Another chapter has been opened in the ongoing saga surrounding allegations that Attorney General Curtis Hill drunkenly groped four women at a bar more than a year ago. The four women, who up to this point have pursued action within the Equal Employment Opportunity Commission, have now taken their complaint to the Southern Indiana District Court.
The case, Niki DaSilva, et al. v. State of Indiana and Curtis T. Hill, Jr., 1:19-cv-2453, alleges sexual harassment, discrimination, retaliation, battery and defamation against the state and Hill, acting in both his official and individual capacities. The complaint stems from reports that an inebriated Hill groped four women — Niki DaSilva, Samantha Lozano and Gabrielle McLemore, all Statehouse staffers, and Democratic Rep. Mara Candelaria Reardon — at A.J.’s Lounge during a party hosted by the Legislature on March 15, 2018.
The matter has already been extensively reviewed. Both the Indiana inspector general and special prosecutor Daniel Sigler conducted parallel criminal and ethical investigations, while an attorney disciplinary action against Hill is ongoing. The special prosecutor and inspector general’s reports did not lead to criminal or ethical charges against Hill, who is scheduled for an attorney disciplinary hearing in October.
Hill has repeatedly denied the allegations against him and has said little about the filing of the lawsuit, releasing only a brief statement announcing his office would represent both him and the state in the proceedings. The accusers are being represented by Indianapolis attorneys B.J. Brinkerhoff, Hannah Kaufman Joseph and Kim Jeselskis of Katz Korin Cunningham.
“The lawsuit is related to allegations that have now been reviewed four times,” Hill said in the statement. “The investigations all concluded without any recommendations for further action.”
In addition to damages, the women are seeking a policy shift through their complaint, specifically requesting injunctive relief requiring the state to revise and strengthen its sexual harassment and retaliation reporting and response policies.
“It is not a question of whether sexual harassment and retaliation occurred,” Kaufman Joseph said during a June 18 press conference announcing the suit. “It is a question of what the state of Indiana will do to prevent similar situations from occurring in the future.”
The lawsuit paints a picture of what the four women describe as a “retaliatory hostile work environment.”
Reardon, for example, says she believes she was removed from the Indiana Black Legislative Caucus because she spoke out against Hill. DaSilva, a legislative assistant to Republican Sen. Ryan Mishler, says people now go around her when they want to meet with the senator. McLemore recalls overhearing Democratic Sen. Greg Taylor complain that the allegations against Hill had become an exposé against male legislators who didn’t stop him. Lozano says Hill recently stood so close to her at a Statehouse event that their arms could touch, an attempt, she believes, to physically intimidate her.
The complaint also alleges snide or insensitive marks made by lawmakers in the presence of the four women.
Republican Sen. Jean Leising, for example, was overheard saying the women got what they deserved because of how they were dressed at the March 2018 party. Democratic leaders Sen. Tim Lanane and Rep. Phil GiaQuinta joked in McLemore’s presence about wanting to avoid Hill at A.J.’s Lounge. Republican Rep. Blake Doriot remarked in Reardon’s presence that if a woman wears a black bra under a white shirt, men should not be expected to look away. Democratic Sen. Karen Tallian once placed her hand on DaSilva’s shoulder, asked if that was OK, then told DaSilva “that if she were gay it would not be sexual harassment.”
All of these incidents, taken together, form the basis of the “retaliatory hostile work environment” claim. Jennifer Drobac, an expert in sexual harassment law who teaches at Indiana University Robert H. McKinney School of Law, said the concepts of retaliation and discrimination work hand-in-hand to create retaliatory hostile work environment claims.
Retaliation, Drobac said, is evidence of ongoing discrimination. Here, because the women reported Hill’s alleged conduct, Drobac said they are now subject to ongoing discrimination through lawmaker comments and lost career opportunities, such as Reardon’s removal from the Black Caucus.
The state should be on the hook for that retaliation, Drobac said, because, in her view, it has not sufficiently trained lawmakers or state employees on appropriate conduct that avoids such discrimination and retaliation.
“If there are comments like that one — that they deserved it because of what they were wearing — that just highlights the fact that the employer, the state of Indiana, has not done enough training to educate people that that is a really stupid remark,” she said.
A strong case?
The complaint brings four claims against the state and seven against Hill, predominantly under Title VII of the Civil Rights Act of 1964 and 42 United States Code § 1983. Stephanie Jane Hahn, an Indianapolis employment law attorney who frequently represents harassment victims, said she thinks the case is stronger because of the use of both provisions, though she also thinks the Section 1983 claims may fare better in terms of damages.
Claiming emotional damages under Title VII can be more difficult, Hahn said, because those cases tend to turn on whether the plaintiffs lost actual payment or benefits. But caselaw shows that under Section 1983, courts generally don’t require a showing of actual physical harm or lost pay before awarding damages, she said.
The fact that Hill was not criminally charged also won’t necessarily preclude damages recovery, the attorneys said, though Hill has said Sigler’s decision not to press charges exonerated him.
But the standard of proof in a civil proceeding is lower than in a criminal proceeding, they said. Sigler declined to press criminal charges against Hill because he did not believe he could prove Hill groped the women in a rude, insolent or angry manner, but that mental state isn’t at issue in the civil case.
What’s more, Hahn said Sigler went out of his way to lend credibility to the accusers. Indeed, in announcing his decision not to press charges, the special prosecutor publicly said he believed all four women but did not think he had a triable case.
The complaint seeks various forms of relief — damages, a retraction of allegedly defamatory statements Hill made or an apology for those statements, a declaration that the women’s rights were violated and, notably, an injunction requiring the state “to adopt appropriate policies related to sexual harassment, retaliation, and protection of individuals’ rights to equal protection and substantive due process under the United States Constitution.”
The Legislature did revise its sexual harassment reporting and response policies this year, with the ethics committees of each chamber adopting new guidelines, but those revisions have widely been met with criticism. Kaufman Joseph was among those critics, telling reporters the state’s policy should include a review of harassment allegations by an independent party, widespread protection for all Statehouse employees and an indemnification provision.
Drobac and Hahn likewise see shortcomings in the policies adopted this year. Drobac has repeatedly called for the state to adopt a policy against sex-based harassment, which she says is broader than sexual harassment and includes gender hostility based on perceived sexual orientation and/or gender identity.
Though Hahn said the legislators made a good start toward improving their harassment responses, she would like to see more protection for Statehouse workers from third-party bad actors, whether that’s the soda delivery person or an elected official not within the Legislature. She also said the consequences should go beyond monetary awards.
“We don’t want to have a situation where Curtis Hill is found to have violated the statute on damages, but then files for bankruptcy,” Hahn said.
The case against Hill and the state has been assigned to Judge James R. Sweeney and Magistrate Judge Doris L. Pryor. As of IL deadline, no action had been taken in the case.•