MEMORANDUM AND ORDER
Plaintiffs in this case, who all are Mexican immigrants, complain that Defendant subjected them to discrimination, physical assault, and financial exploitation, and that their complaints about Defendant’s conduct were met with retaliation. Plaintiffs bring discrimination, retaliation, Fair Labor Standards Act, and assault and battery claims. Defendant has filed a Motion for Partial Summary Judgment [Doc. # 78] (“MPSJ”). Plaintiffs have responded [Doc. # 87], Defendant replied [Doc. # 91], and Plaintiffs surreplied [Doc. # 98]. Having considered the parties’ submissions, all matters of record, and applicable legal authorities, the Court concludes that the Motion should be granted in part and denied in part.
I. FACTUAL BACKGROUND
Defendant Shipley Do-Nuts (“Defendant”), based in Houston, is a family-owned company that was started in 1936 by Lawrence Shipley, Sr. (“Shipley, Sr.”). Defendant now sells donuts and other goods in retail stores and franchises in five states, and has numerous retail outlets in Houston. In the late 1970s, management authority was passed from Shipley, Sr., to Lawrence W. “Bud” Shipley, Jr. (“Shipley, Jr.”). When Shipley, Jr., died in March 2005, authority passed to Lawrence W. Shipley, III (“Shipley, III”).
*751 Plaintiffs, all immigrants from Mexico, were employed at Defendant’s kitchen and warehouse, which prepares ingredients to be distributed to Defendant’s individual stores. Defendant’s property, located at 5200 N. Main Street in Houston, includes the warehouse, two kitchens, storerooms, and offices. The Main Street property is adjacent to Defendant’s “company houses” — several houses and mobile homes owned by Defendant in which some employees live rent-free. Besides free housing, Defendant provided other benefits to some employees, such as paid medical care, paid automobile repairs, or emergency loans for which repayment was not sought.
For many years, until March 2005, Plaintiffs and the other warehouse workers were supervised by Jimmy Rivera, who is Mexican-American. Administrative duties in the warehouse, and some supervisory duties, were performed by Julian Garcia (Mexican-American), Christopher Halsey (Caucasian), and Bill Shipley 1 (Caucasian). In March 2005, Rivera was removed from the warehouse in response to Plaintiffs’ initial complaints, and Garcia became warehouse manager, with Halsey assisting him.
Neither Shipley Jr. nor Shipley, III, speak Spanish. Most of Defendant’s warehouse workers do not speak English. Because Rivera and Garcia are bilingual, the Shipley family relied upon them to provide information about what happened in the warehouse. Plaintiffs claim that they had no access to the Shipley family, and no means of registering complaints about warehouse conduct, except through Rivera.
Plaintiffs allege that, throughout their employment with Defendant, they were subjected to verbal and physical harassment based on their race and national origin. In particular, Plaintiffs claim that they were subjected daily to derogatory slurs from Rivera, Garcia, Halsey, and Bill Shipley. The slurs included “fucking wetback,” “fucking Mexican,” pendejo, vaque-tón, mojado, Chiapaneco, cabrón, vato, stupid, jackass, lazy, and taco-eater. Plaintiffs further allege that they were subjected to frequent, offensive touching of their buttocks and other private parts. This physical harassment was inflicted mostly by Rivera, but also, to a lesser extent, by Garcia and Halsey. Plaintiffs also claim that Rivera kept sex toys in his office, forced Plaintiffs to retrieve or clean the sex toys, made offensive sexual comments to them, and demanded they give him massages.
Second, Plaintiffs allege extensive financial exploitation by Rivera and, to a lesser extent, Garcia. In particular, Plaintiffs allege that Rivera exploited his broad authority over the warehouse by demanding payments for employment “favors” such as hiring, pay raises, overtime pay, and sick leave. Sometimes the demanded payments were in the form of “raffle tickets” that Plaintiffs were forced to buy. They also allege that Rivera sometimes pocketed their paychecks.
Third, Plaintiffs allege an assault and battery claim, contending that Rivera and others hit them and pushed them on multiple occasions. They further claim that some of the offensive sexual touching was extremely painful — in particular, the supervisors frequently grabbed and squeezed their penises, nipples, and buttocks.
Finally, Plaintiffs allege that, when they complained to Defendant, and later to the Equal Employment Opportunity Commission (“EEOC”), Defendant retaliated against them by actions such as reprimanding them without proper basis, following them on delivery routes and outside *752 of work, threatening them with deportation, and reassigning them to less desirable work duties.
