Niki Dasilva v. State of Indiana

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2238
NIKI DASILVA, et al.,
Plaintiffs-Appellants,
v.
STATE OF INDIANA,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cv-02453-JMS-DLP — Jane Magnus-Stinson, Judge.
____________________
ARGUED DECEMBER 2, 2021 — DECIDED APRIL 6, 2022
____________________
Before FLAUM, EASTERBROOK, and KIRSCH, Circuit Judges.
EASTERBROOK, Circuit Judge. Legislators, lobbyists, and
members of the legislative staff in Indiana regularly enjoy a
party on the day the legislature adjourns for the year. In
March 2018 that “Sine Die Celebration” was held at AJ’s
Lounge in Indianapolis. ATendees were unpleasantly sur-
prised when Curtis T. Hill, Jr., the state’s ATorney General,
appeared at the party and made passes at several of the
women. As the evening lengthened Hill progressed from

-- 1 of 8 --

2 No. 20-2238
verbal to physical harassment, including groping. A special
prosecutor concluded that criminal charges would be inap-
propriate, but the Supreme Court of Indiana unanimously
found by clear and convincing evidence that Hill had commit-
ted criminal baTery and behaved unethically. It suspended
Hill’s law license for 30 days, a punishment mitigated by his
long and previously unblemished record of public service. In
re Hill, 144 N.E. 3d 184 (2020). His bid for renomination failed,
and his term as ATorney General ended in January 2021.
Four women, all employed by the state’s House or Senate,
filed this suit under Title VII of the Civil Rights Act of 1964
and several other statutes, as well as Indiana’s common law.
The defendants were Hill and the State of Indiana. The House
and Senate intervened as additional defendants, contending
that they rather than the state should be treated as the plain-
tiffs’ employers. The district judge dismissed all claims
against Hill without prejudice to their renewal in state court.
2020 U.S. Dist. LEXIS 101481 (S.D. Ind. June 9, 2020). The court
also dismissed all claims against Indiana, ruling that it is not
plaintiffs’ employer. 2020 U.S. Dist. LEXIS 35257 (S.D. Ind.
Mar. 2, 2020). At plaintiffs’ request, the judge entered a partial
final judgment in Indiana’s favor under Fed. R. Civ. P. 54(b),
permiTing plaintiffs to take an immediate appeal. 2020 U.S.
Dist. LEXIS 101482 (S.D. Ind. June 9, 2020). Claims against the
House and Senate remain pending in the district court.
Plaintiffs’ appeal presents a single, entirely legal, question:
whether Indiana should be treated as their “employer” for the
purpose of 42 U.S.C. §§ 2000e(b) and 2000e–2(a). Before we
can reach that question, however, we must consider the state’s
contention that we lack appellate jurisdiction because

-- 2 of 8 --

No. 20-2238 3
plaintiffs waited too long before asking the district court to
enter a Rule 54(b) judgment.
The district court dismissed the claims against Indiana on
March 2, 2020, and plaintiffs requested a Rule 54(b) judgment
39 days later, on April 10. That creates problems under
Schaefer v. First National Bank of Lincolnwood, 465 F.2d 234 (7th
Cir. 1972), and King v. Newbold, 845 F.3d 866 (7th Cir. 2017),
both of which hold that litigants have only 30 days to make
such requests. Plaintiffs reply that 39 days is not much longer
than 30—and that the declaration of a pandemic in mid-
March 2020 complicated the practice of law. Still, if a 30-day
limit is jurisdictional, there’s no way around it. Both Schaefer
and King dismissed the appeals for want of appellate jurisdic-
tion; evidently they saw a jurisdictional problem.
A few months after King, however, the Supreme Court
held that time limits in the federal rules are not jurisdictional
but instead are case-processing rules, which must be enforced
if properly invoked but may be waived or forfeited. See Hamer
v. Neighborhood Housing Services, 138 S. Ct. 13 (2017). We held
on remand in Hamer that rule-based time limitations for ap-
peals are “properly” invoked only if asserted in the litigants’
appellate docketing statements. Hamer v. Neighborhood Ser-
vices, 897 F.3d 835 (7th Cir. 2018). Litigants who wait until the
briefs have been filed squander any opportunity to end the
appellate proceedings swiftly, and they waste the time and
money needed to prepare briefs. Indiana did not invoke
Schaefer and King until its brief on the merits, which is too late.
By then, plaintiffs had filed their own brief and devoted sub-
stantial resources to the appeal. Indiana did not mention
Schaefer or King in the district court at all, though the judge

