not show up; and (5) Zengerle “repeatedly came uncomfortably close.”
Ronald Rotunda reportedly raised his wife’s treatment with the faculty after she resigned, including what he viewed as an insufficient response from the administration. While the equity committee was not sure if sexual discrimination was the cause of the problems, the faculty committee made more positive findings in favor of the claim.
Rotunda wrote in his resignation letter to Polsby that ‘[f]or the past year, George Mason has revealed itself as an institution more concerned with hiding its dirty laundry than cleaning it.”
Brinkema previously stated that she did not see the basis for allowing the lawsuit to continue. Her order below dismisses all claims against George Mason University and Polsby. Brinkema also dismissed the federal counts against Zengerle, while allowing pendent state-law claims against him for assault and battery to proceed. Rotunda’s lawyers have stated that they intend to appeal.
Zengerle’s lawyer, Michael Lorenger, long publicly predicted that the lawsuit would be dismissed before trial and the order will likely make the trial much more difficult for Rotunda. It seems to me that it was easier to get to the assault and battery claims through the sexual harassment allegations. If the jury accepted the latter allegations, they were more likely to accept the former allegations. Assault and battery claims are very difficult to prove in a type of he said/she said case. Lorenger insisted that the claim is based on little more than an allegation “that Professor Zengerle bumped into her when he left his office one day, and that’s it.” It will be interesting to see if Rotunda is willing to simply go to trial on these remaining counts. Here are the two common law counts for assault and battery:
Q. Plaintiff’s Eleventh Cause of Action: Against Defendant Zengerle in his Personal Capacity for Common-Law Assault
234. Plaintiff incorporates the allegations of paragraphs 1-55, 60-61, 63(k), and 64-75 above, with the same force and effect as if they had been re-pleaded here.
235. Defendant Zengerle’s actions were intended to cause either harmful or offensive contact with plaintiff Rotunda, or to create in her the apprehension of such contact, and did in fact creates in plaintiff’s mind a reasonable apprehension of an imminent battery.
236. Defendant Zengerle’s actions constituted the common law tort of assault under Virginia law.
R. Plaintiff’s Twelfth Cause of Action: Against Defendant Zengerle in his Personal Capacity for Common-Law Battery
237. Plaintiff incorporates the allegations of paragraphs 1-29, 52-54, and 147(i) above, with the same force and effect as if they had been re-pleaded here.
238. Defendant Zengerle’s rubbing of his body against plaintiff Rotunda’s body on July 9, 2007 was an unwanted and extremely offensive touching of plaintiff’s body to which plaintiff did not consent and that she has not excused. There was no justification for this touching of plaintiff’s body.
239. Defendant Zengerle’s actions constituted the common law tort of battery under Virginia law.
Particularly given the expected motions in limine to bar evidence under the dismissed counts, these counts would not likely make for a strong case for a jury. However, it would depend on those rulings on exclusion. The other possibility is the drop the case and take an appeal on the dismissal of the other counts. The Fourth Circuit is generally viewed as a circuit that would favor the defense in this case.
Polsby denounced the lawsuit as abusive and vexatious: “What has happened is that an unfounded case has been pressed beyond all reason (and comprehension). When cases of this sort are brought on the pretext of a civil rights violation, it amounts to an attack on the civil rights laws themselves.”
For the order, click OrderRotunda
Here is a copy of the original Rotunda complaint: Kyndra Rotunda Amended Complaint