PAGE v. CLARK COUNTY FIRE DISTRICT (2024)

ORDER ON MOTION TO DISMISS (DKT. NO. 21) AND MOTION TO AMEND (DKT. NO. 22)

I INTRODUCTION

This matter comes before the Court on Defendants Clark County Fire District 6 (“FD6”), Kristan Maurer, David Russel, David Schmitt, and Eric Simukka's (together, “District Defendants”) motion to dismiss. (Dkt. No. 21.) In addition to a response in opposition (Dkt. No. 24), Plaintiff also filed a motion to amend the complaint (Dkt. No. 22). Defendants filed a reply in support of the motion to dismiss (Dkt. No. 25) as well as a response in opposition to the motion to amend (Dkt. No. 26), to which Plaintiff replied (Dkt. No. 27).

II BACKGROUND

According to the amended complaint, Elijah Page was the only black recruit in his fire academy class at FD6 when he was hired in April 2022. (Dkt. No. 20 at 12, 21.) In June of 2022, Page's recruit class conducted training on knot-tying and new hires were given ropes to practice tying knots. (Id. at 12.) During a break, Jon Erickson, a fellow recruit, fashioned his rope into a noose and snuck up behind Page, threw the noose over Page's head and pulled the rope to tighten the noose around Page's neck. (Id.) Page interpreted the incident, which occurred in front of the entire class, as a simulated lynching and hate crime. (Id. at 13.) Page told Erickson he was “deeply offended[,]” and was emotionally devastated and outraged by the assault, as well as the fact that none of his classmates did anything to stop it—some even viewing the hate crime as a “joke.” (Id.)

Chief Kristan Maurer, Chief David Russel, Assistant Chief David Schmitt, and Captain Eric Simukka were informed of the assault the same day it occurred. (Id. at 14.) FD6 investigated the assault, taking witness statements of the recruits who were present. (Id. at 14–15.) Erickson admitted to Chief Schmitt that he tied the rope into a noose and placed it around Page's neck. (Id. at 16.) Instead of firing him for cause, Chief Maurer allowed Erickson to separate from FD6 for failing to complete his probationary period, offered to serve as positive reference without informing future employers of the incident, and sent an email in which she wrote “I cannot imagine how hard this situation is for you and your family and I empathize with that.” (Id. at 17.)

FD6 then implemented a gag order forbidding Page and the other recruits from speaking with anyone about the assault, ordering that word of the incident was not to leave the fire station. (Id. at 18–19.) Thus, if Page personally reported the crime to the police or public, he could be fired for disobeying an order while still on probationary status. (Id. at 19.) Chief Maurer and other high-ranking officials at FD6 imposed the gag order to cover up the assault because of an upcoming vote in August 2022 on the tax levy for FD6, which accounted for approximately 25% of the budget. (Id. at 20.)

At the time of Page's assault, FD6 had not developed or implemented any formal training material or curriculum to address discrimination or harassment. (Id. at 22.) FD6's discriminatory harassment policy stipulates that no part of the policy should prevent an employee from seeking external redress. (Id. at 22.) Page alleges FD6 violated its own policy by implementing the gag order. (Id.)

Page felt unsafe continuing to work at FD6 and was constructively discharged, suffering extreme emotional distress. (Id. at 26.) On September 20, 2023, Page filed a Complaint in this Court, raising numerous claims: disparate treatment, hostile work environment, hostile work environment caused by co-worker, and hostile work environment caused by supervisor (all under 42 U.S.C. § 2000); first amendment violations, conspiracy to obstruct justice, and neglect to prevent constitutional violations (all under 42 U.S.C. § 1983); hate crime, battery, Washington's Law Against Discrimination (“WLAD”), wrongful constructive discharge, wrongful discharge in violation of public policy, outrage, negligent infliction of emotional distress, and negligent training/supervision (all under Washington state law). (Id. at 27–41.)

III DISCUSSION

A. Legal Standard

Defendants move to dismiss Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Dkt. No. 16.) On a motion to dismiss for failure to state a claim, the Court must accept as true all well-pleaded factual allegations and construe the allegations in favor of the non-moving party. See Wood v. City of San Diego, 678 F.3d 1075, 1080 (9th Cir. 2012). The Court need not, however, assume the truth of conclusory allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id.

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the ․ claim is and the grounds upon which it rests[.]” Id. (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

B. Merits

District Defendants challenge Claims 1–4 (42 U.S.C. § 1981), Claims 1–4, 6, and 7 (42 U.S.C. § 1983), Claims 1–4, 6, and 7 (42 U.S.C. § 1985, § 1986), Claim 8 (Hate Crime), and Claim 9 (Battery). (Dkt. No. 21 at 15.)

