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Perez v. City of Roseville

United States Court of Appeals, Ninth Circuit

February 9, 2018

Janelle Perez, Plaintiff-Appellant,
v.
City of Roseville; Roseville Police Department; Stephan Moore, Captain; Daniel Hahn, Chief; Cal Walstad, Lieutenant, Defendants-Appellees.

          Argued and Submitted April 19, 2017 San Francisco, California

         Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., Senior District Judge, Presiding D.C. No. 2:13-cv-02150-GEB-DAD

          Richard P. Fisher (argued), Goyette & Associates Inc., Gold River, California, for Plaintiff-Appellant.

          Stacey N. Sheston (argued) and Laura J. Fowler, Best Best & Krieger LLP, Sacramento, California, for Defendants-Appellees.

          Before: Stephen Reinhardt and A. Wallace Tashima, Circuit Judges, and Donald W. Molloy, [*] District Judge.

         SUMMARY [**]

         Employment Discrimination / Constitutional Law

         The panel (1) reversed the district court's summary judgment in favor of the defendants on a former probationary police officer's claim of violation of her rights to privacy and intimate association and (2) affirmed the district court's summary judgment on the former officer's due process and gender discrimination claims.

         The officer was discharged after an internal affairs investigation into her romantic relationship with a fellow officer. She claimed, pursuant to 42 U.S.C. § 1983, that her termination violated her constitutional rights to privacy and intimate association because it was impermissibly based in part on disapproval of her private, off-duty sexual conduct. Disagreeing with the Fifth and Tenth Circuits, the panel held that the constitutional guarantees of privacy and free association prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation. Because a genuine factual dispute existed as to whether the defendants terminated the officer at least in part on the basis of her extramarital affair, the panel concluded that she put forth sufficient evidence to survive summary judgment. Moreover, the rights of privacy and intimate association were clearly established such that any reasonable official would have been on notice that, viewing the facts in the light most favorable to her, the officer's termination was unconstitutional. The panel therefore reversed the district court's grant of qualified immunity on the privacy claim and remanded that claim for further proceedings.

         The panel affirmed the district court's summary judgment on the officer's due process claim because any due process rights she might have had were not clearly established at the time of the challenged action. Therefore, the defendants were entitled to qualified immunity on that claim.

         The panel affirmed the district court's summary judgment on the officer's sex discrimination claim because the evidence, taken in the light most favorable to her, indicated that the defendants' disapproval of her extramarital affair, rather than gender discrimination, was the cause of her termination.

         Concurring, Judge Tashima disagreed with much of the majority's reasoning but agreed with its decision to reverse the district court's grant of summary judgment to the defendants on the officer's Fourteenth Amendment privacy claim. Judge Tashima concurred on the basis that the defendants' reasons for firing the officer all arose in such short order after the internal affairs review that a reasonable inference could be drawn that they may have been pretextual. He disagreed with the majority's analysis of the significance of the deposition testimony of the police chief and the statements of subordinate officers.

          OPINION

          REINHARDT, CIRCUIT JUDGE.

         We are confronted in this case with the ongoing and difficult constitutional question of how much control the government can force individuals to cede over their private lives in exchange for the privilege of serving the public by means of government employment. To be sure, private citizens often must sacrifice some individual freedom as a condition of their employment by the State, but "a citizen who works for the government is nonetheless a citizen." Garcetti v. Ceballos, 547 U.S. 410, 419 (2006). 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. Nor can or should we seek to eliminate the development of ordinary human emotions from the workplace where we spend a good part of our waking hours, unless such development is incompatible with the proper performance of one's official duties. See Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1174 (9th Cir. 2003).

         Janelle Perez, a former probationary police officer employed by the Roseville Police Department ("the Department"), appeals the district court's summary judgment in favor of Chief Daniel Hahn, Captain Stefan Moore, and Lieutenant Cal Walstad on her claims against them under 42 U.S.C. § 1983 for (1) violation of her rights to privacy and intimate association under the First, Fourth, and Fourteenth Amendments; and (2) deprivation of liberty without due process of law in violation of the Fourteenth Amendment. With respect to the privacy claim, the district court based its decision on qualified immunity. As to the liberty claim, it found no violation of the Constitution. Perez also appeals the district court's summary judgment on her claims against the individual defendants, the City of Roseville, and the Department for sex discrimination in violation of Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act ("FEHA").

