NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 1 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

REBECCA J. LEEPER, an individual, No. 22-35502

Plaintiff-Appellant, D.C. No. 3:20-cv-05467-BHS-DWC v.

CITY OF TACOMA, a municipal MEMORANDUM* corporation; TEL C. THOMPSON,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Argued and Submitted August 17, 2023 Anchorage, Alaska

Before: MURGUIA, Chief Judge, and PAEZ and NGUYEN, Circuit Judges.

Rebecca Leeper sued the City of Tacoma and former Tacoma Police

Department (“TPD”) officer Tel Thompson after Thompson sexually assaulted

Leeper while they both worked a shift at a Fred Meyer supermarket. Leeper brought

claims under 42 U.S.C. § 1983 and Washington state law. Leeper appeals the district

court’s summary judgment order in favor of the City of Tacoma and its denial of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Leeper’s partial motion for summary judgment on two of the City of Tacoma’s

affirmative defenses. We have jurisdiction under 28 U.S.C. § 1291, and we affirm

in part, and reverse and remand in part.

1. “To state a claim under [§ 1983], [Leeper] must allege that she suffered the

deprivation of a federally protected right and that ‘the alleged deprivation was

committed by a person acting under color of state law.’” Park v. City & County of

Honolulu, 952 F.3d 1136, 1140 (9th Cir. 2020) (quoting West v. Atkins, 487 U.S. 42,

48 (1988)). We employ a three-part test to determine “when a police officer,

although not on duty, has acted under color of state law.” Id.1 The officer must

have: (1) “acted or pretended to act in the performance of his official duties;” (2)

“invoked his status as a law enforcement officer with the purpose and effect of

influencing the behavior of others;” and (3) “engaged in conduct that ‘related in

some meaningful way either to the officer’s governmental status or to the

performance of his duties.’” Id. (quoting Anderson v. Warner, 451 F.3d 1063, 1068–

69 (9th Cir. 2006)).

Viewing the evidence in the light most favorable to Leeper, she has introduced

sufficient evidence to meet this three-part test. First, Thompson was “acting,

purporting, or pretending to act in the performance of his . . . official duties” when

he assaulted Leeper. McDade v. West, 223 F.3d 1135, 1140 (9th Cir. 2000).

1 Both parties agree that this three-part test applies in this case.

2 Thompson was working an “off-duty” security shift at Fred Meyer during the

incident pursuant to a TPD policy that allowed its officers to work these shifts while

wearing their TPD uniforms and utilizing their police powers. Thompson was

identifiable as an officer because he was wearing his uniform, badge, and was

essentially on lease to Fred Meyer with TPD’s permission. And he only had access

to the back security office where he groped Leeper because of his role as an off-duty

officer. See id. at 1140−41 (concluding state officer acted under color of state law

because she “purported or pretended to be a state officer during the hours in which

she accessed the computer” to access confidential information of the plaintiff).

Second, Thompson “invoked his status as a law enforcement officer with the

purpose and effect of influencing the behavior of others.” Park, 952 F.3d at 1140.

Thompson was wearing his uniform when he assaulted Leeper in front of other Fred

Meyer employees, thereby implicitly using his status as a law enforcement officer

to prevent the other employees from intervening. See Vang v. Vang Xiong X. Toyed,

944 F.2d 476, 480 (9th Cir. 1991) (holding that a state employee acted under color

of state law in part because the “defendant used his government position to exert

influence and physical control over these plaintiffs in order to sexually assault

them”).

Third, and finally, Thompson “engaged in conduct that related in some

meaningful way either to [his] governmental status or to the performance of his

3 duties.” Hyun Ju Park, 952 F.3d at 1140 (cleaned up). Thompson’s official duties

at Fred Meyer were broad. Fred Meyer hoped Thompson would deter criminal

activity around him simply through his visible presence as a uniformed police

officer, and Thompson was doing that when he groped Leeper. See e.g., Vang, 944

F.2d at 480 (holding that a rape was sufficiently related to state employee’s duties

because he raped the plaintiffs during meetings “related to the provision of services

pursuant to his state employment”). We therefore reverse the district court’s grant

of summary judgment on this claim.