1. Disparate Treatment and Hostile Work Environment under 42 U.S.C. § 1981 (Claims 1–4) (Against District Defendants)

To establish disparate treatment under Title VII, a plaintiff “must offer evidence that ‘gives rise to an inference of unlawful discrimination,’ either through the framework set forth in McDonnell Douglas Corp. v. Green or with direct or circumstantial evidence of discriminatory intent.”¹ Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003) (alteration marks omitted) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).

The McDonnell Douglas framework contains three, burden-shifting steps. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). At the first step, the plaintiff must make a prima facie case of discrimination, which requires a showing that “(1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably.” Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004) (quoting Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)). Once a prima facie case has been shown, the burden then shifts to the defendant to show a legitimate, nondiscriminatory reason for the challenged actions. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The burden then returns to the plaintiff, who must show that the proffered nondiscriminatory reason is pretextual. See id. at 804, 93 S.Ct. 1817. Thus, “the disparate treatment theory does require proof of discriminatory intent.” Freyd v. Univ. of Oregon, 990 F.3d 1211, 1228 (9th Cir. 2021) (citing Garcia v. Spun Steak Co., 998 F.2d 1480, 1484 (9th Cir. 1993)).

Defendants argue Plaintiff has failed to allege this discriminatory intent with any specificity. (Dkt. No. 21 at 5.) Defendants point out the complaint fails to articulate a claim that the District Defendants intended to racially discriminate against Plaintiff. (Id.) But while intent is necessary when proving a claim, intent is not an element of the prima facie showing. Intent becomes relevant after Plaintiff establishes the prima facie case. Both parties argue whether the other has met their burden under the burden-shifting scheme for discrimination claims—Defendants provide their purported nondiscriminatory reason for implementing the gag order and Plaintiff provides argument for why the reason is pretextual. (See Dkt. Nos. 21 at 6, 24 at 14.) At the motion to dismiss stage, however, Plaintiff's statement of a plausible prima facie case is enough. See generally Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569–570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Plaintiff's complaint meets at least the first two McDonnell Douglas prongs. Page is a member of a protected class (Dkt. No. 20 at 1) and was qualified for his position (Id. at 5–12). Plaintiff argues the adverse employment action is the gag order, and the “similarly situated individuals” were his fellow recruits, whom the gag order impacted differently.

Plaintiff argues common sense dictates “the imposition of the gag orders, particularly in an instance where the only black recruit is subjected to a simulated lynching while on duty, suggests a significant racial element.” (Dkt. No. 24 at 11.) Plaintiff argues he was denied his lawful right to pursue legal action against Erickson, which contrasts starkly with his fellow firefighters who were not subject to the same restriction. (Id.) Plaintiff admits those recruits did not have the right to sue in the same capacity as Page, but Plaintiff believes the distinction underscores that Page was treated detrimentally compared to his peers. (Id.) Page argues the extreme and specific nature of the discrimination underscores why McDonnell does not require all four factors be present in every case—here, there are no “similarly situated” persons, because only Page was subject to the simulated lynching. (Id. at 12.) Plaintiff argues clear discriminatory intent can be inferred from Page's being targeted for a racially motivated assault and subjected to a gag order, contrasting sharply with the treatment of his peers and FD6's own policies. (Id. at 14–15.)

The Ninth Circuit has found that “a wide array of disadvantageous changes in the workplace constitute adverse employment actions.” Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000); see, e.g., Strother v. Southern California Permanente Medical Group, 79 F.3d 859, 869 (9th Cir. 1996) (finding while mere ostracism by co-workers does not constitute adverse employment action, a lateral transfer does); Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997) (finding dissemination of an unfavorable job reference was an adverse employment action “because it was a ‘personnel action’ motivated by retaliatory animus”). The Ninth Circuit falls in line with other circuits taking an “expansive view of the type of actions that can be considered adverse employment actions.” Ray, 217 F.3d at 1241–1242 (citing Wyatt v. City of Boston, 35 F.3d 13, 15–16 (1st Cir. 1994) (adverse employment actions include “demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations and toleration of harassment by other employees”); Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) (employer can be liable for retaliation if it permits “actions like moving the person from a spacious, brightly lit office to a dingy closet, depriving the person of previously available support services ․ or cutting off challenging assignments”); Corneveaux v. CUNA Mutual Ins. Group, 76 F.3d 1498, 1507 (10th Cir. 1996) (employee demonstrated adverse employment action under the ADEA by showing that her employer “required her to go through several hoops in order to obtain her severance benefits”); Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996) (malicious prosecution by former employer can be adverse employment action); Wideman v. Wal–Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998) (adverse employment actions include an employer requiring plaintiff to work without lunch break, giving her a one-day suspension, soliciting other employees for negative statements about her, changing her schedule without notification, making negative comments about her, and needlessly delaying authorization for medical treatment); Passer v. American Chemical Soc., 935 F.2d 322, 330–331 (D.C. Cir. 1991) (employer's cancellation of a public event honoring an employee can constitute adverse employment action under the ADEA, which has an anti-retaliation provision parallel to that in Title VII)).

