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.