Monday, February 12, 2018
Firing Probationary Officer for Adultery Is Impermissible
Majority Says Triable Issue Exists as to Whether Termination of Employment Stemmed, Even in Part, From Employee’s Affair With Co-Worker
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday reinstated an action based on an alleged constitutional privacy deprivation by Placer County’s City of Roseville and higher-ups in the police department for discharging a probationary officer, at least in part, because she was engaged in a sexual relationship with a male officer.
Both plaintiff Janelle Perez and Officer Shad Begley, with whom she had an affair, had spouses from whom they were separated.
Judge Stephen Reinhardt wrote for the majority in reversing summary judgment, granted by Senior District Judge Garland E. Burrell Jr. the Eastern District of California, in favor of the defendants on Perez’s claim for violation of her rights to privacy and intimate association. Summary judgment was affirmed due process and gender discrimination claims.
Judge A. Wallace Tashima wrote a concurring opinion.
Civil Rights Action
Perez brought her action under 42 U.S.C. §1983, alleging violation of federal constitutional rights.
Citing the Ninth Circuit’s 1983 decision in Thorne v. City of El Segundo, Reinhardt wrote:
“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….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 constitutional rights to privacy and intimate association.”
Might Be Pretextual
Reinhardt noted that reasons were proffered for Perez’s discharge other than the adulterous affair, such as an inability to get along with other female officers. The judge said there was a triable issue as to whether these reasons were pretextual, pointing out that the criticisms arose close in time after the investigation into the affair, and the evidence showed that a captain and a lieutenant personally disapproved of Perez’s adultery.
He agreed with Burrell that there was no due process violation or gender discrimination.
Tashima concurred solely on the ground that the additional reasons for discharging Perez “all arose in such short order after the internal affairs review” so that “a reasonable inference may be drawn that they may have been pretextual.”
The case is Perez v. City of Roseville, No. 15-16430.
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