Marie Pfau, Plaintiff-appellant, v. William Reed, in His Official Capacity As Director of Thedefense Contract Audit Agency, Defendant-appellee, 167 F.3d 228 (5th Cir. 1999)

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U.S. Court of Appeals for the Fifth Circuit - 167 F.3d 228 (5th Cir. 1999) Feb. 8, 1999

Jon A. Haslett and Larry Watts, Watts & Associates, Houston, TX, for Plaintiff-Appellant.

Ernest Carlos Garcia, Austin, TX, for Defendant-Appellee.

Paula Ann Brantner, San Francisco, CA, Don D. Sessions, Mission Viejo, CA, for National Employment Lawyers Ass'n, Amicus Curiae.

Appeal from the United States District Court for the Western District of Texas.


Before KING, Chief Judge, and DUHE and WIENER, Circuit Judges.


This appeal is before us on remand from the United States Supreme Court for further consideration in light of its recent decisions in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998). See Pfau v. Reed, --- U.S. ----, 119 S. Ct. 32, 142 L. Ed. 2d 24 (1998), vacating 125 F.3d 927 (5th Cir. 1997). Having reviewed these decisions and the parties' supplemental briefs, we reinstate part II(A) of our prior opinion and AFFIRM the district court's dismissal of plaintiff-appellant Marie Pfau's claims of intentional infliction of emotional distress. See Pfau v. Reed, 125 F.3d 927, 932-34 (5th Cir. 1997). The district court should reconsider its decision to grant summary judgment on Pfau's claims of sexual harassment in the light of Faragher and Ellerth. Without intending to limit the scope of that reconsideration, the district court should address the issue of whether Pete Gonzales was Pfau's supervisor under Faragher and Ellerth and, if so, whether the defendant-appellee has established the affirmative defense outlined in those cases. Further discovery on those issues may be required. Without in any way intimating our view as to the merits of Pfau's claims, we VACATE the district court's grant of summary judgment on Pfau's sexual harassment claims and REMAND this case to the district court for further proceedings.

AFFIRMED in part; VACATED and REMANDED in part. Each party shall bear its own costs.