Lapka, Leah v. Chertoff, Michael ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4099
LEAH A. LAPKA,
Plaintiff-Appellant,
v.
MICHAEL CHERTOFF, Secretary of
Homeland Security, and the UNITED STATES
DEPARTMENT OF HOMELAND SECURITY,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 668—Matthew F. Kennelly, Judge.
____________
ARGUED SEPTEMBER 13, 2007—DECIDED FEBRUARY 29, 2008
____________
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 em-
ployee while she was attending mandatory training
sessions at a Federal Law Enforcement Training Center
(FLETC). She believes that the DHS failed to adequately
2 No. 06-4099
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 defen-
dants 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.
1
The DHS was formed on March 1, 2003. The former INS was
split into three agencies within the DHS: The Bureau of Im-
migration and Customs Enforcement (ICE), Bureau of Customs
and Border Protection (CBP) and Bureau of Citizenship and
Immigration Services (CIS). While they were at the FLETC
facility, both Lapka and her alleged assailant, Paul Garcia,
worked for the INS (although in different locations). After the
DHS was formed, Lapka worked for CIS while Garcia worked
for CBP (although both technically work for the DHS).
No. 06-4099 3
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, class-
rooms, 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 Aiport 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
4 No. 06-4099
Brunswick, Georgia police department. Lapka gave a
formal statement to a FLETC investigator and to a Bruns-
wick police detective; the Brunswick police also inter-
viewed Paul Garcia. The FLETC officials told Lapka that a
report would be forwarded to the INS Office of the Inspec-
tor 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
No. 06-4099 5
of fear and anxiety. She contacted Summers to complain
about Jamie’s visits to the office; Summers told Lapka
that she could not punish Jamie 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. Jamie 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 Dear-
born 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 hall-
ways, 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 supervi-
sor 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
6 No. 06-4099
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 vul-
nerable 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
No. 06-4099 7
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 environ-
ment 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). This “counseling
requirement” serves an important function; it gives agen-
cies an opportunity to resolve an employee’s complaint
informally by conducting their own internal investigations.
See Brown v. Marsh, 777 F.2d 8, 13-14 (D.C. Cir. 1985). Thus,
although we have construed this requirement as a statute
of limitations rather than a jurisdictional prerequisite, we
bar claims if the forty-five day requirement is not satisfied
and there is no occasion for equitable tolling. See, e.g.,
Rennie v. Garrett, 896 F.2d 1057, 1061-62 (7th Cir. 1990). The
DHS argues that the forty-five day period began to run on
June 16, 2002, the date of the alleged assault. It is undis-
puted that Lapka did not contact an EEO counselor until
she called the Dallas intake center in the second week of
June 2003.
We believe that Lapka’s claim is timely. To determine the
timeliness of her contact with the counselor, we
must determine when the counseling requirement was
triggered. To do this, we must carefully identify the exact
8 No. 06-4099
nature of Lapka’s claim. See Ledbetter v. Goodyear Tire
& Rubber Co., ___ U.S. ___, 127 S. Ct. 2162, 2167, 167 L.
Ed.2d 982 (2007). As the district court noted, Lapka is
not making a “series of discrete claims, one arising from
the assault, a separate claim arising from the failure to
investigate, and perhaps another claim arising from the
Garcia brothers’ later visits to her workplace.” Lapka v.
Chertoff, No. 5 C 668, 2006 WL 3095668, at *4 (N.D. Ill. Oct.
30, 2006). Instead, she is making a single hostile environ-
ment claim “composed of” a series of events. Of course, in
articulating her claim, Lapka must refer to concrete events.
It would be unintelligible otherwise. But her legal claim is
for the cumulative effect of those events, and that effect
forms a “single unlawful employment practice.” See Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S. Ct.
2061, 153 L. Ed.2d 106 (2002).
The question, then, is when this hostile environment
claim accrued. See Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153
L. Ed.2d 106; Pruitt v. City of Chicago, 472 F.3d 925, 927 (7th
Cir. 2006). Morgan addressed the timeliness of hostile
environment claims under 42 U.S.C. § 2000e-5, which
requires potential litigants to first file claims with the
EEOC within a specified period. The Court, noting the
“exceptional” nature of hostile environment claims, held
that such claims “will not be time-barred so long as all acts
which constitute the claim are part of the same unlawful
employment practice and at least one act falls within the
time period.” Id. at 122, 122 S. Ct. 2061, 153 L. Ed.2d 106.
