Opinion
Civil Action No. 02-7197.
May 26, 2004
MEMORANDUM AND ORDER
Plaintiff, Corporal Edward P. Kowalski (Kowlaski), seeks relief under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et. seq., and under 42 U.S.C. § 1983, against Defendant Lieutenant Linda Scott. He claims she violated his First and Fourth Amendment rights by allegedly retaliating against him for complaining about environmental conditions in the building, and for allegedly ordering that he be surveilled while on vacation. Plaintiff also seeks relief under 42 U.S.C. § 1983 against Defendants Facticon, Inc., Nancy Shutt, Brian White, and Investigator E.O. (Facticon Defendants), based on allegations that they violated his First and Fourth Amendment rights when they surveilled him while on vacation in Florida.
Both sets of defendants, Defendant Scott and the Facticon Defendants, have filed motions seeking summary judgment, pursuant to Fed.R.Civ.P. 56(c). For the reasons discussed below, we grant both Motions for Summary Judgment.
ORDER
AND NOW, this 26th day of May, upon full consideration of the Facticon Defendants' Motion for Summary Judgment, filed March 16, 2004, Plaintiff's response thereto, filed April 22, 2004, the Facticon Defendants' reply, April 26, 2004, Defendant Scott's Motion for Summary Judgment, filed March 24, 2004, and Plaintiff's response thereto, filed April 26, 2004, it is hereby ORDERED that:
1) Defendant Scott's Motion for Summary Judgment is GRANTED; and
2) The Facticon Defendants' Motion for Summary Judgment is GRANTED.
3) This case is closed. I. FACTUAL BACKGROUND
We exclude from our explanation of the facts a multitude of events, involving such issues as Plaintiff's placement on limited duty, his pay and benefits, requirements that Plaintiff wear a uniform, his lunch period, and evaluations with which Plaintiff was not satisfied. While the parties, especially Plaintiff, do discuss these incidents in their briefs, because they are not developed within the context of a legal argument, we do not find them material.
The undisputed material facts, which, unless otherwise noted, are set forth either in Plaintiff's deposition or in the Facts section of Defendant Scott's Memorandum of Law, are as follows.
Plaintiff incorporated Defendant Scott's statement of the facts into his response. (See Pl.'s Br. at 2.)
From June 1978 until April 8, 2003, when he retired, Plaintiff, Edward Kowalski, worked for the Pennsylvania State Police (PSP). In May 1990, Plaintiff suffered an injury while at work, for which he has received workers' compensation benefits. As a consequence of this injury, Plaintiff needed, inter alia, a customized chair to accommodate his back problems.
In January 2000, Defendant Linda Scott took the position of Commander of the Staff for Plaintiff's troop, which made her Plaintiff's supervisor. In September 2000, Plaintiff became the primary evidence custodian, which required that he spend time in the Evidence Room. Only Plaintiff and two other individuals had regular access to the Evidence Room. In response to concerns from both Plaintiff and Sergeant Bernot that the environment in the Evidence Room was causing sinus infections, Defendant Scott authorized the installation of a new ventilation system.
Thereafter, Plaintiff complained that the temperature in the Evidence Room was too warm. With Defendant Scott's authorization, the building maintenance crew was consulted and a portable air conditioner was placed in the Evidence Room. Additionally, the building maintenance personnel unsuccessfully attempted to create a causeway for air from an airconditioned room to the Evidence Room.
On August 28, 2001, Plaintiff underwent neck surgery. Afterwards, in October 2001, Plaintiff vacationed in Florida with his wife. Defendant Scott informed the PSP's Bureau of Human Resources of this trip, who in turn informed CompServices, Inc., the insurance company that handles the PSP's workers' compensation claims. Nancy Shutt, a claims adjuster at CompServices, Inc., hired Defendant Facticon, Inc., which provides investigative services, to conduct surveillance of Plaintiff while he vacationed in Florida. The surveillance uncovered no wrongdoing on Plaintiff's part.
Upon his return from Florida, Plaintiff filed a petition to reinstate his workers' compensation benefits, to pay for his August surgery. He received a hearing, after which the judge reinstated his benefits. The judge did not view the surveillance video or consider it when determining his judgment.
