Opinion
Civil No. 3:02-CV-2340-H.
August 13, 2004
MEMORANDUM OPINION AND ORDER
This case arises out of events that allegedly occurred during the employment of Plaintiff Jessica Frierson ("Frierson") as a police dispatcher for Defendant City of Terrell ("COT"). Before the Court are Defendant COT's Motion for Final Summary Judgment, filed June 25, 2004; Defendant Alejandro Suarez's Motion for Summary Judgment and Motion for Partial Dismissal, filed June 28, 2004; and the response and the replies thereto. Also before the Court are Defendant COT's Motion to Strike Portions of Plaintiff's Summary Judgment Evidence, filed July 23, 2004, and Defendant Alejandro Suarez's Objections to Plaintiff's Summary Judgment Evidence and Motion to Strike, filed August 2, 2004.
I. Background
COT hired Frierson as a police dispatcher in January 2001. During the first several months of Frierson's employment, sexually-charged comments, conversations, practical jokes, and magazines were common in the police station. Frierson did not report that these activities offended her, and there is evidence that she actively participated in them. Also during this time, Corporal Alejandro Suarez ("Suarez") made advances of a progressively sexual nature towards Frierson. Frierson did not report that Suarez's sexual advances offended her, and there is evidence that she encouraged them.
On June 24, 2001, Suarez was the acting patrol sergeant during Frierson's shift. On that day, Suarez approached Frierson while she was seated in her chair in the police dispatch office. Suarez proceeded to fondle Frierson's breasts and genitalia under her clothes. According to Frierson, Suarez also forced her to touch his genitalia on the outside of his pants. A telephone call interrupted the encounter. A short time later, in the presence of Frierson and another officer, Suarez allegedly commented that he had a list of people who would help him if he ever needed it. According to Frierson, she understood this comment to be a threat of retaliation if she were to report the encounter.
Frierson did not work for the next two days due to scheduled days off. After returning to work on June 27, 2001, Frierson told two co-workers about her encounter with Suarez. After the co-workers encouraged her to do so, Frierson reluctantly reported the encounter to her immediate supervisor, Sergeant Joel Blair ("Sergeant Blair"). Sergeant Blair immediately ordered an internal affairs investigation, which ultimately sustained Frierson's report. Sergeant Blair also assigned Frierson to a different shift. Chief of Police Geoffrey Whitt placed Suarez on paid administrative leave effective June 29, 2001. Chief Whitt also asked the Texas Rangers to conduct a criminal investigation into Suarez's alleged conduct. The criminal investigation ultimately resulted in an indictment against Suarez for the misdemeanor offense of official oppression, which has since been dismissed. On September 24, 2001, COT indefinitely suspended Suarez, which suspension Suarez has appealed.
Frierson continued to work for COT until March 2002, when she resigned because she could not get off work for a family emergency. Although COT's personnel director convinced Frierson to return to her position, Frierson again resigned from COT in July 2002 to take a position as a police dispatcher for the City of Garland, Texas. According to Frierson, COT constructively discharged her in March 2002 and in July 2002 in retaliation for reporting the conduct of Suarez in June 2001.
On October 24, 2002, Frierson filed the instant suit against COT and Suarez pursuant to Title VII, 42 U.S.C. § 1983, and state law. In a Memorandum Opinion and Order, entered February 3, 2003, this Court dismissed Frierson's Title VII claim against Suarez. COT and Suarez now move for summary judgment on, or for dismissal of, all of Frierson's remaining claims against them.
II. Legal Standards
A. Summary Judgment Standards
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits, and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED. R. CIV. P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Systs. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
Although it is not clear from the face of the pleadings, both Defendants move to dismiss certain claims pursuant to Rule 12. To the extent it is necessary to analyze the motions to dismiss, the Court will do so pursuant to Rule 12(c) of the Federal Rules of Civil Procedure because the pleadings in this case are closed. See FED. R. CIV. P. 12(c).
