Kowalski v. Scott

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
3-29-2005
Kowalski v. Scott
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2752
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Recommended Citation
"Kowalski v. Scott" (2005). 2005 Decisions. Paper 1418.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1418
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2752
EDWARD P. KOWALSKI,
Appellant
v.
LINDA M. SCOTT; INVESTIGATOR EO; BRIAN E. WHITE; NANCY SHUTT;
FACTION INC.; COMPSERVICE, INC.
On appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. No. 02-CV-7197
Submitted pursuant to Third Circuit LAR 34.1(a)
on March 11, 2005
Before: SCIRICA, ROTH,
and FUENTES, Circuit Judges
(Filed: March 29, 2005)
_____________________
OPINION OF THE COURT
_____________________
Fuentes, Circuit Judge.
Petitioner Edward Kowalski appeals summary judgment dismissing his claims
against his supervisor at the Pennsylvania State Police (PSP) under the Americans with
Disabilities Act (ADA) and the First Amendment, and his claims against other defendants
under the Fourth Amendment. Kowalski alleges that his supervisor at the PSP failed to
accommodate his disability and later retaliated against him for complaining about
environmental conditions by ordering surveillance of him while he was on vacation and
by refusing to install a new ventilation system in his place of work. Kowalski also seeks
relief under § 1983 against defendants associated with a private investigation firm based
on the allegedly unconstitutional surveillance. We will affirm substantially for the
reasons expressed in the thorough and persuasive opinion of the District Court. We add
the following to underscore our own agreement with that opinion.
First, we are satisfied that the District Court properly rejected Kowalski’s ADA
claim because Kowalski failed to exhaust his administrative remedies. Under the ADA, a
plaintiff must exhaust his administrative remedies before filing a civil action in a federal
court. See 42 U.S.C. § 12117; see also Churchill v. Star Enterprises, 183 F.3d 184, 190
(3d Cir.1999). Kowalski never filed a complaint with either the EEOC or the
Pennsylvania Human Relations Commission, and therefore, never obtained a right to sue
letter. We therefore affirm dismissal of his ADA claim without reaching its merits.
We also agree with the District Court’s rejection of Kowalski’s Fourth
Amendment claim. The District Court correctly reasoned that the private investigator’s
2
surveillance of Kowalski, while he vacationed in Florida, was conducted only in public
places where Kowalski lacked a reasonable expectation of privacy. In order to establish a
Fourth Amendment violation of his right to privacy, Kowalski would have to show not
just that he held a subjective expectation of privacy while on vacation, but also that, from
an objective point of view, his expectation of privacy was reasonable. See California v.
Ciraolo, 476 U.S. 207, 211 (1986). It is well-established that “[w]hat a person knowingly
exposes to the public...is not a subject of Fourth Amendment protection.” Katz v. United
States, 389 U.S. 247, 251 (1967). The video surveillance of Kowalski was taken only
while Kowalski was in full view of many strangers, in public areas at or near a beach. It
was also taken from a distance, and in a manner that did not obstruct Kowalski’s
activities. Together these facts put the video surveillance in this case outside the purview
of the Fourth Amendment.
Finally, we concur with the District Court’s rejection of Kowalski’s First
Amendment claim against Scott. Kowalski argues that his First Amendment rights were
violated by an alleged attempt to intimidate him into not filing a workers’ compensation
claim related to his August 2001 surgery. The District Court pointed out that Kowalski
had not filed a claim as of October 2001, i.e., when the allegedly retaliatory surveillance
occurred. But even if Scott caused Kowalski to be surveilled in anticipation of his claim,
Kowalski’s First Amendment claim must fail because he filed for and successfully
obtained compensation related to his surgery.
3
Kowalski also alleges that the video surveillance, as well as other alleged
harassment, were intended as retaliation by Scott for his complaints about the air quality
in the Evidence Room. The District Court correctly found that Kowalski’s claim fails
because he cannot show, as such a First Amendment claim requires, that his complaints
about the Room were “a substantial or motivating factor in the alleged retaliatory action.”
Green v. Phila. Housing Auhtority, 105 F.3d 882, 885 (3d Cir. 1997). In fact, to the
contrary, Scott can affirmatively show that she informed the PSP Human Resources
Department of Kowalski’s vacation in a good faith, if misguided, effort to minimize the
cost of PSP’s workers’ compensation insurance premiums, and that she later discontinued
the use of a portable air conditioner in the Evidence Room because her department
otherwise would have had to buy it with its own limited funds. Thus, though both
Kowalski’s workers’ compensation claim and his complaints about air quality in the
Room were protected activities, because neither was a ‘but-for’ cause of any retaliatory
act by Scott, Kowalski’s First Amendment claim fails. See id.
For all the foregoing reasons, even taking the facts in the light most favorable to
him, Kowalski’s claims cannot survive summary judgment. We will affirm the judgment
of the district court.