Benningfield v. The City of Houston

Revised October 22, 1998

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 97-20429

DEBBIE L. BENNINGFIELD,

Plaintiff-Appellee

PEGGY FRANKHOUSER; PAMELA M. GRANT

Intervenor Plaintiffs - Appellees

VERSUS

THE CITY OF HOUSTON; ET AL

Defendants

SAM NUCHIA, Chief; RICHARD J. PFEIL; A. WADE RUNNELS; C.O.
BRADFORD; ROBERT T. FLEMING; J.R. JONES

Defendants - Appellants

Appeal from the United States District Court
For the Southern District of Texas
October 5, 1998

Before POLITZ, Chief Judge, JONES and DUHÉ, Circuit Judges

DUHÉ, Circuit Judge:

Defendants appeal from the denial of summary judgment on the

following claims: violation of the First Amendment (42 U.S.C. §
1983), 42 U.S.C. § 1985, tortious interference with business

relations, and intentional infliction of emotional distress. The

Defendants, all employees of the Houston Police Department (“HPD”),

appeal the denial of their motions for summary judgment based on

their qualified immunity. We affirm in part and reverse in part.

BACKGROUND

The Plaintiffs, Debbie Benningfield (“Benningfield”), Pamela

Grant, (“Grant”), and Peggy Frankhouser (“Frankhouser”), are all

current or former employees of the Houston Police Department. The

Defendants, Sam Nuchia (“Nuchia”), Richard J. Pfeil (“Pfeil”), A.

Wade Runnels (“Runnels”), C.O. Bradford (“Bradford”), Robert T.

Fleming (“Fleming”), J.R. Jones (“Jones”), are current or former

employees of the Houston Police Department. In the mid-1980's, the

Plaintiffs, who worked in the Identification Division (“ID”),

complained of discrimination and a hostile working environment.

Audra Runnels, then head of the ID, was allegedly forced to resign

because of the Plaintiffs’ complaints.

A. Wade Runnels, Audra Runnels’s son, became the new head of

ID. Allegedly, the discrimination and hostile working environment

in the ID continued. According to the Plaintiffs, Runnels sought

to avenge his father’s termination with a campaign of retaliation

against them. In addition, the Plaintiffs allege that Runnels and

the other Defendants harassed and retaliated against them because

they continued to report problems in the ID.

2
 Grant contends that the Defendants’ actions led to her

involuntary retirement. In 1989, Runnels assigned Grant to work

under Fleming. According to Grant, she was involved in a romantic

relationship with Fleming that ended in the early 1980's when she

learned that Fleming had sexually abused her daughter. Grant

alleges that when Runnels assigned her to work under Fleming, he

knew of this relationship and the reason it ended. Grant maintains

that, in addition to other harassment in the ID, being forced to

work under Fleming caused her emotional breakdown in 1991 and led

to her medical retirement.

Frankhouser and Benningfield contend that the Defendants

conducted a campaign of harassment and retaliation against them.

Frankhouser maintains that she was constructively discharged

because the Defendants’ actions created a hostile work environment.

Among other things, Frankhouser claims that Runnels and Fleming

stripped her of her cadet training position at the Police Academy.

In 1993, she retired from the HPD and accepted a similar position

with the Montgomery County Sheriff’s Department.

Benningfield alleges, among other things, that she was demoted

and formally reprimanded in retaliation for her grievances.

Benningfield still works for the HPD.

Benningfield sued the individual Defendants and the City of

Houston in state district court. Frankhouser and Grant

subsequently intervened as plaintiffs. The Plaintiffs’ claimed,

under Texas law, discrimination, retaliation, intentional

3
infliction of emotional distress, tortious interference with

business relations, defamation, premises liability, and invasion of

privacy. The Plaintiffs later amended their complaint to include

a First Amendment claim under 42 U.S.C. § 1983 and a 42 U.S.C. §

1985 conspiracy claim.

The Defendants removed the case to federal court and moved for

summary judgment based on qualified immunity. The district court

denied summary judgment with regard to the § 1983, § 1985, tortious

interference, and intentional infliction of emotional distress

causes of action. The other claims were either dismissed by the

court or withdrawn by the Plaintiffs. The individual Defendants

appeal.