Other circuit courts have used Morgan to calculate timeli-
ness under § 1614.105(a)(1). See Jensen v. Henderson, 315 F.3d
854, 859-61 (8th Cir. 2002); Lyons v. England, 307 F.3d 1092,
1106 n.6 (9th Cir. 2002); McFarland v. Henderson, 307 F.3d
402, 408 (6th Cir. 2002). Under § 1614.105(a)(1), we must
No. 06-4099 9
determine when the “discriminatory matter” occurred, and
we too believe that Morgan provides the appropriate
standard. Lapka was raped on June 15, 2002. She learned
that the DHS had closed its investigation into the assault
without taking any action against Paul Garcia on March 24,
2003. Jaime Garcia visited the 230 South Dearborn Building
on May 15, 2003, May, 22, 2003, and June 12, 2003. Paul
Garcia visited on August 22, 2003. These are the component
acts of Lapka’s claim. Morgan dictates that if at least one of
these acts took place within the statutory period, the claim
is not time-barred. Because Lapka contacted an EEO
counselor in Dallas during the second week of June 2003,
within forty-five days of Jaime Garcia’s visits, her claim
is timely.
Relying on our decision in Pruitt, the DHS argues that the
fact that “discrete acts may have been mixed with a hostile
environment does not extend the time.” Pruitt, 472 F.3d at
927. This reflects a basic misunderstanding of the meaning
of a “discrete act.” A discrete act is not simply any concrete
act. When Morgan and Pruitt speak of a discrete act, they
mean a discrete claim of discrimination that is actionable
by itself—what the Supreme Court has recently called a
“freestanding violation.” Ledbetter, 127 S. Ct. at 2174, 167 L.
Ed.2d 982. Examples would include “termination, failure
to promote, denial of transfer, or refusal to hire.” Morgan,
536 U.S. at 114, 122 S. Ct. 2061, 153 L. Ed.2d 106. The
essence of a discrete act of discrimination is that it forms “a
separate actionable ‘unlawful employment practice.’ ” Id.,122 S. Ct. 2061, 153 L. Ed.2d 106. What makes a hostile
environment claim exceptional is that the acts that consti-
tute it do not give rise to a cause of action by themselves.
The alleged rape in this case was not actionable by itself; it
was only after the DHS failed to investigate the assault and
10 No. 06-4099
failed to take steps to protect Lapka that the alleged hostile
environment was formed.
2. Lapka’s Hostile Work Environment Claim
Hostile or abusive work environments are forms of sex
discrimination actionable under Title VII of the Civil Rights
Act of 1964. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). To establish a prima
facie case, Lapka must establish that “she was (1) subjected
to unwelcome sexual conduct, advances, or requests; (2)
because of her sex; (3) that were severe or pervasive
enough to create a hostile work environment; and (4) that
there is a basis for employer liability.” Erickson v. Wisconsin
Dep’t of Corr., 469 F.3d 600, 604 (7th Cir. 2006). These
elements are evaluated in light of the “particular facts and
circumstances” of the case. Longstreet v. Illinois Dep’t of
Corr., 276 F.3d 379, 382 (7th Cir. 2002) (citations omitted).
Lapka has established the first three elements but she has
failed to show a basis for employer liability.
