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Lapka v. Chertoff

October 30, 2006

LEAH A. LAPKA, PLAINTIFF,
v.
MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, AND UNITED STATES DEPARTMENT OF HOMELAND SECURITY, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Leah Lapka has sued Michael Chertoff, in his official capacity as Secretary of the Department of Homeland Security ("DHS"), for sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and has sued DHS for violation of the Privacy Act, 5 U.S.C. § 552a. Chertoff and DHS have moved for summary judgment on all of Lapka's claims; Lapka has moved for summary judgment on her Privacy Act claim. For the reasons stated below, the Court grants the defendants' motion and denies Lapka's motion.

Facts

For purposes of defendants' summary judgment motion, the Court views the evidence in the light most favorable to Lapka, drawing reasonable inferences in her favor.

In 2001, Lapka began working for the Immigration and Naturalization Service ("INS"), which is now part of DHS, as a District Adjudication Officer. She attended a training course at the Federal Law Enforcement Training Center ("FLETC") in June 2002. The FLETC is located in Glynco, Georgia, a restricted-access site that includes classrooms, a dining facility, and a bar. Trainees are expected to stay in designated housing. Lapka was assigned to stay at a Days Inn motel in Brunswick, Georgia, near the FLETC campus. On June 15, 2002, Paul Garcia, an INS inspector who was also attending training at the FLETC, asked Lapka and her colleague, Heather Lagacy, if they were interested in going to the bar at the FLETC base that evening. Garcia said he had a car and could give them a ride. After classes ended that day, Lapka and Lagacy decided to go to the bar and took a cab from the Days Inn to the FLETC base. While at the bar, Lapka met some other FLETC trainees and began socializing and drinking with them. During the course of the evening Garcia made sexual advances toward Lapka but she rebuffed them. After having several drinks, Lapka and Lagacy became intoxicated. They began dancing with a group of people, including Garcia. Lapka was visibly intoxicated while on the dance floor; she had difficulty standing up and spilled a beer she was holding.

Lapka and Lagacy left the bar with Garcia, who had offered to drive them back to the Days Inn. Lapka says that she passed out once they were back at the hotel because she was so intoxicated. She says that Garcia sexually assaulted her after she passed out. She has no recollection of what happened in her room before she came to, when she felt a sharp pain. When Lapka came to, she saw Garcia standing over her. Lapka says she tried to pull away from him, but he grabbed her legs, pulled her towards him, and continued to sexually assault her. She said she passed out again because she was intoxicated. The next thing she remembers is crawling to the bathroom because she was so sick. Lapka said she went to a hospital after she woke up because she was still very sick. At the hospital she reported a possible date rape and was treated for alcohol poisoning.

About two weeks later, Lapka reported the assault to local police and her FLETC instructors. The police did not pursue criminal charges due to the lack of DNA evidence. Lapka alleges the FLETC supervisors had a crisis intervention counselor meet with her but did not follow up and did not advise her of the necessary steps to file an internal equal employment opportunity ("EEO") claim. Lapka says she was told in July 2002 that a report of the incident would be forwarded to the agency's inspector general and that she would hear from someone regarding the report.

In July 2002, Lapka returned to her Chicago workplace. She says that she has been suffering from depression ever since the assault. In March 2003, Lapka obtained a copy of the police report from the assault. When she received the report, Lapka says she became even more depressed because she felt the police had investigated the matter inadequately and because she had heard nothing from FLETC officials. Shortly thereafter, Lapka told her supervisor about the assault. She says her supervisor expressed sympathy but told her that nothing could be done. Lapka also inquired about the agency's investigation but was told the investigation was closed and that privacy and other considerations precluded release of the findings.

Lapka says that in May and June 2003, she saw Paul Garcia's brother, Jamie -- who she says looked a lot like Paul and who was himself an inspector with a DHS agency -- in the reception area of the office where she worked. This, she says, made her very upset, and she contacted her supervisor to complain about Jamie's visits to the office. Her direct supervisor put Lapka in touch with Phillip Browndeis, who was the next supervisor up the chain of command. Browndeis suggested that Lapka consider filing an EEO complaint. Lapka contacted the agency's regional EEO office, but an intake counselor told her the assault by Paul Garcia and the encounters with his brother did not qualify as a claim under the EEO office's administrative process. Despite the EEO official's view, Lapka initiated an EEO charge the following month.

In August 2003, Paul Garcia visited Lapka's workplace on a day when she was off work. When Lapka learned of this, she became upset, and sought an order of protection in state court, to which Garcia agreed. Lapka reported the visit to her supervisors, who then instituted an office-wide policy requiring supervisor approval before any visitor not on official duty could be allowed entry to the Chicago office areas. Lapka also repeatedly urged her supervisors to bar Garcia from entering her workplace pursuant to the agreed order of protection. Lapka's supervisors explained that they did not specifically contact Garcia regarding the protective order because it was an agreed order; they concluded that Garcia was, by definition, on notice of the order.

Starting in July 2003, Lapka says, she filed several Privacy Act requests for documents about the June 2002 incident, but DHS declined to produce any records. Lapka appealed this decision to DHS's general counsel office in February 2004. Since that time, defendants have produced redacted copies of the documents Lapka requested.

Lapka also alleges that her supervisors retaliated against her for filing an EEO complaint detailing the assault and what she believed to be an inadequate follow-up investigation. Specifically, Lapka contends, 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 for training new officers. She also alleges that her supervisors refused to take steps to protect her from harassment and transferred her to a different job site a few blocks away in retaliation for her EEO activity. Lapka also contends the DHS supervisors moved her because they were uncomfortable with the sexual assault charge she was pursuing against another DHS employee. She also contends that defendants retaliated against her when her application for the Department of Labor's Employee Injury Compensation program was delayed and because defendants broadcasted her voluntary leave transfer program request nationwide but did not broadcast another request for her at the local level.

Lapka also complained of harassing phone calls from individuals she believes to be either Jamie or Paul Garcia, or people acting on their behalf. She filed a written complaint with DHS officials in January 2005; an internal investigation is still pending.

In March 2005, Lapka says, she was diagnosed with post-traumatic stress disorder. She is currently on indefinite ...


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