Too Close for Comfort: Law Prof,
Spouse Sue Law School for Harassment

By Jordan Weissmann and Tony Mauro
The National Law Journal
New York Lawyer
October 5, 2009

In an e-mail to the Washington legal community in the summer of 2008 to announce that he and wife Kyndra Rotunda had found new jobs in California, professor Ronald Rotunda wrote an eye-catching final line: "We are...pleased to be leaving George Mason University."

Behind that less-than-fond farewell lie accusations of sexual harassment and discrimination and, ultimately, dismay that drove a noted constitutional scholar and his wife to quit their jobs at George Mason University School of Law.

This July, Kyndra Rotunda filed a lawsuit against the Arlington, Va., school, where just three years before she had happily signed on as director of a legal assistance clinic for military service members. In her suit, she alleges she was harassed by the clinic's executive director, Joseph Zengerle, whose actions she says drove her into leaving after she turned down his sexual advances.

Rotunda alleges in court documents that, despite her complaints about Zengerle, George Mason "knowingly" tolerated his behavior. Last month, her suit, filed in the U.S. District Court for the Eastern District of Virginia,survived a motion to dismiss. "I was sexually harassed at one of America's upper-tier law schools, and they shouldn't be able to get away with it," said Rotunda in an interview before she sued.

In court papers, defendants George Mason University, law school Dean Daniel Polsby and Zengerle have denied all allegations of wrongdoing. Polsby and Zengerle declined to comment on the suit, as did George Mason's lead attorney, Jeffrey Huvelle of Washington-based Covington & Burling.

Kyndra Rotunda arrived at George Mason in September 2006 having previously served as a lawyer in the U.S. Army. She had been in Guantánamo Bay, Cuba, as a part of the military legal team that prosecuted Osama bin Laden's driver. Guantánamo was also where she met her husband, then consulting for the U.S. Department of Defense.

According to her complaint, Rotunda joined the law school believing that she would be in charge of the clinic. She alleges she was told that Zengerle, the clinic's founder, would help her make the transition and then move on to other responsibilities.

It didn't go that way. In her complaint, Rotunda claims that Zengerle became uncomfortably attentive. In one incident, she claims he called himself her "knight and protector"; in another he bought her a scarf and suggested how she should wear it. In December 2006, according to the complaint, he allegedly invited her to drinks alone at his house, then stormed into her office screaming after she did not go.

After that incident, Rotunda claims in court documents, Zengerle began micromanaging her work. He "repeatedly came uncomfortably close." There was another screaming incident.

Rotunda alleges that her complaints to administrators were largely ignored, leading only to a perfunctory investigation and forced mediation between her and Zengerle. She says in court documents that administrators tried to wring concessions from her that would "weaken her legal position."

On Aug. 3, 2007, Rotunda filed a complaint with the U.S. Equal Employment Opportunity Commission. Within a few days, she alleges, Zengerle handed her a written reprimand, criticizing her for insubordination. She resigned later that month. The EEOC issued a "right to sue" letter in July of this year.

Rotunda, who is represented by Richard Seymour of Washington's Law Office of Richard T. Seymour, raised 13 counts in her lawsuit, including sex and pay discrimination, actual and constructive termination, retaliation and constitutional violations (George Mason is a state school). U.S. District Judge Leonie Brinkema dismissed one constitutional claim and part of another on Sept. 11.

Rotunda's pay discrimination claim hinges on the fact that, while she was paid $70,000 as director of the clinic, Zengerle was paid more than $130,000.

In the motion to dismiss, George Mason's lawyers wrote that it was reasonable to believe that Rotunda, as director of the clinic, should follow instructions from Zengerle, the executive director. The attorneys also wrote that Zengerle was paid more because he had more experience. He is a former assistant secretary of the Air Force and one-time executive director of the Legal Aid Society of the District of Columbia.

Polsby, who did comment at the time of the EEOC complaint, defended his school's actions, saying it handled Rotunda's allegations properly.

After his wife resigned, Ronald Rotunda took up his wife's cause, complaining to the faculty grievance committee not only about the alleged harassment but also about the university's response to her complaints. The university's equity office found "severe conflict" between the parties, but not on the basis of gender, and dismissed the harassment claim. The faculty grievance committee criticized the way that officials handled the complaints but did not rule on the harassment claim.

Disgusted at the situation, Ronald Rotunda resigned in mid-2008, telling Polsby in his resignation letter, "For the past year, George Mason has revealed itself as an institution more concerned with hiding its dirty laundry than cleaning it."

The Rotundas remain at Chapman University School of Law in Orange, Calif., where Kyndra has founded a new clinic for military service members.