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Date: 10-16-2015

Case Style: Renee D. Gustafson v. William Adkins

Case Number: 15-1055

Judge: Flaum

Court: United States Court of Appeal for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney:

Defendant's Attorney:

Description: In May 2007, defendant‐appellant
William Adkins, a detective at the Jesse Brown Veterans Af‐
fairs (“VA”) Medical Center in Chicago, installed a hidden
surveillance camera in the ceiling of an office used by female
officers as a changing area. The camera captured images of
female officers dressing and undressing. VA personnel dis‐
covered the covert surveillance equipment during a renova‐
2 No. 15‐1055
tion of the VA Medical Center in September 2009, at which
time Renee Gustafson first learned that the camera had cap‐
tured images of her changing from early 2007 through April
2009. Gustafson filed suit against Adkins on August 24, 2011,
alleging an unconstitutional search in violation of the Fourth
Amendment. Adkins appeals the district court’s denial of
defendant’s motion for summary judgment on qualified
immunity grounds. We affirm.
I. Background
Renee Gustafson served as a police lieutenant supervisor
at the Jesse Brown VA Medical Center in Chicago from Sep‐
tember 2007 through April 2009. During this period, William
Adkins worked as a detective for the Police and Security
Service at the Medical Center. Adkins reported to the Chief
of the Police and Security Service, Myron K. Thomas.  
At all times relevant to the events in question, the Medi‐
cal Center did not house a designated female locker room for
Police and Security Service personnel. Female officers used
an office, commonly referred to as the “old supervisors’ of‐
fice,” to change into and out of their work uniforms before
and after shifts. The old supervisors’ office was also in active
use as a supervisors’ office. From 2007 through September
2009, four supervisors, two female and two male, had keys
to and made use of the old supervisors’ office.  
Gustafson attests that it was common knowledge that
female personnel used the office as a changing room. Ac‐
cording to Gustafson, both Adkins and Thomas observed
her and another female officer entering the old supervisors’
office in street clothes and exiting in uniform (or vice versa),
No. 15‐1055 3
and thus must have known that the room was used to
change into and out of clothing.
On or around May 18, 2007, Chief Thomas instructed
Adkins to install a hidden surveillance camera in the ceiling
of the old supervisors’ office. Adkins asked why the camera
was being installed and Thomas explained that surveillance
was needed to identify supervisors who were sleeping in
that office while on duty. Adkins, who was hesitant to install
a camera in an area where female supervisors changed their
clothes, contacted two sources to inquire about the legality
of the instruction: the VA’s Office of the Inspector General
Investigator and Assistant Chief Cherrylynn Seals. Both
sources informed Adkins that the use of a surveillance cam‐
era in the old supervisors’ office would be illegal.1 Adkins
relayed this information to Chief Thomas and asked whether
Thomas had obtained authorization for placement of the
camera. Thomas told Adkins “not to worry about that” and
to “just install the surveillance camera.”  
Later in May, Adkins installed covert video surveillance
equipment in the ceiling tiles of the old supervisors’ office.
The camera captured images of female officers dressing and
undressing. These images were sent to Chief Thomas’s office
for viewing.
VA personnel discovered the covert surveillance equip‐
ment during a renovation of the VA Medical Center in Sep‐
tember 2009. On September 2, 2009, Gustafson learned that
                                                  1 Under 720 Ill. Comp. Stat. Ann. § 5/26‐4 (2012), which is entitled
“Unauthorized Video Recording and Live Video Transmission,” it is a
crime to videotape any person in a “locker room” or “changing room”
without consent.
4 No. 15‐1055
the surveillance camera had captured images of her chang‐
ing her clothes in the old supervisors’ office from early 2007
through April 2009.
Gustafson filed suit against defendants Thomas, Adkins,
and the United States on August 24, 2011. Her complaint al‐
leged that Thomas and Adkins performed an unconstitu‐
tional search, and that their employer, the United States, tor‐
tiously invaded her privacy. On March 13, 2013, the district
court dismissed the United States as a defendant because the
Office of Workers’ Compensation Program accepted Gus‐
tafson’s Federal Employees’ Compensation Act claim.  