2. To bring a claim under Monell v. Department of Social Services, 436 U.S.

658 (1978), against the City of Tacoma for failure to supervise, Leeper must show:

“(1) that [she] possessed a constitutional right of which [s]he was deprived; (2) that

the municipality had a policy; (3) that this policy amounts to deliberate indifference

to the plaintiff’s constitutional right; and (4) that the policy is the moving force

behind the constitutional violation.” Van Ort v. Est. of Stanewich, 92 F.3d 831, 835

(9th Cir. 1996) (citation and internal quotation marks omitted). Leeper fails to show

that the City of Tacoma had a policy or custom of ignoring complaints about

Thompson. Leeper only presents evidence of complaints made against Thompson,

and the record reflects that TPD did investigate the official complaints made against

him. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (explaining that the

alleged “custom may not be predicated on isolated or sporadic incidents . . . [but on]

4 practices of sufficient duration, frequency and consistency that the conduct has

become a traditional method of carrying out policy”). The district court therefore

did not err in granting summary judgment on this claim.

3. “Vicarious liability, otherwise known as the doctrine of respondeat

superior, imposes liability on an employer for the torts of an employee who is acting

on the employer’s behalf.” Niece v. Elmview Grp. Home, 929 P.2d 420, 425–26

(Wash. 1997). The key inquiry is whether the employee was acting within the scope

of employment when committing the tort. Evans v. Tacoma Sch. Dist. No. 10, 380

P.3d 553, 559 (Wash. Ct. App. 2016). As Leeper concedes, Washington courts

routinely hold that employers are not liable when their employees engage in

intentional sexual misconduct. See, e.g., Thompson v. Everett Clinic, 860 P.2d 1054,

1058 (Wash. Ct. App. 1993) (holding that a doctor’s tortious sexual assault was not

attributable to the doctor’s clinic because “[t]he assault emanated from [the doctor’s]

wholly personal motives for sexual gratification”). The district court therefore did

not err in granting summary judgment on this claim.

4. An employer is liable for negligent retention or supervision “if (1) the

employer knew, or in the exercise of ordinary care, should have known of the

employee’s unfitness before the occurrence; and (2) retaining [or failing to

supervise] the employee was a proximate cause of the plaintiff’s injuries.” Betty Y.

v. Al-Hellou, 988 P.2d 1031, 1033 (Wash. Ct. App. 1999). Looking at the evidence

5 in the light most favorable to Leeper, a reasonable jury could find that TPD knew,

or at least should have known, that Thompson was “unfit” before he groped Leeper.

Indeed, TPD had received multiple complaints about Thompson’s past inappropriate

sexual behavior.

A reasonable jury could find that TPD’s failure to supervise Thompson and

its retention of Thompson despite that knowledge proximately caused Leeper’s

injuries. See e.g., Rucshner v. ADT, Sec. Sys., Inc., 204 P.3d 271, 272−73 (Wash.

Ct. App. 2009) (holding in part that failure to conduct a criminal background check

raised a genuine issue of material fact as to whether an employer was negligent for

hiring a salesman that later raped a fourteen-year-old girl he met while making a

sales call at her home). We therefore reverse the district court’s grant of summary

judgment on this claim.

5. Leeper appears to base her negligent infliction of emotional distress claim

on the City of Tacoma’s negligent supervision of Thompson. The district court

concluded that this claim failed because Leeper’s negligent supervision claim failed.

Because we reverse the district court’s grant of summary judgment on the negligent

supervision claim, we reverse the grant of summary judgment on this claim and

remand for the district court to consider this claim on the merits.

6. Finally, the district court denied Leeper’s motion for partial summary

judgment against the City of Tacoma’s affirmative defenses as moot because it

6 granted summary judgment in favor of the City of Tacoma on all claims. Because

we reverse in part the district court’s grant of summary judgment, we reverse the

district court’s denial of Leeper’s partial motion for summary judgment to the extent

it is no longer moot and remand for the district court to consider the motion against

the City of Tacoma in the first instance.

Each party is to bear its own costs on appeal. See Fed. R. App. 39(a)(4).

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

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