In Perez v. City of Roseville, published May 21, 2019, the Ninth Circuit withdrew a 2018 opinion in the same case because one of the deciding judges passed away before mandate issued, a judge sua sponte requested hearing en banc, and the court ordered the parties to brief whether the case should be reheard. The new panel concluded, 2-1, it should reach a different decision. It affirmed the district court decision granting the defendants summary judgment.
The plaintiff was a probationary police officer. The wife of the plaintiff's co-worker filed a citizen's complaint with the department alleging the plaintiff and her husband were having an affair, were engaging in romantic relations on duty, and were exchanging numerous phone and text contacts on duty. The chief initiated an internal affairs investigation. The investigation found no evidence that the co-workers engaged in relations on duty, but sustained that the officers made several personal phone calls to each other on duty. A captain informed the officers that the investigation had resulted in sustaining charges under the department's regulations. The next day, the department sent a letter to the complaining wife stating that allegations in the citizen's complaint had been sustained. The officers appealed the charges. Before the appeal was held, the supervisors received additional complaints about the plaintiff's job performance. At the end of the appeal hearing, the chief informed the plaintiff she was being terminated for failing to complete her probation successfully. The plaintiff sued the department for violating her constitutional right to privacy and intimate association, and for violating her due process rights by allegedly making public accusations against her connected to her termination without giving her a name-clearing hearing.
The new decision concluded that the supervisors were entitled to qualified immunity, because the law did not clearly establish that they violated the Constitution. Previous case law holding that a police department violated a job applicant's right to privacy and intimate association by declining to hire her due to her affair with an officer on the department established that the state could not rely on private non-job-related considerations, such as an applicant's prior sexual history, in employment decisions, unless the off-job activities have an impact on on-the-job performance. That decision did not clearly establish that an off-duty affair that could affect on-the-job perfomance, such as the on-duty phone calls here, could not be considered in terminating a probationary employee. Subsequent decisions from the Ninth Circuit indicated that such activity might be considered.
The court also concluded that the supervisors were entitled to qualified immunity for not providing a name-clearing hearing. Due process requires such a hearing only where there is a sufficient nexus between termination and statements to the public about the employee. Here, the letter to the wife was sent 19 days before the termination. Prior case law held that the law did not clearly establish that such a temporal gap between statement and termination nevertheless created a sufficient nexus to require a name-clearing hearing.
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