On June 30, 2005, based on its investigation, the EEOC issued Determinations for Plaintiffs and other employees of Defendant who had filed charges of discrimination. 2 The Determinations concluded that Defendant discriminated against Plaintiffs in violation of Title VII. 3
II. SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party’s case, and on which that party will bear the burden at trial.
Celotex Corp. v. Catrett,
For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant’s claim in which there is an “absence of a genuine issue of material fact.”
Lincoln Gen. Ins. Co. v. Reyna,
If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial.
Littlefield v. Forney Indep. Sch. Dist.,
*753
In deciding whether a genuine and material fact issue has been created, the facts and inferences to be drawn from them must be reviewed in the light most favorable to the nonmoving party.
Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co.,
Affidavits cannot preclude summary judgment unless they contain competent and otherwise admissible evidence.
See
Fed. R. Civ. P. 56(e);
Love v. Nat’l Med. Enters.,
Finally, “[w]hen evidence exists in the summary judgment record but the non-movant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court.”
Malacara v. Garber,
III. ANALYSIS
Plaintiffs bring claims for discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981; violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.; and assault and battery under Texas law. 4
A. Title VII and § 1981 Claims
Plaintiffs allege that Defendant discriminated against them on the basis of their race and national origin; specifically, they bring claims for hostile work environment and retaliation under Title VII and § 1981. Employers are prohibited under Title VII from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Section 1981 ensures that all persons have the same right to make and enforce contracts, including the making, performance, modification, and termination of employment contracts. 42 U.S.C. § 1981;
Fadeyi v. Planned Parenthood Ass’n of Lubbock, Inc.,
160 F.3d
*754
1048, 1050-52 (5th Cir.1998) (recognizing § 1981 claim by at-will employee of private employer). The summary judgment test for assessing discrimination claims is the same under Title VII and § 1981.
Davis v. Dallas Area Rapid Transit,
1. Separating Allegations of Race Discrimination from Allegations of National Origin Discrimination
As a preliminary matter, Defendant’s motion argues strenuously that the slurs complained of by Plaintiffs are either racially-neutral or are specific to Mexicans, and therefore that they cannot support a claim of racial discrimination (as opposed to national origin discrimination). This argument has different ramifications under § 1981 and Title VII.
a. National Origin Claims Under § 1981
Plaintiffs’ § 1981 claims for national origin discrimination are not cognizable. The Supreme Court has held that § 1981 protects against race-based discrimination, but not discrimination based “solely on the place or nation of ... origin.”
St. Francis Coll. v. Al-Khazraji,
On the other hand, the St. Francis Court also made clear that, under § 1981, “race” is broadly defined:
Based on the history of § 1981, we have little trouble in concluding that Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Such discrimination is racial discrimination that Congress intended § 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory.
St. Francis,
Therefore, although Plaintiffs’ national origin claim fails under § 1981, their factual allegations are cognizable under § 1981 as a claim of race-based discrimination.
b. Allegations of Race and National Origin Discrimination under Title VII
Defendant urges the Court to dismiss all of Plaintiffs’ race discrimination claims as unsupported by the evidence. Defendant argues that “[tjhere is no testimony or other evidence that any Shipley employee used derogatory racial/Hispanic slurs, as opposed to Mexican slurs, or otherwise engaged in discriminatory or harassing race-based conduct.” 5 In other words, Defendant argues that the alleged slurs derogated Mexicans, not Hispanics generally, and clearly fit in the category of national origin discrimination rather than race. Plaintiffs’ Response does not separate race and national origin. 6 Although some of the alleged slurs are specific to *755 Mexicans (e.g., “fucking Mexican,” Chiapa-neco), others are not (e.g., wetback, moja-do, stupid, lazy, jackass, pendejo, taco-eater, vaquetón, cabrón, vato).
The Court holds that the basis for the alleged discrimination involves fact questions that cannot be resolved at the summary judgment stage. Defendant’s summary judgment argument is rejected.
Defendant also argues that some of the alleged slurs, such as mojado and wetback, actually refer to a person’s immigration status, rather than race or national origin. 7 The Court is unpersuaded. The meaning of these terms is a factual matter; these terms arguably encompass national origin, since they are typically directed at Mexicans. Moreover, these slurs are not the only ones that were commonly used. To the extent that this case may raise other issues regarding the intersection between Plaintiffs’ national origin and their immigration status, the parties have not briefed the issues or their implications under § 1981 or Title VII, and the Court does not reach them.
