Lapka v. Chertoff

• Decision Date: 29 February 2008
• Docket Number: No. 06-4099.,06-4099.
• Citation: 517 F.3d 974
• Parties: Leah A. LAPKA, Plaintiff-Appellant, v. Michael CHERTOFF, Secretary of Homeland Security, and the United States Department of Homeland Security, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

517 F.3d 974

Leah A. LAPKA, Plaintiff-Appellant, v. Michael CHERTOFF, Secretary of Homeland Security, and the United States Department of Homeland Security, Defendants-Appellees.

No. 06-4099.

United States Court of Appeals, Seventh Circuit.

Argued September 13, 2007.

Decided February 29, 2008.

Robert D. Whitfield (argued), Chicago, IL, for Plaintiff-Appellant.

James M. Kuhn (argued), Office of the United States Attorney, Chicago, IL, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, and CUDAHY and SYKES, Circuit Judges.

CUDAHY, Circuit Judge.

Leah Lapka is an adjudication officer of the Bureau of Customs and Immigration Services, a division of the Department of Homeland Security (DHS). Lapka alleges that she was raped by a fellow DHS employee while she was attending mandatory training sessions at a Federal Law Enforcement Training Center (FLETC). She believes that the DHS failed to adequately investigate the assault and failed to take reasonable steps to protect her from further harm. Instead of helping her, Lapka claims that the DHS improperly denied her access to investigative reports and began retaliating against her for filing a complaint with the Equal Employment Opportunity Commission (EEOC). Lapka participated in a unsuccessful mediation process and received her right to sue letter on November 4, 2004. She then sued the DHS and Michael Chertoff (in his official capacity as Secretary), alleging a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), unlawful retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a) and a violation of the Privacy Act, 5 U.S.C. § 552a. The district court granted summary judgment for the defendants on all claims. We affirm.

I. BACKGROUND

We recount the story in the light most favorable to Ms. Lapka. Lapka began working for the Immigration and Naturalization Service (INS)¹ as a district adjudication officer in 2001. On June 4, 2002, Lapka was sent by the INS to attend a month-long training course at the Federal Law Enforcement Training Center (FLETC) in Glynco, Georgia. The training sessions were specifically designed for adjudication officers and Lapka was required to attend. She was assigned to stay at a Days Inn motel in Brunswick, Georgia, close to the FLETC facility. The facility is a restricted-access site that includes dormitories, classrooms, a dining facility and a bar. On June 15, 2002, Lapka and her colleague, Heather Legacy, encountered a man named Paul Garcia on the FLETC campus. Garcia was an INS inspector who worked at O'Hare Airport in Chicago; he offered the women a ride back to their hotel should they decide to go to the FLETC bar that evening but they declined the offer. Lapka and Legacy went to dinner and later decided to meet the other trainees at the FLETC bar. They began socializing and drinking and soon became visibly intoxicated. They began dancing with a number of people, including Garcia. Garcia made sexual advances toward Lapka but she refused them. By the end of the night, Lapka was having difficulty standing up or holding on to her drink.

Taxis were scarce. Lapka and Lagacy were forced to accept a ride from Garcia, who drove them back to their hotel. Lapka was barely responsive at the time, although she remembers that Garcia tried to fondle her. Garcia helped her up to her room and then followed her inside. Lapka passed out once they entered the room, but was awakened to find Paul Garcia sexually assaulting her. She passed in and out of consciousness. When she woke up, she was taken to the hospital. Lapka reported a possible date rape and was treated for alcohol poisoning. For reasons that are unclear, the employees at the hospital did not preserve any evidence for law enforcement. Two weeks later, Lapka reported the incident to FLETC personnel. They summoned a FLETC investigator and called the Brunswick, Georgia police department. Lapka gave a formal statement to a FLETC investigator and to a Brunswick police detective; the Brunswick police also interviewed Paul Garcia. The FLETC officials told Lapka that a report would be forwarded to the INS Office of the Inspector General (OIG) and that she would be hearing from someone.