DISCUSSION

I. Jurisdiction

Under Nerren v. Livingston Police Dept., we have

“interlocutory jurisdiction to ‘take, as given, the facts that the

district court assumed when it denied summary judgment’ and

determine whether these facts state a claim under clearly

established law.” 86 F.3d 469, 472 (5th Cir. 1996) (quoting

Johnson v. Jones, 115 S.Ct. 2151, 2159 (1995)). This interlocutory

jurisdiction applies to both the federal and state law claims. See

Cantu v. Rocha, 77 F.3d 795, 804 (5th Cir. 1996) (stating that

“orders premised on the denial of qualified immunity under Texas

state law are appealable in federal court to the same extent as

4
district court orders based on the denial of federal law

immunity”). The standard of review is de novo. See Johnston v.

City of Houston, 14 F.3d 1056, 1059 (5th Cir. 1994) (citing Mozeke

v. International Paper Co., 856 F.2d 722, 724 (5th Cir. 1988)).

Considering the facts that the district court assumed, we now

consider each of the causes of action to determine which, if any,

of the Plaintiffs’ claims state a claim under clearly established

law. For those that do we then consider whether issues of fact are

present.

II. First Amendment

A First Amendment retaliation claim must include facts showing

(1) that the employee’s speech involved a matter of public concern,

(2) that the employee suffered an adverse employment action for

exercising her First Amendment rights, and (3) that the employee’s

exercise of free speech was a substantial or motivating factor in

the adverse employment action. See Harrington v. Harris, 118 F.3d

359, 365 (5th Cir. 1997).

A. Matter of Public Concern

Connick v. Myers teaches that “whether an employee’s speech

addresses a matter of public concern must be determined by the

content, form, and context of a given statement, as revealed by the

whole record.” 103 S.Ct. 1684, 1690 (1983). The Court noted that

“when employee expression cannot be fairly considered as relating

to any matter of political, social, or other concern to the

5
community, government officials should enjoy wide latitude in

managing their offices, without intrusive oversight by the

judiciary in the name of the First Amendment.” Id. The Court

stated that review by a federal court is improper where the speech

involves matters of solely personal interest. See id.; Ayoub v.

Texas A & M University, 927 F.2d 834, 837 (5th Cir. 1991) (holding

that a professor’s complaint about a discriminatory pay scale was

not a matter of public concern where the professor’s complaint

focused on his individual compensation).

The fact that an employee’s speech contains an element of

personal interest is not fatal, however. See Thompson v. City of

Starkville, Miss., 901 F.2d 456, 463-65 (5th Cir. 1990). An

employee’s speech may contain a mix of public and private concerns.

See id. at 464. In Starkville, a police officer protested improper

promotions by filing grievances and aiding others in filing

grievances. This court held that the officer’s speech constituted

a matter of public concern because his allegations of police

misconduct brought attention to matters beyond purely personal

interest.

Similarly, the present case involves a mix of public and

private speech. Personal concerns certainly played a major role in

the Plaintiffs’ grievances. The Plaintiffs thought that their

personal careers were being negatively affected by mismanagement,

gender discrimination, and a hostile work environment.

The Plaintiffs’ speech, however, contained matters of public

6
concern as well. The Plaintiffs complained about contamination of

criminal histories in the ID. According to the Plaintiffs,

contamination involves the wrong criminal histories being

attributed to individuals. The Plaintiffs maintain that the

problems with the criminal histories resulted from mismanagement

and, in some instances, deliberate tampering. The integrity of and

tampering with criminal histories are important to effective law

enforcement and certainly a matter of public concern. See Brawner

v. City of Richardson, Texas, 855 F.2d 187, 191-92 (5th Cir. 1988)

(stating that “[t]he disclosure of misbehavior by public officials

is a matter of public interest and therefore deserves

constitutional protection, especially when it concerns the

operation of a police department”).

The fact that the Plaintiffs chose to file internal grievances

rather than publicize their complaints is not dispositive. In

Givhan v. Western Line Cosol. Dist., the Court stated:

The First Amendment forbids abridgment of “freedom of
speech.” Neither the Amendment itself nor our decisions
indicate that this freedom is lost to the public employee
who arranges to communicate privately with his employer
rather than to spread his views before the public. We
decline to adopt such a view of the First Amendment.

99 S.Ct. 693, 696-97 (1979); See also Wilson, 973 F.2d at

1270(citing Givhan, 99 S.Ct. at 696-97); Thompson, 901 F.2d at 466-

67 (stating that the fact that the plaintiff complained to his

superiors rather than the public did not preclude a finding that

his speech dealt with matters of public concern).