The first two elements are easily satisfied. We may
assume that Lapka’s allegation that she was raped by a co-
worker is true. It goes without saying that forcible rape
is “unwelcome physical conduct of a sexual nature.” Little
v. Windermere Relocation, Inc., 301 F.3d 958, 966 (9th
Cir. 2002). Rape is also, by definition, a form of harassment
based on sex. See Brock v. United States, 64 F.3d 1421, 1423
(9th Cir. 1995). The DHS also suggests that the assault does
not evidence workplace harassment because Lapka and
Garcia were socializing after hours and the assault oc-
curred in a private hotel room. But harrasment does not
have to take place within the physical confines of the
workplace to be actionable; it need only have consequences
No. 06-4099 11
in the workplace. See Doe v. Oberweis Dairy, 456 F.3d 704,
715-16 (7th Cir. 2006). The FLETC bar was a part of the
FLETC facility, and Lapka first encountered Garcia on the
FLETC campus, so the event could be said to have grown
out of the workplace environment. Id. We further note that
Lapka and Garcia were required by their employer to
attend these training sessions; they were on “official duty”
while they were there. The FLETC facility is different from
a typical workplace where “employees go home at the close
of their normal workday.” Ferris v. Delta Air Lines, Inc., 277
F.3d 128, 135 (2d Cir. 2001). Trainees at this facility attend
employment-related training sessions, eat in the FLETC
cafeteria, drink at the FLETC bar and return to dormitories
and hotel rooms provided by the DHS. Employees in these
situations can be expected to “band together for society and
socialize as a matter of course.” Id. Lapka has established
that she was subject to sexual harassment because of her
sex, at least for the purposes of summary judgment.
Lapka must also show that the harassment she experi-
enced was “severe or pervasive” enough to create an
abusive environment and to alter the conditions of her
employment. Meritor Sav. Bank, 477 U.S. at 67, 106 S.Ct.
2399, 91 L.Ed.2d 49. This element has both an objective and
subjective component. See Hilt-Dyson v. City of Chicago, 282
F.3d 456, 463 (7th Cir. 2002). We have no reason to doubt
that, subjectively, Lapka perceived her work environment
to be hostile; she began to lose weight and miss work, and
she was ultimately diagnosed with posttraumatic stress
disorder. But the DHS argues that no reasonable person
could have found the visits by the Garcia brothers to be
objectively hostile. The visits, however, cannot be viewed
in isolation. See Clark County Sch. Dist. v. Breeden, 532 U.S.
268, 270, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam)
12 No. 06-4099
(“Workplace conduct is not measured in isolation”); Meritor
Sav. Bank, 477 U.S. at 67, 106 S.Ct. 2399, 91 L.Ed.2d 49(workplace conduct is judged from the totality of the
circumstances). They must be viewed in the context of the
sexual assault.
The sexual assault alone may have been sufficient to
create an objectively hostile environment. It is true that
it turned out to be an isolated incident and, thus, was not
pervasive. But we have repeatedly stressed that the phrase
“severe or pervasive” is disjunctive. See Cerros v. Steel
Technologies, Inc., 398 F.3d 944, 950 (7th Cir. 2005);
Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th
Cir. 2004). It is well settled that “even one act of harassment
will suffice if it is egregious.” Hostetler v. Quality Dining,
Inc., 218 F.3d 798, 808 (7th Cir. 2000). We have held that
assaults within the workplace create an objectively hostile
work environment for an employee even when they are
isolated. See Erickson, 469 F.3d at 604; Hostetler, 218 F.3d at
807; Smith v. Sheahan, 189 F.3d 529, 533-34 (7th Cir. 1999);
DiCenso v. Cisneros, 96 F.3d 1004, 1009 (7th Cir. 1996); Guess
v. Bethlehem Steel Corp., 913 F.2d 463, 464 (7th Cir. 1990); see
also Windermere, 301 F.3d at 966; Ferris, 277 F.3d at 135. The
severity of the assault alleged in this case would be suffi-
cient to establish the third element of Lapka’s prima facie
case. The result is no different if one focuses on the visits
paid by the Garcia brothers, which occurred shortly after
the sexual assault and in its context. The continued pres-
ence of a rapist in the victim’s workplace can render the
workplace objectively hostile because the rapist’s presence
exacerbates and reinforces the severe fear and anxiety
suffered by the victim. See Adusumilli v. City of Chicago, 164
F.3d 353, 362 (7th Cir. 1998); Saxton v. American Tel. & Tel.
Co., 10 F.3d 526, 536 n.18 (7th Cir. 1993).