The district court denied Thomas and Adkins’s motion to
dismiss on August 27, 2013. Adkins then moved for sum‐
mary judgment asserting qualified immunity from Gus‐
tafson’s claims.2 The district court denied Adkins’s motion
on December 16, 2014. Adkins appeals.
II. Discussion
Adkins appeals the district court’s denial of not only his
motion for summary judgment based on the defense of qual‐
ified immunity, but also his earlier motion to dismiss. He
again raises arguments that were unsuccessful at the motion
to dismiss stage, namely that Gustafson’s Bivens claim is pre‐
cluded by the “comprehensive remedial scheme[s]” laid out
in the Civil Service Reform Act (“CSRA”) and the Federal
Employees’ Compensation Act (“FECA”).  
We review the district court’s denial of the motions. Alt‐
hough Adkins’s appeal arises out of the denial of his motion
                                                  2 Thomas neither moved for summary judgment nor moved to join
Adkins’s motion.
No. 15‐1055 5
for summary judgment on qualified immunity grounds, we
also have jurisdiction to consider the question raised in Ad‐
kins’s motion to dismiss: whether Gustafson’s complaint
states a cause of action cognizable under Bivens v. Six Un‐
known Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).3 See Vance v. Rumsfeld, 701 F.3d 193, 197–98 (7th Cir.
2012) (en banc), cert. denied, 133 S. Ct. 2796 (2013) (holding
that the Court had jurisdiction to address the merits of
Bivens claims brought against defendant, even though appel‐
late jurisdiction was based on the district court’s denial of a
qualified immunity defense to those claims).
A. Gustafson’s Bivens Claim Is Not Precluded by Either
the CSRA or FECA
We first turn to Adkins’s argument that Gustafson’s
Fourth Amendment Bivens claim is precluded by the “com‐
prehensive remedial scheme[s]” laid out in the CSRA and
FECA.4 In Schweiker v. Chilicky, the Supreme Court held that
a Bivens remedy is not available where the design of a gov‐
ernment program indicates that Congress has provided what
it considers adequate remedial mechanisms for any constitu‐
tional violations that may occur. 487 U.S. 412, 423 (1988). We
review de novo the district court’s dismissal of Adkins’s mo‐
tion to dismiss pursuant to Federal Rule of Civil Procedure
                                                  3 Bivens was the first time the Supreme Court recognized that a vic‐
tim of a Fourth Amendment violation by federal employees had a non‐
statutory claim for damages.
4 As noted by the district court, there are two situations where Bivens
remedies are not available. The first is where Congress has designed a
comprehensive remedial scheme. The second is when there are “special
factors” that suggest a court should hesitate before authorizing a new
kind of federal litigation. Wilkie v. Robbins, 551 U.S. 537, 550 (2007).
6 No. 15‐1055
12(b)(6), accepting as true all the factual allegations in the
complaint. Vinson v. Vermilion Cnty., 776 F.3d 924, 925, 928
(7th Cir. 2015).
1. Gustafson’s Claim is Not Precluded by the CSRA
Adkins argues that the CSRA constitutes a “comprehen‐
sive system” to address prohibited personnel practices re‐
garding federal employees, including violations of federal
employees’ constitutional rights. He contends that the CSRA
covers Gustafson’s Fourth Amendment claim, and that a
Bivens remedy is therefore unavailable. However, the plain
language of the CSRA and the relevant case law reveal that
Adkins’s conduct is not a “personnel action” within the am‐
bit of the statute.
