Janelle Perez v. City of Roseville , 926 F.3d 511 ( 2019 )

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, ORDER AND
Chief; CAL WALSTAD, Lieutenant, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Argued and Submitted April 19, 2017
San Francisco, California
Filed May 21, 2019
2 PEREZ V. CITY OF ROSEVILLE
Before: A. Wallace Tashima and Sandra S. Ikuta, * Circuit
Judges, and Donald W. Molloy, ** District Judge.
Opinion by Judge Ikuta;
Dissent by Judge Molloy
SUMMARY ***
Employment Discrimination / Constitutional Law
The panel filed (1) an order withdrawing the opinion and
concurring opinion filed on February 9, 2018, and ruling that
a sua sponte en banc call and a motion for attorneys’ fees
were moot; and (2) a new opinion and dissenting opinion.
In the new opinion, the panel affirmed the district court’s
summary judgment in favor of the defendants on a former
City of Roseville probationary police officer’s claims 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
*
Judge Reinhardt, who was originally a member of this panel, died
after this case was argued and the original opinion was issued. Pursuant
to Ninth Circuit General Order 3.2(h), Judge Ikuta was randomly drawn
to replace him. Judge Ikuta has read the briefs, reviewed the record, and
watched video recordings of the oral arguments.
**
The Honorable Donald W. Molloy, United States District Judge
for the District of Montana, sitting by designation.
***
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
without due process of law in violation of the Fourteenth
Amendment.
The panel held that the individual defendants were
entitled to qualified immunity on the first claim because it
was not clearly established that a probationary officer’s
constitutional rights to privacy and intimate association are
violated if a police department terminates her due to
participation in an ongoing extramarital relationship with a
married officer with whom she worked, where an internal
affairs investigation found that the probationary officer
engaged in inappropriate personal cell phone use in
connection with the relationship while on duty, resulting in
a written reprimand for violating department policy.
It also was not clearly established that there was a legally
sufficient temporal nexus between the individual
defendants’ allegedly stigmatizing statements and the
probationary officer’s termination. The individual
defendants were therefore also entitled to qualified
immunity on the probationary officer’s claim that the lack of
a name-clearing hearing violated her due process rights.
The plaintiff also appealed the district court’s summary
judgment on her claims against the City of Roseville, and the
Roseville Police Department for sex discrimination in
violation of Title VII and the California Fair Employment
and Housing Act, but she conceded that the alleged
discrimination was not actually based on her gender.
Accordingly, the panel affirmed the district court.
The majority rejected the dissent’s argument that it was
improper to substitute a different judge following the post-
publication death of the original decision’s author and to
change a previously published opinion except as part of an
4 PEREZ V. CITY OF ROSEVILLE
en banc decision. The majority wrote that Carver v.
Lehman, 558 F.3d 869 (9th Cir. 2009), is directly applicable
here. The majority explained that because the opinion issued
by the prior majority was only part way through its
finalization process, a replacement judge was drawn, en banc
proceedings were suspended, and the new panel had the
authority to reconsider and withdraw the opinion filed by the
prior panel and to substitute a different opinion.
Dissenting, District Judge Molloy wrote that the
majority in the prior published opinion, Perez v City of
Roseville, 882 F.3d 843 (9th Cir. 2018), correctly resolved
the issues, and the majority opinion of a quorum of judges
should stand for the reasons stated therein. District Judge
Molloy wrote that the substitution of a judge who
legitimately disagrees with the original opinion should not
change the outcome except as part of an en banc court
decision.
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.
PEREZ V. CITY OF ROSEVILLE 5
ORDER
The opinion and concurring opinion filed February 9,
2018, and appearing at 882 F.3d 843 (9th Cir. 2018), are
withdrawn. They may not be cited by or to this court or any
district court of the Ninth Circuit. The sua sponte en banc
call is therefore moot.
A new opinion is filed simultaneously with the filing of
this order, along with a dissenting opinion. The parties may
file petitions for rehearing and petitions for rehearing en
banc in response to the new opinion, as allowed by the
Federal Rules of Appellate Procedure.
Appellant’s motion for attorneys’ fees is DENIED as
moot.
OPINION
IKUTA, Circuit Judge:
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 (collectively,
“individual defendants”) 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. We conclude that the individual defendants
are entitled to qualified immunity on Perez’s first claim
because it is not clearly established that a probationary
6 PEREZ V. CITY OF ROSEVILLE
officer’s constitutional rights to privacy and intimate
association are violated if a police department terminates her
due to her participation in an ongoing extramarital
relationship with a married officer with whom she worked,
where an internal affairs investigation found that the
probationary officer engaged in inappropriate personal cell
phone use in connection with the relationship while she was
on duty, resulting in a written reprimand for violating
department policy. Our precedent also does not clearly
establish that there was a legally sufficient temporal nexus
between the individual defendants’ allegedly stigmatizing
statements and Perez’s termination, and the individual
defendants are therefore also entitled to qualified immunity
on Perez’s claim that the lack of a name-clearing hearing
violated her due process rights. Finally, while Perez also
appealed 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, she conceded
that the alleged discrimination was not actually based on her
gender. Accordingly, we affirm the district court.
I
In 2011, Perez applied for a position as a police officer
with the City of Roseville Police Department. Perez had
previously worked as a police officer for the City of South
Francisco. Captain Stefan Moore interviewed Perez and
recommended that she be hired. 1
1
Because this appeal arises from the district court’s grant of
defendants’ motion for summary judgment, we view the facts in the light
PEREZ V. CITY OF ROSEVILLE 7
The Department conducted the customary investigation
into Perez’s background. Based on that background check,
Chief Daniel Hahn learned that Perez had experienced
conflicts with some female officers in her past job.