         Perez was discharged after an internal affairs investigation into her romantic relationship with a fellow police officer. She claims that her termination violated her constitutional rights to privacy and intimate association because it was impermissibly based in part on disapproval of her private, off-duty sexual conduct. We have long held that the constitutional guarantees of privacy and free association prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation. See Thorne v. City of El Segundo, 726 F.2d 459, 471 (9th Cir. 1983). Because a genuine factual dispute exists as to whether the defendants terminated Perez at least in part on the basis of her extramarital affair, we conclude that she has put forth sufficient evidence to survive summary judgment on her Section 1983 claim for violation of her constitutional rights to privacy and intimate association. Moreover, these rights were clearly established by our precedent in Thorne such that any reasonable official would have been on notice that, viewing the facts in the light most favorable to her, Perez's termination was unconstitutional. Accordingly, we reverse the district court's grant of qualified immunity on her privacy claim and remand that claim for further proceedings. We affirm summary judgment on Perez's due process claim because any due process rights she might have had were not clearly established at the time of the challenged action. Therefore, the defendants are entitled to qualified immunity on that claim.

         Finally, we affirm summary judgment on Perez's sex discrimination claim because the evidence, taken in the light most favorable to her, indicates that the defendants' disapproval of her extramarital affair, rather than gender discrimination, was the cause of her termination.

         I. Factual and Procedural Background

         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. Begley had been with the Department for over seven years. Both Perez and Begley were separated from, although still married to, other individuals.

         On June 6, 2012, Begley's wife Leah 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.[1] 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.

         At the conclusion of his investigation, Bergstrom provided his written IA report to Captain Stefan Moore. Moore then assigned the review of the report to Lieutenant Cal Walstad, who recommended in a July 10, 2012 memorandum that the Department find Perez and Begley's conduct violated Department policies 340.3.5(c) ("Unsatisfactory Work Performance") and 340.3.5(aa) ("Conduct Unbecoming"). Moore agreed with Walstad's findings, and believed that Perez should be released from her probation in light of the results of the investigation. Moore later made comments that raise a genuine factual issue as to whether his recommendation that Perez be discharged was based on moral disapproval of her extramarital affair. Similarly, Walstad, who was also heavily involved in the disciplinary process, later admitted that he morally disapproved of Perez's extramarital sexual conduct.

         Perez and Begley received official memoranda dated August 15, which sustained the charges of "Unsatisfactory Work Performance" and "Conduct Unbecoming." The Department also issued a letter to Begley's estranged wife on August 16, 2012, informing her of the same. Finally, Moore issued written reprimands to Perez and Begley on the basis of the charges.

         At some point after the completion of the IA report, Lieutenant Maria Richardson informed Chief Hahn that Perez was not getting along with other female officers. Captain Moore also received similar information from Lieutenant Richardson, as well as from Sergeant Missy Morris. According to Perez, however, she made efforts to get along with both Richardson and Morris, and had no contact with any of the four other female officers in the Department.

         On August 29, 2012, shortly after receiving the reprimands from the Department, Perez fell ill, and Begley covered her shift at her request. The next day, Begley approached Sergeant Newton, the supervisor in charge of the dayshift schedule, about covering for Perez again. Newton asked him when Perez would be covering for Begley in return for the August 29 shift trade. Begley responded that he did not know and would contact Perez. Shortly after, Perez called Newton to discuss the shift trade policy. Newton and Perez had multiple follow-up conversations regarding the policy, and at some point Perez expressed her belief that the shift trade policy was being applied unfairly. Newton later discussed the incident with Hahn, Moore, and Lieutenant Glynn, reporting that Perez seemed "angry" and "agitated." At their request, Newton memorialized his conversation with Perez.

         On August 13, a citizen filed a complaint with Lieutenant Bergstrom about Perez's conduct, alleging that she was rude and insensitive during a domestic violence call. Bergstrom informed Hahn of the complaint, but because the citizen apparently did not wish to pursue the matter further, no IA investigation was initiated.

