AG Hill Moves To Dismiss Sexual Harassment, Retaliation Lawsuit

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Olivia Covington for www.theindianalawyer.com

The dismissal motions were both filed in the Indiana Southern District Court on Thursday in Niki DaSilva, et al. v. State of Indiana and Curtis T. Hill, Jr., individually and in his official capacity as the Indiana Attorney General, 1:19-cv-2453. The case was filed last month by Democratic State Rep. Mara Candelaria Reardon and three legislative aides — Niki DaSilva, Samantha Lozano and Gabrielle McLemore.

The three women have alleged Hill drunkenly groped them at the 2018 end-of-session legislative party, held March 15 at A.J.’s Lounge in Indianapolis. Hill denies the accusations.

The complaint alleges sexual harassment, gender discrimination and retaliation at the hands of Hill and the state, which the three aides say is their employer. As relief for their claims — brought under Title VII of the Civil Rights Act of 1964, 42 United States Code §1983 and state law — the women are seeking damages and declaratory and injunctive relief, including either an apology from Hill or a retraction of allegedly defamatory statements.

But in urging Judge James Sweeney to dismiss the “sprawling, eleven-count complaint,” Hill alleges the claims fail for subject-matter jurisdiction and/or fails to state a claim for relief.

In an 18-page motion to dismiss filed on behalf of Hill in his official capacity and the state, the AG argues DaSilva, Lozano and McLemore are not entitled to relief under Title VII because the state is not their “employer.” Reardon was not included on the Title VII claims.

Instead, Hill argues the legislative aides are excepted from Title VII coverage as persons “chosen by (elected officials) to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.” DaSilva is a legislative assistant for the Indiana Senate Republican Caucus, Lozano is a legislative assistant for three House Democrats, including Reardon, and McLemore is the communications director of the Indiana Senate Democrats.

“All three Plaintiffs — Ms. Lozano, in particular — could be ‘personal staff of legislators,’” the dismissal motion reads, citing to a six-factor test found in Lockwood v. McMillan, 237 F. Supp. 3d 840, 857 (S.D. Ind. 2017). “… Although the details in the complaint are sparse, Legislative Assistants and Communication Directors fit the conventional mold of personal staff, as indicated by these factors.”

The motion also argues the three women are not “employees” of the state, as is required by Title VII, under an exclusion from the State Civil Service System found in Indiana Code § 4-15-2.2-1(b)(1).

Because of the Title VII exceptions, Hill argues the three women should have sought relief under the Government Employee Rights Act of 1991, which he said affords excepted plaintiffs “administrative-type proceedings, more akin to the type of proceedings provided by the Administrative Procedures Act … .”

“Specifically, plaintiffs must file a GERA complaint with the EEOC, the EEOC will issue a final order, and plaintiffs may seek appeal of an adverse administrative decision to a federal court of appeals,” the motion says. The women did file a complaint with the Equal Employment Opportunity Commission, but it was voluntarily dismissed.

“Since ‘the courts of appeals, rather than the district courts, have exclusive jurisdiction to review final orders from the EEOC on GERA claims,’ but Plaintiffs improperly filed suit in this Court, Counts I and II must be dismissed as this Court lacks jurisdiction to hear them,” the AG wrote.

As to the claims brought under Section 1983 — which allege violations of the women’s First and Fourteenth Amendment rights — Hill argues the state is entitled to sovereign immunity. Further, “retaliation” is not a cognizable claim under the Equal Protection Clause, he argues, so that Section 1983 claim fails for that reason, as well.

Turning to the official capacity claims against Hill, specifically the request for an apology or retraction of allegedly defamatory statements, the Attorney General’s office argues retractions are not a recognized form of injunctive relief.

“The only relief allowed under an official-capacity suit is prospective injunctive relief,” the AG argues. “… An apology, however, is ‘an acknowledgement of past wrongdoing …, something [federal courts are] without authority to order.’”

Turning to the claims against Hill in his individual capacity, the AG wrote in his second motion to dismiss that his purported sexual misconduct did not occur while he was acting “under color of state law,” so the Section 1983 claims fail. Additionally, Hill argues that there was no equal protection violation because he is not the women’s employer.

“(Hill’s) activities in the crowded bar can hardly be characterized as the ‘misuse of power’ conferred by ‘state law,’” Hill wrote. “They were not in furtherance of any duty, obligation or power he possesses as Indiana Attorney General. If believed, the allegations focus on the activities of a partygoer late at night, which is the type of behavior that occurs in bars after midnight.”

What’s more, Hill said his alleged misconduct does not “shock the conscience” in a way that would rise to the level of a substantive due process violation.

“On the contrary, if the plaintiffs’ allegations are given credence, the conduct is at worst the type of behavior which can be exhibited by patrons at a crowded bar late at night,” he wrote. “The complaint is devoid of allegations of sustained prolonged physical contact or multiple episodes perpetrated on the same plaintiff. There was no force applied, no overt sexual contact, no insults or belittling remarks.”

Hill also argues he is protected by qualified immunity, citing to the recent decision in Doe v. Purdue Univ., No. 17-3565, 2019 WL 2707502 (7th Cir. June 28, 2019).

Turning to the state law claims, Hill argued sexual battery is not a recognized tort action in Indiana, while the defamation and false light invasion of privacy claims fail under absolute and prosecutorial immunity.

“Where, as here, the conduct alleged to constitute retaliation does not rise to the level of threat, coercion, intimidation, or profound humiliation, ‘the First Amendment gives wide berth for vigorous debate, and especially for statements by public officials,’” the motion to dismiss says.

While the motion to dismiss on behalf of the state and Hill in his official capacity was drafted by attorneys with the Office of the Attorney General, the motion filed on behalf of Hill individually was written by private attorneys with the firm of Eichhorn & Eichhorn, LLP, which has offices in Indianapolis, northwest Indiana and the South Bend/Mishawaka area.

Hill’s office had initially released a statement saying OAG attorneys would handle the case. Eichhorn & Eichhorn attorneys filed their notices of appearance late last week.

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