Janelle Perez v. City of Roseville

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANELLE PEREZ, No. 15-16430
Plaintiff-Appellant,
D.C. No.
v. 2:13-cv-02150-
GEB-DAD
CITY OF ROSEVILLE; ROSEVILLE
POLICE DEPARTMENT; STEPHAN
MOORE, Captain; DANIEL HAHN, OPINION
Chief; CAL WALSTAD, Lieutenant,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Argued and Submitted April 19, 2017
San Francisco, California
Filed February 9, 2018
Before: Stephen Reinhardt and A. Wallace Tashima,
Circuit Judges, and Donald W. Molloy, * District Judge.
Opinion by Judge Reinhardt;
Concurrence by Judge Tashima
*
The Honorable Donald W. Molloy, United States District Judge
for the District of Montana, sitting by designation.
2 PEREZ V. CITY OF ROSEVILLE
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
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
PEREZ V. CITY OF ROSEVILLE 3
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.
4 PEREZ V. CITY OF ROSEVILLE
COUNSEL
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.
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).
PEREZ V. CITY OF ROSEVILLE 5
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
6 PEREZ V. CITY OF ROSEVILLE
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
PEREZ V. CITY OF ROSEVILLE 7
(“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,
1
“Internal Affairs” here refers not to sexual affairs that occur
between officers within the department, but to the unit that investigates
professional misconduct.
8 PEREZ V. CITY OF ROSEVILLE
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 V. CITY OF ROSEVILLE 9
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.
10 PEREZ V. CITY OF ROSEVILLE
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
2
Perez’s complaint also alleged termination in violation of public
policy and violation of her rights under the Peace Officer’s Procedural
Bill of Rights Act, but she does not press those claims on appeal.
PEREZ V. CITY OF ROSEVILLE 11
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
3
“[T]he freedom of association takes two forms”: (1) the freedom
“to enter into and maintain certain intimate human relationships ”; and
(2) the “right to associate for the purpose of engaging in those activities
protected by the First Amendment—speech, assembly, petition for the
redress of grievances, and the exercise of religion.” Fleisher v. City of
12 PEREZ V. CITY OF ROSEVILLE
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
Signal Hill, 829 F.2d 1491, 1499 (9th Cir. 1987). The present case
implicates only the first form of freedom of association, which is
“coextensive with the right of privacy.” Id. at 1500.
4
In addition to her claim that her termination was unconstitutional,
Perez also argues that the IA investigation itself unconstitutionally
infringed on her right to privacy. We conclude that the IA investigation
did not itself violate the Constitution. The investigation was prompted
by the complaint of Leah Begley, which alleged that her husband and
Perez were having an extramarital affair and engaging in sexual conduct
on-duty. That was a constitutionally legitimate reason for the
Department to undertake an investigation.
PEREZ V. CITY OF ROSEVILLE 13
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) (“Summary judgment is
particularly inappropriate where the inferences which the
parties seek to have drawn deal with questions of motive,
intent and subjective feelings and reactions.” (citation
omitted)).
Second, the record indicates that Captain Moore was also
motivated in part to terminate Perez on the basis of her
extramarital affair, and although he was not the ultimate
decisionmaker, he was intimately involved in the
5
Later in his testimony, Hahn again admitted that he considered the
IA investigation into Perez’s affair in deciding to terminate her:
Q: “[T]his whole investigation that started with Leah
Begley was one of the red flags, one of the factors you
took into account to terminate Miss Perez, right?
A: “Yes.”
14 PEREZ V. CITY OF ROSEVILLE
decisionmaking process resulting in Perez’s termination. Cf.
Poland v. Certoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (“[A]
subordinate’s bias is imputed to the employer if the plaintiff
can prove that the allegedly independent adverse
employment decision was not actually independent because
the biased subordinate influenced or was involved in the
decision or decisionmaking process.”). For example, Moore
testified that the fact that Perez and Begley were conducting
an extramarital affair was “significant” to him, because it
“presente[d] a truly ethical dilemma whether or not that is
something that could reflect unfavorably on the police
department.” Consequently, not only did Moore issue Perez
a memorandum sustaining the “Conduct Unbecoming” and
“Unsatisfactory Work Performance” charges and a written
reprimand based on the IA investigation, but he also
recommended to Chief Hahn that Perez be terminated on the
basis of those disciplinary actions. A reasonable factfinder
could conclude that Moore was motivated in part to
recommend terminating Perez on the basis of her
extramarital affair, and that he was sufficiently involved in
Perez’s termination that his motivation affected the
decisionmaking process. The conclusion that the
Department morally disapproved of Perez’s private sexual
conduct is further supported by the views of Walstad, who
was also engaged in the termination process and stated that
he personally felt that her conduct was inappropriate in light
of her marital status.
Third, there is sufficient circumstantial evidence to raise
a genuine factual dispute about whether the Department’s
three proffered reasons for terminating Perez were pretextual
attempts to conceal its true motive for terminating her: the
extramarital affair with Begley. The defendants claim that
Perez was terminated for three reasons unrelated to her
sexual conduct: (1) she did not get along well with other
PEREZ V. CITY OF ROSEVILLE 15
female officers; (2); the Department received a complaint
from a domestic violence victim about Perez’s conduct
during a service call; and (3) she displayed a “bad attitude”
in an interaction with a superior about a potential shift trade.
Based on the evidence that Walstad and Moore morally
disapproved of Perez’s sexual conduct, and the speed with
which these unrelated employment issues were “discovered”
immediately after the IA investigation revealed Perez’s
affair, a reasonable factfinder could conclude that all three
reasons were pretexts for an impermissible motive. Cf.
Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1069 (9th Cir.
2003), as amended (Jan. 6, 2004) (“Temporal proximity
between protected activity and an adverse employment
action can by itself constitute sufficient circumstantial
evidence of retaliation in some cases.”).
Prior to Leah Begley’s June 6, 2012 letter informing the
Department of the extramarital affair, Perez had been
employed for approximately six months and received
positive performance evaluations. From June 14 to June 21,
Lieutenant Bergstrom conducted an IA investigation into
Leah Begley’s allegations about Perez’s sexual conduct.