The CSRA establishes a “framework for evaluating ad‐
verse personnel actions against [federal employees].” United
States v. Fausto, 484 U.S. 439, 443 (1988) (alteration in origi‐
nal) (citation and internal quotation marks omitted). The
CSRA defines “personnel action” for which a claim under
the CSRA may be raised to include: (i) appointment; (ii)
promotion; (iii) disciplinary or corrective action; (iv) detail,
transfer, or reassignment; (v) reinstatement; (vi) restoration;
(vii) reemployment; (viii) performance evaluation; (ix) deci‐
sion concerning pay, benefits, or awards; (x) decision to or‐
der psychiatric testing or examination; (xi) implementation
or enforcement of any nondisclosure policy, form, or agree‐
ment; and (xii) any other significant change in duties, re‐
sponsibility, or working conditions. 5 U.S.C. § 2302(a). The
CSRA may preempt federal claims that fall within its scope
even when its remedy is not perceived as equally effective.
Bagola v. Kindt, 131 F.3d 632, 641 (7th Cir. 1997); see also Col‐
lins v. Bender, 195 F.3d 1076, 1079 (9th Cir. 1999) (“[T]he
No. 15‐1055 7
CSRA can preclude Bivens actions even where the CSRA
does not provide an alternative remedy.”).
Under the plain language of the statute, the term “per‐
sonnel action” does not encompass Adkins’s conduct. Ad‐
kins claims that installing the hidden camera was a “disci‐
plinary or corrective action” within the scope of the CSRA
because the intent was to catch officers sleeping on duty or
deter them from doing so. Yet, construing the facts in the
light most favorable to Gustafson, there is scant evidence
that the camera was put in place for this purpose. Moreover,
we question why Chief Thomas and Adkins failed to secure
proper authorization for their purported investigation of of‐
ficers sleeping in the old supervisors’ office. We also ques‐
tion the need for hidden surveillance equipment, if the goal
was to deter officers from sleeping in the office.
The case law suggests that Adkins’s conduct is closer to a
warrantless search outside the scope of the CSRA than a
“disciplinary or corrective action.” In Bush v. Lucas, the Su‐
preme Court identified actions by supervisors against feder‐
al employees that would not be defined as “personnel ac‐
tions” under the CSRA, such as wiretapping or warrantless
searches.5 462 U.S. 367, 385 n.28 (1983). Various circuit courts
                                                  5 Bush involved an action brought by an aerospace engineer against
the director of a federal space flight center to recover for an alleged First
Amendment violation. 462 U.S. at 369–70. The Supreme Court held that
because petitioner’s claims arose out of an employment relationship
governed by “comprehensive procedural and substantive provisions
giving meaningful remedies against the United States,” namely the
CSRA, the Court could not provide a new non‐statutory damages reme‐
dy. Id. at 368. However, the Court noted that “certain actions by supervi‐
sors against federal employees, such as wiretapping … [or] warrantless
8 No. 15‐1055
have considered the distinction between CSRA‐precluded
“personnel actions” and Bivens claims that fall outside the
purview of the CSRA. For instance, in Orsay v. Dep’t of Jus‐
tice, the Ninth Circuit held that the CSRA precluded plain‐
tiffs’ complaints about the punishment imposed on an em‐
ployee because this conduct constituted “disciplinary or cor‐
rective action.” 289 F.3d 1125, 1131–32 (9th Cir. 2002), abro‐
gated on FTCA grounds by Millbrook v. United States, 133 S. Ct.
1441 (2013). By contrast, the Ninth Circuit determined that
aiming a loaded gun at employees did not fit any of the
CSRA’s definitions of “personnel action.” Id. at 1131; see also
Stewart v. Evans, 275 F.3d 1126, 1130 (D.C. Cir. 2002) (holding
that an illegal search by federal agency employees of plain‐
tiff’s private documents pertaining to a discrimination com‐
plaint she had filed was not a “personnel action” covered by
the CSRA); Brock v. United States, 64 F.3d 1421, 1424–25 (9th
Cir. 1995) (holding that plaintiff’s claims involving rape and
sexual assault did not fit within the category of “personnel
action”). We therefore conclude that Adkins’s installation of
a hidden camera in a female changing area is not a “person‐
nel action” covered by the CSRA.  
