                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                              NOT PRECEDENTIAL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.