According to Plaintiff, the portable air conditioner in the Evidence Room was removed during the week that he returned to work, in November 2001. That decision was made due to a billing dispute over the lease of the air conditioner, which facilities management had been paying. (Bernot Dep. at 49.) After the portable air conditioner was removed, and upon Plaintiff's request, Defendant Scott ordered that new air conditioners be bought. However, after learning that the Troop would have to fund the purchase, Defendant Scott declined to purchase the units.
Plaintiff complained again about the conditions in the Evidence Room and requested either that air conditioning units be purchased or that an air quality study be conducted. The study was ordered, conducted in August 2002, and the results showed that the environment in the Evidence Room met the appropriate standards.
Defendant has filed an action against Defendant Scott under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101et.seq., as well as against both Defendant Scott and the Facticon Defendants under 42 U.S.C. § 1983, claiming violations of his First and Fourth Amendment rights. Both sets of defendants have filed motions for summary judgment, in response to which Plaintiff has filed separate responses. This Memorandum and Order will address both motions for summary judgment, as well as Plaintiff's responses to each, and, as to both sets of defendants, will grant the motions for summary judgment.
II. JURISDICTION
This Court has jurisdiction to hear claims alleging violations of 42 U.S.C. § 1983 under its federal question jurisdiction.See 28 U.S.C. § 1331.
III. DISCUSSION
Defendants have moved for summary judgment with respect to all counts, which allege violations under § 1983 and the ADA. Rule 56(c) allows for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and is material only if it might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
At the summary judgment stage, the moving party bears the initial burden of identifying those portions of the record that demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thereafter, to defeat summary judgment, the non-movant must respond with specific facts "sufficient to establish an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. At this stage, our role is "not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial."Anderson, 477 U.S. at 249; Country Floors v. Partnership of Gepner Ford, 930 F.2d 1056, 1062 (3d Cir. 1991).
We are required to view the record in the light most favorable to the non-moving party, Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 U.S. 1348, 89 L.Ed.2d 538 (1986); Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981), and to resolve all doubts against the moving party.Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985). Because we find, after reviewing the record in a light most favorable to Plaintiff, that there are no genuine issues of material fact for trial and that all defendants are entitled to summary judgment as a matter of law, we grant Defendants' Motions for Summary Judgment.
A. ADA Claim
Plaintiff claims that Defendant Scott denied him a reasonable accommodation when she failed to provide him with a custom chair to fit his medical needs. (See Am. Compl. ¶ 32; Pl.'s Br. at 7.) However, we do not reach the merits of this allegation because, as Defendant points out, Plaintiff has failed to exhaust his administrative remedies. Thus, this claim must fail.
While not articulated by Plaintiff through legal argument, his litany of complaints regarding Defendant Scott's conduct could constitute a basis for a discrimination claim under the ADA. (See Compl. ¶ 14.) However, to the extent that Plaintiff contends that Defendant Scott's actions were a form a discrimination under the ADA, this claim also would fail, for failure to exhaust administrative remedies.
Under the ADA, before filing a civil action in a federal court, the plaintiff must have exhausted all administrative remedies. 42 U.S.C. § 12117. Thus, Plaintiff must have filed a complaint first with the Equal Employment Opportunity Commission (EEOC). See id.; Reddinger v. Hosp. Services, Inc., 4 F.Supp.2d 405, 409 (E.D. Pa. 1998); see also E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 285-86, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (stating that the EEOC possesses the same powers to enforce the ADA as those directed to it by Congress to enforce Title VII of the Civil Rights Act of 1964); Seredinski v. Clifton Precision Products, Co., Div., 776 F.2d 56, 61 (3d Cir. 1985) ("To bring a civil action under Title VII, an aggrieved party must first file a complaint with EEOC and, if the complaint is not resolved at the administrative level, obtain a `right-to-sue' letter from EEOC.").
Plaintiff admits that he never filed a claim with the EEOC. (Kowalski Dep. at 312, 315-16.) Moreover, the letter from the Deputy Commissioner of Administration (Administration) denying Plaintiff's accommodation request, on which Plaintiff relies to show that his ADA claim should survive, even provides the information for the PSP Equal Employment Opportunity Officer and informs Plaintiff that he should contact her if he wanted further review of its decision. (Accommodation Request Memo, 6/19/2001, Def. Scott's Mot. Ex. GG.) Thus, Plaintiff was aware of this option.
If he was dissatisfied with Defendant Scott and his troop's handling of his accommodation request through the regular procurement process, which the Administration's decision suggested, he should have sought the assistance of the EEOC officer. Because Plaintiff failed to make use of, and exhaust, the administrative remedies available to him, as a matter of law, Plaintiff's ADA claim must fail and we will grant summary judgment to Defendant Scott.