Based on Lieutenant Bergstrom’s investigation, Lieutenant
Walstad recommended sustaining charges of “Conduct
Unbecoming” and “Unsatisfactory Work Performance”
against Perez and Begley in a memorandum, which
specifically referenced the fact that “[b]oth officers are
married and have young children.” The memorandum
criticized Perez’s relationship with Begley as
“unprofessional,” and noted that it “reflect[ed] unfavorably
upon the Roseville Police Department and its members”
because it was “secret.” Notably, Walstad later testified to
his “personal feelings” that the affair was “inappropriate”
because of Perez’s and Begley’s marital and familial status.
The charges were then sustained in Captain Moore’s August
16 PEREZ V. CITY OF ROSEVILLE
15 memorandum, 6 and Moore issued a written reprimand
based on these charges to Perez on August 23. Moore also
recommended to Chief Hahn that Perez be terminated on the
basis of the charges. On September 4, a hearing was held
before Hahn on Perez’s appeal from the reprimand. Perez
was terminated at the close of this hearing, and Chief Hahn
declined to provide a reason.
Meanwhile, all three of the Department’s now-proffered
reasons—all unrelated to on- or off-duty sexual conduct—
arose after the conclusion of the IA investigation, over the
course of approximately eight weeks. Based in part on this
temporal proximity, a reasonable jury could infer that these
three reasons were a pretext for Perez’s termination. Cf.
Yartzoff v. Thomas, 809 F.2d 1371, 1376–77 (9th Cir. 1987)
(finding that, after years of positive reviews, plaintiff
receiving his first sub-average performance rating only three
months after filing an administrative complaint against
employer was probative of pretext in retaliation case).
Furthermore, there is circumstantial evidence that each
of the Department’s proffered reasons is independently
“unworthy of credence.” Cf. Chuang v. Univ. of Cal. Davis,
Bd. of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000) (Title
VII plaintiff “can prove pretext . . . indirectly, by showing
that the employer’s proffered explanation is ‘unworthy of
credence’ because it is internally inconsistent or otherwise
not believable”). First, regarding Perez’s alleged inability to
get along with her female coworkers, Perez testified that she
never worked with any female officers besides Sergeant
6
Perez maintains that she did not receive this memorandum until
she met with Moore in person on August 23.
PEREZ V. CITY OF ROSEVILLE 17
Morris and Lieutenant Richardson. Also, this complaint was
made only after her affair became known.
Neither of the other two justifications upon which the
Department now claims to have relied is more credible. In
contrast to the allegations regarding Perez’s sexual conduct,
which were investigated thoroughly, it is undisputed that “no
fact-finding investigation” was conducted into the supposed
domestic violence victim’s citizen complaint against Perez.
Similarly, rather than investigating the circumstances
surrounding Perez’s alleged “bad attitude” with her
supervisor, Sergeant Newton, regarding a shift trade, Chief
Hahn simply directed Newton to immediately memorialize
his conversation with Perez. Newton testified that he found
this course of action “weird,” and “that ‘something’ was
going on.” Cf. Earl v. Nielsen Media Research, Inc.,
658 F.3d 1108, 1117 (9th Cir. 2011) (“A plaintiff may . . .
raise a triable issue of pretext through evidence that an
employer[] . . . deviated from its normal internal disciplinary
procedure.”).
Our conclusion that a triable issue of fact exists as to
whether the Department’s proffered justifications for
Perez’s firing were pretextual is reinforced by the frequency
with which the Department shifted its reasons for firing her
after learning of her affair. When Chief Hahn notified Perez
of her termination at the conclusion of her IA appeal on
September 4, he initially declined to provide any reason at
all. Then, on September 20, well after her termination, Perez
received a new reprimand from Captain Moore, dated
September 10, reversing the findings of “Conduct
Unbecoming” and “Unsatisfactory Work Performance” and
substituting a new violation under section 702 (“Use of
Personal Communication Devices”). Moreover, despite his
testimony that he decided to fire her on August 30, it was not
18 PEREZ V. CITY OF ROSEVILLE
until this litigation commenced that Chief Hahn put forth the
three reasons—failure to get along with women officers,
citizen’s complaint, and bad attitude with supervisor—on
which the Department now relies for terminating her and all
of which differ from both the original and the belated
reprimands issued by the Department after she was fired.
In sum, given the investigation of charges based upon
allegations related to her affair with another officer, the
evidence of the investigators’ moral disapproval of her
affair, and the Department’s constantly shifting justifications
for her termination, as well as the independent reasons for
doubting the legitimacy of each shifting justification, we
conclude that a genuine issue of material fact exists as to
whether Perez was fired at least in part because of her
extramarital affair.
b. Constitutionally Protected Conduct
Taking the facts in the light most favorable to Perez and
drawing all inferences in her favor, she was terminated at
least in part for having an extramarital affair with Begley.
Her extramarital sexual conduct was protected by her rights
to privacy and intimate association. Therefore, her
termination violated her “constitutional interests and cannot
be upheld under any level of scrutiny.” Thorne, 726 F.2d at
471.
Thorne is the seminal case in which we first recognized
that police officers enjoy a “right of privacy in ‘private, off-
duty’ sexual behavior.” See Fugate, 791 F.2d at
741(discussing Thorne). In Thorne, a former clerk-typist in
the City of El Segundo police department applied and was
rejected for employment as a police officer in that same
department. In evaluating her claim, we articulated the
constitutional principles that cabin the circumstances in
PEREZ V. CITY OF ROSEVILLE 19
which the State may rely on private sexual conduct in taking
adverse employment action against an employee:
In the absence of any showing that private,
off-duty, personal activities of the type
protected by the constitutional guarantees of
privacy and free association have an impact
upon an applicant’s on-the-job performance,
and of specific policies with narrow
implementing regulations, we hold that
reliance on these private non-job-related
considerations by the state in rejecting an
applicant for employment violates the
applicant’s protected constitutional interests
and cannot be upheld under any level of
scrutiny.
