Federal Appeals Court Dismisses Due Process Claim Involving the Removal of a K-9 Position with No Specialty Premium and Retaliation Claim When No Connection to Action and Protected Activity Demonstrated

By David Worley

In Gawlas v. King, 34 IER Cases 1485 (3d Cir. 2013), the Federal Third Circuit upheld the dismissal of both retaliation and claim brought by a Pennsylvania police officer when there was no alleged causal connection between the complaining officer’s union position and political affiliations and the removal of the K9 unit to which he was assigned.  The court also found no due process violation, finding no property interest in the K-9 position which offered no premium pay.

Gawlas, an occasional union steward, brought the complaint when the K9 unit he was assigned to was eliminated. Gawlas had previously backed an unsuccessful candidate for the position of police chief.  Prior to the selection of a chief, the K9 unit was already up for elimination. Following the selection of the chief, the K9 unit was eliminated and Gawlas claimed retaliation.  The department commissioned an independent evaluation of the K9 unit with the results being made public.  Gawlas claimed the results were misleading and overstated his compensation, resulting in damage to his reputation.

The court had little trouble affirming the dismissal of Gawlas’ claims.  The Court bypassed the questions of whether the union activities and political affiliations did in fact constitute protected speech.  Instead, the court simply observed the lack of any demonstrated “causal connection” between the speech and the elimination of the K9 unit.  A causal connection can be proven by either a suggestive temporal proximity of a pattern or antagonism, and the court concluded he offered neither:

 The mere fact that Gawlas engaged in conduct he claims to be protected by the First Amendment and the Defendants took actions with which Gawlas disagreed does not suffice to present a plausible retaliation claim.

Gawlas also argued that a due process violation had occurred when his position was eliminated. The Court rejected that claim finding that he had no defined “property interest” in the special assignment, which had no premium pay attached by offer additional overtime opportunities:

 [Gawlas] has not alleged that Defendants removed or suspended him from the police force or reduced his rank. Furthermore, Gawlas has failed to substantiate an entitlement to the specific K-9 officer position or opportunities for overtime pay that he alleges he lost when the K-9 program was eliminated.