B. § 1983 Claims
Providing a litany of complaints, Plaintiff contends that Defendant Scott violated his First Amendment rights in retaliation against his complaining about environmental conditions at the PSP, and violated his Fourth Amendment rights when she allegedly ordered that a private investigation company be hired to surveil him. Plaintiff further contends that the Facticon Defendants violated his First and Fourth Amendment rights when they surveilled him while on vacation in Florida.
To succeed in a § 1983 suit, Plaintiff must show both that Defendants acted under color of state law and that Defendants denied him a federally protected constitutional right. Angelico v. Lehigh Valley Hosp., 184 F.3d 268, 277 (3d Cir. 1999); see Lugar v. Edmonson Oil Co., 457 U.S. 922, 930, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). It is undisputed that Defendant Scott, the Commander of the Staff of Troop L at the PSP, is a state actor. However, even though an issue in dispute, we need not determine whether the Facticon Defendants were acting under color of state law because we find that, as a matter of law, they did not violate any of Plaintiff's constitutional rights.
1. Fourth Amendment Argument
Plaintiff contends that both sets of defendants violated his Fourth Amendment right to privacy and against unreasonable searches when Defendant Scott allegedly hired the Facticon Defendants to surveil him while on vacation in Florida. (See Compl. ¶¶ 22, 33, 36-37.) Because Plaintiff enjoyed no reasonable expectation of privacy with respect to his surveillance in public places, this claim must fail.
The Fourth Amendment protects against unwarranted government intrusion where individuals have a reasonable expectation of privacy. The Supreme Court has set forth a two-part test for determining whether someone has a reasonable expectation of privacy. First, we must determine whether the person has a "subjective expectation of privacy in the object of the challenged search." If so, we must decide whether, from an objective point of view, Plaintiff's expectation of privacy was reasonable. California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986);Frazier v. Southeastern Pennsylvania Transp. Auth., 907 F.Supp. 116, 122 (E.D. Pa.), aff'd, 91 F.3d 123 (3d Cir. 1995).
While we recognize that Plaintiff might consider the surveillance of his person to be a violation of his privacy, and that he neither expected nor anticipated that someone would surveil him while on vacation, the law is clear that one's actions in a public place do not warrant a reasonable expectation of privacy. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. U.S., 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The surveillance video reveals only the actions of Plaintiff and his wife outdoors, on public streets, and at a public beach.
The individual conducting the surveillance observed Plaintiff from outside his hotel room; the observation extended only to monitoring Plaintiff walking in and out of his hotel room, the only place inside of which Plaintiff had a reasonable expectation of privacy. There is no video of any activity conducted inside the room. (See Surveillance Video, Facticon Def.'s Mem. Ex. P.)
In fact, the video consists mostly of surveillance of Plaintiff and his wife sitting on the beach, walking along the beach, and eating at a picnic table near the beach. All of these activities took place in the company of several strangers, as the beach appeared to be fairly crowded. (See id.) Certainly, Plaintiff had no expectation of privacy with respect to the other vacationers frolicking on the beach. Similarly, he could have no expectation of privacy if Defendant Scott, herself, had traveled to Florida to monitor his actions. The Fourth Amendment simply does not protect such public activity.
The Third Circuit affirmed a similar case, without opinion, where the district court ruled that a woman claiming injuries while a passenger on a city bus had no reasonable expectation of privacy with respect to her public activities, surveilled at the behest of the Southeastern Pennsylvania Transportation Authority (SEPTA). Frasier, supra. The investigator retained by SEPTA surveilled the woman's residence, monitoring her physical activities as she entered and left her home, and observed her shopping and running errands. See e.g., id. at 118-119. Escorted by the property manager, the investigator did enter an uninhabited apartment, where the plaintiff had previously lived; however, the investigator undertook no surveillance of her activities inside that, or any other, buildings. Noting that "all of the surveillance was conducted outdoors and in public," the court found that the plaintiff had no reasonable expectation of privacy in any of the locations where the surveillance took place. Id. at 119.
