Private sexual conduct cannot be grounds for public employee’s termination, 9th Circuit rules

Private sexual conduct that does little to affect a public employee's work performance may not be grounds for termination, the 9th U.S. Circuit Court of Appeals has ruled.

In an opinion published Friday, Judge Stephen R. Reinhardt wrote at length to reverse an Eastern District judge's summary judgment in favor of a city police department accused of violating the constitutional rights of a former employee by firing her because of her romantic involvement with a coworker. Perez v. City of Roseville, 2018 DJDAR 1361 (9th Cir., Feb. 9, 2018).

The ruling appears to part ways with precedent in the 5th and 10th Circuits, which have both upheld punishments police officers received for private sexual behavior as constitutional, a point noted by Reinhardt in his opinion.

Janelle Perez sued the city of Roseville and its police department in 2014 after she was dismissed from her probationary employment. Perez, who was separated from her husband at the time, had been romantically involved with Officer Shad Begley, a veteran of the police force who was estranged from his spouse.

Perez's dismissal came after a series of internal reviews which concluded that she had not engaged in any inappropriate sexual behavior at work. Instead, she was relieved from her duties in the office due to her inability to work well with female officers, a complaint the department received after Perez responded to a domestic violence report and a "bad attitude" she displayed during a disagreement about a potential shift trade, the department said.

Until the affair, Perez had received positive employment evaluations.

But Perez's attorneys noted that these findings came shortly after she was investigated for inappropriate work behavior pertaining to the relationship with Begley.

U.S. District Judge Garland E. Burrell Jr. granted summary judgment in favor of Roseville, ruling that the city and its police department had qualified immunity because Perez's claims were not protected by any clearly established constitutional rights.

But in his opinion, Reinhardt referred to a 1983 decision from the 9th Circuit that held that the City of El Segundo violated a police department applicant's constitutional privacy rights by denying her employment on the grounds that she had engaged in an affair with a married police officer. Reinhardt said that decision made clear that the constitutional protections were clearly established at the time of Perez's 2012 firing.

He also wrote that issues of triable facts existed as to whether or not the city's proffered reasons for firing Perez were legitimate, citing testimony given by Roseville police leadership suggesting that they found her behavior morally objectionable and considered the romantic relationship while deciding to let her go.

Reinhardt wrote specifically to address the bounds of the seminal U.S. Supreme Court ruling in Lawrence v. Texas, saying that the sister circuit courts had failed to adequately recognize the decision's impact.

"[Lawrence] recognized that intimate sexual conduct represents an aspect of the substantive liberty protected by the Due Process Clause," he wrote, adding that the ruling did more than simply strike down anti-sodomy laws.

"As the [Supreme] Court explained, the liberty protected by the Due Process Clause must extend equally to all intimate sexual conduct between consenting adults..." he added later.

Reinhardt's opinion was joined by U.S. District Judge Donald W. Molloy, visiting from Montana. But Senior Circuit Judge A. Wallace Tashima wrote a separate concurrence. He said that the police department's reasons for firing Perez were likely "pretextual," but disagreed with Reinhardt's decision to cite police testimony as grounds for reversal.

Richard P. Fisher, an attorney at Goyette & Associates Inc. who represented Perez, said that he and his client were pleased with the decision, which he described as affirming his "client's Constitutional rights to privacy and intimate association - rights that are daily being eroded by employers and state actors."

The 9th Circuit's decision did affirm, however, the district court's dismissal of due process claims pertaining to the department's internal review procedures and Perez's sex discrimination claims.

Fisher noted that he was disappointed that the court declined to weigh in on same actor inference, which allows courts to dismiss theories of discrimination if the alleged wrongdoing was committed by the party that hired the plaintiff. He said that it was an area of the law that "needs clarification." Roseville's attorneys had argued same actor inference as a defense.

As with any circuit split, Supreme Court review becomes a possibility and Fisher said that if the case were to make it to the high court he thinks the facts of the case would weigh favorably in his client's favor.

Stacey N. Sheston, a partner at Best Best & Krieger LLP who represented the city, did not respond to a request for comment.