Janelle Perez v. City of Roseville
882 F.3d 843 (2018)
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Rule of Law:
A public employer violates an employee's constitutional rights to privacy and intimate association by taking adverse employment action based on the employee's private, off-duty sexual conduct, unless the employer demonstrates the conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation.
Facts:
- On January 4, 2012, Janelle Perez was hired as a probationary police officer for the Roseville Police Department.
- A few months into her probationary period, Perez began a romantic relationship with a fellow officer, Shad Begley; both were married but separated from their spouses.
- On June 6, 2012, Begley’s estranged wife filed a citizen complaint with the department, alleging that Perez and Begley were having an affair and engaging in sexual conduct while on duty.
- An Internal Affairs (IA) investigation found no evidence of on-duty sexual conduct but did find that the two exchanged numerous personal calls and texts while one or both were on duty.
- Captain Stefan Moore and Lieutenant Cal Walstad, who reviewed the IA report and were involved in the disciplinary process, both later expressed moral disapproval of Perez's extramarital sexual conduct.
- After the IA investigation into her affair concluded, several other performance issues concerning Perez arose for the first time, including an allegation that she did not get along with other female officers, a citizen complaint about her being rude during a service call, and a supervisor's report that she had a 'bad attitude' about a shift trade.
- On September 4, 2012, at the conclusion of a hearing to appeal a reprimand related to the affair, Perez was terminated without any explanation given at the time.
Procedural Posture:
- Janelle Perez sued the City of Roseville, its police department, and several individual officers in the U.S. District Court for the Eastern District of California.
- Perez's complaint alleged violations of her rights to privacy, intimate association, and due process under 42 U.S.C. § 1983, as well as sex discrimination.
- The defendants filed a motion for summary judgment on all claims.
- The district court granted the defendants' motion for summary judgment, finding that the individual defendants were entitled to qualified immunity on the privacy claim and that Perez failed to establish a violation on her other claims.
- Perez, as Plaintiff-Appellant, appealed the grant of summary judgment to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a police department violate a probationary officer's constitutional rights to privacy and intimate association by terminating her employment based in part on her private, off-duty extramarital affair, when there is no showing that the affair negatively affected her job performance or violated a specific, narrowly tailored regulation?
Opinions:
Majority - Reinhardt
Yes. Terminating a public employee based even in part on her private, off-duty sexual conduct violates her constitutional rights to privacy and intimate association unless the conduct is shown to negatively affect job performance or violate a constitutionally permissible, narrowly tailored regulation. The court found a genuine factual dispute as to whether the Roseville Police Department terminated Perez at least in part because of her extramarital affair. Evidence supporting this includes Chief Hahn’s contradictory testimony admitting the investigation was 'part of' his decision, the expressed moral disapproval by subordinate officers involved in the process, and substantial circumstantial evidence that the department's proffered performance-based reasons were pretextual, given their timing and the department's shifting justifications. Citing its precedent in Thorne v. City of El Segundo, the court held that without a showing of negative impact on job performance or the violation of a specific, narrow rule, the termination was unconstitutional. The right was clearly established by Thorne, so the defendants were not entitled to qualified immunity.
Concurring - Tashima
Yes. While agreeing with the majority's conclusion to reverse the summary judgment, the concurrence does so for a much narrower reason. This opinion disagrees that Chief Hahn's testimony was a direct admission of improper motive and also argues that any bias from subordinate officers was rendered irrelevant by Hahn's independent decision-making process where he explicitly rejected their moral judgments. The concurrence finds a triable issue of fact solely because all of the department's proffered, legitimate reasons for terminating Perez arose in such a short period of time immediately following the internal affairs investigation into her affair. This temporal proximity alone is sufficient to create a reasonable inference that the reasons may have been pretextual, which is a question for a jury to decide.
Analysis:
This decision solidifies the Ninth Circuit's robust protection for the privacy and associational rights of public employees, reaffirming the precedent set in Thorne. It establishes a significant circuit split with the Fifth and Tenth Circuits, which apply a more deferential rational basis test in similar circumstances. The court's reliance on Lawrence v. Texas grounds these protections in substantive due process, making it more difficult for public employers in the circuit to terminate employees based on moral disapproval of their private, off-duty conduct. The ruling also provides a clear example of how evidence of temporal proximity and shifting employer justifications can be used to defeat summary judgment on the grounds of pretext.
