U.S. Court of Appeals for the Ninth Circuit

On January 4, 2012, Janelle Perez was hired by Chief Daniel Hahn to serve as a police officer in the Roseville Police Department. A few months into her probationary term, Perez and a fellow officer, Officer Shad Begley (“Begley”) began a romantic relationship. Both Perez and Begley were separated from, although still married to, other individuals.

On June 6, 2012, Begley’s wife filed a citizen complaint in which she alleged that Perez and her husband were having an affair and that they were engaging in inappropriate sexual conduct while on duty. This letter prompted the Department to initiate an Internal Affairs (“IA”) investigation headed by Lieutenant Bergstrom.? In his report, Bergstrom stated that there was no evidence of on-duty sexual contact between Perez and Begley, but that the two ?made a number of calls and texts when one or both was on duty,? which ?potentially? violated Department policy. Nevertheless, Roseville police officials found that Plaintiff and Begley’s conduct violated Department policies related to ?Unsatisfactory Work Performance? and ?Conduct Unbecoming.?

At the conclusion of a hearing on the charges, Perez was informed without any explanation that she was being released from probation. The notice contained no reasons for her discharge, and the Chief declined to give a reason.

Perez sued the City of Roseville, and individual officials alleging Section 1983 claims for violation of her rights to privacy and freedom of association and her right to due process, as well as sex discrimination under Title VII and California law. Summary judgment was granted to all Defendants and Plaintiff appealed.

The Ninth Circuit held that ?[w]e have long recognized that officers and employees of a police department enjoy a ?right of privacy in private, off-duty sexual behavior.?? The Constitution is violated when a public employee is terminated at least in part on the basis of protected conduct, such as her private, off-duty sexual activity. ?A department can violate its employees’ rights to privacy and intimate association either by impermissibly investigating their private sexual conduct or by taking adverse employment action on the basis of such private conduct.?

As a society, we must remain solicitous of the constitutional liberties of public employees, as of any citizens, to the greatest degree possible, and should be careful not to allow the State to use its authority as an employer to encroach excessively or unnecessarily upon the areas of private life, such as family relationships, procreation, and sexual conduct, where an individual’s dignitary interest in autonomy is at its apex.

The Court concluded that a genuine issue of material fact exists as to whether Perez was fired at least in part because of her extramarital affair. The Court rejected the individual officials? assertion of qualified immunity but recognized a split with the Fifth and Tenth Circuits.

The Court found that there was evidence to support Plaintiff?s deprivation of liberty without due process claim because stigmatizing information about her was published in connection with her termination. Where only a few weeks separate publication of a defamatory statement from an employee’s termination, a temporal nexus test is satisfied.? Nevertheless, the Court found that the individual officers were entitled to qualified immunity on the due process claim because the law of this circuit did not clearly establish that a letter published nineteen days prior to an employee’s termination could bear a sufficient nexus to the employment decision to give rise to a right to a name-clearing hearing.

The Court also affirmed dismissal of Plaintiff?s gender discrimination claims on the ground that the gravamen of her claim was that she was discharged for having an extra marital affair with another officer, which was not a gender-based discrimination claim.

Perez v. City of Roseville, 882 F.3d 843 (9th Cir. 2/9/2018) (Reinhardt, Tashima, Molloy (D. Mont.))