Even assuming, arguendo, that Adkins’s conduct was a
“personnel action” under the CSRA, we would still find that
it requires a judicial remedy. We have interpreted Bush as
allowing employees to seek a judicial, rather than an admin‐
istrative, remedy in actions involving “criminal and outra‐
geous conduct” by a supervisor. Moon v. Phillips, 854 F.2d
147, 150 (7th Cir. 1988). The installation of covert surveil‐
lance equipment in a changing area used by female officers
                                                                                                             
searches … would not be defined as ‘personnel actions’ within the
[CSRA].” Id. at 385 n.28.
No. 15‐1055 9
is “criminal and outrageous” such that we may adjudicate
Gustafson’s Bivens claim.6 At a minimum, Adkins’s conduct
extends beyond the bounds of “personnel action,” as defined
by the CSRA, and is thus not precluded by it.  
As a result, we find that the district court properly reject‐
ed Adkins’s argument that the CSRA precluded Gustafson’s
Bivens claim at the motion to dismiss stage.
2. Gustafson’s Claim is Not Precluded by the FECA
Adkins also contends that Gustafson’s Bivens action is
precluded by the FECA. According to Adkins, the FECA’s
comprehensive remedial scheme bars Gustafson’s Fourth
Amendment claim. We find that the district court properly
dismissed this argument in the first instance.
The FECA provides the exclusive remedy against “the
United States or an instrumentality thereof” to compensate a
federal employee for a work‐related “injury,” defined as “in‐
jury by accident [and] disease proximately caused by the
employment.” 5 U.S.C. §§ 8101(5), 8102(a), 8116(c). But the
statutory scheme recognizes that a federal employee may
sue parties other than the United States for work‐related in‐
juries and provides for an adjustment of benefits following
                                                  6 Adkins’s installation of the hidden camera, despite knowing that
doing so was illegal, presents a fact pattern that is more insidious than
the conduct in cases he claims are analogous. See Saul v. United States, 928
F.2d 829, 834 (9th Cir. 1991) (holding that the CSRA’s definition of “per‐
sonnel action” applied to supervisors who seized and opened federal
employee’s personal mail at the office); Hill v. Dep’t of Air Force, 884 F.2d
1318, 1321 (10th Cir. 1989) (holding that the CSRA precluded a Bivens
remedy where a supervisor eavesdropped on a civilian military employ‐
ee’s personal telephone conversations, even though such conduct “is not
an allegation of a violation of a listed prohibited personnel practice”).
10 No. 15‐1055
recovery from such parties. 5 U.S.C. § 8132. Various circuit
courts have concluded that the FECA does not bar a federal
employee’s suit against individual co‐employees. See, e.g.,
Salazar v. Ballesteros, 17 F. App’x 129, 130–31 (4th Cir. 2001)
(holding that FECA does not prohibit suits against fellow
employees (citing Allman v. Hanley, 302 F.2d 559, 563 (5th
Cir. 1962))); Heathcoat v. Potts, 790 F.2d 1540, 1543 (11th Cir.
1986) (following Allman, and noting that FECA “is silent on
the matter of co‐employee suits”); Bates v. Harp, 573 F.2d 930,
935 (6th Cir. 1978) (holding that “[e]ven though we are not
persuaded that co‐employee suits are advisable as a matter
of policy, in light of the overwhelming authority in support
of such suits, absent an explicit statutory bar, we feel con‐
strained to follow the holding of Allman ….”); Davis v. Har‐
rod, 407 F.2d 1280, 1282 n.2 (D.C. Cir. 1969) (noting that un‐
der the FECA appellant could sue her co‐employee, but not
her employer).  
Given the FECA’s silence on the matter of co‐employee
suits, and the fact that the illegal installation of covert sur‐
veillance equipment that resulted in Gustafson’s alleged in‐
juries is not easily characterized as an “injury by accident” or
a “disease proximately caused by employment,” we agree
with the district court that the FECA does not bar Gus‐
tafson’s Bivens claim against Adkins.
