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) ...