Thorne, 726 F.2d at 471. Thus, we concluded that the police
department violated Thorne’s rights to privacy and free
association by relying on her private, non-job-related sexual
conduct as a clerk-typist in refusing to hire her as an officer,
without “any showing that [her] private, off-duty personal
activities . . . [had] an impact upon [her] on-the-job
performance,” or contravened “specific policies with narrow
implementing regulations.” Id.
The present case is controlled by Thorne. As in that case,
the defendants here failed to introduce sufficient evidence
that Perez’s affair had any meaningful impact upon her job
performance. To the contrary, as Lieutenant Bergstrom
concluded in his report, “there is no evidence that any
inappropriate behavior occurred while the officers were on
duty,” and it is undisputed that Perez’s productivity was
20 PEREZ V. CITY OF ROSEVILLE
“average to above-average.” 7 Nor is there any contention
that Perez’s sexual conduct violated any narrowly drawn,
constitutionally permissible regulation. 8
Given the absence of any material evidence that Perez’s
affair had a meaningful effect upon her on-the-job
performance, or resulted in a violation of a narrowly tailored
department regulation, and taking the evidence in the light
7
Bergstrom’s investigation revealed two days during which the
officers’ phone records appeared “abnormal,” and these phone records
formed the basis of Perez’s second, post-termination, written reprimand.
Although Perez’s written reprimand was ultimately changed to reflect a
violation of Section 702.2.2 (“Use of Personal Communication
Devices”), Chief Hahn testified that her phone conversations with
Begley alone were not sufficient to warrant termination. Moreover,
Bergstrom’s IA investigation concluded that there was no evidence that
the officers were “excessively texting each other during their shifts.” At
no point did any investigators find evidence of on-duty sexual activity
between Perez and Begley, and the use of the phone was dismissed as a
basis, let alone the basis, for her firing. A rational jury could conclude
that the use of communication devices had at most a de minimis impact
on Perez’s performance.
8
To the extent that Walstad and Moore based their investigative
findings and written reprimand in part on their “personal views” of
marriage and family, or were “appl[ying] the moral standards of the
general society, as they saw them,” they acted in violation of the
Constitution. “The very purpose of constitutional protection of
individual liberties is to prevent such majoritarian or capricious
coercion.” Thorne, 726 F.2d at 470. The fact that both officers were
“married and have young children” could not be said to have rendered
them unworthy of “the trust and respect of those who are served” by the
Department. See Lawrence v. Texas, 539 U.S. 558, 572 (2003)
(“[L]iberty gives substantial protection to adult persons in deciding how
to conduct their private lives in matters pertaining to sex.”); id. at 577(“[T]he fact that the governing majority in a State has traditionally
viewed a particular practice as immoral is not a sufficient reason for
upholding a law prohibiting the practice.”) (quoting Bowers v. Hardwick,
478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
PEREZ V. CITY OF ROSEVILLE 21
most favorable to her, the defendants violated Perez’s
constitutional rights by terminating her in part on the basis
of her extramarital affair.
We recognize that, since Thorne, at least two other
circuits have adopted rules that appear to be in some tension
with our case. See Coker v. Whittington, 858 F.3d 304, 306
(5th Cir. 2017) (concluding Constitution not violated where
two sheriff’s deputies were fired for moving in with each
other’s wives before finalizing divorce from their current
wives because the Sheriff’s policies were supported by a
rational basis); Seegmiller v. LaVerkin City, 528 F.3d 762,
770 (10th Cir. 2008) (upholding termination of officer on
basis of extramarital affair under rational basis test because
there is no “fundamental liberty interest ‘to engage in a
private act of consensual sex’”).
We reject the approach taken by the Fifth and Tenth
Circuits for the following reasons. First, our binding
precedent in Thorne compels us to do so. Because the
State’s actions in this case “intrude on the core of a person’s
constitutionally protected privacy and associational
interests,” we must analyze them under “heightened
scrutiny.” Thorne, 726 F.2d at 470. Moreover, even if we
were to agree that the Department’s action here need only
satisfy rational basis review, Thorne explains that it cannot
survive any level of scrutiny without either a showing of a
negative impact on job performance or violation of a
constitutionally permissible, narrowly drawn regulation. Id.
at 471. Under our precedent, the Department must do more
than cite a broad, standardless rule against “conduct
unbecoming an officer.” Cf. Seegmiller, 528 F.3d at 772(“[L]aw enforcement code of ethics requires officers to keep
[their] private life unsullied as an example to all and [to]
behave in a manner that does not bring discredit to [the
22 PEREZ V. CITY OF ROSEVILLE
officer] or [the] agency.”(citations and quotation marks
omitted) (alteration in original)); Coker, 858 F.3d at 305
(“Conduct yourselves at all times in such a manner as to
reflect the high standards of the Bossier Sheriff's Office . . .
[and] Do not engage in any illegal, immoral, or indecent
conduct, nor engage in any legitimate act which, when
performed in view of the public, would reflect unfavorabl[y]
upon the Bossier Sheriff’s Office.” (alteration in original)).
Second, the Fifth and Tenth Circuits fail to appreciate the
impact of Lawrence v. Texas, 539 U.S. 558 (2003), on the
jurisprudence of the constitutional right to sexual autonomy.
Coker, 858 F.3d at 306; Seegmiller, 528 F.3d at 771.
Lawrence did much more than merely conclude that Texas’
anti-sodomy law failed the rational basis test. Instead, it
recognized that intimate sexual conduct represents an aspect
of the substantive liberty protected by the Due Process
Clause. See 539 U.S. at 564. As such, the constitutional
infirmity in Texas’ law stemmed from neither its mere
irrationality nor its burdening of a fundamental right to
engage in homosexual conduct (or even private consensual
sexual conduct, cf. Seegmiller, 528 F.3d at 771). Rather,
Texas’ law ran afoul of the Constitution’s protection of
substantive liberty by imposing a special stigma of moral
disapproval on intimate same-sex relationships in particular.