Nevertheless, Chief Hahn decided to hire Perez for the
typical one-year probationary period for new hires and sent
her a letter confirming her employment. The letter stated
that “[d]uring [her] probationary period [Perez] may be
released from City services with or without cause at the sole
discretion of the City.”
Perez began her one-year probationary term on January
9, 2012. She spent the first ten weeks completing field
training. Shortly after being released from the field training
program, Perez separated from her husband. She began
dating Shad Begley, another officer in the Department, who
also separated from his spouse shortly after he began
working the same shift as Perez.
On June 6, 2012, Chief Hahn received a written citizen’s
complaint from Leah Begley, Shad Begley’s wife. She
alleged that Begley and Perez were having an extramarital
relationship and suggested that they were engaging in
romantic relations while on duty. Leah Begley also alleged
that her husband and Perez were engaging in numerous
phone and text contacts while on duty.
In accordance with Department policy on responding to
citizen complaints, Chief Hahn instructed Lieutenant Troy
Bergstrom to conduct an internal affairs investigation into
the complaint. Lieutenant Bergstrom determined that two of
the policy standards in section 340 of the Department policy
most favorable to Perez, the nonmoving party. Kristensen v. Credit
Payment Servs. Inc., 879 F.3d 1010, 1013 (9th Cir. 2018).
8 PEREZ V. CITY OF ROSEVILLE
manual were potentially relevant. First, the allegation that
Perez and Begley spent excessive time phoning and texting
each other while on duty could constitute “[u]nsatisfactory
work performance including, but not limited to, failure,
incompetence, inefficiency or delay in performing and/or
carrying out proper orders, work assignments or instructions
of supervisors without a reasonable and bona fide excuse,”
in violation of section 340.3.5(c) of the manual. Second, the
allegation that Perez and Begley engaged in personal
relations while on duty could constitute “[a]ny other on-duty
or off-duty conduct which any employee knows or
reasonably should know is unbecoming a member of the
Department or which is contrary to good order, efficiency or
morale, or which tends to reflect unfavorably upon the
Department or its members,” in violation of section
340.3.5(aa) of the manual.
After conducting his investigation, which included
interviewing Begley and Perez, as well as their spouses, and
reviewing phone and text logs, Bergstrom prepared a
detailed report. He found no evidence that Perez and Begley
engaged in sexual relations while they were on duty.
However, Bergstrom found that Perez and Begley made
personal phone calls to each other on six different days in
May 2012 while one or both were on duty. During each of
these six days, Perez spent an average of 18 minutes per shift
on personal phone calls with Begley. On May 20, 2012,
Perez and Begley made seven personal phone calls to each
other spanning 43 minutes of their 11-hour shifts. Three of
those May 20 calls were made while Perez was responding
to calls for help. Both officers admitted to sending personal
text messages to each other while on duty. Perez stated that
they typically sent personal texts to each other about five
times per shift.
PEREZ V. CITY OF ROSEVILLE 9
Bergstrom provided his report to Captain Stefan Moore,
who was responsible for determining whether disciplinary
action should be taken. Captain Moore asked Lieutenant Cal
Walstad (Perez’s and Begley’s supervisor) to review the
report and make a recommendation.
In a memo dated July 10, 2012, Walstad recommended
that the charges against Perez be sustained. First, Walstad
concluded that Perez violated the “[u]nsatisfactory work
performance” standard set forth in section 340.3.5(c) of the
manual because her personal calls impacted her ability to
perform her duties. Walstad noted evidence that Perez
talked on the phone to Begley while en route to dispatch
calls, continued talking to him after she arrived on the scene
of a disturbance, and also called Begley before reporting to
headquarters to clear a call. Second, Walstad concluded that
Perez had engaged in conduct “which any employee knows
or reasonably should know is unbecoming a member of the
Department or which is contrary to good order, efficiency or
morale, or which tends to reflect unfavorably upon the
Department or its members,” in violation of section
340.3.5(aa). Walstad concluded that “[t]he mutual
relationship between Officers Perez and Begley is
unprofessional.” Due to its “secret” nature it “reflect[ed]
unfavorably upon the Roseville Police Department and its
members.” Walstad stated that “[b]oth officers are married
and have young children,” and their relationship did not meet
the “high standards of ethical conduct and behavior”
required to “build and maintain morale, a sense of duty,
effective standards of performance and community support.”
Walstad also recommended sustaining both disciplinary
charges against Begley. Finally, he stated that he “would
have expected Officers Begley and Perez to notify their
Sergeant and or Lieutenant to advise they are involved in a
10 PEREZ V. CITY OF ROSEVILLE
personal relationship so they could be assigned to different
patrol shifts.”
Captain Moore agreed that Perez and Begley violated the
two policy standards. On August 15, 2012, Captain Moore
informed Perez and Begley that the internal investigation
had resulted in sustaining the charges of “Unsatisfactory
Work Performance” under section 340.3.5(c) and “Conduct
Unbecoming” under section 340.3.5(aa). The following day,
August 16, 2012, the Department sent a letter to Leah Begley
stating:
The Roseville Police Department has
completed its inquiry into the personnel
complaint you filed alleging your husband
and a co-worker were engaged in a personal
relationship while on-duty.
The following findings have been made as a
result of the investigation:
• Unsatisfactory work performance –
SUSTAINED
• Conduct unbecoming – SUSTAINED.
Because it was customary to terminate an employee who
violates Department policies while on probation, Moore
recommended that Perez be released from service (i.e.,
terminated). Chief Hahn disagreed with Moore’s
recommendation and decided that a written reprimand to
both Perez and Begley was sufficient. Therefore, on August
23, 2012, Moore issued separate written reprimands to Perez
and Begley explaining the grounds for the two violations. In
the reprimand to Perez, Moore first stated that it was
PEREZ V. CITY OF ROSEVILLE 11
Department policy that officers could not engage in conduct
that interfered with their ability to perform their jobs
efficiently, including making personal telephone calls while
on duty. The following incidents stood out as “clear policy
violations”: (1) a nineteen-minute call while Perez was
supposed to be responding to a noise complaint; (2) an eight-
minute call after Perez had been dispatched to a suicide
subject call; (3) an eight-minute call while Perez was
supposed to be conducting an area check for a suspicious
vehicle; (4) a thirteen-minute call while Perez was supposed
to be on foot patrol; and (5) a three-minute call while Perez
was supposed to be taking a vandalism report.
