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31 Hill} 359(1 Waqu-a?ftlawenm



 

June13,2?l?

jr'ia Elaetrenie Mail 

 Ejeerg'e T. stingele'ne, Eseeutiye Direetnr
Legislative Seryiees Ageney

21313 W. Washingtun ESL, Ste 301
lndianat?tulis, 1N 46204

'l'al't Steninius Bit Hallister was retained by Legislative Sewiees .?tgeney te advise
it, the lndiana Hease at" Representatives and the Indiana Senate (?Senate?) regarding
an ins-'estigatien inte alleged eunduet by a third party. The purpese ul' this
memurandum is as set lelth our understanding ut?the allegatinns and the results ut'"the itwestigatien.
We alsu inelude uttr legal adyiee regarding the situatien. This memurantium is a enntidential
dueument pruteeted hy the atturney~elient privilege and is net te he shared with any third parties.

Baal-{granite}

a 

in the early muming huurs elf Mareh IE, EDIE, several legislaturs and legislatiye

em lewees attended a sine die party at Al?s bar in Indianapulis. Dn er areund E's-lay 14, 21313, Rep.
requested a meeting with the Speaker Brian Husma. In 

Speaker Besma, Majurity Fleur Leader Matthew Lehman, Cltiet?uf?taff'l'yler Camphell, and Rep.
Terry finndin met with Rep. At the meeting, itep.-eperted the Felluwing: r?tt
the sine die party rGeneral Curtis Hill (?rtfi Hill?), with was very put his
hands en her haek, slid them dawn as her huttnelts, put them under her etethes and ?grahhed a
handful riFass.h ?tu1d At] Hill tu ?haeit ui't'? and she wallted away- Later, heweyer,
r??ttj Hill appruaehed Rep._ again anti again put his hands under her eluthes and grahhed
her hutteelts. She again tuld hint ta ?haelt eff.?

 

lieu-tlse nnted that she had witnessed AG Hill aet with ileuse
and Senate empleyees, ineluding telling a green at~ staffers waiting an drinlts that they needed te
?shew a little sltin? tti get their drinlts faster. Hep?ilsu repurted that she witnessed 
iIill make inapprepriate adyanees and inapprupriately teach the staffers, ineluding putting his arm
areund ene female staffer in a way that made it hard Far her as get away frum him. It is eur
understanding that Rep-tas nu euntaet with AG llill during her wet-ltday and that this is
the first time Pit] Hi1] has engaged in sueh eenduet with her.

22989?051

Geerge T. Angelene, Direeter
lune l3, 
Page 2

In a eenversatien later that day, Rep._inferrned Speaker Seems that a Senate
legislative assistant was invelved in the situatien. Upen hearing this inferrnatien, and after
diseussing it with Sen. David Leng, Speaker Besma and Sen. Leng determined that there weuld
be an investigatien ef the allegatiens, ineluding interviews ef empleyees ef the Heuse and Senate.

H. The Investigatien Results
1. Legislative Empleyee A

{Jn lvlay 15,2'013, Sen. Leng, Sen. lvilshler, Brewn, and Majerity
Attemey Mitehell Dsterday interviewed Legislative Empleyee A. She reperted that while she was
erdering a drink at the sine die party, r?tG Hill eame behind her a greup effemales and said, ?Den?t
yeu ltnew hew te get drinks? ?r?eu have te shew a little skin!? Legislative Empleyee a was
sheeked by the statement and netieed that the ether females leelted unsettled by the remark.
Legislative Empleyee A walked away frem the greup but returned when she netieed the ether
females leeked uneemfertable. At that time, AG Hill put his arm areund her and began sliding his
hand dewn her baek. When Legislative Empleyee a tried te remeve his hand, AG Hill grabbed
her hand and greped her en the butteeks. Legislative Empleyee Ft. neted that she witnessed AG
Hill, whe appeared te be inter-Heated, making advanees teward ether females threugheut the bar.
Legislative Empleyee A has never had any previeus issues with AG Hill and the-re is ne reasen fer
her te have eentaet with him as part efperferming herjeb.