Similarly, here, Plaintiff had no reasonable expectation of privacy in any of the places — the beach, the airport and the breezeway that led to his hotel room — that he was surveilled, as all of those place were public. Moreover, the video tape shows that the surveillance took place discretely and from a reasonably far distance away from Plaintiff. (See Surveillance Video, Facticon Def.'s Br. Ex. P.) The monitoring neither intruded upon, nor obstructed, Plaintiff's activities. (See Kowalski Dep. at 282 (making clear that he was completely unaware of the surveillance.))
While Plaintiff takes pains in pontificating that the surveillance must have been unlawful because he did not have an open workers' compensation claim at the time he was on vacation, and thus the government had no reason to surveil him, he fails to cite any legal precedent either supporting this notion or addressing the clear precedent that the Fourth Amendment does not protect activity undertaken in public spaces. In this case, the underlying motivations for the surveillance have no relevance because Defendants monitored only Plaintiff's public activities.
We further reject Plaintiff's argument that Defendants deflated his tires in an attempt to "catch" him undertaking an inappropriate physical activity. While we certainly do not refute that Plaintiff's vehicle endured a flat tire, he has presented no evidence that Defendants were responsible for it.
Because Plaintiff had no reasonable expectation of privacy with respect to actions taken in a public place, surrounded by many people, we find no violation of his Fourth Amendment rights. We grant summary judgment to both sets of defendants.
2. First Amendment Claims
Plaintiff further appears to allege that the surveillance violated his First Amendment rights because it was conducted in an effort to intimidate him into not filing a workers' compensation claim, and thus denied him access to the judicial system. Additionally, Plaintiff contends that other actions taken by Defendant Scott amounted to a violation of his First Amendment rights. We find that neither allegation has merit and that all defendants are entitled to summary judgment. We will address the claims against Defendant Scott first.
According to Plaintiff, Defendant Scott committed a series of unlawful and harassing acts, inter alia, denying him a raise, investigating his private affairs to provide information to PSP investigators, minimizing his lunch break by requiring that he wear a uniform, and giving him an unsatisfactory performance evaluation. (Pl.'s Br. at 10-11.) While not well articulated, it appears that Plaintiff claims Defendant Scott engaged in this alleged harassment in response to Plaintiff's filing for workers' compensation and for "trying to recuperate from" an operation. (See Pl.'s Br. at 11.) The record does not reflect any such retaliation.
To establish a valid § 1983 claim, through a violation of First Amendment rights, Plaintiff must satisfy a three-part test. First, Plaintiff must establish that he engaged in protected activity. Thereafter, Plaintiff must show that his protected activity "was a substantial or motivating factor in the alleged retaliatory action." Finally, even if Plaintiff satisfies the first two prongs, his claim still will fail if Defendant can show that she would have taken the same action in the absence of Plaintiff's protected activity. Green v. Phila. Housing Authority, 105 F.3d 882, 885 (3d Cir. 1997). Because Plaintiff cannot satisfy the second prong of the test, his First Amendment claim against Defendant Scott fails.
As to the first element of the Green test, the Supreme Court has established a balancing test for determining whether conduct is a protected activity. See Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will County, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). First, the speech must constitute "a matter of public concern." Watters v. City of Phila., 55 F.3d 886, 892 (3d Cir. 1995). If the speech constitutes a matter of public concern, we must weigh its public interest against that of "any injury the speech could cause to the interest of the state as an employer in promoting the efficiency of the public services it performs through its employees." Id. at 892. If Plaintiff's speech outweighs any possible such injury to the state, we must grant it constitutional protection. These determinations are purely legal and cannot be left for a jury to determine. See Brennan v. Norton, 350 F.3d 399, 413 (3d Cir. 2003).
While Plaintiff ignores this issue entirely, skipping instead to the third prong of the Green test (see Pl.'s Br. at 9), Defendant Scott has gleaned from the Amended Complaint that the conduct that Plaintiff contends is protected must be his complaints regarding the air quality in the Evidence Room and his reporting of Sick Building Syndrome (SBS) (See Am. Compl. ¶¶ 29-31; Def.'s Mot. to Dis, at 17.)
The Amended Complaint also alleges that Defendant Scott "den[ied Plaintiff] access to, and the right to participate in, a legal proceeding involving his rights, particularly his lawful use of his rights to apply for Workers' Compensation benefits," and violated his First Amendment right "to be free of retaliation for utilizing and attempting to utilize his rightful access to the Courts and legal processes. . . ." (Am. Compl. ¶¶ 28, 34.) Indeed, filing a claim for workers' compensation is a protected activity, against which qualified retaliatory action could be unconstitutional. However, such a notion is irrelevant here, as Plaintiff repeatedly has underscored that he had no pending workers' compensation claim at the time of Defendant Scott's alleged harassment. See infra p. 20. Furthermore, his participation in his 2002 workers' compensation hearing and successful claim for reinstatement of benefits belies any argument alleged in the Amended Complaint that Defendant Scott denied him access to legal proceedings or the right to apply for benefits.