As the Court explained, the liberty protected by the Due
Process Clause must extend equally to all intimate sexual
conduct between consenting adults, regardless of whether
they are of the same sex or not, married or unmarried. See
id. at 578 (“[I]ndividual decisions by married persons,
concerning the intimacies of their physical relationship, even
when not intended to produce offspring, are a form of
‘liberty’ protected by the Due Process Clause . . . [T]his
protection extends to intimate choices by unmarried as well
as married persons.” (citation omitted)); see generally
PEREZ V. CITY OF ROSEVILLE 23
Laurence H. Tribe, Lawrence v. Texas: The “Fundamental
Right” That Dare Not Speak Its Name, 117 Harv. L. Rev.
1893, 1903-05 (2004).
Lawrence makes clear that the State may not stigmatize
private sexual conduct simply because the majority has
“traditionally viewed a particular practice,” such as
extramarital sex, “as immoral.” Id. Thus, without a showing
of adverse job impact or violation of a narrow,
constitutionally valid departmental rule, the Constitution
forbids the Department from expressing its moral
disapproval of Perez’s extramarital affair by terminating her
employment on that basis.
2. Clearly Established Law
Although Perez’s termination violated her constitutional
rights to privacy and intimate association, the defendants are
entitled to qualified immunity unless those rights were
clearly established at the time of the violation. Although we
“do[] not require a case directly on point for a right to be
clearly established, existing precedent must have placed the
statutory or constitutional question beyond debate.” White v.
Pauly, 137 S. Ct. 548, 551 (2017) (citation and quotation
marks omitted). We reaffirm that, for purposes of qualified
immunity, a Ninth Circuit precedent is sufficient to clearly
establish the law within our circuit. See, e.g., Hughes v.
Kisela, No. 14-15059, ____F.3d ____, 2016 WL 9226211,
at *18 (9th Cir. Nov. 28, 2016), as amended (June 27, 2017)
(relying on the “most analogous Ninth Circuit case” in
concluding that constitutional right in question was clearly
established). 9 This rule is in no respect affected by White,
9
We note that a controlling Ninth Circuit precedent is sufficient, but
not necessary, to demonstrate that the law in question was clearly
24 PEREZ V. CITY OF ROSEVILLE
which dealt only with the clarity, rather than the source, of
established law for qualified immunity purposes.
The district court concluded that the defendants were
entitled to qualified immunity because Leah Begley’s
complaint alleged that Perez and Begley engaged in on-duty
sexual conduct. This is true only with respect to the
investigation conducted by the IA. There were, however,
two parts to Perez’s allegations and two parts to Thorne.
Because the district court both conflated the applicable law
regarding investigations and terminations and misapplied
Thorne’s clearly established rule regarding terminations to
the facts of this case, we reverse its grant of qualified
immunity to the defendants.
Thorne clearly established two ways in which a police
department can violate the right of its officers to sexual
privacy: (1) through “an unbounded, standardless inquiry”
into matters “totally irrelevant to on-the-job sex,” 726 F.2d
at 469–70; and (2) by relying on “private non-job-related”
sexual conduct without any evidence of “an impact upon . . .
on-the-job performance” or in the absence of a
constitutionally permissible, narrowly tailored regulation,
id. at 471. In other words, 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.
established at the time of the challenged conduct: “In the absence of
binding precedent, we look to whatever decisional law is available to
ascertain whether the law is clearly established for qualified immunity
purposes, including decisions of state courts, other circuits, and district
courts.” Tekle v. United States, 511 F.3d 839, 847 (9th Cir. 2007)
(citation and alteration omitted).
PEREZ V. CITY OF ROSEVILLE 25
The district court was correct insofar as it concluded that
our “holding in Thorne does not show that the IA
investigation into [Perez]’s relationship with Begley
violated a clearly established constitutional right.” See note
4, supra. This is so because Begley’s wife’s complaint
alleged on-the-job sexual misconduct. The district court,
however, conflated the constitutionality of the investigation
into on-duty conduct with the constitutionality of Perez’s
termination on the basis of her off-duty extramarital affair.
The district court’s qualified immunity discussion did not
consider Perez’s termination. Thorne clearly established the
unconstitutionality of terminating a police officer on the
basis of “private, off-duty, personal” sexual conduct, unless
a department can show that such conduct either adversely
affected the officer’s on-the-job performance or violated a
constitutionally permissible, narrowly tailored department
policy. 726 F.2d at 471.
Since Thorne, any reasonable police official in this
circuit has had fair notice that the constitution protects police
officers from termination based on wholly private sexual
conduct which does not adversely affect their job
performance or violate a narrowly tailored constitutional
regulation. 10 Thorne’s rule is clear about the narrow
circumstances under which a department’s “reliance on . . .
information obtained about [an employee’s sex life]” in
taking adverse employment action against her is
10
We also note that Thorne’s rule clearly applies not only to adverse
action taken against potential employees, but also the termination of
police officers. We have twice applied Thorne in considering whether a
police department violated officers’ privacy rights by terminating them,
although in each instance we concluded that under Thorne no violation
had occurred. See Fugate v. Phoenix Civil Serv. Bd., 791 F.2d 736, 741
(9th Cir. 1986); Fleisher v. City of Signal Hill, 829 F.2d 1491, 1500–01
(9th Cir. 1987).
26 PEREZ V. CITY OF ROSEVILLE
constitutionally permissible: it may do so only based upon a
demonstration of an adverse “impact upon . . . on-the-job
performance,” or of a violation of a specific, narrowly
tailored constitutional regulation. Thorne, 726 F.2d at 471.
Notably, in support of that holding, we approved of a district
court decision that similarly found an officer’s dismissal for
cohabitation to constitute a violation of his constitutional
rights to privacy and intimate association in the absence of a
sufficient showing of adverse impact on job performance. Id.
(citing Briggs v. N. Muskegon Police Dep’t, 563 F. Supp.
585, 591 (W.D. Mich. 1983), aff’d, 746 F.2d 1475 (6th Cir.
1984) (holding that dismissal of police officer violated
officer’s constitutional rights in the absence of a showing
that cohabitation negatively affected job performance)).