No. 06-4099 13
We move now to the basis for employer liability. Lapka
does not claim that the DHS should have known that Paul
Garcia posed a danger to women, nor does she claim that
the DHS was negligent in hiring him. So Lapka must
proceed on a theory of co-worker liability, which is basi-
cally a theory of supervisory negligence.2 See Guess, 913
F.2d at 465. The DHS can be held liable for Garcia’s harass-
ment if it “unreasonably fail[ed] to take appropriate
corrective action . . . reasonably likely to prevent the
misconduct from recurring.” Id. The emphasis is on the
prevention of future harassment. See McKenzie v. Illinois
Dept. of Transp., 92 F.3d 473, 480 (7th Cir. 1996).
Lapka first faults the DHS for failing to investigate the
alleged assault. She focuses largely on what the District
Director should have done to follow up on her complaint.
She notes that the District Director made no attempt to
contact Paul Garcia, Heather Legacy or the Brunswick
District Attorney’s office. She is also upset that no action
was taken against Garcia. Of course, the “hallmark of a
reasonable corrective action” is a prompt investigation.
Cerros, 398 F.3d at 953-54. This is not a case in which no
investigation was conducted at all. See Daniels v. Essex
Group, Inc., 937 F.2d 1264, 1275 (7th Cir. 1991). The investi-
gation in this case was in fact initiated promptly; when
2
We should mention at this point that the DHS claims that Paul
Garcia was not a “co-worker” of Lapka but rather “someone
who happened to be employed by the same agency.” Whatever
the incidental merits of this distinction, it is irrelevant. Em-
ployer liability can be imposed when the harassment is com-
mitted by co-workers, see Ferris, 277 F.3d at 135, or by third
parties, see Lockard v. Pizza Hut Inc., 162 F.3d 1062, 1072 (10th
Cir. 2002).
14 No. 06-4099
Lapka informed FLETC personnel about the assault, they
immediately called in a FLETC investigator and the
Brunswick police department. The police took a formal
statement from Lapka and also interviewed Paul Garcia.
The FLETC officials obtained the police report
and forwarded it, along with the FLETC report, to the
INS Office of the Inspector General, which reviewed the
claim before forwarding it back to the DHS. The DHS then
decided not to pursue the issue further. The police report
already contained detailed statements from Lapka and
Garcia; the DHS knew that the police had decided not
to prosecute due to a lack of evidence. Unfortunately, no
rape kit was taken at the hospital and Lapka could not
remember many of the details of the night of the alleged
rape because she was passing in and out of consciousness.
It was reasonable for the DHS to believe that it, too, had
insufficient evidence to proceed against Garcia. Lapka
would have preferred a different result but the em-
phasis of Title VII in this context is not on redress but on
the prevention of future harm. Faragher v. City of Boca
Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662(1998). So “the question is not whether the punishment was
proportionate to [the] offense but whether [the employer]
responded with appropriate remedial action reasonably
likely under the circumstances to prevent the conduct from
recurring.” See Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d
1034, 1049 (7th Cir. 2000). We believe that the DHS did.
Lapka also claims that the DHS failed to protect her from
visits by the Garcia brothers. It is not clear that the DHS
could have prevented the visits by Paul’s brother Jaime; he
never tried to contact Lapka and he had nothing to do with
the original assault. Lapka’s supervisor told her that she
would monitor Jaime’s behavior. That was sufficient. The
No. 06-4099 15
visit by Paul were more troubling. But the DHS responded
to Lapka’s complaints by adopting a new policy demand-
ing that visitors to Lapka’s building be on “official busi-
ness.” This policy was announced only two weeks after
Paul Garcia’s visit to Lapka’s place of work. It appears that
the DHS Director did contact Garcia’s supervisor and tell
him not to send Garcia to 230 South Dearborn on official
business. Because neither of the Garcia brothers worked for
the Bureau of Immigration and Customs Enforcement it
was unlikely that they would have official business there.
We have noted that taking effective steps to physically
separate employees and limit contact between them can
make it “distinctly improbable” that there will be further
harassment. See Tutman, 209 F.3d at 1048-49; Savino v. C.P.
Hall Co., 199 F.3d 925, 933 (7th Cir. 1999); Saxton, 10 F.3d at
536. Physical separation had been achieved here. Even if
Paul Garcia could have reentered the building, there
was little likelihood that he would. And, in fact, Paul
Garcia never visited again. The “efficacy of an employer’s
remedial action” is “material” to our inquiry into the
reasonableness of the response. Cerros, 398 F.3d at 954.