Given this circuit's expansive view of adverse employment actions, this Court finds the gag order qualifies. Plaintiff's complaint pleads a severe, physical invasion fueled by racial animus. But for the gag order, Plaintiff would be permitted to report the incident outside of FD6 or potentially pursue legal action against Erickson. He was therefore stripped of some legal rights as a result of his continued employment and FD6's policy in an effort for FD6 to avoid backlash in light of the upcoming levy vote.

The fourth McDonnell Douglas prong requires a Plaintiff plead that similarly situated individuals outside his protected class were treated more favorably. The complaint states “[s]imilarly situated individuals outside the plaintiff's race and or color were treated more favorably in that they were never denied the right to report to law enforcement a crime of which they were a victim.” (Dkt. No. 20 at 27.) The fellow recruits were similarly situated in that they all comprised the class of new hires on probationary status. However, it is not enough for employees to be in similar employment positions; rather, the plaintiff and the comparator employee must be similarly situated in all material respects. Weil v. Citizens Telecom Servs. Co., LLC, 922 F.3d 993, 1004 (9th Cir. 2019). Employees are similarly situated if they have “similar jobs and display similar conduct.” Id. (citing Vasquez, 349 F.3d at 641).

The typical case involves two employees who both violate similar policies, but one faces harsher punishment. Employees are similarly situated when they are involved in or accused of the same offense and are disciplined in different ways. Ward v. Procter & Gamble Paper Prod. Co., 111 F.3d 558, 560 (8th Cir. 1997). The conduct need not be identical. See, e.g., Karthauser v. Columbia 9-1-1 Commc'ns Dist., 647 F. Supp. 3d 992, 1008–1009 (D. Or. 2022) (prima facie case pleaded where employer recommended female employee for prosecution after she submitted official documents containing false statements but did not recommend for prosecution a male employee's sexual misconduct).

On the one hand, the gag order applied to all recruits regardless of their race. In that respect, all recruits became subject to the exact same policy, and therefore Page was not treated differently based on his race. On the other hand, Page was the one subject to the assault, and as a result had a particular interest in speaking publicly about the incident that the other recruits did not. In that respect, as a practical matter, the gag order burdened him more than others because he was the victim of the assault, which, according to the complaint, occurred because of his race.

The former conclusion seems disingenuous in that it ignores the other facts of this case. Plaintiff was allegedly the victim of a targeted hate crime that FD6 intended to cover up by implementing the gag order. The fact that everyone was subject to the same policy does not necessarily mean everyone suffered the same level of adversity as a result of that policy. Page had a much greater interest in reporting or speaking publicly about the assault, which happened because of his race, and was not permitted to do so based on a policy FD6 implemented. The other recruits did not have that same interest. This is enough to find he suffered a different and more significantly adverse employment action than his fellow, similarly situated recruits on the basis of his race. Especially given the more lenient standard at a 12(b)(6) stage, the Court finds Page has met the minimum standard for pleading a case of disparate treatment, and Defendants’ arguments may be revisited at the summary judgment stage.

Next, to prevail on a hostile workplace claim premised on race, Page must show: (1) he was subjected to verbal or physical conduct of a racial nature; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of Plaintiff's employment and create an abusive work environment. Vasquez, 349 F.3d at 642.

Taking Plaintiff's version of events as true, Erickson's assault was indeed a simulated lynching, meaning Page was subjected to physical conduct of a racial nature. The complaint clearly states the conduct was unwelcome. The question is whether the conduct was sufficiently severe or pervasive to alter the conditions of Plaintiff's employment and create an abusive work environment.

To determine whether conduct was sufficiently severe or pervasive, courts look at “all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270–271, 121 S.Ct. 1508, 149 L.Ed.2d 509, (internal quotation marks and citation omitted), reh'g denied, 533 U.S. 912, 121 S.Ct. 2264, 150 L.Ed.2d 248 (2001). In addition, “[t]he working environment must both subjectively and objectively be perceived as abusive.” Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (internal quotation marks and citation omitted).