The district court erred as a matter of law by addressing
only the constitutionality of the investigation, which was
precipitated by a charge of sexual misconduct while on duty,
and failing to consider whether the Department violated the
Constitution by terminating Perez for conduct that was, for
purposes of the summary judgment motion, off-duty.
Although the district court was correct that the IA
investigation was justified because Mrs. Begley’s complaint
alleged on-duty sexual conduct, it plainly erred when it
failed to consider the termination question. As to that
question, at the very least, a factual dispute remains as to
whether under Thorne the Defendants violated Perez’s
clearly established constitutional rights to privacy and
intimate association by firing her, at least in part, for off-duty
sexual conduct. There are in fact numerous factual disputes
over material questions relating to the defendants’ motives
PEREZ V. CITY OF ROSEVILLE 27
in firing Perez. Therefore, the district court was required to
deny the defendants’ motion for qualified immunity. 11
B. Section 1983 claim for violation of due process
Perez also argues that the individual defendants violated
her constitutional rights by failing to provide her with “an
opportunity to refute the charges or allegations made against
11
Defendants contend that Perez has waived any argument on the
question whether they are entitled to qualified immunity because she did
not address that question in her opening brief. Although we will “not
ordinarily consider matters on appeal that are not specifically and
distinctly argued in appellant’s opening brief,” there are three main
exceptions to that general rule:
First, we will review an issue not present in an opening
brief for good cause shown, or if a failure to do so
would result in manifest injustice. Second, [w]e have
discretion to review an issue not raised by appellant
. . . when it is raised in the appellee’s brief. Third, we
may review an issue if the failure to raise the issue
properly did not prejudice the defense of the opposing
party.
United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (citations and
quotation marks omitted) (alteration in original). Here, all three
exceptions apply. The qualified immunity issue was briefed in the
defendants’ answering brief, and “the discussion of the issue . . . is
sufficient to permit an informed resolution of the dispute and its
application to [Perez’s claim].” See id. Furthermore, the defendants
suffered no prejudice, as it was clear from Perez’s brief that her claim
relied wholly upon the right established in Thorne. Consequently, we
exercise our discretion to review the qualified immunity issue and
conclude that the district court erred in granting such immunity to the
defendants on this claim.
28 PEREZ V. CITY OF ROSEVILLE
her and clear her name prior to her termination.” 12 As we
explained in Mustafa v. Clark County School District:
The termination of a public employee which
includes publication of stigmatizing charges
triggers due process protections. . . .
However, to take advantage of these
protections, an employee must show that
(1) the accuracy of the charge is contested;
(2) there is some public disclosure of the
charge; and (3) the charge is made in
connection with termination of employment.
If a liberty interest is thereby implicated, the
employee must be given an opportunity to
refute the stigmatizing charge.
157 F.3d 1169, 1179 (9th Cir. 1998) (citations omitted)).
“Failure to provide a ‘name-clearing’ hearing in such a
circumstance is a violation of the Fourteenth Amendment’s
due process clause.” Cox v. Roskelley, 359 F.3d 1105, 1110
(9th Cir. 2004). This right also applies to probationary
employees. Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d
773, 777 (9th Cir. 1982)).
12
Perez also pleaded a due process violation based on an alleged
property interest in continued employment with the Department. As a
probationary employee, Perez’s property-based due process claim was
meritless. See, e.g., McGraw v. City of Huntington Beach, 882 F.2d 384,
389 (9th Cir. 1989) (“If McGraw were a mere ‘probationary employee’
subject to summary ‘rejection’ pursuant to H.B. Personnel Rules 4–48
and 9–4, the district court’s ruling that appellant had no protectable
property interest in continued City employment could be affirmed.”).
PEREZ V. CITY OF ROSEVILLE 29
1. Constitutional Violation
The defendants do not contend that Perez failed to
establish that “the accuracy of the charge is contested” or
that the charge has been publicly disclosed via the letter to
Leah Begley. But, they argue, and the district court
concluded, that Perez had “not presented evidence from
which a reasonable inference could be drawn that
stigmatizing information about her was published in
connection with her termination.” Perez argues that the
Department’s August 16, 2012 letter to Leah Begley, which
indicated that the charges of “Unsatisfactory Work
Performance” and “Conduct Unbecoming” were sustained,
constituted public disclosure of stigmatizing information in
connection with her termination.
The district court erred in concluding that the letter to
Leah Begley was not published “in connection with
[Perez’s] termination.” In reaching this conclusion, the
district court required an excessively close nexus between
the publication of the charges and Perez’s termination. The
nexus “element does not require a strict temporal link
between the defamation and the nonrenewal or discharge;
rather, the defamatory statement must be so closely related
to discharge from employment that the discharge itself may
become stigmatizing in the public eye.” Ulrich v. City & Cty.
of San Francisco, 308 F.3d 968, 983 (9th Cir. 2002)
(citations and quotation marks omitted). In Ulrich, for
example, this nexus standard was satisfied where the
allegedly defamatory statements were made five days after
that plaintiff was terminated, giving rise to “an implication
[with] the potential to make [his] resignation,” which he had
published over a month earlier, “itself stigmatizing in the
eyes of potential employers.” Id.; see also Campanelli v.
Bockrath, 100 F.3d 1476, 1483 (9th Cir. 1996) (declining to
30 PEREZ V. CITY OF ROSEVILLE
establish a bright line test and concluding that nexus
requirement satisfied where statements made to press one
week after termination); Tibbetts v. Kulongoski, 567 F.3d
529, 538 (9th Cir. 2009) (stating that “sixteen months is far
too remote from the terminations to meet Campanelli’s
‘temporal nexus’ test,” but release issued nineteen days after
termination was a “more difficult question,” therefore the
law was not clearly established in that case and terminating
official was entitled to qualified immunity). 13
In this case, nineteen days elapsed between publication
of the charges and Perez’s formal termination, and Chief
Hahn made the ultimate decision to terminate Perez just two
weeks after the letter to Leah Begley. 14 Furthermore,
although the district court was correct that Hahn “aver[red]”
that the charges in the letter “were not a basis for his decision
to terminate” Perez, the district court erred in crediting that
testimony as true at summary judgment, despite the
13
See also Mertik v. Blalock, 983 F.2d 1353, 1363 (6th Cir. 1993)
(nexus requirement satisfied where publication occurs “roughly
contemporaneously” with adverse employment action); Ray v. Tenn.