         Perez appealed her reprimand arising out of the initial IA investigation into her affair. An administrative hearing before Chief Hahn was held on September 4, 2012, at which time Perez provided Hahn with her written rebuttal to the IA findings of "Unsatisfactory Work Performance" and "Conduct Unbecoming." At the conclusion of that hearing, Perez was informed without any explanation that she was being released from probation (i.e., "you're fired."); 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 after Perez's termination, Lieutenant Glynn issued a new written reprimand to Perez from Captain Moore, dated September 10, 2012, which reversed the findings regarding sections 340.3.5(c) ("Unsatisfactory Work Performance") and 340.3.5(aa) ("Conduct Unbecoming"), but based the reprimand on new charges of violating section 702 ("Use of Personal Communication Devices"). Chief Hahn later averred that Perez's "personal calls during work time and during performance of various work duties was a concern, but not one warranting termination." Perez did not appeal this reprimand because she had already been terminated from her position, and her termination letter said that she had no right to appeal. In his deposition testimony, Chief Hahn stated (apparently for the first time) that he made the decision to terminate Perez's employment prior to the meeting, based on additional information that he had learned about Perez's performance and conduct since the completion of the initial IA investigation.

         On January 10, 2014, Perez sued the City of Roseville, the Department, Moore, Hahn, and Walstad, 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 state law.[2]

         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. On her due process claim, the district court determined that there was no evidence that stigmatizing information about Perez was published in connection with her termination, and therefore no violation of her rights. As to Perez's sex discrimination claim, the court found that she did not provide sufficient evidence that Hahn's stated reasons for terminating her probationary employment were a pretext for sex discrimination or that her gender was a motivating factor in the decision making process. Perez timely appealed.

         II. Standard of Review

         We review a district court's order granting summary judgment de novo, and may affirm on any ground supported by the record. Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1096-97 (9th Cir. 2003). At the summary judgment stage, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).

         III. Analysis

         A. Section 1983 claim for violation of rights to privacy and intimate association

         "To prevail under 42 U.S.C. § 1983, a plaintiff must prove that [s]he was deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." Marsh v. Cty. of San Diego, 680 F.3d 1148, 1152 (9th Cir. 2012) (citation omitted). She "must also show that [her] federal right was 'clearly established' at the time of the violation, otherwise [the] government officials are entitled to qualified immunity." Id. (citation omitted).

         It is undisputed that all three individual defendants were acting under color of state law. Therefore, to survive summary judgment, Perez must establish (1) that a genuine factual dispute exists as to whether her constitutional rights were violated; and (2) that those constitutional rights were clearly established.

         1. Constitutional Violation

         Perez contends that the defendants violated her constitutional rights to privacy and intimate association [3] when they terminated her employment based at least in part on her extramarital affair with Begley. We have long recognized that officers and employees of a police department enjoy a "right of privacy in 'private, off-duty' sexual behavior." See Thorne, 726 F.2d at 468, 471; Fugate v. Phx. Civil Serv. Bd., 791 F.2d 736, 741 (9th Cir. 1986). This right protects public employees from adverse employment action based "in part" on their private sexual activities. See Thorne, 726 F.2d at 468. In other words, under our precedent, 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.[4] We conclude that Perez has provided sufficient evidence of each element to survive summary judgment.

         a. Causal Nexus

         The defendants argued before the district court that Perez could not establish that any action was taken against her because of her sexual relationship with Begley. To the contrary, we conclude that there remains a genuine factual dispute about whether Hahn terminated her "in part" because of the affair.

         First, Chief Hahn's testimony is inconsistent as to whether the IA investigation into Perez's affair played a role in his decision to terminate her employment. For example, when asked whether "the whole Leah Begley complaint, internal affairs investigation, all of that, didn't have anything to do with your decision to terminate Miss Perez, " Hahn responded, "No. I would say it was part of it." This admission contradicts Hahn's statement in his declaration that "Perez' [sic] private, off-duty relationship with Begley was not a factor in [his] decision to release her from probation."[5]A reasonable factfinder could conclude on the basis of Hahn's testimony alone that Perez's termination was motivated in part by the revelation of her extramarital affair with Begley. See Gulden v. Crown Zellerbach Corp., 890 F.2d 195, 197 (9th Cir. 1989) ...


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