7
B. Adverse Employment Actions

“Adverse employment actions are discharges, demotions,

refusals to hire, refusals to promote, and reprimands.” Pierce v.

Texas Department of Crim. Justice, Inst. Div., 37 F.3d 1146, 1149

(5th Cir. 1994) (citing McCabe v. Sharrett, 12 F.3d 1558, 1563

(11th Cir. 1994)). See also Harrington v. Harris, 118 F.3d 359,

365 (5th Cir. 1997). In Pierce, the court declined to expand the

list of actionable adverse actions, noting that some things are not

actionable even though they have the effect of chilling the

exercise of free speech. Pierce, 37 F.3d at 1150.

Officer Grant has failed to establish a causal connection

between speech on matters of public concern and the adverse

employment actions she alleges.1 For example, Grant was given a

medical discharge after she suffered an emotional breakdown. Grant

alleges that she was discharged in retaliation for her grievances.

The evidence, however, indicates that Grant’s medical retirement

came as a result of an independent psychiatric evaluation. Grant

has, therefore, failed to state a First Amendment violation.

Benningfield and Frankhouser allege many acts of alleged

retaliation, most of which are insufficient to constitute adverse

employment actions. Benningfield alleges that she was falsely

accused of stealing criminal history records. Similarly, Officer

1
Grant’s brief alleges that she was offered a day shift position
to withdraw her grievance. Her brief fails to reference specific
evidence in the record supporting this claim, however, and our
review of the record has found none.

8
Frankhouser alleges that she was falsely accused of attempting to

sabotage the fingerprint identification system. Assuming that

these allegations are true, mere accusations, without more, are not

adverse employment actions. Cf. Harrington, 118 F.3d at 366

(holding that criticism did not constitute an adverse employment

action).

Benningfield maintains that she was subjected to an IAD

investigation in retaliation for her First Amendment activity.2

Although a reprimand can constitute an adverse employment action,

an investigation does not. See Pierce, 37 F.3d at 1150 (stating

that an investigation, by itself, was not an adverse employment

action). Benningfield also alleges that she was referred to the

Administrative Personnel Committee (“APC”) to undergo psychological

testing to determine her fitness for duty. The APC referral was

not an adverse employment action. Rather, the referral was

designed to gather facts to form the basis for an employment

decision.

Frankhouser maintains that her job performance rating was

lowered in retaliation for her grievances. However, she admits

that it was returned to its previous level two days after it was

lowered. This does not constitute an adverse employment action.

Benningfield alleges that she was prevented from attending

2
There is substantial evidence in the record indicating that
Benningfield was investigated because she was away without leave
for three days. For the purposes of this appeal, however, we will
assume that her allegations are true.

9
certain conferences in retaliation for filing grievances. We

rejected a similar claim in Dorsett v. Bd of Trustees for St.

Colleges & Univ. 940 F.2d 121, 123-24 (5th Cir. 1988). In

Dorsett, we found the plaintiff’s complaints about teaching

assignments, administrative matters, and departmental procedures

insufficient to constitute adverse employment actions. We stated

that “[w]e have neither the competency nor the resources to

micromanage the administration of thousands of state educational

institutions.” Id. at 124. Similarly, deciding whether an officer

may attend certain conferences would constitute needless

micromanagement of the HPD.

Frankhouser makes claims which fail for the same reason. She

contends that she was assigned an unusually heavy work load and has

not received overtime and travel reimbursement due her. She also

alleges that the Defendants inhibited the performance of her duties

by preventing Printrak representatives from speaking directly with

her. These allegations involve administrative matters and are not

adverse employment actions. See id.

Benningfield maintains that transferring her to the night

shift constituted an adverse employment action. Merely changing

Benningfield’s hours, without more, does not constitute an adverse

employment action. A transfer may also constitute a demotion. See

Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir. 1996); Click

v. Copeland, 970 F.2d 106, 110 (5th Cir. 1992). However, the

transfers in Forsyth and Click involved more than mere changes in

10
working hours and are, therefore, distinguishable.

Benningfield maintains that she was threatened with discharge

and promotional pass over unless she withdrew her EEOC complaint.

However, her brief fails to point to specific evidence in the

record supporting this assertion. Our review of the record

revealed none.