2. Legislative Empleyee 

Ge [?vtay 15,2?l3, Sen. Leng, Senate Minerity Leader Tim Lanane, Majerity Chiefef Staff
Brewn, and lvlinerity Chief ef Staff Lenee Carrel} met with Legislative Empleyee E, whe shared
that she was at Al?s in the early merning efl'vlareh 15, She was seated at a steel when AG
Hill sat dewn neat te her and appeared te be He asked her if she knew whe he was,
and then plaeed his hand en her baek and began rubbing it up and dewn her baek fer appreitimateljvr
t'tve minutes. She was very uneemfertable and gave nen-verbal eues expressing her diseemfert te
her intern whe was sitting with her at the bar. The intern asked Legislative Emplevee if she
wanted te ge re the restreern and they beth left. Legislative Empleyee had ne further eentaet
with AG Hill that evening. Legislative Empleyee has never had any previeus issues with AG
Hill and there is ne reasen Fer her te have eentaet with him as part ef perferrning her jeb.

3. Legislative Em pleyee 

De May 15, Still 3, Heuse ef Representatives Chief Cettnsel .lill Carnell and Prineipal lClerk
Careline Spetts interviewed Legislative Empleyee C, whe reperted that upen entering Al is areund
lz?? a.m. en lv'lareh is, set a she witnessed the alleged event invelving ae Hill and Rep-
and wendered if it was serne kind ef ?eultural thing? that she did net understand. When AG Hill
engaged in the same eenduet with Rep. -a time, Legislative Empleyee realised
that AG Hill was engaging in inapprepriate behavier. When Legislative Empleyee was later at
the bar with a greup ef females waiting te erder a drink, AG Hill appreaehed her and asked if she

 


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?eerge T. Angelene, Exeeutive Direeter
June 13, EDIE
Page 3

knew whe he was. She said that she did and that she had attended eellege with his daughter. AC:
Hill later anneuneed te the green ef females at the bar that they weuld get free drinks er faster
serviee if they shewed mere knee er mere leg. AG Hill later put his arm areund Legislative
Erneleyee C?s waist and semewhat ?hugged? her te him. She was standing by a hat stee1.se she
tried te rneve away frem him and sit up en the steel {whieh had a haek] an that he was ne lenger
ahle te hug her. She sat there until she was served her drink and then meved away frein the bar
area. Legislative Empleyee has never had any previeus issues with AC Hill and there is ne
reasen fer her te have eentaet with him as part et? perferrning herjeh.

4. Legislative Empleyee 

Cm l'vlay lti. EDI 3, Chief Ceunsel Camel] and Prineipal Clerk Spetts interviewed
Legislative Empleyee D, whe reperted being with the greup efferneles at in the early merning
efl?vlareh 15. 21:113. waiting en drinks when she heard AG Hill?s eelnntent aheut getting free drinks
er faster serviee ifthey shewed mere leg er knees. She interpreted AG Hill as a really drunk guy
as eppesed te semeene whe was trying te harass her er the ether females, but she theught heeause
efhis pesitien he sheuld he held te a higher standard. Legislative Empleyee has never had any
previeus issues with AG Hill and there is ne reasen fer her te have eentaet with him as part ef
perferming herjeh.

5. Legislative Empleyee 

Cm May 21313, Chief Ceunsel Carnell and Frineipal Clerk Spetts interviewed
Legislative Emeleyee E. whe reperted that she was alse at Al?s in the earl' rnernin et?lvlareh 15,
2013. Altheugh she heard aheut the alleged event between AG Hill and?, she did net
witness it. AC: Hill did aeereaeh her and asked if she knew whe he was. When she teld him that
she did, he abruptly ieft her. While she believed FLU Hill was very intesieated and aeted
inapprepriately. she did net feel that she had been harassed. Legislative Empleyee has never
had any previeus issues with AG Hill and there is ne reasen fer her te have eentaet with him as
part ef perferming herjeh.

