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Officer’s claim she was terminated in part for extramarital affair revived

By Kathleen Kapusta, J.D.

Reversing the grant of summary judgment on a probationary police officer’s Section 1983 claim for violation of her clearly established constitutional rights to privacy and intimate association, the Ninth Circuit found a fact issue as to whether she was terminated, at least in part, on the basis of her extramarital affair with another officer. Disagreeing with the approach taken by the Fifth and Tenth Circuits, the appeals court 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. The court, however, affirmed the grant of summary judgment against her due process and gender discrimination claims. In a separate opinion, Judge Tashima concurred with the court’s decision on the officer’s privacy claim but disagreed with much of its reasoning (Perez v. City of Roseville, February 9, 2018, Reinhardt, S.).

A few months into her probationary term, the officer began a romantic relationship with a coworker. At the time, both were separated from their spouses. When her coworker’s wife filed a complaint alleging that the officers were engaging in inappropriate sexual conduct while on duty, an internal affairs investigation ensued. Although the investigating lieutenant found no evidence of on-duty sexual conduct, he concluded that their numerous calls and texts “potentially” violated department policy.

Conduct unbecoming. Upon receiving the report, the captain forwarded it to another lieutenant, who recommended that the department find the officers conduct violated department policies. The captain agreed and both officers received written reprimands for “Unsatisfactory Work Performance” and “Conduct Unbecoming.” The department also sent a letter to the coworker’s wife informing her of the charges.

At some point after completion of the report, the officer was accused of not getting along with other female officers, was told the department received a complaint from a domestic violence victim about her conduct during a service call, and was accused of displaying a “bad attitude” toward a superior regarding a potential shift trade.

Terminated. The officer appealed her reprimand and at the conclusion of an administrative hearing, she was informed of her termination. No explanation was given by the chief. Two weeks after her termination, the captain issued her a new reprimand, which reversed the unsatisfactory work performance and conduct unbecoming findings and based the reprimand on a new charge of “Use of Personal Communication Devices.” She subsequently sued the department, the city, and several individual officers asserting 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. The district court granted summary judgment against all claims.

Off-duty sexual activity. Observing on appeal that under Ninth Circuit 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, the court found the officer provided sufficient evidence of each element to survive summary judgment. Specifically, a fact dispute existed as to whether she was terminated “in part” because of the affair.

First, said the appeals court, the chief’s testimony that the complaint and investigation were part of his decision to terminate the officer contradicted his earlier statement that her off-duty relationship was not a factor in the adverse decision. In addition, the captain, who was intimately involved in the decisionmaking process, testified that the fact the officers were conducting an extramarital affair was “significant” to him. That the department morally disapproved of the officer’s private sexual conduct was further supported by the views of the lieutenant, 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.

Pretext. A fact dispute also existed as to whether the department’s three proffered reasons for terminating the officer—her inability to get along with other female officers, the complaint about her conduct from a domestic violence victim, and the “bad attitude” she displayed to a superior—were pretextual as all three of these reasons arose after the conclusion of the investigation and over the course of approximately eight weeks. Moreover, said the court, there was also evidence that each of the reasons were independently unworthy of credence.

The court also pointed to evidence showing the department frequently shifted its reasons for firing the officer. When the chief first notified her of her termination, he declined to provide a reason. Then two weeks after her termination, she received the new reprimand, reversing the first one and substituting a new violation. Finally, after the commencement of the lawsuit, the chief asserted the three reasons on which the department now relies for terminating the officer, all of which differed from the original and belated reprimand. In sum, said the court, a fact issue exists as to whether she was fired at least in part because of her extramarital affair.

Constitutionally protected. Next, the court cited to Thorne v. City of El Segundo, the seminal case in which it first recognized that police officers enjoy a right of privacy in private, off-duty sexual behavior. Here, there was no evidence, as required by Thorne, that the officer’s affair had any meaningful impact on her job performance or contravened specific policies with narrow implementing regulations. Accordingly, the court found the department violated her constitutional rights by terminating her in part on the basis of her extramarital affair.

Since Thorne, the court pointed out, the Fifth and Tenth Circuits have adopted rules that appear to be in some tension with that decision. Rejecting their approach, the court explained, among other things, that they failed to appreciate the impact of Lawrence v. Texas, in which the Supreme Court made 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.” Thus, said the court, 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 the officer’s extramarital affair by terminating her employment on that basis.

Clearly established. The district court had also found that the defendants were entitled to qualified immunity because the coworker’s wife alleged that the officer engaged in on-duty sexual conduct. The appeals court held the lower court erred as a matter of law by addressing only the constitutionality of the investigation, which was precipitated by a charge of on-duty sexual misconduct, and failing to consider whether the department violated the Constitution by terminating the officer for conduct that was, for purposes of the summary judgment motion, off-duty. As to that question, at the very least, a fact dispute remained as to whether under Thorne the defendants violated her clearly established constitutional rights to privacy and intimate association by firing her, at least in part, for off-duty sexual conduct.

Due process. At issue in the employee’s due process claim was whether the department’s letter to the coworker’s wife constituted public disclosure of stigmatizing information in connection with her termination. Finding that the district court erred in concluding that the letter was not published in connection with her termination, the appeals court reasoned that it required an excessively close nexus between the publication of the charges and her termination. Here, 19 days elapsed between publication of the charges and the officer’s formal termination, and the chief made the ultimate decision to terminate her just two weeks after the letter to the coworker’s wife. Where, as here, only a few weeks separated the publication of a defamatory statement from an employee’s termination, the court presumed that the temporal nexus test was satisfied. Thus, a reasonable jury could conclude the letter was published “in connection with her termination.”

Nonetheless, the defendants were entitled to qualified immunity on this claim because Ninth Circuit law did not clearly establish that a letter published 19 days prior to an employee’s termination could bear a sufficient nexus to the employment decision to give rise to a right to a name-clearing hearing.

Concurrence. In a concurring opinion, Judge Tashima observed that the officer was a probationary employee and thus the department did not need to provide any reasons for terminating her. Nonetheless, the judge pointed out, once litigation began, the department asserted three reasons for firing her. The judge concurred 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 been pretextual. The majority’s other bases for reversing the grant of summary judgment on this claim do not, in my opinion, withstand scrutiny.”