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Evidence of Possible Pretext Trumps Probation Termination

Perez v. City of Roseville, 2018 WL 797453 (9th Cir. 2018)

Leah Begley filed a citizen complaint alleging that Janelle Perez, a probationary police officer, was having an on-duty sexual relationship with Begley's husband, veteran Officer Shad Begley. An internal affairs (IA) investigation followed. The investigation produced no evidence of on-duty sexual contact, but did show that Begley and Perez likely violated the department's policy on personal communication device use.

A captain reviewed the IA report and recommended Perez be terminated as a probationary officer. The captain made a comment critical of the off-duty relationship, noting that "both officers are married and have young children," and the conduct "reflects unfavorably" on the department. Both the captain and the lieutenant who reviewed the IA report acknowledged moral disapproval of Perez's conduct. And, at some point during the investigation, a female sergeant and a female lieutenant commented that Perez didn't get along with other female officers.

The department formally reprimanded both officers for "Unsatisfactory Work Performance" and "Conduct Unbecoming." Perez appealed the reprimand and at the conclusion of a hearing with the chief, the chief fired Perez. Perez asked for a reason, but the chief declined to give one.

Two weeks after the termination, the captain revised the formal reprimand, changing the reasons from "Unsatisfactory Work Performance" and "Conduct Unbecoming" to a violation of the Use of Personal Communication Devices Policy. Perez sued, alleging that the reason for her termination was pretextual. Eventually, the department settled on failure to get along with other female officers, a citizen's complaint about Perez, and Perez's "bad attitude" with a supervisor as reasons for her firing. (Note: If you're silently commenting that she was a probationary officer and could be fired without cause, good for you, but read on.)

Though public employees, particularly law enforcement officers, surrender some privacy rights in exchange for employment, there are constitutional limits on a department's ability to impose controls on off-duty conduct. This case is about—but only in part—how much privacy officers have in their private off-duty sexual conduct. Essentially, the agency must show that off-duty conduct has some detrimental effect on on-duty work. Just how severe and how detrimental the effect must be is a matter of disagreements in various courts. Both the 5th Circuit and 10th Circuit federal courts of appeals have strong precedent that likely would have been fatal to Perez's appeal. However, the 9th Circuit has a history of greater lenience toward permissible off-duty conduct.

The district court ruled that each defendant was entitled to qualified immunity and the court dismissed Perez's lawsuit. The court of appeals reversed, holding that Perez was entitled to try to convince a jury that the real reason for her termination was that she and Begley had an off-duty sexual relationship: "Given the investigation of charges based upon allegations related to her affair with another officer, the evidence of the investigators' moral disapproval of her affair, and the Department's constantly shifting justifications for her termination, as well as the independent reasons for doubting the legitimacy of each shifting justification, we conclude that a genuine issue of material fact exists to whether Perez was fired at least in part because of her extramarital affair."

One judge concurred in the result, but wrote a separate opinion disagreeing with much of his colleagues' reasoning. Judge Tashima noted that, "the department did not need to provide any reason for firing Perez, who was hired as a probationary police officer. The department could summarily dismiss Perez for no reason at all or for a frivolous, non-protected reason." However, he concurred that there was enough hint of pretext to allow Perez to argue to a jury that she was fired for illegal reasons.

Certainly a review of policy and a discussion with the department's legal counsel might have caused a different result for the defendants in this case. Now might be a good time to review your agency's policies addressing off-duty conduct and use of personal communications devices. Supervisors considering discipline or termination should ensure they're standing on solid policy and/or law violations grounds. Foremost, this case reminds agencies to use probationary status for its intended purpose.