2. Hostile Work Environment Claims 8
For the reasons stated below, the Court holds that the statute of limitations and exhaustion requirements do not bar Plaintiffs’ hostile work environment claims, and that fact questions exist on those claims.
a. Hostile Work Environment Claims — Statute of Limitations.
Title VII. — Defendant urges the Court to bar Plaintiffs from recovering 'on their hostile work environment claims for any conduct that allegedly occurred more than 300 days before Plaintiffs filed charges with the EEOC. 9 In particular, Defendant asserts that Pedro Paz cannot recover for conduct by Defendant occurring before March 19, 2004, because he filed his EEOC charge on January 13, 2005. Similarly, Defendant urges that José Angel Maldonado, who filed with the EEOC on October 3, 2005, cannot recover for conduct prior to December 7, 2004. Defendant claims that the remaining ten Plaintiffs, who filed EEOC charges on March 3, 2005, cannot recover for conduct before May 7, 2004.
Defendant is correct that, as a prerequisite to a Title VII claim, a person claiming unlawful discrimination must file a charge of discrimination with the EEOC within 300 days “after the alleged unlawful employment practice occurred.”
EEOC v. WC&M Enters., Inc.,
A hostile work environment claim is composed of a series of separate acts that collectively constitute one “unlawful employment practice.” 42 U.S.C. § 2000e-5(e)(l). The timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile *756 environment may be considered by a court for the purposes of determining liability.
Nat’l R.R. Passenger Corp. v. Morgan,
Because Plaintiffs claim that Defendant discriminated against them on a daily basis, they have alleged component acts of their claims occurring within Plaintiffs 300-day filing period, and their hostile work environment Title VII claims are not time barred.
Section 1981.
— Plaintiffs’ § 1981 hostile environment claims similarly are timely. Plaintiffs filed this suit on June 22, 2006. They have alleged component acts of the hostile work environment that occurred within the applicable limitations period of two years.
See Pegram v. Honeywell, Inc.,
b. Exhaustion of Administrative Remedies for Title VII Claims of Race Discrimination.
Defendant argues that Plaintiffs’ race discrimination claims under Title VII were not exhausted, and should be dismissed for lack of subject matter jurisdiction, because Plaintiffs’ EEOC charges allege and support only national origin discrimination, as opposed to race discrimination. Defendant relies on the fact that, “although the national origin discrimination boxes are cheeked on all [EEOC] charges, the race discrimination boxes are not checked on any of them.” 11 The Fifth Circuit has held:
To be clear, we do not require that a Title-VII plaintiff check a certain box or recite a specific incantation to exhaust his or her administrative remedies before the proper agency. Nor do we require, for purposes of exhaustion, that a plaintiff allege a prima face case before the EEOC. Instead, the plaintiffs administrative charge will be read somewhat broadly, in a fact-specific inquiry into what EEOC investigations it can reasonably be expected to trigger.
Pacheco v. Mineta,
The Court is mindful that, because a primary purpose of Title VII is to “trigger the investigatory and conciliatory procedures of the EEOC,” the proper scope of Plaintiffs’ Title VII claims is determined “by the scope of the EEOC investigation which ‘can reasonably be expected to grow out of the charge of discrimination.’ ”
Id.
at 789 (quoting
Sanchez,
*757 The Court holds that claims of race-based discrimination could “reasonably be expected to grow” out of Plaintiffs’ EEOC charges, and that Plaintiffs sufficiently exhausted their administrative remedies.
c. Legal Standard for Title VII and § 1981 Hostile Work Environment Claims.
When, as in this case, the alleged harasser is Plaintiffs’ supervisor, the elements for a race- or national origin-based Title VII hostile work environment claim are: (1) Plaintiffs are in a protected group based on their race or national origin, (2) Plaintiffs were subjected to unwelcome harassment, (3) the harassment was based upon race or national origin, and (4) the harassment affected a term, condition, or privilege of employment.
Harvill v. Westward Communications, L.L.C.,
When considering a hostile environment claim, courts consider “the totality of 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.’ ”
Harvill,
When entertaining a motion for summary judgment, a court “should review all evidence in the record.”