We can imagine only one other possible scenario to which Plaintiff could be referring in the Amended Complaint: that Defendant Scott allegedly harassed Plaintiff in retaliation for earlier workers' compensation claims filed as a result of his 1990 injury. However, Plaintiff never develops this argument, i.e., never alleges that any specific filing or use of the court system motivated or substantially contributed to Defendant Scott's alleged harassment. The absence of any such identification is especially significant because Plaintiff characterized their relationship prior to 2000 as "very positive" and stated that Defendant Scott was sympathetic to his situation regarding his injury and receipt of workers' compensation benefits. (See Kowalski Dep. at 70.) To the extent that Plaintiff contends that Defendant Scott's actions were simply an ongoing barrage of harassment because he is disabled, this allegation is better addressed as a discrimination claim under the ADA.
Matters of public concern are those that can "be fairly considered as relating to any matter of political, social, or other concern to the community." Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Green, 105 F.3d at 886 (quoting Connick). For example, speech revealing that the PSP "was not discharging its governmental responsibilities," or speech "seek[ing] to bring to light actual or potential wrongdoing or breach of the public trust," would constitute a matter or public concern. Connick, 461 U.S. at 148; Watters, 55 F.3d at 894 (quoting Connick). We base our determination of whether Plaintiff's complaints were a matter of public concern on the content, form, and context of Plaintiff's complaints, see Watters, 55 F.3d at 892 (quoting Connick, 461 U.S. at 147-48 and n. 7).
Defendant contends that the Evidence Room was not a public place because it was used only by a few PSP employees; thus, complaints about the air quality inside it are not a matter of concern to the general public. (Def.'s Mot. at 17.) However, regardless of how few employees have access to the room, the Third Circuit has made clear that exposure to health hazards is a matter of public concern. See Brennan v. Norton, 350 F.3d 399, 415 (3d Cir. 2001). As such, we must reject Defendant's argument and find that Plaintiff's complaints were a matter of public concern.
In Brennan, a firefighter who had complained to the New Jersey Department of Labor and Health about the presence of asbestos in the basement of a particular firehouse, claimed that his superiors retaliated against him for that complaint by assigning him to a menial, labor-intensive task, and later transferring him. Id. at 408. Expressly rejecting the argument posed here by Defendant Scott, the Third Circuit was "not impressed by the limitation that only firefighters may be harmed by the presence of asbestos in the firestation where [the plaintiff] worked," and thus the complaints were not a matter of public concern. Id. at 415 (emphasis in original) (internal quotes omitted). The Court found that "[r]esidents of the [town] clearly had an interest in knowing that their tax dollars were being spent on an asbestos contaminated firestation that endangered the health and lives of its firefighters. This is such a basic proposition that we need not belabor the point." Id.
Similarly, here, we need not belabor the point that complaints about the air quality in the Evidence Room are a matter of concern to the public. The fact that the environmental conditions in the Evidence Room proved to be permissible (see Air Quality/Microbiological Sampling Report (Air Quality Report), Def. Scott's Mot. Ex. A) does not negate the significance of ensuring that public employees have the opportunity to voice their concerns about the environments in which they work, and that the public be allowed to hear about those conditions.
Having found that Plaintiff's complaints constitute a matter of public concern, to determine whether they are protected activity under the Green test, we must balance their public interest against any possible injury to the PSP's interest in promoting the efficiency of its services. See Watters, 55 F.3d at 895. Neither party addresses this balancing test. Because the summary judgment standard places the burden on Defendant, preliminarily, to identify in the record the absence of a genuine issue of material fact, and Defendant has failed to set forth any evidence showing that Defendant Scott's interest in promoting the efficiency of the PSP's services outweighs the public interest in hearing Plaintiff's complaints, Defendant has failed to meet this burden. As such, we find that the speech is protected activity and thus, that Plaintiff has satisfied the first prong of theGreen test.
However, we agree with Defendant Scott that Plaintiff could not establish the second prong of the Green test, as no reasonable jury could conclude that his complaining about the air quality in the Evidence Room was a substantial or motivating factor in the alleged retaliatory action.
