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Adequate response shields employer: Lapka v. Chertoff, 7th Cir., No. 06-4099

HR Magazine, June, 2008 by Chris Arbery, Valerie Barney

The 7th U.S. Circuit Court of Appeals affirmed the dismissal of a sexual-harassment claim with allegations of rape and retaliation because the employer took reasonable steps after receiving the report to prevent harm in the future.

In June 2002, Leah Lapka, an employee of the former Immigration and Naturalization Service (INS) in Chicago, participated in a month-long required training course at the Federal Law Enforcement Training Center (FLETC) in Georgia. On June 15, 2002, Lapka met other trainees at a bar on the FLETC campus.

According to court filings, Lapka became intoxicated; another INS employee, Paul Garcia, drove her to her motel, where she passed out. Lapka alleges that she woke up to find Garcia sexually assaulting her. Lapka reported the incident two weeks later to the INS, which promptly initiated an investigation and notified police.

In March 2003, Lapka discovered that the police had declined to prosecute and the INS had closed its investigation because of lack of evidence. She then told her local supervisors what had happened, and she complained after seeing Garcia and his brother several times in her building.

Lapka's supervisors instituted a new visitor policy and contacted Garcia's supervisor to request that Garcia not be sent to Lapka's building, but they did not bar Garcia from the building. Lapka also obtained a judicial protective order. Garcia never again entered her building or tried to contact her.

Some time later, Lapka alleged, her supervisors began to assign her more time-consuming and harder cases. Her performance rating dropped, and she was ineligible for a bonus. She was transferred to a different job and a building that was not covered by her protective order.

Lapka brought a hostile work environment claim and a retaliation claim under Title VII against the secretary of the U.S. Department of Homeland Security (DHS), which absorbed the INS as of March 1, 2003. Ultimately, the district court granted summary judgment in favor of the DHS and dismissed the case.

Lapka appealed to the 7th Circuit, which rejected the DHS' argument that the alleged assault was not workplace harassment because it took place in a private motel room.

Nevertheless, the court found that Lapka failed to establish employer liability for the harassment. The question was not whether or how severely the employer punished the alleged harasser, but instead whether it had done enough to prevent future harm. The 7th Circuit stated, "Title VII requires only that the employer take steps reasonably likely to stop the harassment. The DHS took reasonable steps in this case; that is enough to justify denial of Lapka's claim."

Professional Poninter

This decision demonstrates that an employer potentially could be held responsible for harassment of one employee by another even if it occurs away from the employer's premises.

* Online Resources

New cases are posted online each week. Visit the online version of Court Report at www.shrm.org/law.> By Chris Arbery and Valerie Barney, attorneys on the Labor & Employment Team at Hunton * Williams LLP in Atlanta.