 

II. Legal Analysis

A. Title Vll?s Prehihitien efa Hestile Werk Envirenruent
l. Ceuduet Must Be Severe and Pervasive

it is well settled that hestile er ahusive werk envirenments are ferms efsert diseriminatien
aetienahle under Title "v'Il ef the Civil Rights an ef lite-4. Mertter Sev. Beak, FEB v. Vinsen, 
LLB. 5? (19815}. Te establish a prima faeie ease. an empleyee must shew that ?she was 
suhjeeted te unweleerne sexual eenduet. advanees. er requests; heeause ef her sea; that
were severe er pervasive eneugh te ereate a hestile werk envirenntent; and (4) that there is a basis
fer empleyer liability." Erieksee v. Dep?t. efCerr., 459 F.3d Gilt], 504 (7th Cir. 2036).

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June Iii, EU 1 3
Page 4

Whether cenduct is severe er pervasive eneugh tc establish a hestile werlr envirenment
invelves the analysis ef several facters, including the frequency ef the cenduct; its severity;
whether it is physically threatening er humiliating, er a mere effensive utterance; and whether it
unreasenably interferes with an empleyee?s werk perfermance. Hesieii'er v. Dining, Inc,
213 F.3d T93, (Tth Cir. Additienally, an empieyee must subjectively believe that
the harassment was sufficiently severe er pervasive tn have altered the wed-ting envirenment, and
the harassment must be sufficiently severe er pervasive, frem the standpeint ef a reasenable
persen, te create a hestile werk envirenment.

While AG Hill?s alleged cenduct teward the legislative empleyees was inapprepriate, it
was likely net severe er pervasive eneugh te result in a hestile werle envirenment. indeed, the
Seventh  Circuit has rejected sexual harassment claims invelving cenduct by supervisers that was
mere egregieus. Fer example, in McPherscn v. City cf Weasegen, F. 3d 43El (?ith Cir.
the Seventh Circuit feund cenduct net severe eneugh where the plaintiff?s superviser made
inquiries abeut what celer bra she was wearing, ashed plaintiff whether he eeuld ?melee a heusc
call? in a suggestive tene ef veiec when she called in sick, and ence pulled back her tank tep with
his fingers te see what celer bra she was wearing. While this cenduct was ?lamentably
inapprepriate, we agree with the district ceurt that, due tn the limited nature and frequency ef the
ebjeetlenabie cenduct, a hestile werlc envirenment did net eaist . . Id. See arise, Baskervi'iie v.
Cardigan Inierneii'eitdi Cd, 50 F. 3d 423, 4313?31 filth Cir. 1995) [superviser had net engaged in
acticnable harassment even theugh ever a seven-menth peried he had: called the plaintiff a
?pretty girl,? made grunting seunds when the plaintiff were a leather sleirt, said te the
plaintiff that his effice was net het ?until yeu walleed in here,? stated that a public address
asking fer everyene?s attentien meant that ?all pretty girls [sheuld] run areund
naked,? and (5) alluded te his wife?s absence frem tewn and his leneliness, stating that he had enly
his pillew t?er cempany while making an ebscene gesture), Hie?Elysee v. City cf Chierrgc, 232
F.3d 455, 463454 filth Cir. {helding that plaintiff's allegatiens that superviser rubbed her
back, squeezed her sheulder and stared at her chest during a uniferm inspectien while telling her
te raise her arms and :3ch her blazer were isclated incidents that, even when taken tegether, did
net create a sufficient inference cf a hestile werk envirenment); Weiss v. Cece-Cain Cd,
9% F. 2d 333, 3345-3?? (Tth Cir. 1993) (ne acticnable harassment altheugh plaintiff?s superviser
jekingly called her a ?dumb blende,? placed his hand en her sheulder several times, place ?i leve
yen? signs in her werli area, attempted te kiss her, and asked her eut en dates}.