Rule 12(c) of the Federal Rules of Civil Procedure provides that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." FED. R. CIV. P. 12(c). A Rule 12(c) motion is appropriate if material facts are not in dispute and questions of law are all that remain. See Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990) (citing 5A WRIGHT MILLER, FEDERAL PRACTICE PROCEDURE § 1367 at 510). In deciding a Rule 12(c) motion, a court "must look only to the pleadings and accept all allegations in them as true." St. Paul Fire Marine Ins. Co. v. Convalescent Serv., Inc., 193 F.3d 340, 342 (5th Cir. 1999). "[T]he central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief." Brittan Communications Intern. Corp. v. Southwestern Bell Tel. Co., 313 F.3d 899, 904 (5th Cir. 2002) (internal quotations omitted). See Great Plains Trust Co. v. Morgan Stanley Dean Witter Co., 313 F.3d 305, 313 n. 8 (5th Cir. 2002) ("Rule 12(b)(6) decisions appropriately guide the application of Rule 12(c) because the standards for deciding motions under both rules are the same."). "Thus, the court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint." Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).
III. Analysis
As noted above, COT and Suarez move for summary judgment on, or for dismissal of, all of Frierson's remaining claims against them. Specifically, COT moves for summary judgment on, or for dismissal of, Frierson's claims of supervisory quid pro quo sexual harassment, co-worker hostile work environment, and retaliation under Title VII; constitutional violations under 42 U.S.C. § 1983; and negligent hiring, supervision, and retention and intentional infliction of emotional distress under state law. Suarez moves for summary judgment on, or for dismissal of, Frierson's claims of constitutional violations under 42 U.S.C. § 1983 and assault and battery and intentional infliction of emotional distress under state law. Before reaching the merits of Defendants' dispositive motions, however, the Court will address Defendants' motions to strike Frierson's summary judgment evidence. A. Defendants' Motions to Strike Frierson's Summary Judgment Evidence
COT moves to strike ¶¶ 4, 6, 14, and a portion of 15 of Frierson's affidavit as conclusory and self-serving. COT additionally moves to strike portions of ¶¶ 9 and 15 of Frierson's affidavit as inconsistent with her deposition testimony. The Court recognizes that it may only consider competent summary judgment evidence in deciding whether a genuine issue of material fact exists for purposes of summary judgment. See Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (holding that "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden" in opposing a motion for summary judgment). However, the Court concludes that the challenged assertions in Frierson's affidavit are not so conclusory, self-serving, or inconsistent as to justify striking them from the summary judgment record. Accordingly, COT's motion to strike is DENIED.
Suarez objects to, and moves to strike, Exhibits 1, 3-7, 10-11, 15-16, and 18-20 of Frierson's appendix in support of her response to the dispositive motions. With respect to Exhibit 7 — Frierson's affidavit — the objection is OVERRULED, and the motion to strike is DENIED, for the reasons stated above. Because the remaining objections do not affect the Court's disposition of the dispositive motions, the objections and motion to strike are moot as to Exhibits 1, 3-6, 10-11, 15-16, and 18-20. The Court now turns to the merits of Defendants' dispositive motions.
B. COT's Motion for Summary Judgment or to Dismiss
As noted above, COT moves for summary judgment on, or for dismissal of, Frierson's claims of supervisory quid pro quo sexual harassment, co-worker hostile work environment, and retaliation under Title VII; constitutional violations under 42 U.S.C. § 1983; and negligent hiring, supervision, and retention and intentional infliction of emotional distress under state law. 1. Title VII Claims
a. Supervisory Quid Pro Quo
Frierson alleges that Suarez assaulted her on June 24, 2001, and that she could not physically resist, out of fear for her job, because Suarez was one of her supervisors. (P.'s Compl. at 10-11.) COT moves for summary judgment on the grounds that: (1) Suarez was not Frierson's supervisor for purposes of Title VII; (2) there was no tangible employment action taken against Frierson; and (3) COT exercised reasonable care while Frierson failed to avoid harm or take advantage of corrective opportunities. (COT's Mot. at 1-2; COT's Br. at 2-11.) Frierson counters that: (1) Suarez was Frierson's supervisor; (2) Frierson's two constructive discharges constituted tangible employment actions; and (3) COT's procedures and actions failed to protect Frierson. (P.'s Resp. at 6-16.)
In analyzing a supervisory sexual harassment claim under Title VII, a court must first determine whether the plaintiff suffered a tangible employment action. See Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 409 (5th Cir. 2002). If so, the case is classified as a quid pro quo case; if not, the case is classified as a hostile work environment case. See id. In quid pro quo cases, an employer is vicariously liable, and no affirmative defense is available, if the tangible employment action resulted from the supervisor's sexual harassment. See id. In other words, the tangible employment action must result from the plaintiff's "acceptance or rejection of [the] supervisor's alleged sexual harassment." La Day v. Catalyst Technology, Inc., 302 F.3d 474, 481 (5th Cir. 2002) (internal quotations omitted).