Assuming Erickson truly intended to mimic a lynching on Page—the only black recruit in his class—the incident certainly constitutes “physically threatening or humiliating” conduct, as compared to merely an “offensive utterance” or comment. The event unreasonably interfered with Page's work performance because he was “emotionally devastated and outraged by the assault and by the fact that none of his classmates did anything to stop it.” (Dkt. No. 20 at 13.) It is clear Page found the working environment after the assault to be abusive; but he has also sufficiently alleged an objectively hostile working environment because “[s]ome of the classmates viewed the hate crime as a ‘joke’ ”; Erickson was not fired for cause and his superior wished the best in his future endeavors, agreeing to keep the assault a secret from Erickson's future employers; Page's superiors ordered him and the other recruits not to speak to anyone about the assault and that “word of the assault was not to leave the fire station.” (Dkt. No. 20 at 13–19.) Any reasonable person in Page's position would interpret these circumstances as hostile. Considering the circumstances surrounding the incident and aftermath as Page alleges in the complaint, the Court is satisfied he has plead a plausible claim for hostile work environment.

2. Disparate Treatment and Hostile Work Environment under 42 U.S.C. § 1983 (Claims 1–4, 6, 7) (Against District Defendants)

Defendants argue the disparate treatment and hostile work environment claims brought under § 1983 should likewise be dismissed. Because his § 1981 claim holds muster, the Court need not repeat the same analysis under the broader § 1983, which requires only that (1) some person has deprived him of a federal right and (2) the person who deprived him of that right acted under color of state or territorial law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Page has sufficiently pleaded the first half for the reasons outlined above under § 1981. Important to the § 1983 analysis, however, is that the person depriving Page of his rights acts under color of state law, thus implicating analysis under Monell.

“A local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. To properly plead a § 1983 claim against District Defendants, Page must identify some policy or custom at FD6 which was “the moving force of the constitutional violation.” Id. at 694, 98 S.Ct. 2018.

Rather than identifying any such policy, Plaintiff argues FD6 is liable because it ratified the conduct violating Page's rights. (Dkt. No. 24 at 18.) Ratification is another way to establish municipal liability under § 1983. To do so, a plaintiff must prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it. Gillette v. Delmore, 979 F.2d 1342, 1346–1347 (9th Cir. 1992). When a subordinate's decision is subject to review by the municipality's authorized policymakers, they, and not the subordinate, have final policymaking authority. City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final. Id. at 128, 108 S.Ct. 915.

In Pembaur v. City of Cincinnati, the Supreme Court held that a single decision by a municipal policymaker may be sufficient to trigger § 1983 liability under Monell, even though the decision is not intended to govern future situations. 475 U.S. 469, 480–481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Municipal liability attaches only where “a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Id. at 483–484, 106 S.Ct. 1292. The word “policy” “generally implies a course of action consciously chosen among various alternatives.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985).

Page argues the FD6 Board of Commissioners (the “Board”) are the authorized policymakers, and Chief Maurer's implementation of the gag order was approved and ratified by the Board. (Dkt. No. 24 at 19.) Specifically, the complaint states: “[o]n information and belief, the CCFD6 board was aware of, approved, and ratified, the actions of Chief Maurer in this matter.” (Dkt. No. 20 at 25.) In its answer to the original, unamended complaint, FD6 admitted both that “Chief Maurer kept the Clark County Fire District No. 6 Board of Commissioners up to date on her handling of the situation” and “Clark County Fire District No. 6 Board was aware of, approved, and ratified Chief Maurer's response to this matter.” (Dkt. No. 16 at 25.) FD6 argues the ratification must be of unconstitutional conduct, and the admission, at best, merely returns Plaintiff to his requisite demonstration of an inference of racially discriminatory intent. (Dkt. No. 25 at 11.)

Defendants’ argument, then, is premised on Page not meeting the first part of the test (that some person has deprived Page of a federal right) but provides no substantive argument as to why he fails to meet the second (the person who deprived him of that right acted under color of state or territorial law). Gomez, 446 U.S. at 640, 100 S.Ct. 1920. The Court has already determined the complaint properly alleges Page's disparate treatment and hostile work environment claims under § 1981. FD6 did not otherwise respond to Plaintiff's ratification argument. (Dkt. No. 25 at 10.) The Court therefore rejects FD6's motion to dismiss the § 1983 claim.

3. Obstructing Justice–Conspiracy under 42 U.S.C. §§ 1985, 1986 (Claims 6 and 7)

42 U.S.C. § 1985 proscribes conspiracies to interfere with certain civil rights. § 1986 imposes liability on every person who knows of an impending violation of § 1985 but neglects or refuses to prevent the violation. “A claim under this section must allege facts to support the allegation that defendants conspired together. A mere allegation of conspiracy without factual specificity is insufficient.” Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988).