Lapka returned to Chicago. Months passed and no one contacted her about the status of the investigation. Lapka had become withdrawn; she had trouble sleeping and began losing weight. She had frequent bouts of crying and flashbacks of the assault. In March 2003, Lapka decided to follow up on the investigation. So, on March 3, Lapka obtained a copy of the Brunswick police report and discovered that the police had declined to prosecute due to a lack of evidence. Shortly thereafter, Lapka told her supervisors, Marilyn Roraff and Stacy Summers, what had happened. On March 24, she inquired about the status of the INS investigation; she was surprised to hear that the investigation had been closed (with no action taken against Paul Garcia) and that privacy considerations precluded the release of the findings.

On May 15, Lapka was startled to see Jaime Garcia, Paul Garcia's brother, in the reception area of her office at 230 South Dearborn. Jaime formerly worked at 230 South Dearborn and was apparently visiting his former co-workers there. 230 South Dearborn was, at that time, an office of the Bureau of Customs and Immigration Services; Jaime, like his brother Paul, now worked for the DHS Bureau of Customs and Border Protection at O'Hare Airport. Lapka was disturbed by Jaime's presence because she could not tell the brothers apart and actually believed that she was in the presence of her previous assailant. The experience exacerbated Lapka's feelings of fear and anxiety. She contacted Summers to complain about Jaime's visits to the office; Summers told Lapka that she could not punish Jaime for the actions of his brother but assured her that she would take action if the visits became habitual or if Jaime mentioned the assault to anyone in the office. Jaime visited the office again on May 22 and June 12. During the second week of June 2003, Lapka contacted an EEO Intake Counselor about pursuing an EEOC claim. She filed a complaint with the EEOC on July 24, 2003.

On August 22, Paul Garcia visited the 230 South Dearborn Building. Although Lapka was not working that day, she was informed about Paul's visit by a co-worker. Paul stayed for about forty minutes, walking down the hallways, peering into offices, and talking to officers he knew (Paul and Jaime's mother had worked for a long time in the building). There is no evidence that Paul attempted to contact Lapka, but Lapka became terrified. She began taking days off work because she was so worried about the Garcia brothers' visits. She again complained to her supervisors. They said that they would attempt to contact Paul's supervisor and that they would institute a new visitation policy. When they did not act fast enough, Lapka sought an order of protection in state court, which was granted on September 5. On September 12, the District Director instituted an office-wide policy requiring supervisor approval before any visitor not on official duty could be allowed entry to the Chicago office. While it is not clear that the policy was consistently enforced, Summers did remind the staff to obey the policy. Lapka urged her supervisors to call the Federal Protective Services (FPS) and bar Garcia from entering her workplace pursuant to the court order. Lapka's supervisors explained that they did not contact Garcia about the order because it was an agreed order of which Garcia was on notice. Paul Garcia never again entered the building and never tried to contact her.

Lapka believes that DHS officials then began retaliating against her for her EEO activity. Lapka contends that her supervisors assigned her all the mandamus cases in the office as a collateral duty and assigned her more duties than she had previously been assigned. The mandamus assignments were apparently more difficult and time-consuming, yet the DHS did not allow her any extra time to finish them. She fell behind and her performance rating dropped from "outstanding" to "excellent." Lapka believes that the DHS used her backlog as an excuse to transfer her to a different job, which was not covered by her protective order, thus rendering her more vulnerable to Paul Garcia's visits. Her application for the Department of Labor's Employee Injury Compensation program was delayed and her voluntary leave program request was broadcast nationwide but not at the local level. In March 2005, Lapka was diagnosed with posttraumatic stress disorder. She is currently on indefinite medical leave.

II. DISCUSSION

Our standards of review are familiar. We review the district court's grant of a motion for summary judgment de novo. Jackson v. County of Racine, 474 F.3d 493, 498 (7th Cir.2007). Summary judgment is appropriate only "if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Shermer v. Illinois Dep't of Transp., 171 F.3d 475, 477 (7th Cir. 1999). We view the facts in the light most favorable to Lapka and draw all reasonable inferences in her favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We turn now to her claims.

1. Failure to Exhaust Administrative Remedies

The DHS begins by renewing an argument it lost in the district court — namely, that Lapka's hostile environment claim is time-barred because she failed to contact an Equal Employment Opportunity (EEO) counselor within forty-five days of the alleged assault. It is true that federal employees who want to file discrimination claims with the Equal Employment Opportunity Commission (EEOC) must contact an EEO counselor "within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1). Thi...