-- 3 of 8 --

4 No. 20-2238
might well have denied the request for a Rule 54(b) judgment
had these decisions been brought to her aTention.
More than that: Schaefer and King are questionable if cast
as rules seTing an outer bound on the time to make motions
in a district court. The Federal Rules of Civil Procedure and
the Federal Rules of Appellate Procedure are chock full of
time limits. Yet Civil Rule 54(b) does not contain one, nor does
Civil Rule 6(b)(2). Appellate Rule 4 teems with time limits for
filing notices and other papers, but it does not mention ap-
peals under Civil Rule 54(b). Appellate Rule 5(a)(2) says that
a petition for permission to appeal must be filed within the
time set by the statute or rule allowing such appeals—or, if
the statute or rule does not set a limit, within the time allowed
by Appellate Rule 4(a) for a notice of appeal. That limit does
not apply, because Rule 5 deals with requests for permission
by a court of appeals. A motion in a district court seeking a
Rule 54(b) judgment is not one requesting “permission” to ap-
peal; it is one requesting the entry of a (partial) final judgment,
which if entered is appealable as of right on the normal sched-
ule. Plaintiffs met that deadline, once the district court entered
its judgment.
Schaefer and King derived a 30-day maximum from the lan-
guage of Rule 54(b) requiring the district court to certify that
“there is no just reason for delay” in appealing. When the
party seeking to appeal takes too much time to request a Rule
54(b) judgment, that creates delay and undermines the func-
tion of a partial final judgment. Sears, Roebuck & Co. v. Mackey,
351 U.S. 427 (1956), holds that a Rule 54(b) judgment may be
set aside if the district court abused its discretion by entering
it. What Schaefer and King add is that delay by the would-be
appellant can translate to abuse of discretion by the district

-- 4 of 8 --

No. 20-2238 5
court, if the upshot is to negate the required finding of “no
just reason for delay”.
Doubtless delay by a litigant can undermine the proper
function of a Rule 54(b) judgment. The problem is seeing a
bright-line rule, such as “request the judgment within 30
days,” in an abuse-of-discretion standard. Bright-line rules
and abuse-of-discretion standards are almost opposites in le-
gal practice. See, e.g., Pioneer Investment Services Co. v. Bruns-
wick Associates L.P., 507 U.S. 380 (1993). Consider two situa-
tions. In the first, a decision is announced on date t, a litigant
asks for a Rule 54(b) judgment on date t + 10, and the district
judge enters that judgment on date t + 100. In the second, a
decision is announced on date t, a litigant asks for a Rule 54(b)
judgment on date t + 31, and the district judge enters that
judgment on date t + 32. What sense could it make to say that
the second is forbidden while the first is not, even though the
first entails substantially longer delay? If there is to be an
outer limit marking an abuse of discretion, that should reflect
the total time between decision and Rule 54(b) judgment, not
how much of that time can be laid at one party’s doorstep.
Given Indiana’s tardiness in drawing our aTention to
plaintiffs’ delay, we need not decide today whether the 30-
day line from Schaefer and King should be abrogated. With
that, we can pass to the merits.
The district court dismissed plaintiffs’ Title VII claim
against Indiana because it is not their employer. It is an em-
ployer, surely, because it has employees covered by the law.
But it is not plaintiffs’ employer. They were hired, and are su-
pervised, by the House or Senate, which holds the sole power
to discipline, fire, or reward them. “In suits against state enti-
ties, that term [“employer”] is understood to mean the