Second, Moore stated that “[p]ersonal relationships that
are established or maintained while you are off-duty should
not impact the Roseville Police Department in a way that is
contrary to good order, efficiency or morale and should not
tend to reflect unfavorably upon the Department or its
members.” The reprimand stated that Perez had “failed to
keep [her] relationship with Officer Shad Begley, a married
co-worker, separate from [her] employment, as evidenced by
the previously mentioned phone usage that you both admit
was personal in nature.” The personal phone usage “was
inefficient, contrary to good order and ultimately reflected
negatively on the Department.” The reprimand concluded
by stating that further conduct would result in further
discipline, “which may be up to and including termination of
your employment.”
Perez and Begley both appealed their written
reprimands, which entitled them to an administrative hearing
before Chief Hahn. Perez’s hearing was scheduled for
September 4, 2012. While the appeal was pending, Perez
and Begley continued their personal relationship but
12 PEREZ V. CITY OF ROSEVILLE
concealed it from the Department for fear of further
discipline.
Chief Hahn testified that sometime after Walstad’s
investigation but before the administrative hearing, he
received negative comments about Perez’s job performance
from several different sources. First, Lieutenant Maria
Richardson told him “that some of the Department’s female
officers had raised concerns about Perez’ attitude and poor
communications with them.” Chief Hahn “recalled there
being similar issues of concern from Perez’ background
investigation report regarding her relationship with female
officers at her old department.” Second, Chief Hahn learned
from Lieutenant Bergstrom of a citizen complaint made
against Perez that had been submitted via the Department’s
online “complaint or concern” system on August 13, 2012.
According to the written complaint, the complainant had
called the Department for assistance in response to a
domestic violence incident. In the complainant’s view,
Officer Perez, who responded to the call, conducted the
interview “in a very hostile and un-sympathetic manner”
which left the complainant “emotionally distraught and
badgered.” After the complaint was referred to the watch
commander for followup, the complainant declined to
pursue a formal investigation. Finally, Chief Hahn testified
that he learned from Sgt. Kelby Newton that on August 30,
2012, Perez had shown a bad attitude on the phone when
Newton called her to inquire about when she was going to
work a shift she had informally traded with Begley.
According to Newton, Perez had told him it was none of the
Department’s business. Chief Hahn asked Newton to
document this conversation in a memo.
Chief Hahn stated that although he had initially
disagreed with Moore’s recommendation to terminate Perez,
PEREZ V. CITY OF ROSEVILLE 13
he understood that it was best practice “to release someone
from probation rather than to impose lower level discipline
where low-level misconduct has been determined to have
occurred.” According to Chief Hahn, he decided, shortly
after his conversation with Newton, to release Perez from
probation “based on all the new issues of concern” he had
recently learned from Newton, Lieutenant Richardson, and
Lieutenant Bergstrom. He later testified that one of the
factors in his decision was that Perez had made personal
telephone calls while on duty in a manner that impacted her
ability to efficiently perform her job while responding to
calls for service, as reflected in the findings of the internal
affairs investigation, although that issue, standing alone,
would not have caused him to terminate Perez. He explained
that “[m]aking personal calls during work time and during
performance of various work duties was a concern, but not
one warranting termination.” Chief Hahn confirmed that
“the fact that [Perez] was involved in a relationship with
Officer Begley and one or both of them were married at the
time” played no role in his decision to fire her.
Chief Hahn’s decision to terminate Perez did not affect
her right to an administrative appeal regarding her written
reprimand, and the hearing took place as scheduled on
September 4, 2012. At the end of the hearing, Chief Hahn
informed Perez that the Department was terminating her for
failing to complete probation successfully, and gave her
written notice of her release from service. The notice did not
provide reasons for her termination; rather, it stated that,
pursuant to Department policy, probationary officers could
be released without cause.
Based on the evidence and testimony presented at the
administrative hearing, Chief Hahn concluded that only a
reprimand for violating the Department’s phone policies
14 PEREZ V. CITY OF ROSEVILLE
should be sustained. He therefore ordered that the
previously issued reprimand memos be revised to eliminate
the reprimands for “unsatisfactory work performance” and
“conduct unbecoming.” The revised reprimands for Begley
and Perez were issued on September 10, 2012, and the earlier
memos were removed from their files.
Perez filed this action for damages after her termination.
The district court granted summary judgment in favor of the
defendants on all claims, and Perez timely appealed. We
have jurisdiction under 28 U.S.C. § 1291 and review the
district court’s grant of summary judgment de novo.
Kristensen v. Credit Payment Servs. Inc., 879 F.3d 1010,
1013 (9th Cir. 2018).
II
We first consider whether defendants were entitled to
summary judgment on Perez’s § 1983 claim that defendants
terminated her based on her extramarital relationship with
Begley, violating her constitutional right to privacy and
intimate association.
A
“To state a claim for relief in an action brought under
§ 1983, [plaintiffs] must establish that they were 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.” Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49–50 (1999). Under the doctrine of qualified
immunity, “courts may not award damages against a
government official in his personal capacity unless the
official violated a statutory or constitutional right, and the
right was clearly established at the time of the challenged
conduct.” Lane v. Franks, 573 U.S. 228, 243 (2014)
PEREZ V. CITY OF ROSEVILLE 15
(internal quotation marks omitted). Accordingly,
“[q]ualified immunity gives government officials breathing
room to make reasonable but mistaken judgments about
open legal questions.” Id. (internal quotation marks
omitted). In applying this doctrine, courts may “exercise
their sound discretion in deciding which of the two prongs
of the qualified immunity analysis should be addressed first
in light of the circumstances in the particular case at hand.”
