DaSilva v. Hill
| Decision Date | 02 March 2020 |
| Docket Number | 1:19-cv-02453-JMS-DLP |
| Parties | NIKI DASILVA, SAMANTHA LOZANO, GABRIELLE MCLEMORE, and MARA REARDON, Plaintiffs, v. STATE OF INDIANA and CURTIS T. HILL, JR., individually and in his capacity as the Indiana Attorney General, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
In the early hours of March 15, 2018, Plaintiffs Niki DaSilva, Samantha Lozano, Gabrielle McLemore, and Mara Reardon attended a celebration at AJ's Lounge in Indianapolis to mark the end of the legislative session for the Indiana General Assembly (the "Sine Die Celebration"). While there, Plaintiffs each encountered Defendant Attorney General Curtis Hill. Based on Attorney General Hill's conduct at the Sine Die Celebration and afterwards, and on the handling of their complaints relating to that conduct, Plaintiffs initiated this action against Attorney General Hill, in both his individual and official capacities, and Defendant the State of Indiana (the "State"). They allege various constitutional violations, and also set forth state law claims. The Indiana House of Representatives (the "House") and the Indiana Senate (the "Senate") have filed Amended Motions to Intervene Pursuant to Federal Rule of Civil Procedure 24, [Filing No. 56; Filing No. 58], and Defendants have moved to dismiss Plaintiffs' claims under both Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), [Filing No. 85; Filing No. 91]. Defendants have also filed Motions to Stay the litigation pending rulings on the Motions to Dismiss. [Filing No. 87; Filing No. 93.] All of these motions are now fully briefed and ripe for the Court's decision.
I.
BACKGROUND
The following are the factual allegations set forth in the Amended Complaint - the operative complaint in this case - which the Court must accept as true.
Ms. DaSilva has been a Legislative Assistant for the Indiana Senate Republican Caucus since June 2016. [Filing No. 44 at 4.] Ms. Lozano has been a Legislative Assistant since January 2018. [Filing No. 44 at 5.] Ms. McLemore has been the Communications Director for the Indiana Senate Democrats since May 2018. [Filing No. 44 at 5.] Ms. DaSilva, Ms. Lozano, and Ms. McLemore are not elected officials, were not chosen by an elected official to be on an elected official's staff, and are not "appointee[s] on the policy making level or...immediate advisor[s] with respect to the exercise of the constitutional or legal powers of...any political office." [Filing No. 44 at 4-5.] Ms. Reardon is an elected member of the House, representing the 12th District of Indiana. [Filing No. 44 at 5.] She was first elected to the Indiana General Assembly in 2006. [Filing No. 44 at 5.] Attorney General Hill was elected in 2016 as Indiana's Attorney General, took office on January 9, 2017, and currently holds that position. [Filing No. 44 at 5.] He is Indiana's highest law enforcement official. [Filing No. 44 at 5.]
The State does not have a uniform policy regarding sexual harassment that applies to the entire General Assembly or to the individuals that work in and around the Statehouse, such as lobbyists and statewide elected officials. [Filing No. 44 at 26.] There is no sexual harassment policy that prohibits elected officials in Indiana, or other State employees, from sexually harassingother elected officials in Indiana. [Filing No. 44 at 27.] The House and Senate have separate sexual harassment policies that apply to their respective employees only. [Filing No. 44 at 27.] Each policy provides for how a complaint of sexual harassment should be reported. [Filing No. 44 at 27.]
For the Senate:
An employee of the Senate who believes s/he has been sexually harassed by a member of the Senate or employee, supervisor, agent of the Senate, or an individual with whom the employee is required to have contact is required to first report the harassment to the employee's immediate supervisor. If the employee's immediate supervisor is unavailable to receive the report of harassment or is involved in the report of harassment, the report should be made to the Majority Chief of Staff or to the Secretary of the Senate.
For the House:
An employee of the House who believes s/he has been sexually harassed by a member of the House or staff, immediate supervisor, agent of the House, or an individual with whom the employee is required to have contact, is required to report the incident and names of the individuals involved in the incident to her immediate supervisor, the appropriate Chief of Staff, the appropriate Chief Counsel or the Clerk.
[Filing No. 44 at 27.] The House policy goes on to provide, "Alternatively, the employee may directly contact the Equal Employment Opportunity Commission." [Filing No. 44 at 27.]
Employees of the House and Senate attend a one-hour training session each year, of which five minutes or less are devoted to the subject of sexual harassment and which consists of the person conducting the training reading the sexual harassment policy out loud. [Filing No. 44 at 27-28.]
