Editor’s note: This story has been updated.
The federal litigation stemming from the sexual misconduct allegations against Attorney General Curtis Hill has been revived, this time with the plaintiffs suing the Indiana Legislature rather than the state. Hill’s accusers are also indicating that they plan to appeal the dismissal of several federal claims.
A second amended complaint was filed March 27 in Niki DaSilva, et al. v. Indiana House of Representatives, Indiana Senate and Curtis T. Hill, Jr., Individually, 1:19-cv-2453.
Though the defendants are slightly different, the facts at issue remain the same: Democratic State Rep. Mara Candelaria Reardon and legislative staffers Gabrielle McLemore Brock, Niki DaSilva and Samantha Lozano say Hill drunkenly groped them at a March 2018 party, and the General Assembly subsequently created a retaliatory hostile work environment after they reported Hill’s conduct. The women raise claims of sexual harassment and retaliation under Title VII of the Civil Rights act against the legislative chambers, as well as state-law claims for battery, defamation and false light invasion of privacy against Hill in his individual capacity.
Last month, Indiana Southern District Chief Judge Jane Magnus-Stinson dismissed with prejudice the Title VII claims that Brock, DaSilva and Lozano had brought against the state of Indiana, which they asserted was their employer. But according to Magnus-Stinson, the staffers could only bring those claims against the entities that had hiring and firing authority over them – the Indiana House of Representatives and the Indiana Senate.
All four women also originally pursued claims under 18 U.S.C. § 1983 against Hill in both his official and individual capacity, but all were dismissed as not cognizable under the Equal Protection Clause. On the related substantive due process claims, Magnus-Stinson said Hill’s conduct, though “reprehensible,” did not shock the conscience.
While the federal claims were dismissed with prejudice, the state-law claims brought against Hill in his individual capacity were dismissed without prejudice with leave to refile in state court. The women, however, included those claims in their second amended complaint.
Hill’s legal team seized on the state-law claims in his motion to dismiss the second amended complaint. Bringing the state-law claims in the federal complaint once again, he said, violates Magnus-Stinson’s order, Federal Rule of Civil Procedure 15, Local Rule 15-1 and the “Attorney’s Handbook United States District Court Southern District.”
Further, the motion to dismiss pointed to a footnote in Magnus-Stinson’s original order that said, “Attorney General Hill would be entitled to immunity in connection with Plaintiffs’ defamation and false light invasion of privacy claims in federal court … .”
“Clearly, the Court instructed the Plaintiffs that it anticipated the filing of a Second Amended Complaint that would include three (3) of the four (4) original Plaintiffs, Lozano, DaSilva, and McLemore, and two (2) new Defendants, the Indiana House of Representatives and the Indiana Senate, the Plaintiffs’ employers,” Hill wrote, adding that his accusers also failed to seek leave to file the second amended complaint.
Alternatively, Hill argued the state-law claims were not anchored to the complaint by federal claims against him. But if the Southern District chooses to exercise supplemental jurisdiction – which it declined to do in its March order – Hill reasserted his original arguments against the state-law allegations.
The AG also sought sanctions in the form of attorney fees and costs, alleging the women “vexatiously multiplied this proceeding by compelling Hill and this Court to spend physical and intellectual resources to redo what has been done once already, namely the dismissal of these very state law claims we see in the Second Amendment Complaint.”
Hill is being represented in his individual capacity by Geoffrey G. Giorgi and Izabela Bebekoski of the Crown Point firm Giorgi & Bebekoski. The women are represented Kimberly Jeselskis, B.J. Brinkerhoff and Hannah Kaufman Joseph of JBJ Legal in Indianapolis.
For their parts, the House and Senate, represented by attorneys with Jackson Lewis P.C., filed answers to the complaint denying the allegations against them.
Specifically, the legislative chamber denied claims that they do not have adequate policies for reporting and responding to sexual harassment and that, through the actions of members and staffers, they subjected Brock, DaSilva and Lozano to sexual harassment and retaliatory hostile work environments. Brock and DaSilva have each left their employment with the Indiana Legislature.
Instead, the House and Senate said the three women’s claims are barred for a number of reasons, including failure to state a claim for relief and alleging acts not contained within their Equal Employment Opportunity Commission charges. They also say the women failed to mitigate their alleged damages by not reporting alleged misconduct that occurred after the incident with Hill.
Also, the Legislature argued, because Hill is an elected official of the executive branch of government, his actions are not attributable to the House or Senate.
The four women on April 10 also moved for the entry of partial final judgment as to the previously dismissed claims, arguing there is no reason to delay an appeal. Hill’s team representing him in his official capacity responded in a Tuesday filing say neither the AG nor the state objected to the partial entry of judgment in their favor.
Meanwhile, as the federal case proceeds, Hill is awaiting the outcome of an attorney discipline case.
Hearing officer and former Justice Myra Selby has recommended that he serve a 60-day suspension without automatic reinstatement for battery against the women, while Hill is arguing for outright dismissal or, at worst, a reprimand. But the Indiana Supreme Court Disciplinary Commission has urged a two-year suspension without automatic reinstatement.