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
In addressing the second prong of the qualified immunity
test—whether there is a violation of clearly established
law—courts “do[] not require a case directly on point for a
right to be clearly established, [but] existing precedent must
have placed the statutory or constitutional question beyond
debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018).
Further, the Supreme Court has “repeatedly told courts—and
the Ninth Circuit in particular—not to define clearly
established law at a high level of generality.” Id. (quoting
City & Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775–76
(2015)). Rather, the clearly established law at issue “must
be ‘particularized’ to the facts of the case.” White v. Pauly,
137 S. Ct. 548, 552 (2017) (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)). The contours of a right must be
“sufficiently definite that any reasonable official in the
defendant’s shoes would have understood that he was
violating it.” Kisela, 138 S. Ct. at 1153. In short, the
doctrine is broad; it protects “all but the plainly incompetent
or those who knowingly violate the law.” Pauly, 137 S. Ct.
at 551.
B
On appeal, Perez contends that the district court erred in
granting summary judgment because there is sufficient
evidence to create a triable issue of material fact as to
16 PEREZ V. CITY OF ROSEVILLE
whether Chief Hahn impermissibly based his decision to
terminate her, at least in part, on her private relationship with
Begley, in violation of her constitutional rights. But even
assuming that Perez could establish at trial that she was fired,
at least in part, because of her extramarital relationship with
Begley, defendants are entitled to summary judgment under
the second prong of the qualified immunity test, unless it is
clearly established that a police department cannot
constitutionally terminate a probationary officer due to an
ongoing extramarital relationship with a married officer with
whom she worked, where an internal affairs investigation
found that the probationary officer engaged in inappropriate
personal cell phone use in connection with the relationship
while she was on duty, resulting in a written reprimand for
violating department policy. See District of Columbia v.
Wesby, 138 S. Ct. 577, 589–90 (2018).
In arguing that such a rule is clearly established, Perez
relies on our decision in Thorne v. City of El Segundo,
726 F.2d 459 (9th Cir. 1983). Thorne involved a clerk-typist
in a police department who applied to become a police
officer. Id. at 462. The examination consisted of written and
oral tests, followed by psychological and polygraph testing
and a background investigation. Id. Before taking the
polygraph test, the applicant reported on a questionnaire that
she had been pregnant and had suffered a miscarriage. Id.
The polygraph operator questioned her about this
information and asked her to disclose the name of the child’s
father. Id. Pressed by the polygraph operator, the applicant
ultimately disclosed that the father was a married officer in
the police department. Id. Although the applicant asked for
this information to be kept confidential, it was disclosed to
several members of the department who were considering
her application. Id. The applicant was ultimately not hired
to be an officer. Id. at 463.
 PEREZ V. CITY OF ROSEVILLE 17
In her lawsuit against the city and other defendants, the
applicant claimed that the department violated her
constitutional right to privacy and intimate association “by
forcing her to disclose information regarding personal sexual
matters” and by refusing “to hire her as a police officer based
in part on her prior sexual activities.” Id. at 468. In
analyzing these claims, Thorne held that it would violate an
applicant’s constitutional right to privacy to be refused
employment because of her sexual activities where there was
no evidence “that would show that appellant’s affair with the
police officer before becoming a police officer [candidate],
herself, affected or could potentially affect her job
performance.” Id. at 469, 471. Thus, Thorne established
that the state could not rely on “private non-job-related
considerations,” such as an applicant’s prior sexual history,
in rejecting an applicant for employment unless there is a
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.” Id. at 471.
Thorne explicitly rejected a per se rule that a police
department can never consider its employees’ sexual
relations. Id. at 470. Rather, Thorne provided guidance
regarding when such considerations are permissible and
when they could violate an employee’s constitutional rights.
Among other things, Thorne acknowledged that it “may be
true” that “[s]exual relations among officers in a paramilitary
organization such as a police department are an appropriate
matter of inquiry with respect to employment in light of their
possible adverse effect on morale, assignments, and the
command-subordinate relationship.” 2 Id. at 469. By
2
Thorne nonetheless held that any information that may be collected
about sexual relations of the type protected under the constitutional
18 PEREZ V. CITY OF ROSEVILLE
contrast, a police department could not inquire about or
consider an applicant’s past sexual history that was
irrelevant to on-the-job considerations. Id. at 471. For
instance, the polygraph examiner in Thorne “was quite
clearly concerned with whether [the applicant] had had an
abortion, a matter totally irrelevant to ‘on-the-job sex.’” Id.
at 469–70. Nor was the applicant’s wholly past relationship
relevant to other factors of legitimate concern to a police
department. Among other things, “[t]he affair was not a
matter of public knowledge, and could not therefore
diminish the department’s reputation in the community.” Id.
at 471. Moreover, “[t]here was no reason to believe [the
applicant] would engage in such affairs while on duty, or that
the affair which had ended was likely to revive or cause
morale problems within the department.” Id. Finally, under
the department’s policies, the applicant’s “conduct would
not be a ground for discipline of a police officer, nor had any
disciplinary measures against the officer involved been
guarantees of privacy and free association in the course of such an
inquiry can be relied upon only in rejecting a candidate for employment
if there is some showing that the relations affect on-the-job performance
or violate a constitutionally permissible, narrowly tailored regulation.