In the instant case, Frierson has raised a supervisory quid pro quo claim, not a supervisory hostile work environment claim. Thus, Frierson must show that her alleged tangible employment actions, i.e., her two constructive discharges, resulted from her "acceptance or rejection" of Suarez's alleged assault on June 24, 2001. See La Day, 302 F.3d at 481. According to Frierson, COT constructively discharged her in March 2002 and in July 2002. (P.'s Compl. at 8, 9; P.'s Resp. at 9-11.) It is not disputed that COT placed Suarez on administrative leave on June 29, 2001, and that Suarez never returned to active duty. (P.'s Resp. at 14-15; COT's Mot. at 9.) Frierson has failed to demonstrate a nexus between her alleged constructive discharges in March 2002 and in July 2002 and her "acceptance or rejection" of Suarez's alleged assault on June 24, 2001, especially given COT's undisputed action of placing Suarez on administrative leave effective June 29, 2001. Accordingly, COT's motion for summary judgment is GRANTED as to Frierson's supervisory quid pro quo claim.
b. Co-Worker Hostile Work Environment
Frierson alleges that Suarez created a hostile work environment with unwanted and unwelcome conduct of a sexual nature, both before and after his alleged assault on June 24, 2001. (P.'s Compl. at 10.) Frierson also alleges that Suarez intimidated her into not reporting his conduct. ( Id.) Frierson further alleges that other co-workers created a hostile work environment after the termination of Suarez's employment. ( Id. at 11.) Finally, Frierson alleges that COT knew about, but failed to prevent, the hostile work environment created by Suarez and the other co-workers. ( Id.) COT moves for summary judgment on the grounds that: (1) COT had no knowledge of the hostile work environment; (2) there is no evidence that Frierson considered Suarez's conduct subjectively offensive prior to June 24, 2001; (3) COT took prompt remedial action upon receiving Frierson's report of sexual harassment; and (4) Frierson failed to exhaust her administrative remedies with respect to her claim of co-worker hostile work environment. (COT's Mot. at 2; COT's Br. at 11-13, 18-20.) Frierson counters that: (1) Suarez's conduct was non-consensual and unwelcome; (2) COT had knowledge of and fostered the hostile work environment; (3) COT's procedures and actions after June 24, 2001, failed to protect Frierson; and (4) Frierson exhausted her administrative remedies. (P.'s Resp. at 5-6, 12-18.)
As an initial matter, the Court concludes that Frierson has exhausted her administrative remedies as to this claim. An investigation into co-worker hostile work environment could reasonably have been expected to grow out of the allegations contained in Frierson's initial Charge of Discrimination filed with the Equal Employment Opportunity Commission. See Fine v. GAF Chemical Corp., 995 F.2d 576, 578 (5th Cir. 1993).
With respect to co-worker hostile work environment, a plaintiff must establish that: "(1) the employee belonged to a protected class; (2) the employee was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a `term, condition, or privilege' of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action." Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir. 2001). The co-worker's "harassment must have created an environment that a reasonable person would find hostile or abusive." Id. at 299. The Court concludes that there are genuine issues of material fact on this claim. Accordingly, COT's motion for summary judgment is DENIED as to Frierson's claim of co-worker hostile work environment.
c. Retaliation
Frierson alleges that COT constructively discharged her on two occasions in retaliation for reporting Suarez's assault. (P.'s Compl. at 12.) Specifically, Frierson alleges that COT: (1) enforced department policies that were not previously enforced and applied them only as to Frierson; (2) singled out Frierson and humiliated her in front of her colleagues during a staff meeting; (3) refused Frierson's requests for certain days off while simultaneously allowing other employees to take requested days off; (4) gave Frierson more work than other dispatchers; and (5) failed to prevent discussion and comments made by employees and supervisors about Frierson and her complaint against Suarez. ( Id. at 12-13.) COT moves for summary judgment on the grounds that it did not constructively discharge Frierson and that it did not take any other adverse action against her. (COT's Mot. at 2; COT's Br. at 13-18.) Frierson counters that COT constructively discharged her on two occasions. (P.'s Resp. at 8-11.)
In order to prevail on a claim of retaliation, a plaintiff must establish: "(1) that [s]he engaged in activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that a causal link existed between the protected activity and the adverse employment action." Zaffuto v. City of Hammond, 308 F.3d 485, 492 (5th Cir. 2002). The Court concludes that there are genuine issues of material fact as to this claim. Accordingly, COT's motion for summary judgment is DENIED as to Frierson's retaliation claim.