In order to plead a conspiracy to interfere under § 1985, Page must allege four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of this conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. United Brotherhood of Carpenters and Joiners of America v. Scott, 463 U.S. 825, 828–829, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983).

Beginning with the first element, a civil conspiracy is “a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another,’ and ‘an overt act that results in that damage.’ ” Graves v. United States, 961 F. Supp. 314, 320 (D.D.C. 1997) (citations omitted). A plaintiff must allege, “either by direct or circumstantial evidence, a meeting of the minds or agreement among the defendants.” Brever v. Rockwell Int'l Corp., 40 F.3d 1119, 1126 (10th Cir. 1994). While more than mere conclusory allegations are required to state a valid claim, “the nature of conspiracies often makes it impossible to provide details at the pleading stage and ․ the pleader should be allowed to resort to the discovery process and not be subject to dismissal of his complaint.” Id. (citing 5 C. Wright & A. Miller, Federal Practice & Procedure, § 1233, at 257 (2d ed. 1990)).

The parties disagree as to the pleading standard for civil conspiracy. (Dkt. Nos. 21 at 9, 24 at 22.) Defendants cite Morpurgo v. Inc. Village of Sag Harbor, 697 F. Supp. 2d 309, 322–323 (E.D.N.Y. 2010) for the proposition that claims alleging conspiracy are held to a heightened pleading standard. (Dkt. No. 21 at 9.) It is true that in the Second Circuit, a complaint alleging a conspiracy to violate civil rights is held to heightened pleading standards. See Julian v. New York City Transit Auth., 857 F. Supp. 242, 252 (E.D.N.Y. 1994), aff'd, 52 F.3d 312 (2d Cir. 1995); Katz v. Morgenthau, 709 F. Supp. 1219, 1230–1231 (S.D.N.Y.) (listing cases), aff'd in relevant part, 892 F.2d 20 (2d Cir. 1989) (per curiam). But the “heightened standard” described in these cases does not seem substantially different from the requirements already outlined by United Brotherhood. The “heightened standard” requires plaintiff to allege (1) an agreement between two or more state actors or between a state actor and a private entity (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal, and causing some harm. Brewster v. Nassau Cnty., 349 F. Supp. 2d 540, 547 (E.D.N.Y. 2004). This is essentially the same test as outlined by the Supreme Court and used in the Ninth Circuit. See United Brotherhood, 463 U.S. at 828–829, 103 S.Ct. 3352. The Court must determine whether Page has pleaded specific facts demonstrating the Defendants conspired together to deprive him of his rights.

The complaint argues the act in furtherance of the conspiracy was the imposition of the gag order, which Defendants imposed because of Page's race, depriving him of his First Amendment rights. (Dkt. No. 20 at 32–33.) The facts in support are: “Chief Maurer, Captain Reese, Captain Simukka, and others, knew and believed that Erickson had assaulted Page and that the assault was racially motivated” (id. at 19); “Chief Maurer collaborated with the management team to cover up the matter and ensure Page did not discuss the matter, especially with the police” (id. at 24); “Chief Maurer, Captain Reese, Captain Simukka, and others, knew that CCFD6 policy placed an affirmative obligation on them to report the crime to local law enforcement authorities” but “[n]either Chief Maurer, Captain Reese, nor Captain Simukka reported the assault on Page to law enforcement” (id. at 19); “Chief Maurer and the administration engaged in this cover up due to concerns about potential negative publicity that could impact a pending vote on a tax increase they were promoting at the time” (id. at 25); “[o]n information and belief, during the course of the events in this matter, from the time of Erickson's assault on Page up to and including the time that the gag order was imposed, Chief Maurer kept the CCFD6 board up to date on her handling of the situation” (id.); [o]n information and belief, the CCFD6 board was aware of, approved, and ratified, the actions of Chief Maurer in this matter” (id.); “Defendants conspired to interfere with Plaintiff's right to due process and freedom of speech by imposing the gag order that barred him from reporting the assault to the local law enforcement and thereafter testifying in court about the same” and “Defendants did so because of Plaintiff's race or color and thereby deprived him of his first amendment rights because of race.” (id. at 32).

These facts, taken together, are sufficient to establish a meeting of the minds or tacit agreement between at least the Board and Chief Maurer to conspire together to impose the gag order. The Board and Chief Maurer discussed the situation and decided to cover up the assault. The Board and Maurer took an act in furtherance of the conspiracy—imposing the gag order—which deprived Page of his First Amendment rights. The remaining element is purpose. Unlike Page's disparate treatment and hostile work environment claims, intent is an element of conspiracy to deprive. Page's complaint must include specific facts creating a plausible case that the conspiracy was undertaken “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” United Brotherhood, 463 U.S. at 829, 103 S.Ct. 3352. There must be an “invidiously discriminatory motivation” for the act depriving Page of his rights. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).