See Thorne, 726 F.2d at 470 (“We do not hold that the City is prohibited
by the constitution from questioning or considering the morality of its
employees. If the City chooses to regulate its employees in this area or
to set standards for job applicants it may do so only through regulations
carefully tailored to meet the City’s specified needs.” (emphasis added));
see also id. at 471 (“Even had the questions in this case been permissible,
the use of the information in the decision to disqualify Thorne was
not. . . . 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 [or violate] specific policies with narrow implementing
regulations, . . . reliance on these private non-job-related considerations
by the state in rejecting an applicant for employment violates the
applicant’s protected constitutional interests . . . .”).
PEREZ V. CITY OF ROSEVILLE 19
attempted.” Id. Indeed, the defendants in Thorne “never
attempted to introduce evidence that would show that
appellant’s affair with a police officer before becoming a
police officer, herself, affected or could potentially affect her
job performance.” Id.
In sum, Thorne held that a police department may not
make employment decisions based on sexual activities that
are wholly irrelevant to a police department’s legitimate
concerns about the employee’s work performance. But
Thorne did not preclude consideration of relationships that
occurred on duty, or relationships among officers that were
ongoing and affected on-the-job performance or other
legitimate interests of the Department such as community
reputation and morale. Id. at 469, 471. Nor did it deal with
probationary officers. Therefore, Thorne does not put
beyond debate the question whether a police department can
fire a probationary officer who is engaged in an ongoing
relationship with another married officer and routinely
makes personal calls and texts to that officer while she is
supposed to be responding to calls for help, giving rise to
legitimate concerns regarding efficiency, morale, and public
perception.
Nor have our subsequent cases expanded Thorne’s
protections. Instead, they have indicated that, under
Thorne’s holding, police departments can appropriately
consider on-the-job sexual relations that impact job
performance and are not purely private. See Fugate v. Phx.
Civil Serv. Bd., 791 F.2d 736, 741 (9th Cir. 1986). In
Fugate, we considered whether two vice officers could be
disciplined for “conduct unbecoming an officer and contrary
to the general orders of the police department.” Id. at 738.
The police officers had engaged in sexual relations with
prostitutes while on duty, and these relations were known to
20 PEREZ V. CITY OF ROSEVILLE
the public. Id. at 737. The officers claimed that the
department had “violated their constitutional right of privacy
by punishing them for their private sexual activities.” Id. at
738. In concluding that the department had not violated the
officers’ constitutional rights, Fugate distinguished Thorne,
noting:
In the present case we confront police
officers who engaged in sexual relations
while on the job. In Thorne, the City made
no showing that Thorne’s sexual activities
“affected or could potentially affect her job
performance.” In the present case, the City
has demonstrated that Appellants’ job
performance was threatened by obvious
conflicts of interest as well as by the
possibility of blackmail. In Thorne, the
sexual activities in question were “not a
matter of public knowledge, and could not
therefore diminish the department’s
reputation in the community . . . or cause
morale problems within the department.” In
the present case, the officers’ sexual activities
were carried on openly and were widely
known.
Id. at 741 (quoting Thorne, 726 F.2d at 471). The Court
further found that there was “no doubt that [the officers]
behaved in a manner which threatened the department’s
legitimate interests.” Id. at 742. After noting these
distinctions, Fugate held that Thorne’s protections did not
extend “to sexual behavior that is not purely private, that
compromises a police officer’s performance, and that
threatens to undermine a police department’s internal morale
and community reputation.” Id. at 741.
PEREZ V. CITY OF ROSEVILLE 21
In sum, rather than delineate any bright line rule
regarding the scope of Thorne’s protections, we carefully
refrained from deciding “the exact limits of the right of
privacy in sexual activities recognized in Thorne.” Id. at 741
n.6.
In a subsequent case, Fleisher v. City of Signal Hill, 829
F.2d 1491 (9th Cir. 1987), we similarly held that “under our
decisions in Thorne and Fugate,” a police department could
fire a probationary officer over sexual conduct that occurred
before he was hired by the department, but which amounted
to “criminal sexual misconduct,” “compromised [the
probationary officer’s] performance as an aspiring police
officer,” “threatened to undermine the Department’s
community reputation and internal morale,” and “was
clearly listed in the Department regulations as grounds for
termination.” Id. at 1498–99. In that case, the department
determined that the probationary officer had sexual relations
with his girlfriend when he was 19 and she was 15, in
violation of California’s statutory rape law. Id. at 1492–93,
1495. At the time of this statutory rape, Fleisher was the
volunteer leader of the police department’s Explorer
program, which was “designed to prepare youngsters for
careers in law enforcement” through volunteer work for the
department, and the minor girl with whom he had sexual
relations was also a member of the Explorer program. Id. at
1492, 1499. As a result, we rejected the officer’s argument
that the investigation into his prior off-duty sexual
relationship violated his constitutional right to privacy.
Specifically, we took it as “understandable that the
Department would be concerned that individuals hired to be
guardians of the law should themselves have a history of
compliance with the law,” and found it appropriate for the
department to consider harm to its reputation and internal
morale that would result from hiring such an officer. Id. at
22 PEREZ V. CITY OF ROSEVILLE
1499. In short, Fleisher permits consideration of some off-
duty sexual conduct.
Applying the Supreme Court’s standard, we conclude
that these precedents are not so clear that every reasonable
official would understand that terminating Perez because of
her ongoing extramarital relationship with Begley violated
her constitutional right to privacy, given the evidence that
the relationship caused Perez to engage in inappropriate
personal cell phone use while on the job in violation of
departmental policy. Unlike the situation in Thorne, Perez’s
conduct did not involve wholly past sexual relations that had
no relevance to on-the-job performance or other factors of
legitimate concern to a police department. Rather, in this
case an internal affairs investigation resulted in a report with
specific and detailed findings that Perez used her personal
cell phone to call and text Begley while on duty, including
while driving her police vehicle and responding to calls for
service. As a result of this personal phone usage, Perez was
issued a written reprimand that tied the phone usage to her
relationship with Begley and concluded that the phone usage
entailed “clear policy violations” and was “inefficient,
contrary to good order[,] and ultimately reflected negatively
on the Department.” 3 In contrast, in Thorne, we noted that
the defendants had “never attempted to introduce evidence
that would show that [Thorne’s wholly past sexual
relationship] affected or could potentially affect her job
performance,” and that “Thorne’s conduct would not be a
3
Although Chief Hahn ultimately decided, after the administrative
appeal hearing, that the original written reprimand charging Perez with
“unsatisfactory work performance” and “conduct unbecoming” should
be rescinded, he never disputed the findings about the underlying phone
conduct, and he in fact concluded that those findings supported a
reprimand for violation of the department’s personal communication
devices policy.
