Courtesy of James R. Touchstone, Esq.
Perez v. City of Roseville, 2018 U.S. App. LEXIS 3212 (9th Cir. Feb. 9, 2018)
In January 2012, Janelle Perez was hired by Roseville Police Department Chief Daniel Hahn to serve as a police officer in the department. A few months into her probationary term, Perez and Roseville Police Officer Shad Begley began a romantic relationship. Both Begley and Perez were separated from, though still married to, other individuals. In June 2012, Begley’s wife filed a citizen complaint alleging that Perez and Officer Begley were having an affair and that they had engaged in sexual conduct while on duty. The department conducted an Internal Affairs (“IA”) investigation, which found no evidence of on-duty sexual contact between Perez and Begley. The investigation did find some on-duty calls and texts between the two officers.
Roseville Police Captain Stefan Moore and his lieutenant Cal Walstad reviewed the IA report. They agreed that Perez and Begley’s conduct violated “Conduct Unbecoming” and “Unsatisfactory Work Performance” policies, and that Perez should be released from her probation as a result. Both Moore and Walstad later said they morally disapproved of Perez’s extramarital affair.
In mid-August, Perez and Begley were notified of the policy violations, and Captain Moore issued written reprimands to both officers on the basis of the charges. Perez had previously received positive evaluations in the six months prior to the IA investigation. Perez appealed her reprimand. An administrative hearing for the appeal was held on September 4, 2012. In the few weeks prior to the hearing, several incidents involving Perez occurred.
A few days before Perez received her written reprimand, a citizen had filed a complaint about Perez’s conduct, but no IA investigation commenced because the citizen chose not to pursue the matter. At some point after the IA report was finished, Chief Hahn and Captain Moore received information from different officers that Perez was not getting along with other officers. At the end of August, Perez became ill and had Begley cover her shift. An officer who supervised the dayshift schedule spoke with Chief Hahn, Captain Moore, and a lieutenant about conversations the supervisor had with Perez about shift trades after she became ill. Hahn, Moore and the lieutenant told the schedule supervisor officer to memorialize these conversations with Perez.
At the hearing, Perez provided a written rebuttal to the IA findings. At the conclusion of the September 4, 2012 hearing, Perez was informed without any explanation that she was being released from probation; she was issued a written notice, dated September 4, 2012, which was prepared in advance of the hearing. The notice contained no reasons for her discharge. After the hearing, when Perez asked Hahn why she was being terminated, the Chief declined to give a reason.
About two weeks later, the basis of Perez’s reprimand was changed from “Conduct Unbecoming” and “Unsatisfactory Work Performance” to “Use of Personal Communication Devices.” Perez did not appeal this reprimand because she had already been fired, and her termination letter said she had no right to appeal. Chief Hahn later said that Perez’s personal calls did not warrant termination. Hahn also later said that he had decided to fire Perez before the meeting, because of her performance and conduct in the period after the completion of the initial IA investigation.
In January 2014, Perez sued the City of Roseville, the Department, Moore, Hahn, and Walstad, alleging 42 U.S.C. section 1983 claims for violation of her rights to privacy and freedom of association, among other claims.
The district court granted summary judgment to each defendant. On Perez’s section 1983 claim for violation of her rights to privacy and intimate association, the district court concluded that the defendants were entitled to qualified immunity because Perez did not have a clearly established constitutional right to engage in a personal relationship with Begley while on duty. Perez appealed.
The Ninth Circuit Court of Appeals held that the police defendants could potentially have violated Perez’s right to privacy and intimate association by taking adverse action based on private sexual conduct without evidence of an impact on job performance, or without a narrow, constitutional regulation.
The Court began by noting that under section 1983, a plaintiff must (1) prove that [s]he was deprived of a right secured by the Constitution or federal law; (2) that the alleged deprivation was committed under color of state law; and (3) that the federal right was “clearly established” at the time of the violation, or else the governmental officers are qualified immunity. Marsh v. Cty. of San Diego. The Court observed that since the defendants were police and, as such, acted “under color of state law,” the test for surviving summary judgment under section 1983 here involved the remaining two components. Specifically, Perez had to establish (1) that a genuine factual dispute existed as to whether her constitutional rights were violated; and (2) that those constitutional rights were clearly established.