AG Hill's cenduct tewar hewever, likely was egregieus eneugh te meet
the thresheld ef ?severe.? reperted that AG Hill twice placed his hand under her
clething and grabbed her bare uttec s. fact that he placed his hand under her clething en an

intimate bedy part is likely sufficiently severe meet that element et? a prima facie case. See, 
Weri?h v. Tyier, 276 .3d 249, 263 l(Tl'tl't Cir. (teuehing the ?breast near the nipple fer several
secends? is severe eneugh te censtitute a hestile envirenment by itself); Purina v. Keysinne RV
Ca, 455 F.3d 312, 1? (?Fth Cir. EDGE) (defendant greping under plaintiff?s sherts and teaching her
underwear ?might be sufficient alene tc create an abusive werking envirenment?).

  
 
  


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IIlfreerge T. Angelene, Direeter
June l3, EDI 3
Page 5

E. The Cendnet Must Have Same Impaet en the 

Even assuming AG Hill?s alleged eenduet were suf?eiently severe andier pervasive, it teelt
plaee eutside the empleyees' werkplaee. Indeed, it happened during the early merning heurs at
an inferma] seeial event (which was net ef?eially seheduled er sanetiened by the Legislature} at a
bar in dewntewn Indianapelis. While harassment dees net have te take place within the 
te be aetienable, it must have eensequenees in the werkplaee. Lapin v. Charte? 51'? F.3d 9?4,
933 {Tth Cir. EDGE). That is beeause ?Title VII is limited In empleyment diseriminatien, and
therefere set-teal harassment is aetienable under the statute enly when it affeets the plaintiff 
eenditiens ef empleyment." Dee v. Dberweis Dairy, 455 F-3d T15 [Tth Cir, The
harassment dees net have te in the te have eensequenees there. ?But at the very
least the harassment must . . . . be an episede in a relatienship that began and grew in the 
Had [the harasser] met [plaintiff] en the last day efhis er her empleyment at the ice eream parler
and later asked her fer a date that eventually culminated in sexual intereeurse, the eenneetien tn
the weuld have been tee attenuated le eenstittlte harassment. it weuld have
been ne different frem his aslting a eustemer fera date.? Id. at are (citatiens emitted}.

i'iere, AG I-Iill dees net werlt fer LEA, the Heuse, er the Senate. He is empleyed in anether
braneh ef gevernment and has ne autherity ever?? the legislative empleyees. The
eenduet ef which he is aeensed did net take plane in wer plaee, and there is an reasen te
believe that any ef these empleyees will have any eentaet with him at werk. as a result, even ae

I-Iill?s eenduet was severe eneugh te establish a elaim, it eeuld net have ereated a hestile werlt
envirenment under Title ?v'll beeause it had ne eenseeuenees in the 

 

3. There Must Be a Basis fer Empleyer Liability

Even if there were a hestile werlt envirenment, there must be a basis fer empleyer liability.
Fer purpese ef harassment by a third party, an empleyer ean be liable it?it is negligent in preventing
harassment. Wisemen v. AateEene, Inn, 319 F.3upp.2d RIM, 314 (ND. Ind. Elli I). In ether weeds,
an empleyer ean be liable fer a third party?s harassment ef ene ef its empleyees if it ?unreasenably
fail[ed] te talte apprepriate eerreetive aetiens . . . reasenabl likely te prevent the miseenduet frem
The emphasis is en the preventien ef future harassment." Charte?, 517Ir F.3d at 934
{siting Maffeaate v. ?ap efTraasp., 92 F.3d 4?3, 43G (Tth lSir. 1995)). The ?hallmark
ef a reasenable eerreetive aetien' is a prempt investigatien.? Ia'. {eitatiens emitted].

Here, the investigatien was initiated immediately upen learning ef the alleged eenduet.
Altheugh the ineidents allegedly en lvlareh 15, EDIE, it was net reperted and neither LEA,
the Heuse, net" the Senate had an},r reasen te lmew ef sueh eenduet until appreaimately twe menths
later. New that the investigatien is eemplete, the neat step is te determine what remedial aetien,
if any, sheuld be taken under the eireumstanees te prevent similar eenduet frem recurring.