Valley Auth., 677 F.2d 818, 824 (11th Cir. 1982) (“While we hesitate to
set a temporal limit on the relationship between the alleged defamation
and the other deprivation action, in this case we find that the long time
lapse [of six years] strengthens our conclusion that the alleged
defamation was not connected to the employment termination.”); Martz
v. Inc. Vill. of Valley Stream, 22 F.3d 26, 32 (2d Cir. 1994) (determining
nexus requirement not satisfied where publication occurred five months
after termination).
14
Notably, unlike in Ulrich, Campanelli, and Tibbetts, the
stigmatizing statements here were made prior to the termination. See
Fetsch v. City of Roseburg, No. 6:11-CV-6343-TC, 2013 WL 2631495,
at *6 (D. Or. June 11, 2013) (“[U]nlike in Campanelli and Tibbetts where
the stigmatizing statements were made after termination, the City made
the stigmatizing statements about plaintiff at the time of his
termination.”).
PEREZ V. CITY OF ROSEVILLE 31
conflicting evidence in the record as to whether the results
of the IA investigation played a role in his final termination
decision. See Section III.A.1.a, supra. Finally, Perez’s
formal termination was issued immediately after her
administrative hearing in which she contested the charges in
the letter. Cf. Renaud v. Wyo. Dep’t of Family Servs.,
203 F.3d 723, 727 (10th Cir. 2000) (“[A] court must
examine both the nature and the timing of an allegedly
defamatory statement to determine whether it has been made
in the course of an employee’s termination.”). Where, as
here, only a few weeks separate publication of a defamatory
statement from an employee’s termination, we presume that
Campanelli’s temporal nexus test is satisfied. Therefore,
taking the facts in the light most favorable to Perez and
drawing all inferences in her favor, a reasonable jury could
well conclude that the letter was published “in connection
with her termination.”
2. Clearly Established Law
Defendants contend that even if their actions deprived
Perez of liberty without due process, they are entitled to
qualified immunity. We agree.
Although the district court erred in determining that the
Department’s letter to Leah Begley was not published in
connection with Perez’s termination, 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
name-clearing hearing. In fact, in Tibbetts, we explicitly
stated that a reasonable public official “could not have
known by recourse to then-extant case law whether a
stigmatizing statement made nineteen days after Plaintiffs’
termination would violate Campanelli’s temporal nexus
test.” 567 F.3d at 538. Accordingly, in that case, we granted
32 PEREZ V. CITY OF ROSEVILLE
qualified immunity without deciding the “difficult question”
whether there was a sufficient temporal nexus between the
termination and the publication of the stigmatizing
information. See id. Because we had previously held in
Tibbetts that an employee’s right to a name-clearing hearing
was not clearly established where nineteen days had elapsed
between termination and publication, Perez’s constitutional
right to a name-clearing hearing in this case was similarly
not clearly established at the time of the defendants’
challenged actions. Therefore, we conclude that, regardless
of how apparent the violation may have been in this case,
and notwithstanding that our holding on this question will
lead to a different result in future cases, the defendants are
entitled to qualified immunity on Perez’s due process
claim. 15 Because this purely legal conclusion is
unavoidable, it is unnecessary to remand to the district court
for its consideration in the first instance.
C. Title VII and FEHA
Perez also alleges that she was terminated based on her
gender in violation of Title VII of the Civil Rights Act of
1964 and California’s FEHA. She vigorously argues,
however, that all the complained-of conduct in regard to
gender was simply a pretext to justify a discharge that was
actually based solely on her having an affair with another
officer, a ground for discharge that violated her rights to
privacy and intimate association. In view of Perez’s
15
Because the defendants are entitled to qualified immunity, we
express no view on defendants alternative arguments that Perez was not
entitled to name-clearing hearing because either (1) the letter to Leah
Begley did not contain sufficiently stigmatizing charges; or (2) Perez
received all of the process which was due at her September 4
administrative hearing before Chief Hahn.
PEREZ V. CITY OF ROSEVILLE 33
concession, we affirm the grant of summary judgment on
this claim.
IV. Conclusion
For the foregoing reasons, we REVERSE summary
judgment for the defendants on Perez’s Section 1983 claim
for violation of her rights to privacy and intimate association
and REMAND for further proceedings on that claim
consistent with this opinion.
We AFFIRM summary judgment for the defendants on
Perez’s due process and gender discrimination claims.
Affirmed in part; Reversed in part; and Remanded.
TASHIMA, Circuit Judge, concurring:
I write separately because, although I ultimately agree
with the decision to reverse the grant of summary judgment
to defendants on plaintiff Janelle Perez’s Fourteenth
Amendment privacy claim, I disagree with much of the
majority’s reasoning on that claim. We should be mindful
that Perez was a probationary police officer, which means
that under Roseville city policy, the Police Department
(“Department”) did not have to provide any reasons for
terminating her (and initially did not). Still, once litigation
began, the Department asserted three reasons for firing
Perez. I concur in the reversal solely because those reasons
all arose in such short order after the internal affairs review
that a reasonable inference may be drawn that they may have
34 PEREZ V. CITY OF ROSEVILLE
been pretextual. 1 The majority’s other bases for reversing
the grant of summary judgment on this claim do not, in my
opinion, withstand scrutiny.
I. Chief Hahn’s “part of” testimony
The majority first relies on Chief Hahn’s deposition
testimony that Leah Begley’s complaint was “part of” his
decision to terminate Perez – even concluding that Chief
Hahn’s testimony alone would preclude summary judgment.
Maj. Op. at 12–13. The majority calls Chief Hahn’s answer
“inconsistent” with his declaration that Perez’s “private, off-
duty relationship with [Shad Begley] was not a factor” in her
firing. As I demonstrate below, however, Chief Hahn’s
statements are not contradictory. The only part of the affair
investigation that factored into the firing was Perez’s on-duty
phone use.
