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Perez v. City of Roseville, No. 15-16430 (9th Cir. Feb. 9, 2018)

The Ninth Circuit, in tension with the Fifth and Tenth Circuits, holds that a public employee has a federal constitutional privacy right (under due process) not to be fired from a job because of an extramarital affair with a co-worker. A concurring judge in the panel agrees with the result, but offers a narrower rationale.

Perez v. City of Roseville, No. 15-16430 (9th Cir. Feb. 9, 2018): There is a constant strain in American labor law about how much control an employer may have over an employee's outside life. This strain intensifies for public-sector employees, who enjoy constitutional rights of association and privacy.

Plaintiff Perez, a probationary officer, "was discharged after an internal affairs investigation into her romantic relationship with a fellow police officer" named Begley. Begley's spouse (Leah) had filed a complaint about the affair with the department, which was turned over to internal affairs (IA).

IA found that there was no evidence of "on-duty sexual contact between Perez and Begley," but that there were possible violations of department rules about phone-use and texting while on duty. For these violations, Ms. Perez was reprimanded. But Lieutenant Walstad and Captain Moore concluded that Officer Perez should be terminated based on the IA report; both, though, had also expressed moral disapproval of the affair.

At her appeal hearing of the reprimand:

"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."

Chief Hahn testified that he made the decision to terminate before the hearing, based on three complaints about Officer Perez that arose in the eight weeks after the IA investigation: that she was "not getting along with other female officers," a dispute over the "shift trade policy," and a citizen complaint against Ms. Perez about rudeness (later dropped).

Ms. Perez filed an action alleging constitutional violations under section 1983 for violation of her rights to privacy and freedom of association, plus her right to procedural due process, and claims of sex discrimination under Title VII and California law. The district court granted defendants summary judgment.

The Ninth Circuit reverses the summary judgment on the privacy and freedom of association claim.

First, the panel majority holds that Chief Hahn admitted a possible unlawful motive when, in testimony, he "the whole Leah Begley complaint, internal affairs investigation" was part of the reason for decision. The majority also cites the input of Walstad and Moore into the decision, and "the speed with which [the three] unrelated employment issues were 'discovered' immediately after the IA investigation revealed Perez's affair." The majority further holds there were credibility problems with each of the three proffered reasons that a jury would have to weigh.

Second, the panel holds that the constitutional right not to be fired for off-duty sexual conduct was already determined by the circuit in Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983), which held that such an adverse action had to be supported by proof of a "negative impact on job performance or violation of a constitutionally permissible, narrowly drawn regulation." Thorne, indeed, was "clearly established" law that vitiated the individual officers' claims of qualified immunity under section 1983.

While recognizing that the Fifth and Tenth Circuits have applied a far-more deferential "rational basis" test to such claims, the panel reasons that such a test would be out of keeping with prior circuit case law (Thorne) and that - even under a watered-down standard - defendants' action here could not be sustained given the absence of any proof that the relationship affected Ms. Perez's performance. Further, the other circuits' decisions "fail to appreciate the impact of Lawrence v. Texas, 539 U.S. 558 (2003), on the jurisprudence of the constitutional right to sexual autonomy."

Concurring, Judge Tashima would hold that summary judgment on the privacy claim should be reversed, but would rely solely on pretext. She would hold that the IA findings and the prejudicial statements of Lieutenant Walstad and Captain Moore could not be imputed to the decisionmaker Chief Hahn.

As for the pretext evidence, Judge Tashima notes that "in the context of terminating a probationary employee, the inference [of the timing of the three reasons] is not as compelling, because in that context, no reason at all need be proffered for the termination and often one isn't provided at the time, as in this case." Nevertheless, based on the timeline that Chief Hahn had long known about the affair, "the timing of these three bases permits the inference that Chief Hahn wished to conceal an improper motive with legitimate explanations." Thus, it was up to a jury to weigh the credibility Chief Hahn's reasons.

The entire panel affirmed summary judgment on Ms. Perez's claims of procedural due process (not giving her a name-clearing hearing) and sex discrimination.

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