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George Mason, Law Dean Win Bench Dismissal of Rotunda Sex-Harass Suit

Posted May 24, 2010 1:39 PM CDT
By Martha Neil

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Ruling from the bench, a federal judge in Virginia has dismissed all claims against George Mason University and its law school dean in a high-profile sexual harassment suit.

Brought by Kyndra Rotunda, who is a former director of a law school legal clinic for members of the military and the wife of constitutional law scholar Ron Rotunda, the suit claimed she had to find another job after she turned down sexual advances by the clinic's executive director. It also claimed that George Mason "knowingly" tolerated his behavior when she complained and that Kyndra Rotunda suffered retaliation.

A Friday order (PDF) by U.S. District Judge Leonie Brinkema says that all claims against GMU and law dean Daniel Polsby are dismissed "for the reasons stated in open court" in Alexandria.

Brinkema also dismissed the federal counts against the executive director of the clinic, Joseph Zengerle. However, the judge permitted pendent state-law claims against him for assault and battery to proceed.

Upholding a magistrate judge's determination, Brinkema said Rotunda could not amend her complaint.

Attorney Richard Seymour represents Rotunda. "We have great respect for the judge, but we think she was mistaken and plan to appeal," he tells the ABA Journal in an e-mail, declining to comment further.

Ron Rotunda provided the same statement in response to requests for comment by the ABA Journal to him and his wife. They now teach at Chapman University School of Law, where they sought new jobs after the dispute over the alleged harassment.

Zengerle, who is a West Point graduate with a distinguished military career, referred a request for comment to his lawyer, Michael Lorenger. He told the Washington Times late last month that "Professor Zengerle categorically denies he engaged in any improper conduct," adding: "We expect the lawsuit to be dismissed at trial."

"We're very pleased with the result, obviously, and we're confident that we'll prevail at trial," Lorenger tells the ABA Journal today.

The assault and battery counts survived a motion for summary judgment, he says, because "the standard for conduct to constitute assault and battery is just very low in Virginia."

The alleged conduct now at issue when the case goes to trial in two weeks is not sexual in nature, Lorenger adds: "Ms. Rotunda alleges that Professor Zengerle bumped into her when he left his office one day, and that's it." The day in question is July 9, 2007, he notes.

The Friday ruling by Brinkema is based on undisputed facts established with the help of 100,000 pages of discovery and 100 hours of depositions, Dean Daniel Polsby tells the ABA Journal. "I personally was deposed for 12 hours."

He and the law school did nothing wrong, Polsby says, and the judge's agreement that there is no basis for the suit against him and GMU is a welcome vindication.

"Actually, to tell you the truth, I was looking forward to my day in court," he says. "Now it looks like I'll have that day off. I'm pleased with that too."

However, "I don't want to strike the wrong tone here," Polsby adds. "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."

Earlier coverage:

ABAJournal.com: "Ex-Clinic Director Kyndra Rotunda Sues George Mason for Sexual Harassment"

ABAJournal.com: "Trial Looms in Hard-Fought Law Prof Sexual Harassment Case at GMU"

Updated at 2:25 p.m. to include response from Lorenger, Ron Rotunda and Zengerle, as well as additional comment by Polsby.

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