Plaintiff alleges that, in retaliation against his complaints regarding the air quality in the Evidence Room, Defendant Scott "refused to place orders for required air conditioners" and "[sought] to force [him] to work in an unhealthy, hazardous environment." (Am. Compl. ¶¶ 30-31.) Defendant points out that "the PSP had an independent air quality study performed" and improved the ventilation system. Furthermore, contrary to Plaintiff's contentions, only insufficient funds in the budget motivated the decision not to purchase permanent air conditioning units. (See Def. Scott's Mot. at 17-18.) These decisions, especially those that attempted to improve the air quality in the Evidence Room, could hardly be characterized as retaliatory, and we find that no reasonable jury could find otherwise.
Plaintiff does not dispute Sergeant Bernot's testimony that Defendant Scott authorized efforts to improve the air temperature and quality in the Evidence Room. Bernot testified that each time they had concerns regarding the quality and temperature of the room and she sought Defendant Scott's assistance, Scott authorized her to contact the building maintenance personnel to attempt to alleviate the problem. They installed a new ventilation system and tried a few different methods for cooling the room, including creating a vent to pass air from an air-conditioned room, as well as leasing a portable air conditioner. (See Bernot Dep. at 48-50; Kowalski Dep. at 303-05 (stating that he spoke with the maintenance department about installing the new ventilation system and acknowledging the other methods used to try to improve the environment in the Evidence Room.))
More significantly, Plaintiff fails to introduce any evidence revealing that Defendant Scott ignored his concerns or impeded the efforts of the maintenance staff to improve the air quality and temperature. In fact, Plaintiff's own testimony contradicts his contention that Defendant Scott refused to order required air conditioners. First, the record reveals that air conditioners were never required for the Evidence Room and Plaintiff sets forth no evidence to the contrary. Second, Plaintiff testified that, after requesting that the Evidence Room be measured to ensure that the air conditioners to be purchased would adequately serve their function, "[Defendant Scott] directed Kozik to [take the measurements] and get three prices and, you know, to get these air conditioners." (Kowalski Dep. at 307.) Contrary to Plaintiff's legal argument, his testimony reveals that Defendant Scott's actions regarding the air conditioners focused not on an intent to "force Kowalski to work in an unhealthy, hazardous environment" (Compl. ¶ 31), but rather a desire to improve the conditions in the Evidence Room in the most efficient, cost effective manner.
Furthermore, Plaintiff does not dispute that, after approving the purchase order, Defendant Scott decided not to purchase the new air conditioners only after learning that Troop monies would have to fund the sale, and that this decision was based solely on the lack of funds in the Troop's budget. (See Kowalski Dep. at 307-08.) Finally, in clear contradiction to his contention that Defendant Scott tried to ensure that he "work in an unhealthy, hazardous environment," Plaintiff concedes that, upon filing a request that an air quality report be conducted, one was ordered, and that Defendant Scott informed him that all of the conditions met the appropriate standards. (See id. at 309-311.) Not only did Defendant Scott authorize the study, which Plaintiff believes was more expensive than purchasing the air conditioning units (id. at 308), but the evaluation revealed that the environment in the Evidence Room was neither unhealthy nor hazardous. (See Air Quality Rep., Def. Scott's Mot. Ex. A.) Moreover, never does Plaintiff indicate, or even imply, that Defendant Scott resisted his requests or failed to be responsive to his concerns.
In fact, it appears that Defendant Scott did everything she could do, within the constraints of the Troop's budget, to improve the environment in the Evidence Room, and Plaintiff introduces no evidence suggesting otherwise. Instead, Plaintiff argues that "the defendants don't remotely suggest that Kowalski did something which could have justified the harassment he suffered . . . and the defendant makes no effort to even raise any defense on the grounds of a separate and distinct justification." (Pl.'s Br. at 9-10.) However, Defendant Scott did not have to provide such an explanation, the third prong of theGreen test, because Plaintiff failed to satisfy his burden when he ignored the second prong, that he show how his actions motivated Defendant Scott's alleged harassment.