As the majority recognizes, see Maj. Op. at 25
(“Begley’s wife’s complaint alleged on-the-job sexual
misconduct”), Leah Begley’s complaint letter focused on
1
I join in full the majority’s analysis of Perez’s other claims. I note,
however, that with respect to the due process claim based on the
Department’s failure to provide Perez with a name-clearing hearing,
whether Chief Hahn’s letter to Leah Begley was “stigmatizing” is not at-
issue on this appeal. The majority affirms the grant of summary
judgment to defendants on this claim on the basis of qualified immunity,
assuming that the letter is a “publication of stigmatizing charges.”
Mustafa v. Clark Cty. Sch. Dist., 157 F.3d 1169, 1179 (9th Cir. 1998).
See Maj. Op. at 32 n.15. I doubt that the Chief’s August 16, 2012, letter,
which, according to the majority, “indicated that the charges of
‘Unsatisfactory Work Performance’ and ‘Conduct Unbecoming’ were
sustained” constituted publication of stigmatizing information. Id. at 29.
PEREZ V. CITY OF ROSEVILLE 35
potential on-duty conduct by Perez and Shad Begley. 2 The
letter precipitated an internal affairs review, after which
Perez was reprimanded, initially for “[u]nsatisfactory work
performance” and “conduct . . . unbecoming a member of
the Department.” Lieutenant Walstad’s initial “conduct
unbecoming” finding resulted explicitly from the affair. As
he wrote, “Both Officer[s] are married and have young
children,” which “reflects unfavorably” on the Department.
Captain Moore’s subsequent reprimand letter suggested that
Perez and Begley’s on-duty phone use “interfere[d] in their
work performance” and “reflected negatively” on the
Department, but did not mention any off-duty conduct.
Chief Hahn, the final decisionmaker, did not sustain
either of internal affairs’ findings. He rejected the work
performance finding because, he testified,“I didn’t see
anything in the internal affairs report that could prove that
. . . something didn’t get done that should have got done.”
Chief Hahn rejected the conduct unbecoming finding for
similar reasons:
Well, one, a lot of the allegations in the
original complaint were things happening on
duty, and none of those were proven that they
happened on duty. So now we’re just dealing
with off-duty conduct, and I didn’t see any
off-duty conduct that affected morale or
standing of the department kind of thing.
2
The letter stated, in part: “I also want to report this situation to you
and other Roseville officials as I believe the citizens and taxpayers of
Roseville have been cheated by the conduct of Officers Begley and Perez
during the time they were on duty and sworn to be spending 100% of
their time serving the City of Roseville.” (Emphasis added.)
36 PEREZ V. CITY OF ROSEVILLE
Asked whether the extramarital nature of the affair “ha[d]
anything to do with your decision making,” Chief Hahn said,
“No. Absolutely not.” Accordingly, to the extent that
Walstad and Moore initially recommended discipline based
on Perez’s protected off-duty conduct, Chief Hahn explicitly
rejected that rationale.
Instead, Chief Hahn determined that Perez’s on-duty
personal phone use violated the Department’s phone policy,
and so wrote in a post-firing letter to Perez. He testified that
Perez’s phone use was the only “fact[] contained in the
internal affairs investigation” that factored into her firing.
Accordingly, when Chief Hahn testified “yes,” that the
Leah Begley letter and investigation were “part of” his
decision to fire Perez, he could only have been referring to
the phone policy violation. He expressly repudiated the
other findings in his reprimand of Perez, statements to
subordinates, and deposition testimony.
II. Statements of subordinate officers
Next, the majority concludes that the court may impute
Lieutenant Walstad’s and Captain Moore’s bias against
Perez to the Department because, although subordinates,
they were involved in Perez’s firing. Maj. Op. at 13–14.
Walstad and Moore each reviewed the internal affairs
investigation report and recommended that the Department
discipline Perez. Chief Hahn’s independent decision,
however, cut off any causal nexus between those officers’
apparent bias and Perez’s firing.
Under our precedent, the court may impute bias to an
employer “if a subordinate, in response to a plaintiff's
protected activity, sets in motion a proceeding by an
independent decisionmaker that leads to an adverse
PEREZ V. CITY OF ROSEVILLE 37
employment action . . . [and] the biased subordinate
influenced or was involved in the decision or
decisionmaking process.” Poland v. Certoff, 494 F.3d 1174,
1182 (9th Cir. 2007). Poland was a retaliation case; thus, it
is not a perfect match for Perez’s claims. Still, Poland’s
overall point applies: there can be a causal nexus even where
an unbiased supervisor makes the ultimate employment
decision, if a biased subordinate had a “pervasive” influence
on the disciplinary process. Id. at 1183. However, “if an
adverse employment action is the consequence of an entirely
independent investigation by an employer, the animus of the
retaliating employee is not imputed to the employer.” Id.Thus no nexus exists if the subordinate’s influence is not
“pervasive” or the employer’s decision is sufficiently
independent.
Here, there are indicia that at least Walstad, and maybe
Moore, were biased. Walstad, who first reviewed the
internal affairs investigation, testified that the affair was
inappropriate because both Perez and Begley were married
with young children. He recommended sustaining discipline
because the officers were married and should model
ethical conduct to maintain “the trust and respect of those
who are served.” Moore, who reviewed Walstad’s
recommendations, testified that the affair “present[ed] a
truly ethical dilemma whether or not that is something that
could reflect unfavorably on our police department.”
Despite these indicia of bias, however, the causal nexus
between both officers’ actions and Perez’s eventual
termination is virtually nonexistent. Each officer
participated in the internal affairs review strictly in the
course of his normal duties. Neither requested the
investigation. As explained at length above, Chief Hahn
explicitly rejected Walstad’s and Moore’s recommendations
38 PEREZ V. CITY OF ROSEVILLE
to the extent they were based on off-duty sexual conduct,
instead determining that Perez violated only the
Department’s phone use policy. At some later point, Moore
was told of Chief Hahn’s decision to terminate Perez, and
Moore may have agreed (the record is unclear), but the final
decision was Hahn’s alone. In that respect, this case
resembles Lakeside-Scott, in which the allegedly biased
subordinate initially reported an employee’s conduct, but the
employee’s termination resulted from a subsequent
investigation on which the subordinate had no influence.
