Editor’s note: This story has been updated.
Indiana Attorney General Curtis Hill is reviving his efforts to have a discrimination and retaliation lawsuit against him and the state dismissed, also filing motions this month asking a federal judge to stay all discovery.
The Republican AG has filed two motions to dismiss the case of Niki DaSilva, et al. v. State of Indiana, et al., 1:19-cv-2453 — one on behalf of himself individually and one on behalf of the state and himself in his official capacity. The November motions come after current and former legislative staffers Gabrielle McLemore Brock, Niki DaSilva and Samantha Lozano, as well as Democratic State Rep. Mara Candelaria Reardon, filed an amended sexual harassment complaint against the AG and the state.
The amended complaint, filed in August, continues to allege that a drunken Hill groped or inappropriately touched the four women at a party in March 2018. They’ve raised federal claims of sexual discrimination and retaliation, as well as state-law torts, though the amended filing omitted earlier claims of sexual harassment and discrimination and of retaliation brought specifically against the state.
Hill’s renewed motions to dismiss come after his initial motions were denied as moot. The November filings track Hill’s earlier arguments for dismissing the case.
As to the claims brought against the state and the AG in his official capacity, Hill — represented by attorneys in his office — argued the legislative staffers’ Title VII claims must fail because neither he nor the state is their employer.
Both the Indiana House of Representatives and Indiana Senate have made similar claims in motions to intervene, saying the legislative bodies are the women’s employers.
Thus, the House and Senate say they should be permitted to intervene in the case, though they also argue Hill and his office are conflicted out of adequately representing them in the action. The legislative bodies noted Hill criticized their internal investigation into the allegations, and said filings from the Office of the Attorney General — which have claimed the women should have proceeded under the Government Employee Rights Act of 1991 — “made inaccurate representations of fact and drew incorrect conclusions of law … .”
DaSilva recently left the Indiana Senate to take another job.
The OAG also argues the retaliation claim against Hill in his official capacity fails because retaliation is not cognizable under the Equal Protection Clause. Additionally, the plaintiffs’ requested remedies — including an apology from Hill and/or a retraction of his denials, as well as an order enjoining Hill from violating their constitutional rights — are not recognized forms of relief, Hill’s office said.
Similarly, on the claims brought against him individually, Hill alleges a lack of subject matter jurisdiction and failure to state a claim for relief. The individual-capacity claims include allegations of sexual harassment and discrimination under 42 U.S.C. 1983, retaliation under the Equal Protection Clause and substantive due process violations, as well as state torts, including sexual battery, defamation and false light invasion of privacy.
Specifically, the AG said his alleged misconduct did not occur “under color of state law,” nor did the alleged sexual harassment occur in an employment context. He also argued the alleged misconduct does not “shock the conscience,” and he claimed qualified immunity against all of the claims.
As to the state torts, Hill — represented individually by attorneys with Eichhorn & Eichhorn, LLP — said sexual battery is not a recognized tort in Indiana, while he has absolutely immunity against the defamation and false light claims.
The AG also moved to stay all discovery and case management deadlines, telling Indiana Southern District Chief Judge Jane Magnus-Stinson – to whom the case was transferred from Judge James Sweeney – that his motions to dismiss are likely to be granted.
The plaintiffs have not responded to the motions to dismiss.
While the civil case proceeds, Hill is also awaiting a hearing officer’s recommendation as to whether he should be professionally disciplined for the alleged sexual misconduct.
Former Indiana Justice Myra Selby presided over a four-day evidentiary hearing in the attorney discipline action against Hill last month. Her next step is to make a recommendation on what sanction, if any, the AG should face for professional misconduct.
The Indiana Supreme Court will then make the ultimate disciplinary decision in In the Matter of Curtis T. Hill, Jr., 19S-DI-156.
Last year, a special prosecutor, in conjunction with the Indiana Inspector General, declined to criminally charge Hill in relation to the March 2018 party.