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Geerge T. Angelene, Etteeutive Direeter
June 13, Elli 
Page 6

B.  [Ilenehrsien en Petential Liability

  

lfany efthe empleyees were te initiate an aetien, we believe the risk ef is very
lew. First, we believe that the eenduet direeted at the empleyees ether than Repi while
eertainly inapprepriate, simply was net suffieiently severe er pervasive te establish a valid elairn.
And while the eenduet teward Rep-was mere egregieus, nene ef AG Hill's alleged
eenduet teek place in the werkplaee er had any impaet en the werkplaee. As a result, there is very
little risk ef liability. Additienally, LEA, the Heuse, and the Senate are further preteeted fren'i
liability due tn the prempt and thereugh investigatien. The final step is te take apprepriate aetien
reasenably ealeulated te prevent future harassment.

Respense te Speei?e Questiens

?uestien 1: Whether the empleyer?s investigatien meets the standard ef being a prempt
and effeetive investigatien, ineluding related te the need te interview the
individual whe is the subjeet et? the eemplaint and any ether needed er desirable additienal
investigative steps, adviee eeneerning keeping the eemplainants infermed abeut the pregress and
eenelusiens related tn the investigatien, and the pres and eens ef empleying eutside eeunsel te
assume eentrel ef the investigatien.

Answer: in but epinien, LEA, the Heuse, and the Senate?s investigatien, whieh was
eendueted eensislent with the Heuse?s and the Senate?s anti?harassment pelieies, was suffieiently
prempt and effective. All witnesses were interviewed and gave detailed statements. Geing
ferward, we the fellewin g:

l- Altheugh AG Hill is net an empleyee and the eenduet did net in the
werkplaee er have an e't?ieet in the werkplaee, we that the allegatiens be breught te his
attentien and that he he netified that sueh eenduet will net be telerated in the future with any
legislaters er legislative empleyees. We requesting a meeting with his eeunsel te
address these eeneerns as seen as pessible. We believe that while sueh eentaet with AG Hill may
net be legally required, it is a geed step te take se that yeu ean tell the legislative empleyees yeu
have addressed their eeneerns with AG Hill and netified him that sueh eenduet is net telerated.
Alse, in the unlikely event that semeene ehallenges the investigatien, yeu will be able te state that
while net legally ebligated te de se, yeti addressed the issues with AG Hill.

2. With respeet te eernmunieating re the legislative empleyees, we
that yeu meet with eaeh ef them and stress that yeu fully investigated the allegatiens
and that while the eenduet reperted was eertainiy inapprepriate, it did net ereate a hestile werk
envirenment under the laws that prehibit sueh eenduet. With that being said, we 
inferming them that LSA, the Heuse, andi?er the Senate intends te meet with AG Hill te address
the eeneerns te stress that sueh eenduet is strietly prehibited and will net be telerated, and te
remind him that ne retaliatien is permitted.


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June l3, E?l?
Page 7

3. We alse recemmend that yeu thank the legislative empleyees fer bringing
the issue in yeur attentien and that yeu assure them that ne werltarelated retaliatien will be
telerated. We recemmend that yeu enceuragc them te immediately repert any additienal cencerns.
Yeu sheuld decument yeur cenversatiens with the legislative empleyees and nete their respenses.

4. Finally, we see ne reasen te empley eutside eeunsel te eentinue the
investigatien. We are ef the epinien that the investigatien was suf?cient and prernpt and that yeu
sheuld simply mice the additienal recemmended steps that we believe are reasenably likely in
prevent the miscenduct frern eccurring.

Questien 2: Whether the circumstances ameunt te unlawful seaua] harassment under
Title ?v?lI er whether any cembinatien efthe lecatien and nature efthe event, the iselated nature ef
the unwelceme cenduct, er the limited impact en the werkplace ef the effending individttaljustify
a cenclusien that the cenduct dees net ameunt te unlawful harassment.

