General Assembly: Indiana isn’t ‘employer’ in groping suit against Hill

The Indiana House and Senate are doubling down on their argument that Indiana Attorney General Curtis Hill cannot adequately represent their interests against discrimination and retaliation allegations brought by three legislative staffers against Hill and the state. In new court filings, the two legislative bodies say they are the entities that are legally considered the women’s employers, so they alone have the right to defend their sexual harassment prevention and response policies against the harassment allegations.

Current and former legislative staffers Niki DaSilva, Samantha Lozano and Gabrielle McLemore, along with Democratic State Rep. Mara Candelaria Reardon, filed an amended complaint last month adding new allegations to their widely publicized lawsuit alleging Hill subjected them to sexual harassment, and the state as their employer failed to protect them from discrimination and subsequent retaliation. The amended complaint alleges the three staffers were approached by Statehouse lawyers and officials with questions about the allegations in the complaint without their attorneys present.

But in answers to the amended complaint, the Indiana House and Senate say those questions were part of an internal investigation into allegations that the women were subjected to inappropriate remarks and actions following their claims that Hill groped them at a March 2018 party. Further, in amended motions to intervene, the legislative bodies say that by naming the state as a defendant, the women have denied the House and Senate the ability to defend their actions in wake of the alleged harassment and subsequent retaliation.

“Naming the State as a whole, but not the House of Representatives (or Senate), disregards established Seventh Circuit precedent defining the ‘employer’ (the proper defendant in a Title VII suit) in claims against state entities as the particular type of the state apparatus with actual hiring and firing responsibility,” the amended motions to intervene, which are nearly identical, read. “More fundamentally, naming the State as a whole, but not the House of Representatives (or Senate), disregards constitutional separation of powers, making it possible for (the legislative staffers) to argue legislative leaders should have done more by inserting themselves into the affairs of the executive branch.”

In the amended complaint, McLemore, communications director for the Indiana Senate Democrats, says she was approached by Senate Republicans chief of staff Jeff Papa and another Statehouse lawyer who wanted to “speak with her about the claims in the lawsuit.” The complaint alleges McLemore asked to consult with her attorneys first, but the lawyers insisted she did not need to do so, so McLemore answered their questions.

In its answer, the Senate admits Papa and another attorney approached McLemore, but goes on to say that McLemore was told up front the conversation was part of “an internal investigation of her previously undisclosed allegations of retaliation in accordance with Senate policies and procedures.” In the original complaint, allegations were made against multiple lawmakers who allegedly made defamatory remarks about the women who levied sexual misconduct allegations against Hill and/or made insensitive remarks about those allegations in the presence of the four accusers.

The Senate’s answer also says McLemore declined to have another person present in the room, and she agreed to proceed with the conversation after being advised that she could refuse to answer any questions.

DaSilva made similar allegations about being approached by the Statehouse attorneys, but the Senate largely denied the factual allegations in the amended complaint relating to a conversation with her. But the Senate did admit DaSilva said she wanted to speak with her attorneys before answering questions, and “Mr. Papa responded that would be fine and he would wait to hear from Ms. DaSilva.”

DaSilva later declined to answer any questions. The Senate’s court filings indicate DaSilva has left her position as a Senate Republican legislative aide, and her LinkedIn account shows she left the state Senate last month.

Lozano also alleged in the amended complaint that she was approached by Statehouse lawyers and other officials and asked to speak about the allegations in the lawsuit, but indicated she was not comfortable doing so. However, the House’s answer claims the legislative officials “wanted her to know she had permission to leave a work event if she ever feels uncomfortable.”

“The Indiana House further admits that Ms. Lozano was encouraged to report any further allegations of inappropriate conduct so that the House could take action to ensure she had a safe and comfortable work environment.”

The amended complaint does not allege Reardon, a Democrat from Munster, was approached by Statehouse officials with similar comments or questions.

The House and Senate then went on to raise the defense that none of the three legislative staffers followed through on encouragements to “report any alleged inappropriate conduct in the future,” thus defeating their claims for damages. The legislative bodies also claim they had policies in place prohibiting discrimination, retaliation and harassment at the time of the alleged misconduct, and they note Hill’s alleged misconduct took place at an “offsite, unofficial gathering on personal time.”

Additionally, the General Assembly’s answer maintains that the state cannot be considered DaSilva, Lozano and McLemore’s “employer” under Title VII, an argument that was central to the amended motions to intervene.

“Recognizing the separation of powers, the Seventh Circuit has held that in Title VII suits against state entities, the term ‘employer’ ‘mean[s] the particular agency or part of the state apparatus that has actual hiring and firing responsibility,’” the House wrote in its amended motion to intervene, citing Hearne v. Board of Education, 185 F.36 770, 777 (7^th Cir. 1999). “… Here, as a separate branch of government and chamber of the legislature, the House of Representatives has hiring and firing responsibility over Ms. Lozano, and it is the proper defendant in a Title VII action by her.”

The Senate made the same argument as to DaSilva and McLemore.

Further, the legislative bodies reiterated their earlier position that Hill and his office are conflicted out of adequately representing them in the action. They pointed to the AG’s earlier filed motion to dismiss, in which Hill argues that rather than proceeding under Title VII, the three women should have proceeded under the Government Employee Rights Act of 1991.

“In doing so,” the House wrote, “the Attorney General made inaccurate representations of fact and drew incorrect conclusions of law regarding the staff Plaintiff’s jobs and the application of GERA, all without consulting the House (or Senate) about any of the assertions in the motion.”

The House and Senate further pointed to their “prompt investigations” into the sexual misconduct allegations and subsequent retaliation allegations to bolster their intervention claim.

“Importantly, the Senate (or House) is only liable for any actionable harassment by the Attorney General, a third party, if the Senate (or House) were negligent in responding to the harassment,” the Senate’s motion to intervene reads. “… Importantly, an employer is not negligent where it ‘takes prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring.’ … A prompt investigation is the ‘hallmark of a reasonable corrective action.’

“Here, in particular, the distinction between the State of Indiana and the Senate (or House) makes a difference,” the Senate’s motion continues. “The State of Indiana (really, the people of Indiana) have a relationship with and control over Attorney General Hill through the electoral process. The Senate (or House), on the other hand, has no control over Attorney General Hill, an elected official of the Executive branch. … As the (Equal Employment Opportunity Commission) guidelines demonstrate, the Senate’s liability under Title VII must be assessed with this framework in mind, and only the Senate (or House) is in a position to defend its actions in this regard.”

The legislative bodies then noted Hill has publicly attacked their initial investigations into the sexual harassment allegations, so he “appears very unlikely to raise the investigations as a defense of the State in this litigation.” His public attacks create a conflict of interest for both Hill and his office, the motions read, adding that Hill’s motion to dismiss under GERA proves “the Senate’s (and House’s) interests are not being adequately represented by the State, as represented by the Attorney General’s Office.”

The House and Senate are being represented in their efforts to intervene by Jackson Lewis P.C. attorneys Susan Zoeller and Caitlin Schroeder. Hill is being represented by both his office and private counsel for claims against him personally and professionally, while the four plaintiffs are represented by attorneys with Katz Korin Cunningham in Indianapolis.

So far, neither the state nor Hill have filed answers to the complaint in DaSilva, et al. v. State of Indiana, et al., 1:19-cv-02453.