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Perez v. City of Roseville

United States Court of Appeals, Ninth Circuit

May 21, 2019

Janelle Perez, Plaintiff-Appellant,
v.
City of Roseville; Roseville Police Department; Stephan Moore, Captain; Daniel Hahn, Chief; Cal Walstad, Lieutenant, Defendants-Appellees.

          Argued and Submitted April 19, 2017 San Francisco, California

          Appeal 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.

          Stacey N. Sheston (argued) and Laura J. Fowler, Best Best & Krieger LLP, Sacramento, California, for Defendants-Appellees.

          Before: A. Wallace Tashima and Sandra S. Ikuta, [*] Circuit Judges, and Donald W. Molloy, [**] District Judge.

         ORDER AND OPINION

         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 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 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.

         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 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]

         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 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.

         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 ...


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