7th Circuit: IN Legislature, not state, was employer of women who accused former AG Hill of groping

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Three of the four women who accused former Indiana Attorney General Curtis Hill of groping them cannot sue the state under Title VII, the 7th Circuit Court of Appeals has ruled, finding the legislative staffers were employed by the Indiana House and Senate, not the state itself.

Judge Frank Easterbrook wrote for the unanimous appellate panel Wednesday in Niki DaSilva, et al. v. State of Indiana, 20-2238.

The legal battle between Hill and the four women — former State Rep. Mara Candelaria Reardon and former Indiana legislative staffers Gabrielle McLemore Brock, Niki DaSilva and Samantha Lozano — dates back to March 2018, when Hill and the women all attended an end-of-session legislative party in Indianapolis. In the months following the party, allegations became public that Hill had drunkenly groped the women, although he has consistently denied wrongdoing in the intervening years.

Although a special prosecutor declined to press criminal charges, the Indiana Supreme Court suspended Hill’s law license in May 2020 for 30 days with automatic reinstatement, finding he had committed misdemeanor battery against the women. Hill subsequently lost his reelection bid, with now-Attorney General Todd Rokita beating him out as the GOP candidate for Indiana AG.

Meanwhile, the four women filed a civil suit in the U.S. District Court for the Southern District of Indiana, naming Hill and the state as defendants against Title VII of the Civil Rights Act of 1964, and other federal and state-law claims. The Indiana House and Senate intervened, contending they were the employers of Brock, DaSilva and Lozano, not the state.

Indiana Southern District Judge Jane Magnus-Stinson agreed, dismissing the claims against the state on March 2, 2020. The following June, Hill was dismissed as a defendant, while Reardon was terminated as a plaintiff. Reardon is not a party to the appeal.

During oral arguments in December 2021, lawyer Hannah Kaufman Joseph, representing Brock, DaSilva and Lozano, asked the 7th Circuit to reinstate the Title VII claims against the state. Joseph said the appellate court should revisit Hearne v. Chicago Bd. of Educ., 185 F.3d 770 (7th Cir. 1999), and Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000), and find that the state could be considered the women’s employer.

But the state, represented by deputy attorney general Aaron Craft, argued there was no reason to revisit Hearne or Holman. But beyond that, Craft argued the 7th Circuit lacked jurisdiction over the case because the plaintiffs moved for entry of partial final judgment in the district court on April 10, 2020, rather than April 1, which he said was the deadline.

Addressing the jurisdictional question first on Wednesday, the 7th Circuit determined it could consider the appeal on the merits.

Acknowledging that Schaefer v. First National Bank of Lincolnwood, 465 F.2d 234 (7th Cir. 1972), and King v. Newbold, 845 F.3d 866 (7th Cir. 2017), require litigants to move for entry of partial judgment under Federal Rule of Civil Procedure 54(b) within 30 days — as opposed to the 39 days here — the 7th Circuit also pointed to Hamer v. Neighborhood Housing Services, 138 S. Ct. 13 (2017). Hamer held that “time limits in the federal rules are not jurisdictional but instead are case-processing rules, which must be enforced if properly invoked but may be waived or forfeited.”

Subsequently, on remand in Hamer v. Neighborhood Services, 897 F.3d 835 (7th Cir. 2018), the 7th Circuit held that “rule-based time limitations for appeals are ‘properly’ invoked only if asserted in the litigants’ appellate docketing statements.” That requirement was not met here.

“Indiana did not invoke Schaefer and King until its brief on the merits, which is too late,” Easterbrook wrote. “… More than that: Schaefer and King are questionable if cast as rules setting an outer bound on the time to make motions in a district court.

“… The problem is seeing a bright-line rule, such as ‘request the judgment within 30 days,’ in an abuse-of-discretion standard,” Easterbrook continued. “Bright-line rules and abuse-of-discretion standards are almost opposite in legal practice.

“… Given Indiana’s tardiness in drawing our attention to plaintiffs’ delay,” he wrote, “we need not decide today whether the 30-day line from Schaefer and King should be abrogated.”

But the women were less successful when the 7th Circuit turned to the merits. Ultimately, the appellate court declined to revisit Hearne or Holman, finding instead that “the entity with hiring and firing authority is the right defendant” for Title VII claims.

“(The State) is an employer, surely, because it has employees covered by the law,” Easterbrook wrote. “But it is not plaintiffs’ employer. They were hired, and are supervised, by the House or Senate, which holds the sole power to discipline, fire, or reward them.

“… The State of Indiana as a whole could not oblige the House or Senate to reinstate or raise the salary of any legislative aide. That power belongs to the legislature,” the judge continued. “The State of Indiana as an entity, by contrast, is managed by the Governor and represented in court by the Attorney General, neither of whom has any control over legislative decisions.”

In arguing the state was their employer, the women said the Indiana House and Senate had no control over Hill and thus could not protect them from discrimination by him. But the Legislature could impeach Hill, Easterbrook noted, and a senior legislative officer could have kicked him out of the March 2018 party.

As for the other two branches of state government, the 7th Circuit noted the Indiana attorney general is not answerable to the governor, while the Supreme Court could do little on its own beyond suspending Hill’s law license.

“Plaintiffs seem sure that the House and Senate will not do anything to protect or compensate them. Maybe, maybe not,” Easterbrook wrote. “And perhaps only Hill is responsible for his conduct, which occurred at a party after working hours. But if the House and Senate seek exculpation, courts can resolve their defenses. That an employer may deny liability or otherwise prove recalcitrant is a reason to obtain the court’s aid, not a reason to sue someone else’s employer instead.

Hearne and Holman control this issue, and we are not disposed to change course given the support these decisions have received in other circuits,” the appellate panel concluded. “The district court was right to dismiss the Title VII claims against the State of Indiana.”

In addition to the federal lawsuit, all four women are also suing Hill in state court. That case — McLemore, et al. v. Hill, 49D12-2007-CT-022288 — is set for a jury trial in September. 

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