B. Adkins is Not Entitled to Qualified Immunity  
Adkins also argues that the district court erred in deny‐
ing his motion for summary judgment based on the defense
of qualified immunity. Specifically, he claims that his actions
did not violate a clearly established constitutional right of
which a reasonable law enforcement officer in his position
would have known. We review de novo the district court’s
No. 15‐1055 11
denial of summary judgment ruling on qualified immunity,
construing the facts in the light most favorable to Gustafson.
Rabin v. Flynn, 725 F.3d 628, 631–32 (7th Cir. 2013).
The doctrine of qualified immunity “‘protects govern‐
ment officials from liability for civil damages when their
conduct does not violate clearly established statutory or con‐
stitutional rights of which a reasonable person would have
known.’” Id. at 632 (quoting Humphries v. Milwaukee Cnty.,
702 F.3d 1003, 1006 (7th Cir. 2012)). In considering whether
Adkins can invoke the defense of qualified immunity, we
must inquire: “(1) whether the facts, taken in the light most
favorable to the plaintiff, show that the defendant violated a
constitutional right; and (2) whether that constitutional right
was clearly established at the time of the alleged violation.”
Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 914 (7th
Cir. 2011) (citation and internal quotation marks omitted).
“To be clearly established at the time of the challenged con‐
duct, the right’s contours must be sufficiently clear that eve‐
ry reasonable official would have understood that what he is
doing violates that right, and existing precedent must have
placed the statutory or constitutional question beyond de‐
bate.” Rabin, 725 F.3d at 632 (quoting Humphries, 702 F.3d at
1006) (internal quotation marks omitted). We have jurisdic‐
tion to consider appeals from denials of qualified immunity
where the denial is based on an issue of law.7 Id.
                                                  7 “[I]nstant appeal is not available … when the district court deter‐
mines that factual issues genuinely in dispute preclude summary adjudi‐
cation.” Ortiz v. Jordan, 562 U.S. 180, 188 (2011) (quoting Johnson v. Jones,
515 U.S. 304, 313 (1995)); see also Gutierrez v. Kermon, 722 F.3d 1003, 1009
(7th Cir. 2013) (“[W]e do not have jurisdiction to review an order deny‐
ing qualified immunity on summary judgment if the issue on appeal is
12 No. 15‐1055
Adkins contests the district court’s finding as to the sec‐
ond Hernandez inquiry: that Gustafson’s constitutional right
was clearly established at the time of the alleged violation.
Adkins argues that the district court erred in concluding that
there existed, at the time he installed the covert surveillance
equipment, a clearly established constitutional right of
which a reasonable official in his position would have
known. Adkins relies primarily on O’Connor v. Ortega, a case
that involved a state hospital employee’s claim that authori‐
ties improperly searched and seized personal items from his
office. 480 U.S. 709 (1987). The case centered on whether the
employee had a reasonable expectation of privacy in his of‐
fice, as well as on the appropriate Fourth Amendment
standard for a search conducted by a public employer in ar‐
eas in which an employee has a reasonable expectation of
privacy. Id. at 711–12. The Court was divided on the out‐
come. In Shields v. Burge, we interpreted the O’Connor
Court’s plurality opinion:
[A] work‐related “workplace” search is lawful
if the search is “reasonable [ ] under all the cir‐
cumstances.” The plurality explained that a
search is reasonable if it is “justified at its in‐
ception” and if it is “reasonably related in
scope to the circumstances” that justified it. A
workplace search to investigate work‐related
misconduct ordinarily is “justified at its incep‐
tion” if reasonable grounds exist to suspect
                                                                                                             
whether the record contains sufficient evidence to create a ‘genuine’ is‐
sue of material fact.”). For this reason, we do not consider Adkins’s claim
that the district court erred in finding a factual dispute precluding sum‐
mary judgment. We lack jurisdiction to address this issue.