Benningfield alleges that she was formally reprimanded because

of her First Amendment activities. Formal reprimands constitute

adverse employment actions. See Pierce, 37 F.3d at 1149. The

Defendants argue that Benningfield was reprimanded because she was

away without leave (“AWOL”) for three days. Benningfield maintains

that her grievances are the real reason for her reprimand and that

the AWOL incident is merely pretextual. However, the reprimand was

rescinded though internal HPD procedures and, thus, does not

constitute an adverse employment action.

Frankhouser alleges that she was verbally reprimanded. She

has failed, however, to present any evidence that these

“reprimands” were anything more than mere criticisms. See

Harrington, 118 F.3d at 366 (holding that criticism did not

constitute an adverse employment action). Thus, Frankhouser’s

allegations of verbal reprimands fail to state a claim.

In her affidavit, Benningfield states that Runnels demoted her

while the internal affairs investigation took place. Benningfield

affirms that, prior to the demotion, she was the AFIS Manager. She

avers that Runnels took away her managerial title and required her

11
to report to Pfeil. See Click, 970 F.2d at 110. The fact that

Benningfield’s complaints resulted in the removal of Runnel’s

father tends to support Benningfield’s claim that the demotion was

a response to Benningfield’s grievances.

The Defendants claim, however, that Benningfield was required

to report to Pfeil because of an audit recommendation and

Benningfield’s AWOL incident. The audit recommendation is included

in the Defendant’s summary judgment evidence.

In her affidavit, Frankhouser states that Runnels and Fleming

stripped her of her cadet training position at the Police Academy.

This action is arguably a demotion. See id. Frankhouser’s

affidavit indicates that she complained of mismanagement,

harassment, and retaliation in the ID. This evidence suggests that

she was stripped of her training position because of her First

Amendment activities.

Norbert LeBlanc (“LeBlanc”), a retired HPD officer,

corroborates Benningfield’s and Frankhouser’s claim that they were

demoted for exercising their First Amendment rights. LeBlanc

affirms that he personally witnessed discrimination and retaliation

by the Defendants, particularly Runnels and Fleming. LeBlanc

further affirms that Runnels and Fleming retaliated against him for

supporting Benningfield and Frankhouser by writing “scathing”

letters to Management Review about him and putting a negative mark

in his file.

There are genuine issues of material fact as to whether

12
Benningfield and Frankhouser were demoted, and, if so, whether it

was in retaliation for exercising their First Amendment rights.

Summary judgment should be used “most sparingly in . . . First

Amendment case[s] . . . involving delicate constitutional rights,

complex fact situations, disputed testimony, and questionable

credibilities.” Porter v. Califano, 592 F.2d 770, 778 (5th Cir.

1979). Accordingly, the denial of summary judgment is affirmed

with regard to the alleged demotions of Benningfield and

Frankhouser.

Benningfield’s promotion was delayed for two years. The

Defendants maintain that the delay was not retaliation for

Benningfield’s First Amendment activities. Rather, they argue that

the promotion was held up because of a delay in administering a

required test. Further, the Defendants contend that Benningfield

received retroactive pay and seniority because the test was given

late. Although a refusal to promote is an adverse employment

action, these facts merely indicate a delay in promotion. See

Pierce, 37 F.3d at 1149 (stating that adverse employment actions

include refusals to promote). We need not address whether a mere

delay in promotion constitutes an adverse employment action because

Benningfield received the promotion with retroactive pay and

seniority.

Frankhouser maintains that she was constructively discharged.

To prove a constructive discharge, Frankhouser must show that a

“reasonable person in [her] shoes would have felt compelled to

13
resign.” Landgraf v. USI Film Products, 968 F.2d 427, 429 (5th

Cir. 1992) (quoting Bourqe v. Powell Electrical Mfg. Co., 617 F.2d

61, 65 (5th Cir. 1980)). Further, a constructive discharge claim

requires a “greater severity or pervasiveness of harassment than

the minimum required to prove a hostile work environment.” Id. at

430 (citing Pittman v. Hattiesburg Municipal Separate School

District, 644 F.2d 1071, 1077 (5th Cir. 1981).

Frankhouser has not produced evidence showing that a

reasonable person in her shoes would have felt compelled to resign.

In fact, Benningfield, who alleges a much greater degree of

harassment and retaliation than Frankhouser, is still working for

the HPD. Frankhouser essentially contends that she resigned

because she believed that she would be the next target of

retaliation. Frankhouser’s fear of future retaliation is not

sufficient to support her claim of constructive discharge.