2. 42 U.S.C. § 1983 Claims
Frierson alleges that COT "deprived Frierson of her civil rights when it had constructive and/or actual notice of Suarez's pattern of sexual misconduct and discriminatory acts and failed to take prompt, proper remedial action against Suarez; failed to eradicate or prevent the existence of a hostile work environment for Frierson and other female employees; and retaliated against Frierson when she opposed Suarez's discriminatory acts." (P.'s Compl. at 13-14.) COT moves to dismiss for failure to state a claim upon which relief can be granted because Frierson has failed to plead the existence of an official policy, practice, or custom that caused Frierson to be deprived of a federally protected right. (COT's Mot. at 2; COT's Br. at 20-22.) Frierson counters that sexual harassment was "so common and well-settled" at the police department "that it constituted a custom that fairly represented [COT's] policy." (P.'s Resp. at 18-19.)
In order to state a § 1983 claim against a municipality based on the existence of an official policy or custom, a plaintiff must plead facts that: "(1) a policy or custom existed; (2) the governmental policy makers actually or constructively knew of its existence; (3) a constitutional violation occurred; and (4) the [policy or custom] served as the moving force behind the violation." Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532-33 (5th Cir. 1996). Frierson has entirely failed to plead the existence of an official policy or custom. ( See P.'s Compl. at 1-22.) Accordingly, COT's motion to dismiss is GRANTED as to Frierson's § 1983 claims against it.
3. State Law Claims
Frierson alleges that COT is liable for negligent hiring, supervision, and retention, as well as for intentional infliction of emotional distress, for its conduct in this case. (P.'s Compl. at 15-20.) COT moves for summary judgment on the grounds that Frierson cannot establish that these state law claims fall within the limited waiver of sovereign immunity provided for by the Texas Tort Claims Act, nor can Frierson establish that she gave COT the required statutory notice under the Texas Tort Claims Act. (COT's Mot. at 2; COT's Br. at 23-25.) Frierson counters that she repeatedly notified COT of the basis for her tort claims and that COT therefore cannot raise the defense of immunity in good faith. (P.'s Resp. at 21.)
Under state law, any waiver of sovereign immunity must be "clear and unambiguous." See TEX. GOV'T CODE § 311.034 ("[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language."). The Texas Tort Claims Act provides for only a limited waiver of sovereign immunity:
A governmental unit in the state [including a municipality] is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within the scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
TEX. CIV. PRAC. REM. CODE § 101.021. See Texas Dep't of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000) (recognizing that § 101.021 "has been interpreted to waive sovereign immunity in three general areas: use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property." (internal quotations omitted)). The limited waiver of sovereign immunity, however, does not apply to intentional torts. See TEX. CIV. PRAC. REM. CODE § 101.057(2).
In the instant case, Frierson brings claims against COT for negligent hiring, supervision, and retention, as well as for intentional infliction of emotional distress. (P.'s Compl. at 15-20.) None of Frierson's claims are based on "use of publicly owned automobiles, premises defects, [or] injuries arising out of conditions or use of property." Texas Dep't of Transp. v. Able, 35 S.W.3d at 611 (internal quotations omitted). Thus, Frierson's state law claims are barred by sovereign immunity because they are not encompassed by the waiver of sovereign immunity articulated in § 101.021. Frierson's claim for intentional infliction of emotional distress is additionally barred by sovereign immunity because intentional torts are not included in the waiver of sovereign immunity. See TEX. CIV. PRAC. REM. CODE § 101.057(2). Accordingly, COT's motion for summary judgment is GRANTED as to Frierson's state law claims against it.
C. Suarez's Motion for Summary Judgment or to Dismiss
Suarez moves for summary judgment on, or for dismissal of, Frierson's claims of constitutional violations under 42 U.S.C. § 1983 and assault and battery and intentional infliction of emotional distress under state law.