Lakeside-Scott v. Multnomah Cty., 556 F.3d 797, 805–06
(9th Cir. 2009). The court found no causal nexus. Id.Similarly, in Vasquez, we found no causal nexus between
a subordinate’s discriminatory remarks to a coworker,
complaint to a superior about the coworker, and the
coworker’s subsequent demotion. Vasquez v. Cty. of L.A.,
349 F.3d 634 (9th Cir. 2003), as amended (Jan. 2, 2004). In
the intervening time, as here, the supervisor “conducted her
own thorough investigation” and determined that a demotion
was warranted. Id. at 640.
Accordingly, no reasonable juror could conclude that
either Walstad or Moore “influenced, affected, or were
involved in” Perez’s firing when Hahn explicitly rejected
their reasoning and recommendations. Poland, 494 F.3d at
1183; compare France v. Johnson, 795 F.3d 1170, 1176 (9th
Cir. 2015), as amended on reh’g (Oct. 14, 2015) (imputing
bias because supervisors adopted biased subordinate’s
recommended finalists for promotion).
III. Pretextual reasons
Lastly, the majority holds that a jury could find the
Department’s stated reasons for firing Perez were pretextual
because they all arose shortly after the affair investigation.
PEREZ V. CITY OF ROSEVILLE 39
I agree that under our controlling case law, the timing of the
proffered reasons raises a triable issue.
As a preliminary matter, the Department did not need to
provide any reason for firing Perez, who was hired as a
probationary police officer. The Department could
summarily dismiss Perez for no reason at all or for a
frivolous, non-protected reason. Per Roseville city policy, a
probationary employee “may be released from City service
without cause at the sole discretion of the City.” Chief Hahn
testified that if a probationary officer has “done something
egregious enough to get disciplined in that period of time
where they are supposed to be on their best behavior,” firing
is advisable even without a response from the officer. The
majority does not grapple with or even address this issue in
its analysis of Perez’s privacy claim.
At least initially, Chief Hahn did not provide any reason
for terminating Perez. However, the Department provided
several reasons in the course of this litigation. In his
declaration, Chief Hahn said he terminated Perez due to a
shift trade dispute, a civilian complaint, and an officer’s
complaint that Perez was not getting along with other female
officers. 3 A plaintiff may defeat summary judgment by
showing that the defendant’s proffered reasons lack
credence or are pretextual. Anthoine v. N. Cent. Counties
Consortium, 605 F.3d 740, 753 (9th Cir. 2010).
Although the majority states there is evidence that all
three of the Department’s reasons lack credence, Maj. Op.
at 16, I am not convinced that this record supports such a
3
As noted above, Chief Hahn also testified that Perez’s phone policy
violation factored into his decision.
40 PEREZ V. CITY OF ROSEVILLE
conclusion. The majority contends the informal complaint
that Perez was not getting along with other female officers
“was made only after her affair became known.” Maj. Op.
17. Yet, there is not evidence the complainants knew of the
affair or the investigation. 4 It is undisputed that Perez
worked with some female officers, including the officer who
complained. As for the civilian complaint, the Department
did not investigate it because the civilian did not wish to
pursue the matter further. Given the nonexistent threshold
for firing a probationary officer, Chief Hahn could rely on
an unsubstantiated complaint. The same holds true for the
shift trade dispute. Moreover, the other officer’s sense upon
being asked to write a memo about the dispute that
“something was going on” is not “evidence that an
employer[] deviat[ed] from established policy or practice,”
Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1117
(9th Cir. 2011), but rather of the officer’s realization that
Perez might be under investigation. None of the three
reasons lacks credence, particularly in light of the no-cause
standard for firing a probationary officer.
Under normal circumstances, the timing of the proffered
reasons would preclude summary judgment. The complaints
all arose in the very short period between the internal affairs
review and Perez’s appeal hearing, which creates an
inference of pretext, as the majority notes. Yartzoff v.
Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). But in the
context of terminating a probationary employee, the
inference is not as compelling, because in that context, no
reason at all need be proffered for the termination and often
4
There is no evidence in the record that the internal affairs
investigation, or the affair itself, were “known” within the Department.
Indeed, the senior officer who documented the shift trade dispute was
unaware of the internal affairs investigation at the time.
PEREZ V. CITY OF ROSEVILLE 41
one isn’t provided at the time, as in this case. In the usual
non-probation case a close-in-time pretextual reason is
offered because some reason is required to be given for the
personnel action. Here, specific reasons were offered for the
termination only because litigation had been instituted.
Thus, it is the ordinary course of events that when a
probationary employee is terminated, no reason is proffered.
As in this case, a reason for the termination will be offered
only if the termination is challenged in an administrative or
judicial proceeding. Thus, if a justification for terminating a
probationary employee is ever called for, it would be in
circumstances post-termination and close in time to the
termination. These circumstances call for the exercise of
caution when applying the close-in-time-equals-pretext
Yartzoff rule; but they do not mean that the rule should not
be applied at all when probationary employees are involved.
Here, Chief Hahn knew early on of Perez’s affair. He
was told about the civilian complaint even though no
investigation occurred. There is also a factual dispute over
whether Chief Hahn or a different officer instructed Newton
to write the shift trade dispute memo. Ultimately, the timing
of these three bases permits the inference that Chief Hahn
wished to conceal an improper motive with legitimate
explanations. Of course, Chief Hahn said he was trying to
determine “what kind of employee [Perez] was” before the
appeal hearing, which might account for the timing of the
three reasons. However, resolving this dispute – whether the
proffered reasons for Perez’s termination were pretextual –
is for the jury to decide.
Accordingly, on this basis alone, I concur in the
majority’s reversal of summary judgment in favor of
defendants on Perez’s Fourteenth Amendment privacy
claim.