In practice, the focus on “invidious” appears to be more relevant when the plaintiff is of a class not traditionally subject to federal discrimination laws. See, e.g., Canlis v. San Joaquin Sheriff's Posse Comitatus, 641 F.2d 711 (9th Cir. 1981) (antipolice bias did not constitute kind of class-based invidiously discriminatory animus envisioned and prohibited by § 1985); Arnold v. Tiffany, 359 F. Supp. 1034, 1036 (C.D. Cal.), aff'd, 487 F.2d 216 (9th Cir. 1973) (finding independent news dealers distributing Los Angeles times did not constitute class-based invidious discrimination, which refers to “that kind of irrational and odious class discrimination akin to racial bias—such as discrimination based on national origin or religion”) (emphasis added); see also Koenig v. Snead, 977 F.2d 589 (9th Cir. 1992) (“the plaintiff must show a racial or other ‘invidiously discriminatory motivation’ ”) (emphasis added). These cases suggest § 1985 claims for deprivation of rights based on a person's race are inherently invidious.

The complaint alleges District Defendants conspired “because of Plaintiff's race or color and thereby deprived him of his first amendment rights because of race.” (Dkt. No. 20 at 32.) Defendants argue the complaint states the reason for the gag order was “to hide [the assault] in anticipation of a tax levy vote, which has no connection to racial animus.” (Dkt. No. 21 at 6.) Page argues such a cover up must be motivated at least in part by Page's racial identity, and Defendants would have acted differently if Page was white. (Dkt. No. 24 at 5.) District Defendants respond such a motivation is a business or financial impetus, and regardless of Page's race, an assault between recruits is “[not] a good news story just before the District Defendants’ levy.” (Dkt. No. 25 at 7.)

This is a close call. District Defendants knew if the public found out about a racially motivated hate crime between recruits, voters would be less likely to vote to renew the levy. To prevent this from happening, they imposed the gag order. Their motivation was financial, but their reasoning involved prioritizing FD6's budget over Page's fundamental rights as a victim of a crime and a protected class member. The complaint alleges District Defendants conspired to implement the gag order to hide the assault because of Page's race, which the Court finds plausible enough to survive a motion to dismiss. There could have been multiple motivations in FD6 implementing the gag order; the Court must also keep in mind that the nature of conspiracies often leaves a pleader with minimal detail about conversations and communications between the alleged conspirators. It is possible that evidence will later surface demonstrating FD6's motivation was wholly non-discriminatory. It is also possible the evidence will uncover a more sinister intent to deprive Page of his rights based on his race. In either event, Page “should be allowed to resort to the discovery process and not be subject to dismissal of his complaint.”² Brever, 40 F.3d at 1126 (citing 5 C. Wright & A. Miller, Federal Practice & Procedure, § 1233, at 257 (2d ed. 1990)).

The Court notes, however, that District Defendants’ purpose and intention is also relevant to the burden shifting scheme of Page's § 1981 claims, which form the foundation of his § 1983 claims. Based on the facts as Plaintiff alleges them, whether Plaintiff will be able to maintain these claims against FD6 past the pleading stage is unclear. Although Page's theory is plausible on its face, without more evidence in support, it may not survive a motion for summary judgment. But such is a motion not currently before this Court.

§ 1986 provides a cause of action against anyone who has “knowledge that any of the wrongs conspired to be done, and mentioned in § 1985 of this title, are about to be committed, and having the power to prevent or aid in preventing the commission of the same, neglects or refuses so to do.” Defendants’ only argument to dismiss the § 1986 claim is Plaintiff's failure to properly allege a § 1985 conspiracy. (Dkt. No. 21 at 11.) Because the Court found Page's complaint plausibly alleges a § 1985 claim, Defendants’ argument is not well-taken.

4. Hate Crime under Washington Revised Code § 9A.36.083 (Claim 8)

District Defendants also challenged Claim 8, alleging a hate crime under Washington Revised Code § 9A.36.083. (Dkt. No. 21 at 11.) In Plaintiff's reply, he states: “FD6 Was Removed as a Defendant on Claim [8] ․ This motion issue is moot.” (Dkt. No. 24 at 23.) The most recent complaint includes FD6 as a vicariously liable defendant for Claim 8. (Dkt. No. 20 at 34.) Neither Plaintiff nor Defendant address the inconsistency between Plaintiff's representation in its response and the complaint. The original complaint did not state with specificity which claim was against which Defendant; the amended complaint states Claim 8 is against “Erickson & CCFD6 via Vicarious Liability)[.]” (Id.) To the extent Defendants move to dismiss Claim 8 as it is alleged directly (as opposed to vicariously) against FD6, no such claim exists. Defendants challenge no other part of this claim specifically, but do challenge FD6's vicarious liability for Erickson's tortuous conduct.