PEREZ V. CITY OF ROSEVILLE 23
ground for discipline of a police officer, nor had any
disciplinary measures against the officer involved been
attempted.” 726 F.2d at 471. As a result, our precedents do
not clearly establish that a police department is
constitutionally prohibited from considering an officer’s off-
duty sexual relationship in making a decision to terminate
her, where there is specific evidence that the officer engaged
in on-the-job conduct in connection with that relationship
that violated departmental policy. See id. (holding that
reliance on “private, off-duty, personal activities of the type
protected by the constitutional guarantees of privacy and free
association” in rejecting a person for employment is
constitutionally prohibited unless there is “any showing”
that such activities “have an impact upon . . . on-the-job
performance” (emphasis added)). Accordingly, we affirm
the district court’s grant of summary judgment to defendants
on this claim. 4
III
We next consider whether defendants were entitled to
summary judgment on Perez’s § 1983 claim that defendants
violated her constitutional right to due process by failing to
give her an adequate opportunity to refute the charges made
against her and clear her name before she was terminated.
4
Perez’s complaint also claimed that her termination was due to
gender discrimination in violation of Title VII of the Civil Rights Act of
1964 and California’s Fair Employment and Housing Act. But she
argued on appeal that the gender-related discriminatory conduct she
experienced was based solely on her having a relationship with another
officer, a ground for discharge that violated her rights to privacy and
intimate association. In view of Perez’s concession, we affirm the grant
of summary judgment on these claims.
24 PEREZ V. CITY OF ROSEVILLE
When a public employee is terminated for reasons
“sufficiently serious to ‘stigmatize’ or otherwise burden the
individual so that [s]he is not able to take advantage of other
employment opportunities,” and the public employer
publicizes those stigmatizing charges, the employee’s liberty
interest under the Constitution is implicated and she must be
given an opportunity to refute the charges. Tibbetts v.
Kulongoski, 567 F.3d 529, 536 (9th Cir. 2009). To trigger
this procedural guarantee, “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.” Mustafa v.
Clark Cty. Sch. Dist., 157 F.3d 1169, 1179 (9th Cir. 1998)
(per curiam) (internal quotation marks omitted). If an
employee makes these showings, and was not provided “a
‘name-clearing’ hearing,” the employee has been denied due
process under the Fourteenth Amendment. Cox v. Roskelley,
359 F.3d 1105, 1110 (9th Cir. 2004). This analysis applies
to public probationary employees. See Vanelli v. Reynolds
Sch. Dist. No. 7, 667 F.2d 773, 777 (9th Cir. 1982).
In order to establish the third prong, that “the charge is
made in connection with termination of employment,”
Mustafa, 157 F.3d at 1179, a plaintiff must establish a
“temporal nexus between the employer’s statements and the
termination,” Campanelli v. Bockrath, 100 F.3d 1476, 1483
(9th Cir. 1996). We have avoided bright-line rules in
determining whether this temporal nexus has been satisfied;
the allegedly stigmatizing statements and the termination
need not be simultaneous, but “the statements must be ‘so
closely related to discharge from employment’” that they are
“‘in the course of the [plaintiff’s] termination.’” Tibbetts,
567 F.3d at 537 (quoting Campanelli, 100 F.3d at 1482). For
example, we have held that stigmatizing statements made
five days after a resignation were sufficiently close in time
PEREZ V. CITY OF ROSEVILLE 25
“to make the resignation itself stigmatizing in the eyes of
potential employers,” Ulrich v. City & Cty. of S.F., 308 F.3d
968, 983 (9th Cir. 2002), while a period of sixteen months
was “far too remote” to satisfy this temporal nexus
requirement, Tibbetts, 567 F.3d at 538.
When considering whether a defendant is entitled to
qualified immunity on a due process claim of the sort raised
here, “we must evaluate whether it was clearly established”
that the termination and allegedly stigmatizing statements
were sufficiently close in time to satisfy the temporal nexus
test. Id. at 537. In Tibbetts, we held that it was not clearly
established that a government official’s “stigmatizing
statement made nineteen days” after the plaintiff’s
termination would satisfy this temporal nexus test, and
therefore we concluded that the defendant was entitled to
qualified immunity for failure to provide a name-clearing
hearing. Id. at 538. Perez points to no decision after Tibbetts
which has addressed this specific timing issue.
Perez alleges that Captain Moore’s August 16, 2012
letter to Leah Begley, which informed her that the
Department had sustained two charges against Perez and
Begley, constituted the public disclosure of questionable and
stigmatizing charges against her. She further argues that this
public charge was made in connection with her termination
on September 4, 2012. Because the Department did not give
her a name-clearing hearing on the charges within that letter
before deciding to terminate her, Perez alleges that she was
deprived of her constitutional rights to due process.
This claim does not survive summary judgment. Even
assuming that Perez could establish that the August 16, 2012
letter included stigmatizing charges against Perez that were
both disputed and publicly disclosed, Perez has failed to
show that it was clearly established that such charges were
26 PEREZ V. CITY OF ROSEVILLE
“made in connection with [her] termination.” Mustafa,
157 F.3d at 1179. The time period between the August 16th
letter and the September 4th termination was nineteen days,
the same period as in Tibbetts. Accordingly, we are bound
by our precedent to conclude it was not clearly established
that defendants were required to provide Perez with a name-
clearing hearing, and defendants are therefore entitled to
qualified immunity. 5
IV
Because it was not clearly established that the defendants
violated Perez’s constitutional rights, the defendants here are
entitled to qualified immunity on each of Perez’s claims.
