Recently we saw how the 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) was largely dismissed by U.S. District Judge Leonie Brinkema. At the time, I expressed doubt that Rotunda would want to go forward to trial on the remaining state counts. Now, it appears that Rotunda has settled the lawsuit without any payment of money. The settlement involves unreported “equitable relief.”
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.”
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 previously stated that they intend to appeal Brinkema’s decision, but appear to have decided to settle the matter.
At the time of Brinkema’s ruling, 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
The trial on the remaining counts was set for June 7th. Zengerle’s lawyer Michael Lorenger said that the settlement “involved all parties and no payment of money.” He added that Zengerle is “quite pleased.”
The agreement to keep the settlement secret is rare for a public university. Perhaps the absence of a monetary settlement allows for the equitable relief to be kept confidential. Such equitable relief could include expunging or correcting records as well as offering written statements for the record. There is no indication, however, what was given Rotunda in the absence of financial relief.
Here is the relief that Rotunda sought in the Complaint:
WHEREFORE, plaintiff Rotunda respectfully requests that this Court grant the following
1. Declare that defendants violated the prohibitions of discrimination, sexual harassment, and the creation of a hostile working environment in Title VII of the Civil Rights Act of 1964 and in 42 U.S.C. § 1983;
2. Declare that defendants University and Polsby violated the prohibition against pay discrimination because of sex in the Equal Pay Act of 1963, in Title VII of the Civil Rights Act of 1964 and in 42 U.S.C. § 1983;
3. Award back pay to plaintiff Rotunda for the salary and benefits she was denied because of pay discrimination because of her sex;
4. Award liquidated damages to plaintiff Rotunda in an amount equal to the salary and benefits she was denied because of pay discrimination because of her sex;
5. Award back pay to plaintiff Rotunda for the salary and benefits she was denied because of her constructive termination;
6. Award front pay to plaintiff Rotunda for the salary and benefits she will be denied until she reaches parity of pay with defendant Zengerle;
7. Award liquidated damages to plaintiff in an additional amount equal to the amount of back pay awarded;
8. Award prejudgment interest to plaintiff, at such interest rate as the Court deems proper for claims under Federal law, from the date each payment included in back pay should have been received to the date judgment is entered, for every element of her back pay award,
9. Award postjudgment interest to plaintiff;
10. Award compensatory damages to plaintiff Rotunda from all defendants for the emotional distress and humiliation she suffered because of the actions of defendants;
11. Award punitive damages to plaintiff from defendant Polsby in his personal capacity and from defendant Zengerle in his personal capacity, in an amount sufficient to deter defendants Polsby and Zengerle from engaging in future actions similar to those giving rise to this lawsuit, and sufficient to deter other similar managers, administrators, and employees from doing the same;
12. Permanently enjoin the defendant University and defendant Polsby:
a. From failing to remove defendant Zengerle’s August 20, 2007
reprimand of plaintiff, and any reference to the reprimand, from all official and unofficial files of defendants, except for the purpose of admitting that it was deliberately false, misleading, and retaliatory against plaintiff Rotunda for exercising her right to complain of sexual harassment and retaliation against her;
b. From making any reference to the reprimand in any communications with others, except in the course of admitting that it was deliberately false, misleading, and retaliatory against plaintiff Rotunda for exercising her right to complain of sexual harassment and retaliation against her;
c. From failing to remove the June 26, 2007 decision and findings of
the Office of Equity and Diversity Services with respect to plaintiff Rotunda, and any references to this decision or its findings, from all official and unofficial files of defendants, except for the purpose of admitting that it was deliberately false, misleading, and retaliatory against plaintiff Rotunda for exercising her right to complain of sexual harassment and retaliation against her;
d. From making any reference to the June 26, 2007 decision or findings of the Office of Equity and Diversity Services with respect to plaintiff Rotunda, in any communications with others, except in the course of admitting that it was deliberately false, misleading, and retaliatory against plaintiff Rotunda for exercising her right to complain of sexual harassment and retaliation against her;
e. From failing to provide plaintiff Rotunda with a complete copy of
all of the personal files on her computer seized in connection with her constructive termination;
f. From failing to give a complete accounting of all uses defendants
made of plaintiff’s personal files and any copies of those files provided to third parties; and
g. From failing to give plaintiff Rotunda an excellent reference in
response to any inquiry.
13. Award plaintiff reasonable attorneys’ fees and the reasonable expenses of her representation; and
14. Grant such other and further relief as may be necessary or appropriate.
Obviously, one through eleven would not be part of the settlement. That would leave 12-14, but 13 involved fees and 14 involved a general demand for any relief deemed appropriate by Brinkema. That reduces the possible equitable relief (at least under the complaint) to the items under 12 where Rotunda sought to expunge a reprimand from her file and limiting references to her case. It seems unlikely that a settlement would include the sought promise “to give plaintiff Rotunda an excellent reference in response to any inquiry.” The school might be willing to expunge records and limit comments in light of the extensive public record in the case.
Rotunda’s lawyer insisted that Rotunda “obtained equitable relief that she has been seeking since before she left George Mason Law School almost three years ago.” It is not clear what such equitable relief might entail but the settlement ends the long controversy for George Mason, which largely prevailed in the litigation.
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