In April 2018, legislation was passed requiring the Personnel Subcommittee of the Legislative Council to prepare recommended sexual harassment prevention policies to govern the conduct of members of the General Assembly and submit the recommended policies to theLegislative Council. [Filing No. 44 at 28.] The Legislative Council was charged with approving the sexual harassment prevention policies no later than November 20, 2018. [Filing No. 44 at 28.]
In January 2019, for the first time in state history, Indiana passed the first sexual harassment policy that applies to elected members of the General Assembly. [Filing No. 44 at 28.] The policy does not contain penalties for elected members of the General Assembly who violate the policy, nor does it apply to many individuals who work in and around the Statehouse, or provide a mechanism for third-party investigations. [Filing No. 44 at 28.] Several news articles reflect the opinion of some that "the prior policies and procedures as well as the newly enacted revised policies and procedures [are] deficient, out of date, and not in compliance with federal law or employment best practices." [Filing No. 44 at 29.]
The Indiana General Assembly adjourned its session shortly after midnight on March 15, 2018. [Filing No. 44 at 6.] Typically, after adjournment of a legislative session, members of the House and Senate, legislative staff, and lobbyists go out to celebrate the end of the session. [Filing No. 44 at 6.] Consistent with tradition, in the early morning hours of March 15, 2018 lawmakers, staff, and others engaged in the legislative process gathered at AJ's Lounge for the Sine Die Celebration. [Filing No. 44 at 6.] Ms. DaSilva went to AJ's Lounge with several of her co-workers and, when she arrived, she walked toward the bar to join three of her female colleagues. [Filing No. 44 at 6.] While the group was waiting to be served and chatting, Attorney General Hill approached them. [Filing No. 44 at 6.] Ms. DaSilva was surprised to see Attorney General Hill at AJ's Lounge, since Sine Die is typically a celebration among legislators, staff, and lobbyists. [Filing No. 44 at 6.] Attorney General Hill is not involved in the legislative process, nor is he amember of the General Assembly, and Plaintiffs and many others did not expect him to attend the Sine Die Celebration. [Filing No. 44 at 6.]
Ms. DaSilva observed that Attorney General Hill "seemed rather gregarious." [Filing No. 44 at 6.] He approached her and her friends, and asked what they were doing standing by the bar. [Filing No. 44 at 6-7.] The group told him that they were waiting to order a drink and Attorney General Hill stated [Filing No. 44 at 6.] Ms. DaSilva was stunned by Attorney General Hill's comments, asked her colleagues to confirm what she had just heard, and her colleagues "acknowledged that [he] did indeed tell them to show some skin." [Filing No. 44 at 7.]
Ms. Lozano had gone to AJ's Lounge with her intern and Ms. Reardon. [Filing No. 44 at 8.] When Ms. Lozano approached the bar to order some drinks with her co-workers, Attorney General Hill was at the bar. [Filing No. 44 at 8.] She noticed that Attorney General Hill had a drink in his hand and smelled like alcohol. [Filing No. 44 at 8.] Attorney General Hill asked Ms. Lozano "Do you know who I am?," and Ms. Lozano responded that she knew that he was the Indiana Attorney General and that she attended college with his daughter. [Filing No. 44 at 8.] Ms. Lozano hoped that Attorney General Hill would leave her alone if he knew that she was the same age as his daughter. [Filing No. 44 at 8.] While Ms. Lozano ordered drinks, she commented "it's really hot in here." [Filing No. 44 at 8.] Attorney General Hill responded "Yes, you're really hot." [Filing No. 44 at 8.] Ms. Lozano found Attorney General Hill's comment disturbing and inappropriate. [Filing No. 44 at 8.] Attorney General Hill then grabbed Ms. Lozano around the waist and pulled her close to him. [Filing No. 44 at 8.]
Ms. DaSilva then moved around the corner of the bar to put some distance between herself and Attorney General Hill but, when two of her friends received their drinks and left the bar area,Ms. DaSilva and Ms. Lozano were left at the bar with Attorney General Hill. [Filing No. 44 at 7.] Ms. DaSilva was going to leave, but saw Ms. Lozano's eyes widen, signaling Ms. DaSilva to come closer. [Filing No. 44 at 7.] When Ms. DaSilva did so, Ms. Lozano whispered [Filing No. 44 at 7.] Ms. DaSilva then positioned herself between Ms. Lozano and Attorney General Hill to act as a buffer and prevent further contact between the two. [Filing No. 44 at 7.]
Shortly thereafter, Attorney...
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