C. Qualified Immunity

In Click v. Copeland, rejecting a police officer’s qualified

immunity defense, we stated that “a reasonable officer should have

known that if he retaliated against an employee for exercising his

First Amendment rights, he could not escape liability by demoting

and transferring the employee rather than discharging him.” 970

F.2d 106, 111 (5th Cir. 1992). Similarly, in this case, we hold

that the Defendants should have known that they could not retaliate

against Benningfield and Frankhouser for exercising their First

Amendment rights.

14
III. §1985 Claims

The Plaintiffs assert that the Defendants conspired to

interfere with the performance of their duties and to deprive them

of their rights and privileges under the law. §1985(1) applies in

cases of interference with federal officials in the performance of

their duties. §1985(1) is not applicable to state officials. See

Canlis v. San Joaquin Sheriff’s Posse Comitatus, 641 F.2d 711, 717-

18 (9th Cir. 1981); Baron v. Carson, 410 F.Supp. 299, 300-01

(N.D.Ill. 1976); see also Congress of Racial Equality v. Clemmons,

323 F.2d 54, 63 (5th Cir. 1963) (stating that city officials had no

federal right to be protected in the performance of their municipal

duties). The Plaintiffs are not federal officials and, therefore,

their allegations fail to state a claim under §1985(1).

The Plaintiffs allege that the defendants conspired to deprive

them of their First Amendment and equal protection rights. Under

§1985(3), a corporate entity and its employees constitute a “single

legal entity which is incapable of conspiring with itself.”

Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994) (holding

that a school board and its employees constituted a single legal

entity which could not conspire with itself for § 1985(3)

purposes).3

3
The plaintiffs’ reliance on Dussouy v. Gulf Coast Inv. Corp. is
misplaced. 660 F.2d 594, 603-04 (5th Cir. 1981). In Dussouy, the
court questioned the intracorporate conspiracy doctrine in dicta.
However, the court had no occasion to rule on the vitality of the
intracorporate conspiracy doctrine because Dissouy was a diversity
case involving Louisiana law. See id. at 596, 602-04.

15
 A possible exception to the intracorporate conspiracy doctrine

exists where corporate employees act for their own personal

purposes. See Domed Stadium Hotel, Inc. v. Holiday Inns, Inc., 732

F.2d 480, 486 n.5 (5th Cir. 1984); H & B Equipment Co., Inc. v.

International Harvester Co., 577 F.2d 239, 244 (5th Cir. 1978).

The Plaintiffs allege that Runnels’s father was forced to resign

because of their grievances and, therefore, Runnels had a personal

motive for retaliating. Further, the Plaintiffs maintain that the

other Defendants conspired with Runnels and aided in the

retaliation.

Assuming the allegations of a personal motive are true, the

Plaintiffs fail to state a claim under § 1985(3). In Hilliard, the

court stated that, under § 1985(3), plaintiffs must show that the

alleged conspiracy was “motivated by class-based animus.” 30 F.3d

at 653. Here, the Plaintiffs’ allegations fail to show that the

purported conspiracy was motivated by class-based animus. Rather,

the Plaintiffs’ § 1985(3) claim is based on the theory that

Runnels’ desire to get even with those who forced his father to

resign was the motivation for the conspiracy.

IV. Tortious Interference with a Business Relationship

The Plaintiffs’ allegations fail to state a claim for tortious

interference with business relations. Generally, as agents of the

city, the Defendants cannot be liable for interference with the

city’s contracts. See Holloway v. Skinner, 898 S.W.2d 793, 796

(Tex. 1995). An agent may be liable, however, where he acts in

16
furtherance of his own personal interests. See id. In Holloway,

the court stated that, in order to prove personal interest the

“plaintiff must show that the defendant acted in a fashion so

contrary to the corporation’s interests that his actions could only

have been motivated by personal interests.” Id. Proof of mixed

motives is insufficient to create liability. See id.

In this case, the Plaintiffs fail to allege facts showing that

the Defendants’ actions could only have been motivated by personal

interests. At best, the Plaintiffs’ contentions indicate that the

Defendants acted with mixed motives and are, therefore, legally

insufficient.