Lapka’s last contention is that the DHS should have
contacted FPS and told it to deny the Garcia brothers entry
into the building, and that the DHS should have informed
Garcia of the protective order. Again, there is no evidence
that Paul Garcia was actually trying to contact Lapka.
Perhaps the Director should have banned Garcia outright
from Lapka’s building; this may have been the more
effective course. But Garcia knew about the order because
it was an agreed-upon order. It is not availing to say that
the employer “should have taken even more aggressive
measures.” Berry, 260 F.3d at 813. The measures taken by
employers will often “not meet the plaintiff’s expecta-
16 No. 06-4099
tions.” Id. Title VII requires only that the employer take
steps reasonably likely to stop the harassment. Saxton, 10
F.3d at 536. The DHS took reasonable steps in this case; that
is enough to justify denial of Lapka’s claim.
3. Lapka’s Retaliation Claim
Lapka’s original complaint did not include a claim for
retaliation, although she would later file a retaliation claim
with the EEOC. Nevertheless, the district court read her
response to summary judgment as asserting such a claim.
Lapka, 2006 WL 3095668, at *5. Section 2000e-3(a) of Title VII
“forbids an employer from ‘discriminating against’ an
employee or job applicant because that individual ‘opposed
any practice’ made unlawful by Title VII or ‘made charge,
testified, assisted, or participated in’ a Title VII proceed-
ing.” Burlington N. & Santa Fe Ry. Co. v. White, ___ U.S. ___,
126 S. Ct. 2405, 2410, 165 L. Ed.2d 345 (2006). In order to
succeed on a retaliation claim, “a plaintiff must show that
a reasonable employee would have found the challenged
action materially adverse.” Id., 165 L. Ed.2d 345. An action
is materially adverse if “it well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.” Id. at 2414, 165 L. Ed.2d 345. Examples of
such an action would include “termination of employment,
a demotion evidenced by a decrease in wage or salary, a
less distinguished title, a material loss of benefits, signifi-
cantly diminished material responsibilities, or other indices
that might be unique to a particular situation.” Crady v.
Liberty Nat’l Bank & Trust Co. of Indiana, 993 F.2d 132, 136
(7th Cir. 1993). As this Court has cautioned, “not every-
thing that makes an employee unhappy is an actionable
adverse action.” Smart v. Ball State Univ., 89 F.3d 437, 441
No. 06-4099 17
(7th Cir. 1996). We believe that here Lapka failed to estab-
lish one.
Lapka first complains that as a form of retaliation she
was assigned all the mandamus cases, which were more
difficult and time-consuming than other cases. Lapka,
however, already handled mandamus cases; the fact that
she received more of them did not significantly alter her job
responsibilities. See Washington v. Illinois Dep’t of Revenue,
420 F.3d 658, 661 (7th Cir. 2005). Lapka was not required
to work extra hours, did not suffer any loss of pay and was
not disciplined for failing to complete her work. See Johnson
v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). Lapka
argues that the increased load of mandamus cases led her
to fall behind in her work and caused her performance
rating to fall from “outstanding” to “excellent.” But lower
performance ratings are not actionable unless they are
accompanied by tangible job consequences. See Whitaker v.
Northern Illinois Univ, 424 F.3d 640 (7th Cir. 2005);
Longstreet, 276 F.3d at 384; Oest v. Illinois Dep’t of Corr., 240
F.3d 605, 613 (7th Cir. 2001). And the fact that the lower
rating prevented her from a merit bonus is not enough to
make it a materially adverse action. Rabinovitz v. Pena, 89
F.3d 482, 488-89 (7th Cir. 1996). Similarly, the relocation to
an office across the street cannot be deemed material.
Savino, 197 F.3d at 937. In some situations, such seemingly
trivial measures might be considered retaliation. Washing-
ton, 420 F.3d 658. Lapka claims that the DHS was exploiting
one of her known and obvious vulnerabilities because the
new location was not covered by her protective order
against Paul Garcia’s visitations. But, again, all contact
between Lapka and Paul Garcia had long ago ceased.