1. 42 U.S.C. § 1983 Claims
Frierson alleges that Suarez invoked his apparent authority as a police officer in sexually harassing her during the period of February 2001 to July 2001 and in sexually harassing, assaulting, and battering her on June 24, 2001. (P.'s Compl. at 13-14.) Suarez moves to dismiss for failure to state a claim upon which relief can be granted because Frierson has failed to plead a violation of a federally protected right and because she has improperly pled that Suarez acted under color of state law. (Suarez's Br. at 12-15.) In the alternative, Suarez moves for summary judgment because Frierson cannot demonstrate a genuine issue of material fact as to whether Suarez acted under color of state law or as to whether Suarez intentionally deprived Frierson of a federally protected right. (Suarez's Br. at 15-16.) Frierson counters that Suarez acted under color of state law, that Suarez deprived her of certain federally protected constitutional and statutory rights, and that Suarez is on notice of Frierson's claims. (P.'s Resp. at 18-19.)
The Court need not address Suarez's motion to dismiss because Frierson has failed to raise a genuine issue of material fact as to whether Suarez acted under color of state law. In order to prevail on a civil rights claim pursuant to § 1983, a plaintiff must demonstrate "(1) a deprivation of right secured by federal law (2) that occurred under color of state law and (3) was caused by a state actor." Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004). Frierson's affidavit statement that she believed Suarez would arrest her if she resisted his alleged assault on June 24, 2001, is simply not sufficient to raise a genuine issue of material fact as to color of state law. (P.'s App. at 57.) The uncontradicted evidence of record indicates that Suarez "pursue[d] personal objectives without using or misusing the power granted to him by the state to achieve the personal aim." See Townsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002) (internal quotations omitted). Accordingly, Suarez's motion for summary judgment is GRANTED as to Frierson's § 1983 claim against him.
2. State Law Claims
a. Assault and Battery
Frierson alleges that Suarez's actions on June 24, 2001, constituted assault and battery under state law. (P.'s Compl. at 19-20.) Suarez moves for summary judgment on the ground that Frierson cannot establish that Suarez knew or should reasonably have believed that Frierson would regard his actions as offensive or provocative. (Suarez's Br. at 18-20.) Frierson counters that Suarez's touching of her on June 24, 2001 — which touching is not disputed — was unwelcome and offensive. (P.'s Resp. at 21-22.)
For purposes of this case, assault and battery is defined as "intentionally or knowingly caus[ing] physical contact with another when [the aggressor] knows or should reasonably believe [that] the [victim] will regard the contact as offensive or provocative." Bailey v. C.S., 12 S.W.3d 159, 162 (Tex.App. — Dallas 2000, no pet. h.). The Court concludes that there are genuine issues of material fact as to this claim. Accordingly, Suarez's motion for summary judgment is DENIED as to Frierson's claim for assault and battery.
b. Intentional Infliction of Emotional Distress
Frierson alleges that Suarez's actions on June 24, 2001, constituted intentional infliction of emotional distress under state law. (P.'s Compl. at 18-19.) Suarez moves for summary judgment on the grounds that: (1) there is no evidence that Suarez acted intentionally or recklessly to cause emotional distress to Frierson; (2) Suarez caused Frierson no emotional distress; and (3) Frierson has no emotional distress. (Suarez's Br. at 16-18.) Frierson counters that she suffered great emotional distress as a result of Suarez's actions of June 24, 2001. (P.'s Resp. at 19-20.)
The elements of intentional infliction of emotional distress are: "(1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe." Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 372 (Tex.App.-Dallas 2004, no pet. h.) (citing Morgan v. Anthony, 27 S.W.3d 928, 92 (Tex. 2000)). The Court concludes that there are genuine issues of material fact as to this claim. Accordingly, Suarez's motion for summary judgment is DENIED as to Frierson's claim for intentional infliction of emotional distress.
IV. Conclusion
For the foregoing reasons, Defendants' motions for summary judgment or to dismiss are GRANTED in part and DENIED in part. Specifically, COT's motion is GRANTED as to Frierson's claims for supervisory quid pro quo sexual harassment; § 1983; negligent hiring, supervision, and retention; and intentional infliction of emotional distress. COT's motion is DENIED as to Frierson's claims for co-worker hostile work environment and retaliation. Suarez's motion is GRANTED as to Frierson's § 1983 claims. Suarez's motion is DENIED as to Frierson's claims for assault and battery and intentional infliction of emotional distress. Finally, to the extent the Court considered evidence to which Defendants had objected, Defendants' objections are OVERRULED and their motions to strike are DENIED.
This case remains on the December 2004 docket. The only claims remaining against COT are for co-worker hostile work environment and for retaliation, both pursuant to Title VII. The only claims remaining against Suarez are for assault and battery and for intentional infliction of emotional distress, both pursuant to state law.
SO ORDERED.