Therefore, the district court did not err in granting summary
judgment in favor of defendants.
V
The dissent argues that it is improper to “substitut[e] . . .
a different judge following the post-publication death of the
original decision’s author” and to change a previously
published opinion except as part of an en banc court
decision. Dissent at 29.
We have already rejected this argument. See Carver v.
Lehman, 558 F.3d 869 (9th Cir. 2009). Carver involved a
situation almost identical to this one. A panel majority
(Judges Ferguson and Reinhardt) filed an opinion over the
dissent of Judge M. Smith. Id. at 880 (Reinhardt, J.,
concurring). Judge Ferguson died before the panel could
rule on a petition for rehearing. Id. Pursuant to our rules,
5
Because we decide this claim on the third Mustafa prong, we need
not and do not reach the issue of whether the letter to Leah Begley was
“stigmatizing.”
PEREZ V. CITY OF ROSEVILLE 27
see Ninth Circuit General Orders 3.2(h), Judge Tallman was
drawn in his place. See Carver, 558 F.3d at 880 (Reinhardt,
J., concurring). The new panel withdrew the prior opinion
and replaced it with a substantially revised version. See id.
While conceding that Judge Smith and Judge Tallman
had the authority to withdraw and replace the prior opinion,
Judge Reinhardt argued that it was “unwise” to do so,
because only the en banc process should be used to correct
published decisions. Id. at 881 (Reinhardt, J., concurring).
The Carver majority flatly rejected this argument, stating
that “[u]ntil the mandate has issued, opinions can be, and
regularly are, amended or withdrawn, by the merits panel at
the request of the parties pursuant to a petition for panel
rehearing, in response to an internal memorandum from
another member of the court who believes that some part of
the published opinion is in error, or sua sponte by the panel
itself.” Id. at 878–79. Panels likewise routinely withdraw
and amend published opinions in response to an en banc call
from a member of the court who believes there are errors in
the opinion. 6 There is no support for the dissent’s argument
that a panel lacks authority to amend its opinion once an en
banc call is made. Dissent at 31 n.2. 7 This “collaborative
6
See, e.g., Sanchez v. Sessions, 870 F.3d 901 (9th Cir. 2017),
withdrawn, 895 F.3d 1101 (9th Cir. 2018), and superseded, 904 F.3d 643
(9th Cir. 2018). In Sanchez, an off-panel judge called the original panel
opinion (authored by Judge Pregerson) en banc. Judge Pregerson died
before the opinion mandated, and Judge Wardlaw was drawn to replace
him. The new panel withdrew the opinion and issued a new one.
Sanchez v. Sessions, 904 F.3d 643 (9th Cir. 2018).
7
The dissent’s reliance on General Order 5.3(b) is misplaced. That
rule provides that an off-panel judge can ask a panel to revise its opinion
before an en banc call is made or before the time for calling for en banc
rehearing expires. Ninth Circuit General Orders 5.3(b). It has no bearing
on a panel’s authority to amend its opinion in light of considerations
raised during the en banc call process or otherwise.
28 PEREZ V. CITY OF ROSEVILLE
process,” Carver explained, “strengthens, not weakens, the
final quality of those opinions, thereby better enabling them
to stand the test of time, and engender the respect of
thoughtful citizens for both the opinion, and the court that
produced it.” 558 F.3d at 879.
Carver is directly applicable here. At the time of Judge
Reinhardt’s death, the opinion filed by the prior panel was
not final, because no mandate had issued. See id. at 878 (“No
opinion of this circuit becomes final until the mandate
issues.”). A judge on this court called for en banc rehearing
sua sponte, and, at the court’s order, both parties briefed
whether rehearing was warranted in this case. See Ninth
Circuit General Orders 5.4(c)(3). Because “the opinion
issued by the prior majority was only part way through its
finalization process,” Carver, 558 F.3d at 878, a replacement
judge was drawn, see 28 U.S.C. § 46(b)–(d); see also Ninth
Circuit General Orders 3.2(h), and en banc proceedings were
suspended. As all three judges acknowledged in Carver, the
new panel had the authority to reconsider and withdraw the
opinion filed by the prior panel and to substitute a different
opinion. See 558 F.3d at 879; id. at 880 (Reinhardt, J.,
concurring).
Like all three-judge panels, we must resolve the case
before us to the best of our abilities, which may include
reconsidering and revising an opinion that has not yet
mandated. As is our practice, the parties (and any off-panel
judge of our court) have the opportunity to request rehearing
en banc of this opinion.
AFFIRMED.
PEREZ V. CITY OF ROSEVILLE 29
MOLLOY, District Judge, dissenting:
I respectfully disagree with the new majority opinion in
this case and consequently I dissent. There are two specific
reasons that I dissent, one being that the majority in the
published opinion in this case, Perez v City of Roseville,
882 F.3d 843 (9th Cir. 2018), correctly resolved the issues.
The majority opinion of a quorum of judges should stand for
the reasons stated therein.
The more problematic concern is the substitution of a
different judge following the post-publication death of the
original decision’s author. Unlike the situation in Yovino v.
Rizo, 139 S. Ct. 706 (2019) (per curiam), Judge Reinhardt’s
vote and his opinion in this case were published before his
untimely death. More importantly an en banc call had been
made before he died, a call that was not resolved before the
judicial substitution. In Yovino, the Supreme Court
recognized the appropriate procedure in such a situation by
acknowledging the rules in this and other circuits: “Like
other courts of appeals, the Ninth Circuit takes the position
that a panel decision . . . can be overruled only by a decision
of the en banc court or this Court.” Id. at 708; c.f. Miller v.