- Constitutional Violation
The Court noted that under its precedent, Thorne v. City of El Segundo, police officers have a right to sexual behavior conducted privately and off-duty. This right, the Court observed, “protected public employees from adverse employment action based ‘in part’ on their private sexual activities…[i]n other words, under Thorne, the Constitution is violated when a public employee is terminated (a) at least in part on the basis of (b) protected conduct, such as her private, off-duty sexual activity.”
The Court concluded that there was a genuine factual dispute whether Perez was terminated “in part” because of the affair. The Court noted that Chief Hahn testified that the IA investigation into Perez’s affair “was part of” his decision to terminate Perez. Captain Moore testified that the affair was “significant” to him because it might reflect unfavorably on the department. Moore issued the reprimands and recommended Perez’s termination based on the results of the IA investigation. Walstad also had expressed moral disapproval of Perez’s conduct during his involvement with the termination process.
The Court also found sufficient circumstantial evidence suggesting the Department’s purported reasons for terminating were pretextual, noting that all three involved incidents after the initial IA investigation concluded. The Court observed, “[b]ased on the evidence that Walstad and Moore morally disapproved of Perez’s sexual conduct, and the speed with which these unrelated employment issues were ‘discovered’ immediately after the IA investigation revealed Perez’s affair, a reasonable factfinder could conclude that all three reasons were pretexts for an impermissible motive. Cf. Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1069 (9th Cir. 2003), as amended (Jan. 6, 2004) (‘Temporal proximity between protected activity and an adverse employment action can by itself constitute sufficient circumstantial evidence of retaliation in some cases.’).”
Considering these factors together, the Court concluded that a genuine issue of material fact existed as to whether Perez was fired at least in part because of her extramarital affair, violating her protected conduct. Thus, the Court found sufficient evidence to survive summary judgment on the privacy and freedom of association claim.
- “Clearly Established” Law
The Court observed that, for qualified immunity purposes, Ninth Circuit precedents like Thorne sufficed to clearly establish the law within the Ninth Circuit. The Court declared that Thorne clearly established that “a department can violate its employees’ rights to privacy and intimate association… by taking adverse employment action on the basis of such private conduct” without finding any impact upon on-the-job performance, or that the conduct violated a constitutionally permissible, narrowly- tailored regulation.
Given the absence of any material evidence that Perez’s affair had a meaningful effect upon her on-the-job performance, or resulted in a violation of a narrowly tailored department regulation, and taking the evidence in the light most favorable to her, the Court concluded that the defendants violated Perez’s clearly established constitutional rights by terminating her in part on the basis of her extramarital affair. The officers were thus not entitled to qualified immunity on the privacy claim.
The Ninth Circuit therefore reversed the district court’s grant of qualified immunity on the privacy claim and remanded that claim for further proceedings.
HOW THIS AFFECTS YOUR AGENCY
It is important to note that the Ninth Circuit did not rule that the employing law enforcement agency actually violated the plaintiff’s rights. Rather, the Ninth Circuit ruled that the case was not a case that could be decided on summary judgment and that further proceedings in the lower court were necessary.
However, the Court’s ruling provides some guidance to law enforcement agencies considering the issue of whether to discipline officers concerning private sexual activities not occurring while an officer is on duty. Specifically, as the Court noted, it would be improper to discipline an officer for such activities, unless it could be demonstrated that the activities adversely affected performance, or the activities violated a constitutionally permissible, narrowly-tailored regulation. The Court did not provide any details as to what would constitute the latter. Accordingly, it is imperative that you consult with your agency’s legal advisor prior to taking disciplinary action against an employee for similar conduct to ensure that you are in compliance with the law in this complex matter.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at email@example.com.
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 680 F.3d 1148, 1152 (2012).
 726 F.2d 459 (1983).