Next steps unclear after dismissal of accusers’ suit against AG Hill

From left, Rep. Mara Candelaria Reardon, Niki DaSilva, Gabrielle McLemore Brock and Samantha Lozano sued Attorney General Curtis Hill and the state for sexual harassment, discrimination and retaliation. The federal claims have been dismissed, but options remain that could allow the case to proceed. (IL file photos)

The four women who have accused Indiana Attorney General Curtis Hill of sexual misconduct are considering their next steps after the U.S. District Court for the Southern District of Indiana dismissed their sexual harassment, discrimination and retaliation claims against Hill and the state.

Hill

Chief Judge Jane Magnus-Stinson’s March 2 ruling came less than a year after the four women — Democratic State Rep. Mara Candelaria Reardon and legislative staffers Gabrielle McLemore Brock, Niki DaSilva and Samantha Lozano — filed the June 2019 complaint. The chief judge also declined to hear state-law claims.

The dismissal is a victory for the embattled AG, who is currently running a crowded re-election campaign and is facing possible professional discipline. Hearing officer and former Indiana Supreme Court Justice Myra Selby has recommended his law license be suspended for 60 days without automatic reinstatement for what she found to be battery against the four women in March 2018, when Hill is accused of drunkenly groping them at a legislative party.

Hill celebrated the dismissal in a statement, saying, “I am grateful for the court’s ruling dismissing the federal lawsuit. It is my great honor to serve the citizens of this great state and I look forward to continuing to protect and defend Hoosiers as their Attorney General.”

But the federal court battle may not be over yet.

Magnus-Stinson’s opinion notes at least two ways the women could potentially keep their case alive. But she cautioned that Indiana’s Southern District — the second busiest in the nation — lacks the time and resources “to rule on multiple motions to dismiss in order to help Plaintiffs craft their claims.”

The JBJ Legal attorneys representing the women have not yet made their next moves known, saying instead through a spokeswoman that they are “still formulating their strategy for next steps.”

‘Official’ allegations

The first issue Magnus-Stinson addressed was whether Brock, DaSilva and Lozano could sue the state for sexual harassment and retaliation in violation of Title VII of the Civil Rights Act. The retaliation claims arose from allegations that, after they reported Hill to legislative leaders, they were subject to rude comments and other professional blowback within the General Assembly.

In dismissing the Title VII claims, the chief judge focused on the question of who had hiring and firing responsibility over the three staffers. That responsibility, the chief judge said, was with the House and Senate.

“Because the House had hiring and firing power over Ms. Lozano, and the Senate had or has hiring and firing power over Ms. DaSilva and Ms. McLemore, they are their respective employers,” Magnus-Stinson wrote.

Brock and DaSilva have left the General Assembly since the suit was filed.

All four women similarly pursued sexual harassment, discrimination and retaliation claims against Hill in his official capacity, claiming he tried to intimidate them after their accusations became public. Those claims were brought under 18 U.S.C. § 1983 for violations of the equal protection and substantive due process clauses.

But Magnus-Stinson agreed with Hill that retaliation claims cannot be brought under the equal protection clause, quoting 7th Circuit Court of Appeals precedent holding that “‘the right to be free from retaliation may be vindicated under the First Amendment or Title VII, but not the equal protection clause.’”

On the harassment and discrimination claims, the chief judge wrote that the women sought injunctive relief that was too broad. Specifically, they had moved for an injunction requiring Hill to “retract all defamatory statements and/or apologize for such statements,” among other relief.

Individual-capacity claims

Hill’s accusers also sued him in his individual capacity, repeating the Section 1983 claims of sexual harassment, discrimination and retaliation in violation of the equal protection and substantive due process clauses.

Those claims, Hill argued, should all fail because he was not acting under color of state law. Magnus-Stinson did not agree.

“Some of Plaintiffs’ allegations indicate that Attorney General Hill was not acting under color of state law at the Sine Die Celebration, while others might support a finding that he was acting under color of state law,” the chief judge wrote. “… The Court cannot determine solely on the allegations of the Amended Complaint that Attorney General Hill was not misusing any power that he held by virtue of state law, that the alleged wrongdoing was not made possible because of his position as Attorney General, or that his alleged actions were not related in any way to the performance of his duties as Attorney General.”

But the federal individual-capacity claims were still dismissed. As to the sexual harassment and discrimination counts, the court once again determined the women had not adequately alleged their claims under the Equal Protection Clause.

“Plaintiffs set forth two groups of allegations in their Amended Complaint: (1) allegations related to Attorney General Hill’s actions at the Sine Die Celebration; and (2) allegations related to their treatment after they reported his alleged actions. Neither group of allegations form a basis for an Equal Protection claim,” Magnus-Stinson wrote.

“Most problematic for the Plaintiffs’ claim, however, and relevant to both sets of allegations, is that the Seventh Circuit has only recognized such a claim where there is an employment relationship. … The Court is not willing to expand a discrimination/sexual harassment claim under the Equal Protection Clause beyond the employer/employee relationship, or at least a relationship akin to the employer/employee relationship.”

Like its official-capacity counterpart, the individual-capacity retaliation claim was dismissed as not cognizable under the equal protection clause.

On the substantive due process claim, Magnus-Stinson determined that while Hill’s conduct “is potentially criminal, improper, and reprehensible,” it did not “shock the conscience.”

State-law possibilities

The final set of claims against AG Hill were brought under Indiana state law — specifically, sexual battery, battery, defamation and false light invasion of privacy.

In a footnote, Magnus-Stinson dismissed the sexual battery claim with prejudice because it is not recognized under Indiana law. But the remaining three claims were dismissed without prejudice, giving the option for refiling in state court.

In addition to leaving open the option for a state court filing, Magnus-Stinson pointed to another method for keeping the litigation alive: filing a second amended complaint “which sets forth claims that the Court has not already found fail to state a claim — for example, Title VII claims against the House and the Senate on behalf of Ms. Lozano, Ms. DaSilva, and Ms. McLemore … .” Any such complaint must be filed by March 27.

But she cautioned that any amended complaint “must be filed with due regard for the substantive rulings contained in this Order.” She noted again “that the State is not Plaintiffs’ employer for purposes of the Title VII claims, that the injunctive relief Plaintiffs seek against Attorney General Hill in his official capacity is not cognizable, that the 1983 claims against Attorney General Hill in his individual capacity fail as a matter of law under the circumstances presented in this case, and that there is no claim for sexual battery under Indiana law.”

The case — Niki DaSilva, et al. v. State of Indiana, et al., 1:19-cv-02453 — is set for a pretrial phone conference at 11:30 a.m. May 21.•

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