V. Intentional Infliction of Emotional Distress

The district court granted the Defendants’ motion for summary

judgment with regard to Frankhouser on the issue of intentional

infliction of emotional distress. This appeal involves only Grant

and Benningfield’s intentional infliction of emotional distress

claims. The elements of intentional infliction of emotional

distress are: (1) the defendant acted either intentionally or

recklessly; (2) the conduct was extreme or outrageous; (3) the

defendant’s actions caused the plaintiff emotional distress; and

(4) the emotional distress was severe. See Ugalde v. W.A. McKenzie

Asphalt Co., 990 F.2d 239, 243 (5th Cir. 1993) (citing Dean v. Ford

Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989)).

Grant’s allegations are sufficient to withstand summary

judgment with regard to Runnels. Grant affirms that Runnels

17
assigned her to work under Fleming knowing that Grant and Fleming

had been romantically involved and that the relationship ended when

Grant discovered that Fleming had sexually abused her daughter.

When Grant attempted to shield her work station from Fleming’s

constant view by putting partitions around her work area, Runnels

allegedly removed the partitions in order to cause Grant emotional

distress. Grant concludes that Runnels’s actions led to her

emotional breakdown and subsequent medical discharge.

In their affidavits, Benningfield and Frankhouser corroborate

Grant’s claim. Benningfield affirms that during Grant’s emotional

breakdown, Grant exclaimed “I can’t take this anymore. What are

they going to do to me next?” Frankhouser avers that she

personally witnessed retaliation against Grant.

Memos written by Runnels and Fleming tend to support Grant’s

claim that her injury was caused by Runnels’s actions.4 Runnels’s

memo notes that the Staff Psychologist, Beverly Nichols, concluded

that Grant suffered from work related stress. In addition, the

memo states that, following an investigation, Grant’s Injury on

Duty (IOD) status was approved. In his memo, Fleming admits that

Grant sustained a psychological injury on the day Runnels allegedly

removed the partitions around her desk. Fleming also concedes that

Grant was ruled IOD and, thus, her injury claim was covered by

Workmen’s Compensation.

4
Runnels’s and Fleming’s memos are attached to Grant’s affidavit
as Exhibits B-2 and B-3, respectively.

18
 Requiring an employee to work under a supervisor she dislikes

would not ordinarily constitute outrageous conduct. See Wilson v.

Monarch Paper, 939 F.2d 1138, 1143 (5th Cir. 1991) (noting that, in

most cases, intentionally creating an unpleasant work environment

does not constitute outrageous conduct). In this case, however,

Grant alleges that Runnels assigned her to Fleming, knowing that

Fleming sexually molested her daughter. See id. (holding that

forcing a corporate executive to perform menial janitorial duties

constituted outrageous conduct). Further, Texas immunity law does

not protect Runnels because he allegedly acted in bad faith. See

Cantu v. Rocha, 77 F.3d 795, 804 (noting that public officials must

act in good faith in order to enjoy immunity under Texas law).

Accordingly, we affirm the district court’s denial of summary

judgment as to Runnels because a genuine issue of material fact

exists.

On the other hand, Grant’s allegations fail to state a claim

against the other Defendants because their purported actions are

not sufficiently extreme and outrageous. Similarly, Benningfield’s

contentions fail to state a claim for intentional infliction of

emotional distress against any of the Defendants. Aside from

Runnels’s treatment of Grant, Benningfield and Grant allege conduct

which does not constitute extreme and outrageous conduct under

Texas law. See id. at 1143 (creating an onerous and unpleasant

work environment does not usually constitute intentional infliction

of emotional distress); Ugalde, 990 F.2d at 243 (calling an

19
employee a “Mexican” and a “wetback” is not extreme and outrageous

conduct).

CONCLUSION

With regard to the Plaintiffs’ § 1985 and tortious

interference claims, we reverse the district court.

We affirm the district court’s denial of summary judgment on

Benningfield’s § 1983 claim that Runnels demoted her while the

internal affairs investigation was proceeding and on Frankhouser’s

claim [against Runnels and Fleming] that she was demoted by being

removed from a cadet training position at the Police Academy. We

also affirm the denial of qualified immunity as to those claims.

The district court’s denial of summary judgment is reversed with

regard to the other § 1983 claims.

We affirm the district court’s denial of summary judgment on

Grant’s intentional infliction of emotional distress claim against

Runnels. The court’s denial of summary judgment is reversed with

regard to the remaining intentional infliction of emotional

distress claims.

REVERSED in part; AFFIRMED in part and REMANDED.

20
21