882 F.3d 843
9th Cir.2018Background
- Perez, a probationary Roseville police officer, was investigated after a citizen complaint alleged an extramarital affair with fellow officer Begley and possible on-duty sexual conduct; IA found no on-duty sexual activity but noted phone calls/texts while on duty.
- Walstad and Moore recommended discipline citing “unsatisfactory work performance” and “conduct unbecoming,” and expressed moral disapproval of Perez’s extramarital affair; Moore recommended termination to Chief Hahn.
- Perez appealed and was terminated at the end of an administrative hearing; her termination letter gave no reasons and Chief Hahn initially declined to explain his decision.
- After termination the Department issued an alternate reprimand citing use of personal communication devices; later in litigation the Department defended the firing on three proffered non-sexual grounds (bad relations with female officers, a civilian complaint about a domestic-violence call, and a bad attitude over a shift trade).
- Perez sued under 42 U.S.C. § 1983 (privacy/intimate association and due process/name-clearing) and for sex discrimination under Title VII and FEHA; the district court granted summary judgment to defendants; Ninth Circuit reversed summary judgment on the privacy claim, affirmed on due process and discrimination claims, and remanded the privacy claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Violation of privacy / intimate association (14th Am.) | Perez: termination was at least in part due to protected private, off-duty extramarital sexual conduct, which is constitutionally protected absent showing of adverse job impact or narrow policy violation. | Defendants: termination was based on legitimate, non-sexual performance/behavior reasons (and IA showed possible on-duty issues justifying investigation). | Court: Genuine dispute exists that firing was motivated in part by moral disapproval of the affair; extramarital off-duty sex is protected under Thorne; reversal of summary judgment and remand on this claim. |
| Qualified immunity for privacy claim | Perez: Thorne clearly established that terminating an officer for private off-duty sexual conduct without job-impact or narrow policy is unconstitutional. | Defendants: no clearly established right because IA complaint alleged on-duty conduct; officials could reasonably rely on investigation. | Court: Thorne sufficiently clearly established the law in the Ninth Circuit; qualified immunity denied for privacy claim. |
| Due process — name-clearing hearing (liberty interest) | Perez: letter to Begley’s wife publicly disclosed stigmatizing charges connected to termination, triggering right to a name-clearing hearing. | Defendants: no publication connected to the termination (or law unclear on temporal nexus); qualified immunity applies. | Court: Fact question exists that the letter was connected to termination, but the right to a name-clearing hearing was not clearly established given case law ambiguity about temporal nexus (qualified immunity affirmed). |
| Title VII / FEHA sex discrimination | Perez: termination was pretextual; real motive was gender-based disapproval. | Defendants: discharge was due to non-sexual reasons; evidence shows moral disapproval, not sex discrimination. | Court: Affirmed summary judgment for defendants; evidence better fits moral disapproval of affair than gender discrimination. |
Key Cases Cited
- Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1984) (public employees have privacy right in private, off-duty sexual behavior; adverse action based on such conduct violates the Constitution absent proof of job impact or narrow regulation)
- Fugate v. Phoenix Civil Serv. Bd., 791 F.2d 736 (9th Cir. 1986) (discussing Thorne’s protection for private off-duty sexual conduct)
- Fleisher v. City of Signal Hill, 829 F.2d 1491 (9th Cir. 1987) (freedom of intimate association is coextensive with privacy right for intimate relationships)
- Lawrence v. Texas, 539 U.S. 558 (2003) (substantive liberty protects intimate sexual conduct from moral-disapproval stigmatization)
- White v. Pauly, 137 S. Ct. 548 (2017) (qualified immunity: right must be clearly established; circuit precedent may suffice to do so)
- Mustafa v. Clark County Sch. Dist., 157 F.3d 1169 (9th Cir. 1998) (elements for name-clearing due-process claim tied to stigmatizing public disclosure connected to termination)
- Poland v. Certoff, 494 F.3d 1174 (9th Cir. 2007) (imputing a biased subordinate’s motive to employer when subordinate influenced decisionmaking)