Ninth Circuit Finds Termination Based on Extramarital Affair Unlawful

Kollman & Saucier
Kollman & Saucier

Just in time for Valentine’s Day, the Ninth Circuit Court of Appeals ruled in favor of a female former police officer who alleged she was terminated because of her off-duty extramarital affair with another officer.  Perez v. City of Roseville, et al., No. 15-16430.

During the first six months of her employment with the police department, Janelle Perez received positive performance reviews.  After the wife of a fellow officer called the department and alleged that Perez and her husband were involved in an affair, the department investigated.  The investigation revealed the two had exchanged phone calls and texts while on duty.  They were disciplined for “conduct unbecoming” and “unsatisfactory work performance.”  Ultimately, Perez was terminated, purportedly for three reasons unrelated to the affair: for failing to get along with other female officers; for being rude while responding to a domestic violence call; and for having a “bad attitude” towards her supervisor in connection with a shift change.  Following Perez’s termination, the department changed the grounds for her discipline to “use of personal communication devices.”

Perez filed suit under 42 U.S.C. § 1983, which generally prohibits the deprivation of a federal constitutional or legal right under color of state law.  Here, Perez claimed that her termination from employment was based impermissibly on the fact that she had had an affair.  This violated her rights to privacy and intimate association.  Her lawsuit also included claims of sex discrimination under Title VII and California’s fair employment law (FEHA).

As to the § 1983 claim, the Court relied on Thorne v. City of El Segundo, in which it previously held that the constitutional guarantees of privacy and free association prohibit a state employer from taking adverse employment action on the basis of private sexual conduct unless the state employer demonstrates that the conduct has a negative effect on job performance (or violates a constitutionally permissible regulation).  762 F.2d 459, 471 (9th Cir. 1983).  Where a plaintiff shows that she was terminated even just in part because of private sexual conduct (such as an extramarital affair), she may be able to prevail.

The Court here found that Perez did just that for several reasons.  First, the chief who terminated Perez admitted that he considered the affair to be a reason to terminate her.  Second, the captain who disciplined Perez admitted that he “morally disapproved” of the affair while recommending her termination.  Third, the unrelated incidents (her failure to get along, rudeness, and “bad attitude”) that became the basis of her termination were not credible and arose after the investigation.  Thus, these reasons could have been pretext for the real reason she was terminated: her private sexual conduct.

The Court also distinguished its interpretation on the privacy and free association right from that of its fellow circuits.  Specifically, the Tenth Circuit has found no fundamental liberty interest in a “private act of consensual sex.”  Seegmiller v. LaVerkin City, 528 F.3d 762, 770 (10th Cir. 2008).  Similarly, the Fifth Circuit upheld the termination of two sheriffs for moving in with each other’s wives prior to finalizing their divorces.  Coker v. Whittington, 858 F.3d 304, 306 (5th Cir. 2017).

Moreover, the Court found that the rights at stake were clearly established enough that the State could not rely on qualified immunity from the lawsuit.

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