Answer: ?ts described in mere detail abeve, we de net believe the cenduet ameunted
re a hestile werlt 1With respect in everyene eaeept Rep the alleged cenduct
likely was net severe er pervasive eneugh te be aetienable. The alleged cenduct Inward Rep.

_iftrue, is mere egregieus and liltely weuld be suf?ciently severe eneugh. But all efthe
alleged eenduci eccurred eutside the AG Hill was a third party and net an empleyee
cf LEA, the I-Ieuse, er the Senate; an Hill has ne supervisery autherity ever any cf the legislative
empleyecs er [tap and the eenduct had ne impact en the werkplace. As a result, there
sheuld be ne viable hestile werl: envirenment claim. Finally, because there was an immediate
investigatien and there will be reasenable measures taken in prevent similar cenduct in the future,
there sheuid be ne empleyer liability.

 

 

Questietl 3: Whether the General Assembly is legally ebligated te take any further
aetien te preteet legislative empleyees against speculative future unwelceme sci-teal statement er
cenduct by the same individual.

Answer: Because there was ne cenduct that had an impact en the we de
net believe there is any legal ebligatien te pretect empleyees frem future inapprepriate cenduct by
At] Hill. Even if net legally ebligated te de se, hewever, we necemmend that yeu address AG
Hill in the manner eutiined abeve. This will let yeur empleyees knew that yeu take the matter
serieusly and that yeu are taking steps te pretect them frem similar cenduct in the future.

Questien 4: ?ees Rules et? Prefessienal Cenduct, Rule 3.3 [Repening Frefessienal
lv'liscenduct} require a lawyer invelved in the investigatien te submit a cernplaint tn the Atterney
Disciplinary  [lemmissien cenceming any efthe effending eenduct??

Answer: We de net believe se. The Rule requires that a lawyer ?whe that
anether lawyer has cemmitted a vielatien ef the Rules ef Prefessienal Cenduct that raises a
substantial questien as te that lawyer?s henesty, trustwerthiness er ?tness as a lawyer in ether
respects? shall inferm the Disciplinary Cemmissien ef such cenduet. First, while several

EEQEQFDEJ
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George T. Angelone, Executive Director
June 18, 2018
Page 8

employees have complained about AG Hill?s conduct, we are unaware of any attorney who
actually knows that he indeed engaged in such conduct. Moreover, even if an attorney knew that
AG Hill engaged in such conduct, we do not believe that such conduct on an isolated basis raises
a substantial question as to his honesty, trustworthiness or fitness as a lawyer in other respects. So
at this point we do not believe there is any obligation to report AG Hill to disciplinary authorities.

Question 5: Options, required or otherwise, that might be desirable to prevent further
sexual harassment in the ordinary and usual social events that legislators and staff attend during
the time of year that the General Assembly is in session.

Answer: While it is dif?cult to police off-duty conduct, we recommend that you
conduct regular (at least yearly) harassment. training for your employees so they know that any
inappropriate harassment is strictly prohibited. You should explain to employees that they'should
report any inappropriate conduct immediately without fear of retaliation. As you have done here,
you should take all complaints seriously and investigate immediately. By creating a culture of
respect, you will hopefully avoid harassment by co-workers or supervisors both at work and at
social events.

Question 6: Advice concerning the best practice on how to relate the conclusions of the
investigation to the complainant and other affected legislative employees, assure them that no
adverse action will be allowed as a result of bringing the complaint, and assuring them that the
General Assembly has heard their concerns and is acting to protect them.

Answer: Again, we believe it is important to communicate to the affected employees
that you consider their allegations to be very serious, that you fully investigated their claims, and
that you appreciate their bringing them to your attention. We recommend that you notify them
that while you do not believe there is any legal obligation to do so, you are going to address the
concerns with AG Hill so that no future conduct will take place. You can assure them that their
names will be kept confidential. Finally, you should remind them that retaliation is strictly
prohibited and that if they have any additional concerns in the future they are encouraged to
immediately report them.

I hope this addresses all of your questions. If you would like to further discuss, please let

me know.
Sincerely,
WW lbw/4v
BlakeJ.B gan 0
229897051

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