-- 5 of 8 --

6 No. 20-2238
particular agency or part of the state apparatus that has actual
hiring and firing responsibility." Hearne v. Chicago Board of Ed-
ucation, 185 F.3d 770, 777 (7th Cir. 1999); see also Holman v.
Indiana, 211 F.3d 399, 401 n.1 (7th Cir. 2000). Cf. Tibbs v. Admin.
Office of the Illinois Courts, 860 F.3d 502, 507–08 (7th Cir. 2017)
(declining to revisit this issue).
In a suit arising from federal employment, this agency-
specific definition of the appropriate defendant is baked into
the statute. 42 U.S.C. §2000e–16(c). In suits arising from state
or local governmental employment, the agency-specific ap-
proach has been derived judicially—not only to promote par-
allel treatment but also to ensure that the defendant is one that
can supply a remedy, such as reinstatement or back pay. The
State of Indiana as a whole could not oblige the House or Sen-
ate to reinstate or raise the salary of any legislative aide. That
power belongs to the legislature. The State of Indiana as an
entity, by contrast, is managed by the Governor and repre-
sented in court by the ATorney General, neither of whom has
any control over legislative decisions.
It is possible to find a few opinions in which courts of ap-
peals have assumed that a state, rather than a state agency, is
the appropriate defendant in Title VII litigation. See Helm v.
Kansas, 656 F.3d 1277 (10th Cir. 2011); cf. Association of Mexi-
can-American Educators v. California, 231 F.3d 572 (9th Cir.
2000) (en banc) (finding a state to be a proper defendant on an
interference theory). But all of the decisions that have tackled
the maTer directly have agreed with Hearne and Holman that
the entity with hiring and firing authority is the right defend-
ant. See Lopez v. MassachuseRs, 588 F.3d 69 (1st Cir. 2009) (ex-
pressly disagreeing with the Ninth Circuit); Gulino v. New
York State Education Department, 460 F.3d 361 (2d Cir. 2006);

-- 6 of 8 --

No. 20-2238 7
Sutherland v. Michigan Department of Treasury, 344 F.3d 603
(6th Cir. 2003).
Plaintiffs protest that the House and Senate are not the At-
torney General’s employer and can’t control him—but the
statute requires people to sue their own employers, not some-
one else’s. Many decisions say that an employer can be liable
for failing to protect employees from discrimination by third
parties, such as customers, even when the employer cannot
directly control those third parties. See, e.g., Dunn v. Washing-
ton County Hospital, 429 F.3d 689 (7th Cir. 2005); Wells v. Win-
nebago County, 820 F.3d 864 (7th Cir. 2016). As it happens, the
House and Senate had some potential control. The senior leg-
islative officer at the party could have ejected Hill, an inter-
loper. And the legislature holds the impeachment power,
which could oust an ATorney General from office.
The Governor of Indiana does not possess any kind of con-
trol over an ATorney General; in Indiana, as in many other
states, the ATorney General is directly elected and is not an-
swerable to the Governor. Cf. Cameron v. EMW Women’s Sur-
gical Center, P.S.C., 142 S. Ct. 1002 (2022). The Supreme Court
of Indiana has, and used, some indirect control by suspending
Hill’s law license, but no one thinks that this makes the Su-
preme Court either plaintiffs’ employer or Hill’s employer, or
otherwise would justify naming the state’s judicial branch as
a defendant. No, the right defendants under Title VII are the
plaintiffs’ employers, here the House and Senate, which may
be found liable for failing to use the mechanisms at their dis-
posal for the protection of their employees.
Plaintiffs seem sure that the House and Senate will not do
anything to protect or compensate them. Maybe, maybe not.
And perhaps only Hill is responsible for his conduct, which

-- 7 of 8 --

8 No. 20-2238
occurred at a party after working hours. But if the House and
Senate seek exculpation, courts can resolve their defenses.
That an employer may deny liability or otherwise prove re-
calcitrant is a reason to obtain the court’s aid, not a reason to
sue someone else’s employer instead.
Hearne and Holman control this issue, and we are not dis-
posed to change course given the support these decisions
have received in other circuits. The district court was right to
dismiss the Title VII claim against the State of Indiana.
AFFIRMED

-- 8 of 8 --