18 No. 06-4099
4. Lapka’s Privacy Act Claim
Beginning on July 11, 2003, Lapka filed a number of
formal requests with FLETC, the INS, and the Department
of Justice OIG for access to records and reports regarding
the investigation into the June 2002 assault. The requests
were made pursuant to the Privacy Act, 5 U.S.C. § 552a.
The requests took a rather circuitous route, but the DHS
ultimately denied them. Lapka now brings a claim under
the Privacy Act for its failure to produce the records.
Although she does not specify the subsection under which
she is proceeding, we assume that she is suing for access
under § 552a(g)(1)(B).3 Under § 552a(d)(1), an employer
must allow an employee an opportunity to access and
review records that pertain to her. The Act provides a civil
remedy for a failure to comply with § 552a(d)(1). A success-
ful plaintiff is entitled to injunctive relief and, if the
plaintiff has “substantially prevailed” in the litigation, the
court may also award attorney’s fees and costs. 5 U.S.C.
§ 552a(g)(3)(B). Section 552a(g)(3)(B) does not provide for
damages in an access case under the Privacy Act.
After this litigation began, an assistant United States
Attorney sent a letter to Lapka’s counsel stating that he had
“convinced [his] client to permit disclosure of the reports”
3
At times, Lapka seems to complain that the DHS failed to
maintain accurate records; such a failure would be actionable
under § 552a(g)(1)(C). Actions under § 552a(g)(1)(C), however,
require a plaintiff to show that an “adverse determination” was
made because of those inaccuracies, something Lapka does not
allege. Her argument could also be construed as a failure to
make necessary amendments to the records, which invokes
§ 552a(g)(1)(A). Lapka has not shown, however, that she has
requested such an amendment.
No. 06-4099 19
if the disclosure was made pursuant to a protective order.
Gov. Ex.25. Shortly thereafter, the DHS turned over
redacted copies of the records in question to Lapka. Lapka
does not challenge any of the redactions; she appears to
have got what she wanted. Because Lapka has received
what she requested, her claim for injunctive relief is moot.
Cf. DeBold v. Stimson, 735 F.2d 1037, 1040 (7th Cir. 1984).
The fees and costs issue is not enough to keep the merits of
her Privacy Act claim alive. See Budinich v. Becton Dickinson
& Co., 486 U.S. 196, 200, 108 S. Ct. 1717, 100 L. Ed.2d 178(1988); Anderson v. U.S. Dep’t of Health & Human Servs., 3
F.3d 1383, 1385 (10th Cir. 1993). The fact that she may have
received the records “late” does not change the result. See
Lovell v. Alderete, 630 F.2d 428, 430-31 (5th Cir. 1980). Thus,
we will not pass on the merits of her Privacy Act claim.
Lapka’s ostensible claim for attorney’s fees is not moot.
Nevertheless, we do not believe that she is entitled to them
under Buckhannon Board & Care Home, Inc. v. West Virginia
Dep’t of Health & Human Resources, 532 U.S. 598, 605, 121 S.
Ct. 1835, 149 L.Ed.2d 855 (2001). Before we consider her to
be a “prevailing party,” Lapka must have shown that she
has won some form of “judicially sanctioned relief.” T.D. v.
LaGrange Sch. Dist. No. 102, 349 F.3d 469, 478 (7th Cir. 2003).
Neither of the orders entered by the district court, however,
suggests that this is the case. The first order did not compel
the disclosure of the records; it merely authorized it. The
second order, which specified that the use of the records
was subject to terms and conditions, was designed for the
benefit of DHS and cannot be treated as a victory for
Lapka.
20 No. 06-4099
III. CONCLUSION
We regret any harm that may have come to Ms. Lapka on
June 15, 2002. We certainly would not want to be taken for
downplaying the serious nature of sexual assaults. But
Lapka has not given us a sufficient reason to hold the DHS
liable for her injuries. Lapka and her alleged assailant were
effectively separated when they returned to Chicago. The
DHS did not act negligently nor, we believe, did it take
actions designed to dissuade her from pursuing her
complaints. Its response may not have been perfect in
all respects, but it was adequate. The decision of the district
court is AFFIRMED.
USCA-02-C-0072—2-29-08