Plaintiff's complaint references Robel v. Roundup Corp., 148 Wash.2d 35, 59 P.3d 611 (2002), arguing intentional or criminal conduct is not per se outside the scope of employment, and therefore FD6 is vicariously liable for Erickson's alleged hate crime under Robel. (Dkt. No. 20 at 34.) Defendants argue Robel does not provide a cause of action against FD6 because Washington's hate crime statutes—Washington Revised Code §§ 9A.36.080 and 9A.36.083—limit potential civil liability to persons who committed the hate-crime offense. (Dkt. No. 21 at 13.)

The statute states: “[i]n addition to the criminal penalty provided in RCW 9A.36.080 for committing a hate crime offense, the victim may bring a civil cause of action for the hate crime offense against the person who committed the offense.” Wash. Rev. Code § 9A.36.083. “A person may be liable to the victim of the hate crime offense for actual damages, punitive damages of up to one hundred thousand dollars, and reasonable attorneys’ fees and costs incurred in bringing the action.” Id.

The language of § 9A.36.083 does not appear to contemplate vicarious liability, although that does not necessarily mean FD6 is per se not liable under the statute. Even still, only if Erickson acted within the scope of his employment would FD6 be vicariously liable for his actions. Robel, 59 P.3d at 620. An employee's conduct will be outside the scope of employment if it “is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.” Id. at 620 (citing Restatement (Second) of Agency § 228(2) (1958)). The proper inquiry is whether the employee was fulfilling his or her job functions at the time he or she engaged in the injurious conduct. Id. at 620.

In Robel, the plaintiff was injured at work and faced mocking and humiliation from her coworkers as a result. The workers laughed at her; acted out a slip and fall, yelling, “Oh, I hurt my back!”; her coworkers “audibly called [Robel]” offensive names and told customers she had lied about her injury; gave her dirty looks; and, referencing her two-week work release proscribed by her doctor, said, “Can you believe it, Linda's gonna sit on her big ass and get paid.” Id. at 614. The Supreme Court of Washington, sitting en banc, found Fred Meyer vicariously liable for the conduct of its employees, who “tormented Robel on company property during working hours, as they interacted with co-workers and customers and performed the duties they were hired to perform.” Id. at 621. “Nothing in the record suggests that the abusive employees left their job stations or neglected their assigned duties to launch the verbal attacks on Robel.” Id. In coming to this conclusion, the court distinguished another case, Kuehn v. White, 24 Wash.App. 274, 600 P.2d 679, 681 (1979), in which a truck driver employee stepped outside the scope of his employment when, following an exchange of obscene gestures, he purposefully ran the plaintiff's car off the road and stepped out of his vehicle with a pipe, assaulting the plaintiff in the head with it multiple times. Id.

Page's assault is more like the circumstances in Kuehn than Robel. To the extent vicarious liability is available at all under § 9A.36.083—which this Court is not sure is it—as plead, Erickson acted outside the scope of his employment. Like Kuehn, Erickson took a personal detour from his assignment to engage in an activity that did not resemble work for the benefit of his employer. Although, like Robel, the incident occurred on company premises between employees, Erickson was not working at the time he assaulted Page. At the time, the recruits were taking a training break. (Dkt. No. 20 at 12.) Page took the opportunity to speak with his wife on his cell phone. (Id.) The class was “waiting for [the supervising captain] to return and begin class[.]” (Dkt. No. 20-1 at 2.) One of the witness recruits was “listening to a podcast with [his] left ear bud[.]” (Dkt. No. 20-2 at 2.) Two witnesses stated the event occurred during lunch. (Dkt. Nos. 20-3 at 2, 20-6 at 2.)

That is not to say that employers can never be vicariously liable for conduct occurring during breaks. Even personal acts, such as an employee smoking during a coffee break, may be within the scope of employment, where the employer has control over the personal act. Modern Tort Law: Liability and Litigation § 7:15 (2d ed.) (citing Iandiorio v. Kriss & Senko Enterprises, Inc., 512 Pa. 392, 517 A.2d 530 (1986) (employer who instructed employees to take coffee breaks and smoke only in one area of job site may be liable for injuries to third party resulting from employee's conduct)). However, where the purpose is purely personal, the employer will not be liable even if the employee is using the employer's tools or driving the employer's vehicle or some other activity that merely resembles his or her employment. Id. The employee must be engaged in some type of work that is assigned to him or her in the general sense of doing something to serve the employer. Id.