Gammie, 1 335 F.3d 889, 892 (9th Cir. 2003) (en banc);
Naruto v. Slater, 888 F.3d 418, 421 (9th Cir. 2018). The
clear purpose of an en banc rehearing is to provide a
procedural mechanism to correct the application of the law
by a three-judge panel of the Circuit. Here, the substitution
of a judge who legitimately disagrees with the original
1
Miller talks directly about intervening Supreme Court or state
supreme court authority but the principle invoked is the same. When a
three-judge panel has published an opinion and a member of this Court
has called for en banc consideration, it should only be the en banc panel
that undoes a published opinion where a quorum of the panel was alive
and well when the panel opinion was published.
30 PEREZ V. CITY OF ROSEVILLE
opinion should not change the outcome except as part of an
en banc court decision.
Ironically, Judge Reinhardt opined on this very issue
when he wrote:
In the case before us, it is not necessary for
the new majority to undo the original
majority’s constitutional ruling, even if it
disagrees with it. The constitutional question
is a close one, and substantial arguments can
be made for either position. Under these
circumstances, the more important
consideration, in my view, is maintaining the
stability and legitimacy of the court’s
decisions. We have a procedure for
correcting decisions that a majority of the
court believes warrant reconsideration. That
process is known as a [sic] en banc rehearing.
It can be invoked if any single judge on the
court, including either member of the
majority, elects to make a call. Relying on
this process would, in my view, be in the
better interest of the court and the judicial
system; increasing the extent to which
judicial decisions depend on chance and
subjectivity is not a wise alternative.
Carver v. Lehman 558 F.3d 869, 880−81 (9th Cir. 2009)
(Reinhardt, J., concurring). The procedural facts in this case
compel en banc consideration of whether Judge Reinhardt’s
majority opinion, an opinion I joined, should be allowed to
stand or whether it should be reconsidered. As the Supreme
Court noted in Yovino—the case involving Judge
Reinhardt’s death, “Under § 46(c), a court of appeals case
PEREZ V. CITY OF ROSEVILLE 31
may be decided by a panel of three judges, and therefore on
such a panel two judges constitute a quorum and are able to
decide an appeal—provided, of course, that they agree.”
Yovino, 139 S. Ct. at 709. While it is true that judge
substitution is an acceptable practice 2 and no rule or decision
of this court makes a judge’s votes and opinions immutable
before their public release, once an opinion is published it
should stand absent correction by the entire court acting
through the en banc process. Such a procedure also gives
the parties an opportunity to be fully heard before an opinion
is reversed or altered.
The majority argues that the substitution process in this
case complies with General Order 3.2(h) which provides for
the substitution of a judge in the event of a panel member’s
death or unavailability when “the case is under submission.”
The majority’s interpretation of that rule is far too capacious
considering 28 U.S.C. § 46(d) as interpreted by the Supreme
Court. Submission is the process by which the panel has
received and reviewed the record, heard argument by the
parties, and taken the matter under consideration for
decision. Cf. 9th Cir. R. 25-4 (distinguishing among cases
that have been scheduled for oral argument, argued,
submitted, and decided). Deciding the case takes place when
a quorum of two on the panel agrees to an appropriate
disposition. See Yovino, 139 S. Ct. at 709. The majority’s
emphasis on the absence of a mandate misses the mark.
Once the case is decided by a quorum of the panel judges it
is no longer under submission. Because this case was not
2
There may be a question here whether the reconstituted panel was
even authorized to revisit the opinion given the en banc call. Cf. Gen.
Or. 5.3(b) (“Any active or senior judge may, before an en banc call is
made or before the time for calling for en banc expires, propose to the
panel that it amend its disposition.”) (emphasis added).
32 PEREZ V. CITY OF ROSEVILLE
under submission when Judge Reinhardt died, General
Order 3.2(h) is not applicable.
While procedural concerns alone counsel taking this case
en banc, the substantive issues here may also warrant such
review. Specifically, this Circuit’s treatment of the right
articulated in Lawrence v. Texas would benefit from an en
banc panel’s clarification. See, e.g., Erotic Serv. Provider v.
Gascon, 880 F.3d 450 (9th Cir. 2018); Smithkline Beecham
Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014); Latta v.
Otter, 771 F.3d 456 (9th Cir. 2014); Log Cabin Republicans
v. United States, 658 F.3d 1162 (9th Cir. 2011)
(O’Scannlain, J., concurring); In re Golinski, 587 F.3d 901
(9th Cir. 2009). Indeed, in the fourteen months since the
published opinion issued, this case has been cited 72 times,
including at least twice for its substantive holding.
In this case Perez’s appeal was decided by a quorum of
the judges on the original panel, the decision was published,
and there was an en banc call by a member of this court.
Consequently, the original opinion should stand. It was
decided. Now with a different judge assigned, the new
majority opinion completely reverses the original opinion
without notice to the parties or regard to the en banc call.
Judge Reinhardt’s death under the circumstances presented
in this case should not be invoked to reverse the outcome of
the case legitimately decided by the original majority
through a procedural mechanism of substituting a different
judge. There is no need for a substitution when the majority
decided and published the opinion questioned here. To do
so, would be “somehow unseemly . . . when the reason for
the change is the death of a member of the prior majority.”
Carver, 558 F.3d at 878. It may also be a violation of the
Supreme Court’s view of 28 U.S.C. § 46(c) and (d). See
Yovino, 139 S. Ct. at 709. A published quorum opinion is
PEREZ V. CITY OF ROSEVILLE 33
not under submission; it is final, except if the entire court
corrects it en banc. For these reasons, I respectfully dissent
and believe this case should go to an en banc panel if the
previously published opinion is in error, which I do not
believe it is.