Facts
- Janelle Perez was employed as a probationary police officer with the Roseville Police Department.
- Perez and another officer, Shad Begley, began an extramarital affair while both were married.
- Begley’s wife filed a citizen complaint about the affair, prompting the department to open an internal investigation.
- The investigation concluded that Perez and Begley were having an affair, but it found no evidence that they engaged in sexual conduct while on duty.
- The department issued written reprimands to Perez and Begley that cited unsatisfactory work performance and conduct unbecoming an officer.
- Department officials involved in discipline decisions later made comments reflecting moral disapproval of the affair.
- A few weeks after the reprimands, the department terminated Perez’s employment; Perez contended the termination was based on disapproval of her private relationship.
- It was undisputed that Perez’s job performance was at or above average.
- Perez sued the City of Roseville and the police department under 42 U.S.C. § 1983, alleging that the termination violated her constitutional rights to privacy and intimate association.
- The district court granted summary judgment for the city, concluding that the defendants were entitled to qualified immunity because Perez had no constitutional right to engage in an extramarital affair.
- Perez appealed.
Issues
- Whether a reasonable jury could find that Perez’s termination was motivated by moral disapproval of her off-duty, consensual sexual relationship, in violation of constitutional protections for privacy and intimate association.
- Whether the defendants were entitled to qualified immunity on the ground that the asserted constitutional right was not clearly established at the time of Perez’s termination.
Decision
- Reversed the grant of summary judgment on Perez’s § 1983 privacy and intimate-association claim.
- Held that the record permitted a reasonable inference that Perez was terminated at least in part because of moral disapproval of her off-duty affair, despite a lack of evidence of on-duty sexual conduct and without a showing that the relationship impaired her job performance.
- Held, on Perez’s version of the facts, that the asserted constitutional protection for private, consensual adult sexual relationships was clearly established enough to defeat qualified immunity at summary judgment.
- Remanded for further proceedings on the privacy/intimate-association claim.
- Noted subsequent case history: the 2018 opinion reported at 882 F.3d 843 was later withdrawn and replaced by a 2019 published opinion.
Legal Principles
- The Constitution protects a sphere of personal privacy and intimate association that can include consensual adult sexual relationships conducted off duty.
- A public employer generally may not impose adverse employment action based only on moral disapproval of an employee’s private, consensual sexual conduct, absent a demonstrated connection to job performance or legitimate operational interests.
- At summary judgment, where the record supports competing inferences about motive, a court must view the facts in the light most favorable to the nonmoving party.
- Qualified immunity bars damages liability unless existing precedent placed the constitutional question beyond debate; if the right is clearly established on the plaintiff’s version of the facts, qualified immunity is not appropriate at the summary-judgment stage.
Conclusion
In this withdrawn 2018 Ninth Circuit opinion, the court concluded that Perez produced enough evidence for a jury to find that she was terminated because department decisionmakers morally disapproved of her private, off-duty affair, and it therefore reversed summary judgment and rejected qualified immunity on that record, remanding the § 1983 privacy/intimate-association claim for further proceedings.