As we stated above, Defendant Scott's burden on summary judgment is to identify in the record the absence of a genuine issue of material fact to show that, as a matter of law, she is entitled to summary judgment. Defendant Scott satisfied this burden by identifying, with support through deposition testimony and the Air Quality Report, the actions she took to respond to Plaintiff's complaints. She also explained the decision not to purchase the air conditioner units. The burden then shifted toPlaintiff to set forth facts establishing the elements of retaliation that he would have to prove at trial. See Celotex and Anderson, supra. Plaintiff has failed to set forth any such facts. Specifically, he failed to introduce any evidence that Plaintiff's complaints about the air quality in the Evidence Room substantially contributed to or motivated Defendant Scott's decision not to purchase air conditioning units. Furthermore, his testimony actually supported Defendant Scott's argument with respect to the third prong of the Green test, that, absent his complaints, she still would have declined to purchase the units because the Troop did not have sufficient funds. (See Kowalski Dep. at 307-08.) Plaintiff simply fails to meet his burden to survive summary judgment.
The record does not reflect any evidence that would lead a reasonable fact-finder to believe that Defendant Scott tried to force Plaintiff to work in an unsafe environment or that she refused to purchase air conditioning units in retaliation for his complaints about the environment in the Evidence Room. All of her actions, including authorizing the installment of a new ventilation system and ordering an air quality study by an independent party, reflect a completely contrary intent. As such, as to Plaintiff's retaliation claim, Defendant Scott is entitled, as a matter of law, to summary judgment. We turn now to the allegations against the Facticon Defendants.
While unclear, it appears that Plaintiff argues that, as an attempt to intimidate him into not filing a workers' compensation claim, the surveillance undertaken by the Facticon Defendants represented a retaliatory denial of his right of access to the courts. (See Am. Compl. ¶ 1; Pl.'s Br. at 8-9 (discussing retaliation within the context of a rather inarticulate but verbose argument complaining about Defendant Scott's alleged harassment, alleging that the Facticon Defendants participated in Defendant Scott's retaliation, and stating that "the videotape was used as a bluff and to frighten.")) Assuming that we were to find that the Facticon Defendants were acting under color of state law, we find no violation of Plaintiff's First Amendment rights.
We caution Plaintiff's attorney that his counterstatement of facts and brief opposing the Facticon Defendants' motion for summary judgment borders on sanctionable. The use of unsupported insults and rhetorical questions neither persuades nor impresses this Court, especially when it fails to accompany any kind of legal argument or discussion of relevant case law. Moreover, the numerous incoherent, grammatically incorrect statements (see e.g., Counterstatement of Facts at 4 (#2), 6 (##12, 13, 15-20), 7 (#27)), combined with garrulous rhetoric (see e.g., Br. at 7) frequently placed this Court in the inappropriate position of having to attempt to decipher Plaintiff's legal points. The dignity of this Court demands that parties submit coherent, concise, and legally sound arguments. At the very least, materials should be proofread before being filed. We expect that Plaintiff's lawyer will heed this warning should he file any papers with this Court in the future.
The constitutional right of access to the judicial system, as protected under § 1983, only punishes conduct occurring prior to the plaintiff's filing of a claim, and further, "only prefiling conduct that either prevents a plaintiff from filing suit or renders the plaintiff's access to the court ineffective or meaningless." Estate of Smith v. Marasco, 318 F.3d 497, 511 (3d Cir. 2003); see also Crowder v. Sinyard, 884 F.2d 804, 814 (5th Cir. 1989), abrogated on other grounds, Horton v. Cal., 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 638 (1990) (defining the right of access as a "facilitative one," which ensures the opportunity to exercise one's right to raise cognizable claims before a court and to allow that court to assess those claims and award relief).
Despite receiving most of the benefits that he requested at his workers' compensation hearing, Plaintiff seems to argue that the surveillance constituted some form of retaliation that somehow denied him his constitutional right of access to the courts. However, it is clear that the Department of Labor and Industry, Bureau of Workers' Compensation, held a hearing, in which Plaintiff participated, and granted Plaintiff's claim for reinstatement of benefits. (Judicial Opinion and Order, 9/27/02, Facticon Def.'s Br. Ex. O (identifying Plaintiff as a witness, granting Plaintiff's Reinstatement Petition, and ordering the PSP to pay him temporary total disability benefits from August 28, 2001 through November 12, 2001, as well as ten percent deferred compensation.))
Plaintiff did not receive all the benefits he requested, as the judge denied his penalty petition demanding that, based on prescriptions for massage therapy written in 1997, his employer pay for massage therapy he received four years later, in 2001. (See Judicial Opinion, Facticon Def.'s Br. Ex. O at 4-5.)