Here, class was not in session; there was no supervisor in the room; recruits were engaging in personal activities like calling family, listening to podcasts, and eating lunch; during this time, and on his own volition, Erickson fashioned a noose (which is not something FD6 taught or requested the recruits learn or know how to do); and Erickson used the tool to assault Page, seemingly out of nowhere, for no work-related purpose. Based on the facts in the complaint, despite physically being at work, Erickson was not engaged in some type of work assigned to him or doing anything else to serve FD6. Therefore, Robel is inapplicable and as a matter of law, FD6 cannot be vicariously liable for Erickson's alleged hate crime under § 9A.36.083. District Defendants’ motion to dismiss the claim for vicarious liability under Washington's hate crime statute is therefore granted.

5. Battery under Washington law (Claim 9)

FD6 challenges Page's claim that the district is vicariously liable for Erickson's alleged battery. (Dkt. No. 21 at 13–14.) Because the Court already found the allegations support Erickson acted outside of the scope of his employment, vicarious liability is not available for Erickson's tortuous behavior, even if it amounts to battery. This claim is also dismissed.

C. Motion to Amend

Plaintiffs request leave to amend the complaint and address any defect and submitted a proposed, redlined third amended complaint. (Dkt. No. 24 at 25; Dkt. No. 22.) Leave to amend shall be given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). In the Ninth Circuit, leave to amend “is to be applied with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)). Five factors are frequently used to assess the propriety of a motion for leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987); Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).

There is no evidence of bad faith or undue delay. Page has already amended the complaint once, requiring Defendant to fire a now-obsolete answer and this motion to dismiss. This basic motion practice does not constitute any major prejudice to Defendant this early on in the case. However, this Court believes the proposed amendments would be futile. The only claims dismissed in this Order are Plaintiff's vicarious liability claims against FD6 for hate crime and battery. The only fact the proposed amended complaint offers related to the vicarious liability claims is that the rope Erickson used was FD6 property, a fact this Court assumed to be true given the parties’ arguments and the circumstances as described in the complaint. (Dkt. No. 22-1 at 28.) No other addition to the proposed third amended complaint would resurrect the vicarious liability claims dismissed in this Order.

The remaining additions appear unnecessary and involve a plethora of “on information and belief” statements, obvious or unnecessary facts (Page is black, Defendants knew Erickson was white) or obvious conclusions and statements (referring to someone as a “pig” is an insult, quoting policies already incorporated by reference into the complaint). (See generally, Dkt. No. 22-1.) As a result, the Court finds Plaintiff's proposed second amended complaint is futile and unnecessary as it would not alter the claims dismissed. The Court does not believe, based on the facts as alleged, that any addition to the current complaint would make a plausible case for vicarious liability. Plaintiff's request to amend is therefore DENIED.

IV CONCLUSION

Accordingly, and having considered Defendants’ and Plaintiff's motions, the briefing of the parties, and the remainder of the record, the Court finds and ORDERS that:

1. Defendants’ Motion to Dismiss (Dkt. No. 21) is GRANTED IN PART AND DENIED IN PART. Plaintiff's claims for Hate Crime under Wash. Rev. Code § 9A.36.083 (Claim 8) and Battery under Washington state law (Claim 9) against Clark County Fire District 6 are DISMISSED. Defendants’ Motion to Dismiss is otherwise DENIED.

2. Plaintiff's Motion to Amend the Complaint (Dkt. No. 22) is DENIED.

FOOTNOTES

1.   Disparate treatment and hostile work environment have the same elements regardless of whether they are brought under § 1981 or Title VII. See Knight v. Brown, 797 F. Supp. 2d 1107, 1124, 1132 (W.D. Wash. 2011), aff'd, 485 F. App'x 183 (9th Cir. 2012). Thus, this Court relies on cases regardless of the governing statute.

2.   While the complaint sufficiently pleads a conspiracy claim at least with respect to Chief Maurer and the Board, the Court notes it does not address specific actions by the other named Defendants. District Defendants’ motion does not differentiate between individuals in its argument, and at this stage, Page need only plead facts showing “a combination of two or more persons acting in concert” rather than identifying the acts of each and every conspirator. See Graves, 961 F. Supp. at 320. Should discovery reveal a conspiracy involving only some of these individuals, summary judgment as to those not involved may be appropriate.

David G. Estudillo, United States District Judge