and Submitted April 19, 2017 San Francisco, California
from the United States District Court for the Eastern
District of California, No. 2:13-cv-02150-GEB-DAD Garland E.
Burrell, Jr., District Judge, Presiding
Richard P. Fisher (argued), Goyette & Associates Inc.,
Gold River, California, for Plaintiff-Appellant.
N. Sheston (argued) and Laura J. Fowler, Best Best &
Krieger LLP, Sacramento, California, for
Before: A. Wallace Tashima and Sandra S. Ikuta, [*] Circuit Judges,
and Donald W. Molloy, [**] District Judge.
Discrimination / Constitutional Law
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.
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 without
due process of law in violation of the Fourteenth Amendment.
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.
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.
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.
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 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
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.
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
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.
motion for attorneys' fees is DENIED as
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 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.
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.
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."
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
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.
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
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.
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.
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 ...