Three of the four women who accused former Indiana Attorney General Curtis Hill of sexual misconduct are rejecting the argument that they were employed solely by the Indiana Legislature, arguing instead that the state was their employer, possibly in conjunction with the two legislative bodies.
The women — former legislative staffers Gabrielle McLemore Brock, Niki DaSilva and Samantha Lozano — are seeking to sue the state for Title VII violations they say they allegedly suffered while at work in the aftermath of their allegations against Hill.
In a reply brief filed in the 7th Circuit Court of Appeals this month, the women are once again asking the appellate court to reinstate their Title VII claims against the state. The Indiana Southern District Court in March 2020 dismissed those claims, finding the women were employed by the legislative bodies, not the state itself.
The Indiana House and Senate had previously intervened, arguing they were the women’s employers. But the General Assembly’s intervention undercuts that argument, the women argued in a brief filed Oct. 12.
“In the House and Senate’s Motions to Intervene, the reason, at least in part, they sought to be named as defendants was because of concerns regarding the inherent conflicts involved if the Indiana Office of the Attorney General were to defend the House and Senate,” the brief states. “… Most revealing is the Senate’s acknowledgement that ‘[u]nder normal circumstances, the Attorney General defends suits instituted against the State.’
“… It is reasonable to conclude that, had the Indiana Attorney General not been named as the primary defendant largely responsible for many of the resulting potential liability, the House and Senate would not have sought to intervene as defendants seeking to replace the State as Plaintiffs’ employer,” the brief continues. “This conclusion is bolstered by the absolute dearth of other litigation in which the House and Senate have taken a similar position insisting that the General Assembly is an independent agency with hiring and firing authority distinct from the state.”
And even if the House and Senate were their employers, the women argue, they may not be their only employers.
“The State appears to ignore the possibility raised in Plaintiffs’ Brief that a prospective joint or integrated employer relationship may be found, had the district court acknowledged that an employee’s status is a fact-specific question under Title VII,” they claim.
What’s more, the women argue, the legislative bodies have failed to prove they are “employers” under Hearne v. Bd. Of Educ. Of City of Chicago, 185 F.3d 770, 777 (7th Cir. 1999) — specifically, that they have sole hiring and firing authority independent of the state. They say the question of their “employer” should be decided after discovery, and the district court erred by relying on extrinsic evidence — the motions to intervene — to grant the state’s motion to dismiss.
The women also raised a public policy issue, arguing that if the Indiana House and Senate were their sole employers, then state government workers would have no recourse when they are harassed or retaliated against by a member of a different branch of government. Here, the women were part of the legislative branch, while Hill was part of the executive.
“The Plaintiffs in this case present a real-life example of what happens in this scenario — victims of discrimination and retaliation resign from their employment and forego (sic) potential career opportunities because they have no true recourse from the alleged acts of sexual harassment and retaliation,” the complaint states. “This is exactly what has happened in this case and why we are now before this Court. In short, for purposes of Title VII, the only way to protect Hoosier employees working in all three branches of the Indiana government is to treat the State as an employer.”
In addition to the merits of their argument, the women also pushed back against the state’s contention that the 7th Circuit lacks jurisdiction to hear their appeal.
The state claims that under Federal Rule of Civil Procedure 54(b), the women did not timely move for the entry of partial final judgment in the district court. Under King v. Newbold and Schaefer v. First Nat’l. Bank of Lincolnwood, the state says the motion was filed nine days late.
But “the Federal Rules of Civil Procedure contain no express deadline for a party to request certification of an order or judgment under Fed. R. Civ. Pro. 54(b),” the women responded. Even under King and Schaefer, they continued, their motion was not “seriously tardy.”
Additionally, the women claimed, they can demonstrate an “extreme hardship” that contributed to the nine-day delay in the April 2020 motion — the COVID-19 pandemic.
Oral arguments in the case — DaSilva, et al. v. State of Indiana, et al., 20-2238 — are scheduled for Dec. 2. Hill will not be participating, nor will his fourth accuser, former State Democratic Rep. Mara Candelaria Reardon.