Furthermore, the workers' compensation judge did not even consider the surveillance tape before rendering his decision. (See id. at 3; see also Pl.'s Counterstatement of Facts at 11 (failing to expressly deny that the surveillance video was not considered by the judge); Am. Compl. ¶ 43 (noting Defendants' "attempt" to use the surveillance video at the workers' compensation hearing.)) Thus, no reasonable jury could find that Defendants' surveillance of Plaintiff either prevented Plaintiff from filing his reinstatement claim or rendered his access to the Workers' Compensation Bureau ineffective or meaningless. As a matter of law, Defendants did not violate Plaintiff's First Amendment right of access to the courts.
Furthermore, the case cited by Plaintiff in support of his argument is clearly distinguishable. Anderson v. Davila, a retaliation case that does not discuss denial of access to courts, involved surveillance of an individual in retaliation of his filing an employment discrimination suit against his employer. 125 F.3d 148 (3d Cir. 1997). The law is clear that retaliation by the government for filing a law suit is unconstitutional. See e.g., Mt. Healthy City School Dist. Brd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 50 L.Ed.2d 471 (1978); Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981) (stating that disciplinary action ordered in response to a prisoner's filing a civil rights suit is actionable as a violation of one's right of access to the courts).
However, at the time of the surveillance, Plaintiff had not filed any kind of law suit against his employer. In fact, mentioning it repeatedly, Plaintiff takes great pains to underscore that there was not a pending workers' compensation claim during that time. (See e.g., Am. Compl. ¶ 37; Pl.'s Br. in Opp. at 3, 4, 11; Pl.'s Counterstatement of Facts at 3, 4.) Thus, based on Davila, there is no activity in response to which the surveillance could be considered retaliation. Rather, as Plaintiff implies, a reasonable jury would likely conclude that the surveillance was conducted in anticipation of Plaintiff's petition to reinstate a workers' compensation claim, to pay for his August 2001 surgery. (See Pl.'s Br. at 4 ("Plaintiff does not disagree that he was in a situation after his August 28, 2001 . . . operation where it may have been reasonable to expect that he might file a workers' compensation claim in the future."))
Moreover, to have an actionable retaliation claim, Plaintiff must establish "that he engaged in protected activity," such as exercising his right of access to the courts by filing a law suit. Davila, 125 F.3d at 161. Plaintiff has failed to identify any activity against which he contends the surveillance constituted retaliation, much less argues that it is protected. Vague grumblings about name-calling, Defendant Scott's dislike for Plaintiff, and unsupported accusations of her alleged intent to intimidate and frighten him into resigning are insufficient. (See Pl.'s Br. at 8 (rambling on, without support from case law or the record, about Defendant Scott's alleged conduct and actions.)) Thus, to the extent that Plaintiff is arguing a retaliation claim, it must fail. Because no reasonable jury could find either that the surveillance denied Plaintiff access to the courts or that it constituted retaliatory conduct, we will grant summary judgment to the Facticon Defendants.
IV. CONCLUSION
Plaintiff has sought relief under both the ADA and § 1983, for violations of his Fourth and First Amendment rights. His claim under the ADA must fail because he failed to exhaust his administrative remedies prior to filing this suit. Moreover, because the surveillance of Plaintiff undertaken by Defendants occurred solely in public places, Plaintiff had no reasonable expectation of privacy to give rise to a violation of rights under the Fourth Amendment. Finally, we find that neither did Defendant Scott retaliate against Plaintiff for complaining about environmental conditions in the Evidence Room of the PSP, nor did the surveillance represent a form of retaliation or deny him access to the court system. As such, as a matter of law, Plaintiff's First Amendment rights were not violated. We grant summary judgment on all counts to both Defendant Scott and the Facticon Defendants. An appropriate order follows.
ORDER
AND NOW, this 26th day of May, upon full consideration of the Facticon Defendants' Motion for Summary Judgment, filed March 16, 2004, Plaintiff's response thereto, filed April 22, 2004, the Facticon Defendants' reply, April 26, 2004, Defendant Scott's Motion for Summary Judgment, filed March 24, 2004, and Plaintiff's response thereto, filed April 26, 2004, it is hereby ORDERED that:
1) Defendant Scott's Motion for Summary Judgment is GRANTED; and
2) The Facticon Defendants' Motion for Summary Judgment is GRANTED.
3) This case is closed.