No. 15‐1055 13
that the search will turn up evidence of the
employee’s misconduct.  
874 F.2d 1201, 1203 (7th Cir. 1989) (internal citations omitted)
(quoting O’Connor, 480 U.S. at 725–26). By contrast, Justice
Scalia wrote in a concurring opinion that he “would hold
that government searches to retrieve work‐related materials
or to investigate violations of workplace rules—searches of
the sort that are regarded as reasonable and normal in the
private‐employer context—do not violate the Fourth
Amendment.” O’Connor, 480 U.S. at 732 (Scalia, J., concur‐
ring).
Adkins argues that O’Connor did not produce a settled
analytical framework for when a search violates the Fourth
Amendment. For this reason, he contends that his conduct
did not violate a clearly established constitutional right. He
emphasizes that there was “no opinion of the Court” in
O’Connor because the judgment was delivered by a four‐
justice plurality. He also cites City of Ontario v. Quon, for the
proposition that the scope of an employee’s Fourth Amend‐
ment rights is unclear. 560 U.S. 746, 757 (2010) (“In the two
decades since O’Connor … the threshold test for determining
the scope of an employee’s Fourth Amendment rights has
not been clarified further.”).  
We find that the relevant case law does not support Ad‐
kins’s contention. “[T]o determine if a right was clearly es‐
tablished at the time of the violation, we look first to control‐
ling precedent on the issue from the Supreme Court and to
precedent from this Circuit.” Estate of Escobedo v. Bender, 600
F.3d 770, 781 (7th Cir. 2010). Both the Supreme Court and
this Court have long held that a controlling holding may be
gleaned from a plurality opinion. Ben’s Bar, Inc. v. Vill. of
14 No. 15‐1055
Somerset, 316 F.3d 702, 719 (7th Cir. 2003) (“Because the plu‐
rality’s decision offers the narrowest ground for the Su‐
preme Court’s holding … we find the reasoning of that opin‐
ion to be controlling” (citing Marks v. United States, 430 U.S.
188, 193 (1977))). The O’Connor plurality test is narrower
than Justice Scalia’s test and is, therefore, the Court’s “least‐
common‐denominator holding.” Shields, 874 F.2d at 1204.  
More to the point, we have already held that the
O’Connor plurality opinion controls because Justice Scalia
did not articulate a different standard than the plurality’s
reasonableness test. Id. at 1203–04. In Shields, we articulated
the governing legal standard: “The essential principle that
[O’Connor] teaches is that an employer’s workplace search
must be reasonable. Reasonableness depends upon the cir‐
cumstances presented in a given situation and upon balanc‐
ing the public, governmental, and private interests at stake
in that situation.” Id. at 1204. Accordingly, the Supreme
Court and this Circuit had clearly established the right of
employees to be free from unreasonable employer searches
by the time Adkins installed the hidden surveillance equip‐
ment in 2007.
Adkins also claims that Gustafson failed to satisfy her
burden of setting forth “existing precedent [that] placed the
statutory or constitutional question beyond debate.” Rabin,
725 F.3d at 632 (citation and internal quotation marks omit‐
ted). The Supreme Court has made clear that where broad
and general constitutional standards are concerned, the in‐
quiry normally requires identification of factually analogous
case law. See Brosseau v. Haugen, 543 U.S. 194, 199 (2004).
However, a broad constitutional test, such as the O’Connor
plurality’s reasonableness test, is sufficient to clearly estab‐
No. 15‐1055 15
lish the law “in an obvious case … even without a body of
relevant case law.” Id. Because this is an obvious case that
presents a flagrant Fourth Amendment violation, identifica‐
tion of a body of relevant case law is unnecessary.  
In sum, we find that O’Connor clearly established the
contours of the Fourth Amendment violation Gustafson al‐
leges. Therefore, the district court properly denied Adkins’s
motion for summary judgment on the basis of qualified im‐
munity.

Outcome: For the foregoing reasons, we AFFIRM the judgment of the
district court.

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