Three of the four women who in 2018 accused former Indiana Attorney General Curtis Hill of sexual misconduct are asking the 7th Circuit Court of Appeals to reinstate their federal claims for Title VII violations against the state of Indiana.
Former Indiana legislative staffers Gabrielle McLemore Brock, Niki DaSilva and Samantha Lozano filed an appellants’ brief last week in DaSilva, et al., v. Indiana, et al., 20-2238. The fourth accuser, former State Rep. Mara Candelaria Reardon, is not a party to the appeal.
In their brief, the three women argue that the U.S. District Court for the Southern District of Indiana erred in dismissing their Title VII claims against the state for sexual harassment and retaliation on the grounds that the state was not their employer at the time of the March 2018 incident.
“… (T)he only way to ensure that all employees of the State of Indiana, working in any branch of government, are protected in a consistent, compliant, and uniform manner, the State of Indiana must be treated as the Appellants’ employer for purposes of Title VII,” the brief filed June 28 says. “Just like private employers are not permitted to ‘model their internal organization after a huckster’s shell game,’ the State of Indiana, its branches of government, and the various agencies there under must not be permitted to exploit a game of hot potato to avoid any potential defendant being liable for clear acts of discrimination and retaliation prohibited under Title VII.”
Following the conclusion of the 2018 session of the Indiana General Assembly, Reardon, a Democrat, and the former staffers visited AJ’s Lounge in Indianapolis for an end-of-session celebration. Hill also attended the party, and the women later reported that he touched them inappropriately without their consent and made inappropriate remarks.
Hill has denied wrongdoing since the allegations became public in the summer of 2018, eventually claiming that there were differing perceptions of what happened that night. In the three years since, the allegations and their fallout have taken various forms.
Hill’s law license was suspended in May 2020 for 30 days with automatic reinstatement after the Indiana Supreme Court found the former AG guilty of misdemeanor battery and two related violations of the Indiana Rules of Professional Conduct. A special prosecutor, however, declined to file criminal charges.
Also, Hill lost his bid for reelection in 2020 when the Indiana Republican Party put its support behind now-Attorney General Todd Rokita.
The women, for their part, have pursued federal and state civil claims against Hill, the state and the Indiana Senate and House of Representatives. They claim in court filings that after the accusations became public, they were subjected to workplace hostility, harassment and retaliation.
The women first filed suit in the summer of 2019, arguing in part that the state of Indiana could be held liable because it was the employer of Brock, DaSilva and Lozano. But the following March, Indiana Southern District Judge Jane Magnus-Stinson disagreed with that argument, dismissing the Title VII claims against the state with prejudice, as well as federal claims for harassment, discrimination and retaliation against Hill in his official capacity.
The women responded with an amended complaint that named the Indiana House and Senate as the former staffers’ employers. They also filed state-law claims of battery, defamation and false light invasion of privacy against Hill.
But Hill was terminated as a defendant in June 2020, leaving only the Title VII allegations against the House and Senate, which were brought by Brock, DaSilva and Lozano. Thus, because Reardon was not a party to any of the surviving federal claims, she was terminated as a plaintiff in the federal case.
The state-law claims brought by all four women against Hill were dismissed without prejudice with leave to refile them in state court, which the women, including Reardon, did in July 2020. The accusers vowed to pursue “all available civil claims” in the action filed in Marion Superior Court.
There has been no action in the state case — McLemore, et al. v. Hill, 49D12-2007-CT-022288 — since March, when a new appearance was filed on behalf of the plaintiffs.
The three former staffers are now seeking to revive their Title VII claims, arguing in the June 28 filing that the district court erred by relying on the cases of Hearne v. Bd. Of Educ. Of City of Chicago, 185 F.3d 770 (7th Cir. 1999), and Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000), to find that the state was not their employer for purposes of the federal law.
Those cases are distinct, the women argue, because they did not involve employment relationships similar to the case against Hill. The plaintiffs-appellants urged the 7th Circuit to overrule or clarify the holdings in Hearne and Holman with respect to the relationships between states and their agencies.
Also, the district court erred by relying on extrinsic evidence — specifically, motions to intervene filed by the House and Senate — in its dismissal, the women claim. According to their brief, the question of whether an entity is an “employer” under Title VII is one of fact that should not be answered before discovery.
Finally, the three women argue that public policy dictates a finding that the state was their employer because, according to the women, if the two legislative chambers are the employers, they “will ensure Appellants have no recourse under Title VII.”
“In fact, the Senate goes so far as to reveal its entire motivation for seeking to be the sole employer for purposes of the Appellants’ claims, namely, that ‘[t]he State of Indiana (really, the people of Indiana) have a relationship with and control over Attorney General Hill through the electoral process. The Senate, on the other hand, has no control over Attorney General Hill, an elected official of the Executive branch,’” according to the brief.
“The practical impact of the district court’s dismissal of the State of Indiana is that if a member of the executive branch (perhaps the Secretary of State) were to sexually harass a law clerk working for a Court of Appeals judge, each branch of government would be able to exploit a loophole in Title VII’s framework to ensure that (the) only possible ‘employer’ does not control the actor causing the discrimination,” the brief continues.
The women also criticized the sexual harassment reporting policies instituted in each legislative chamber in response to the March 2018 incident, arguing those policies do not go far enough to protect Statehouse workers.
“The only surefire way to incentivize the creation, implementation, training, and enforcement of a uniform sexual harassment prevention policy is to hold the State of Indiana itself accountable when any of its employees are victims of such discrimination actions at the hands of other state actors,” they wrote. “Therefore, to end this multi-year game of bouncing the Appellants’ attempts to achieve accountability and justice from the (Office of the Inspector General), to the Special Prosecutor, to the Indiana Disciplinary Commission, to the Office of the Attorney General, to the Indiana House of Representatives and Indiana (Senate), the Seventh Circuit Court of Appeals must find that (the) buck stop(s) with the State of Indiana.”
The plaintiffs-appellants are represented by lawyers with Jeselskis Brinkerhoff and Joseph LLC in Indianapolis. The state is represented by the Office of the Attorney General, the House and Senate are represented by Jackson Lewis PC in Indianapolis, and Hill is represented by Giorgi & Bebekoski LLC in Crown Point.