Court of Appeal Affirms Limitations on Disciplinary Action for Private Sexual Conduct

02.20.2018

On February 9, 2018, the 9^th Circuit of the United States Court of Appeals once again addressed the issue of how much control a public safety agency may have over its employee’s off-duty private relations.  The decision in Perez v. City of Roseville (9^th Cir. 2018) … F.3^rd… reaffirmed  that 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 the on-the-job performance.” 

Background
Perez involved a female probationary police officer who had been working for the Roseville Police Department for only a short time when she started a romantic relationship with another Roseville police officer.  At the time, both officers were married, but separated, from their spouses.  The affair was brought to the attention of the Department by one of the officer’s spouses, who filed a citizen complaint alleging that the officers were having inappropriate sexual contact while on duty.  The Department conducted an internal affairs investigation and found that there was no evidence of on-duty sexual conduct.  However, the investigator did note that a number of calls and texts had been exchanged while either one, or both, were on duty.  Thereafter, the Department issued letters of reprimand to both officers for the sustained charges of “unsatisfactory work performance” and “conduct unbecoming.”  The probationary officer appealed the written reprimand in an administrative hearing before the Chief of Police.  At the conclusion of that hearing, the Department provided her with a written notice that she was being released from probation.  The notice did not provide any basis for the discharge. 

Two weeks after the probationary officer’s termination, the Department issued a new written reprimand based on a violation of the Department’s use of personal communication devices, while rescinding the basis for the original written reprimand.  The officer did not appeal the reprimand as she had already been terminated by the Department.  However, she sued the City of Roseville, its police department and some of its members, alleging, among other things, a 42 U.S.C. Section 1983 claim for violation of her rights to privacy and intimate association.  The district court granted summary judgment to each defendant under a qualified immunity standard.  The officer appealed and the 9^th Circuit decision followed. 

Analysis
The 9^th Circuit Court of Appeals overturned the district court’s findings that the officer could not sustain a Section 1983 claim for violation of rights to privacy and intimate association.  The Court relied heavily on its prior decision in Thorne v. City of El Segundo (9^th Cir. 1983) 726 F.2d 459 to support its ruling. 

In Thorne, the court held that officers and employees of a police department enjoy a “right of privacy in ‘private, off duty’ sexual behavior.”   Thorne involved a former clerk-typist for the City of El Segundo police department who was rejected as a police officer candidate after undergoing a polygraph test during which she was forced to reveal that she had been pregnant and had suffered a miscarriage by a married El Segundo police officer.  The court found that the defendants had violated her Section 1983 rights by both forcing her to disclose information regarding private sexual matters and refusing to hire her based in part on those prior sexual activities.  To support its finding, the Court stated that “[a] potential employee of the state may not be required to forego his or her constitutionally protected rights simply to gain the benefits of state employment.”  Both the Thorne court and the Perez court applied a heightened scrutiny test to determine if the state could infringe on the employees’ rights, and relied heavily on the fact that there was no evidence that the affairs had any impact on job performance.

Significance of Perez
Perez reaffirms the 9^th Circuit’s prior ruling in Thorne that Section 1983 claims involving a police officer’s right to privacy and intimate association will be analyzed by most courts (including the 9^th Circuit and California courts) under a heightened scrutiny test, making it difficult for an agency to overcome this standard.  It is also noteworthy that the officer in Perez was on probation and thus had no due process appeal rights, yet she was still able to maintain a lawsuit against the Department for wrongful termination under Section 1983.  As such, an employer must be cautious when terminating an employee, even if that employee is on probation.  Had the Roseville Police Department in Perez never issued the probationary officer the written reprimand for the charges of “unsatisfactory work performance” and “conduct unbecoming,” she may not have not been able to substantiate her claim that she was being improperly terminated because of the affair. 

In light of Perez, employers are reminded of their obligation to respect an employee’s individual right to privacy and intimate relations, as it cannot take disciplinary action based on such personal conduct unless it is clear that an employee’s work performance has been negatively affected.  When making the decision to terminate an employee, regardless of probationary status, an agency should consult with counsel to assess potential liability.

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