Reeves v. Sanderson Plumbing Prod., Inc.,
*758 Defendant argues that Plaintiffs have not raised a genuine issue of material fact on the third and fourth elements of their hostile work environment claim. For the reasons that follow, the Court finds there are genuine issues of material fact and denies summary judgment.
Motivation (Third Prong).— Plaintiffs have demonstrated fact questions regarding whether Defendant’s alleged harassment was motivated by their race or national origin. 13
Defendant argues that the majority of the alleged harassment was financial in nature, and thus unrelated to either race or national origin and irrelevant to Plaintiffs’ discrimination claims. 14 In particular, Defendant asserts that the alleged bribes and kickbacks were not tied to Plaintiffs’ race or national origin. Defendant contrasts the testimony of a Nicaraguan employee stating he paid bribes to Rivera with some Mexican employees who stated that they did not make such payments. 15 Defendant also asserts that Plaintiffs have not presented evidence that the alleged offensive touching was motivated by race or national origin, or that only Mexicans, or all Mexicans, were subjected to the touching. 16 Finally, Defendant argues that many of the alleged slurs — such as lazy, stupid, pendejo, or vaquetón — are unrelated to race or national origin. 17 Defendant urges the Court to consider only the slurs directly related to race or national origin when weighing Plaintiffs’ discrimination claims, and not any of the other alleged harassment.
Defendant’s contentions are unpersuasive; they are contrary to longstanding and prevailing appellate authority. There is a serious fact question regarding the motivation for the alleged harassing conduct, such as financial exploitation, offensive touching, and generic name-calling. The jury must determine whether some or all of this alleged conduct was motivated by race or national origin, as these terms are construed for § 1981 and Title VII purposes. Plaintiffs present ample evidence that they were subjected to racial and ethnic slurs on a daily basis, and have raised a “reasonable inference” that the other alleged harassment was motivated by discriminatory animus. See
Reeves,
*759 Unlike the district court, we are unwilling to assume that indirect comments about [the plaintiffs] age and adaptability are not possibly probative of an unlawful discriminatory intent, given the parties’ sharp disagreements over the operative facts of [plaintiffl’s performance. Moreover, live testimony will assist the necessary credibility choices in this case more effectively than printed affidavits.
Id.
at 315 (quoting
Bienkowski v. American Airlines, Inc.,
Other courts faced with similar facts have held that summary judgment is inappropriate, and have refused to exclude evidence that arguably is unrelated to a plaintiffs protected status. In a recent Fifth Circuit case, the plaintiff, a practicing Muslim born in India, brought a claim for hostile work environment based on his national origin and religion.
EEOC v. WC&M Enters., Inc.,
Here, although [the alleged harasser] did not specifically refer to [plaintiffl’s religion or national origin during the incident, considering the context of [the alleged harasser]’s pattern of harassment based explicitly on religion and national origin, coupled with his practice of banging on the glass partition to allegedly startle [plaintiff], a factfinder could easily infer that [the wall-banging incidents] were also taken on account of [plaintiff]’s religion and national origin.
Id.
at 398-99 (citing
Oncale v. Sundowner Offshore Servs. Inc.,
Severity or Pervasiveness (Fourth Prong).
— The fourth element of a hostile work environment claims — a showing that the harassment affected a term, condition, or privilege of employment — is satisfied if Plaintiff shows that the harassment was “severe or pervasive.”
WC&M Enter.,
Defendant’s argument regarding severity or pervasiveness relies upon the argument that the majority of the alleged harassment should be disregarded because it was not motivated by race or national origin. 19 Because the Court has rejected this argument above, and considers all of the alleged harassment to be relevant to Plaintiffs’ discrimination claims, the evidence regarding both the severity and pervasiveness of the alleged harassment is more than sufficient to survive summary judgment. On the issue of severity, Plaintiffs’ allegations of physical assault and sexual touching create a fact issue that precludes summary judgment. 20 As to pervasiveness, Plaintiff has produced ample evidence that slurs and other offensive conduct by Rivera and others occurred several times per week, 21 which suffices to survive summary judgment. 22
Defendant also argues that the alleged harassment cannot establish a hostile work environment claim because it is attributable to “a blue-collar, all-male, mostly Hispanic and Mexican, rough-and-tumble workplace in which name-calling, teasing and horseplay was common.”
23
Defendant
*761
cites to cases rejecting hostile work environment claims despite significant allegations of harassment, such as
Vaughn v. Pool Offshore Co.,
Other Fifth Circuit cases are more relevant because they address fact patterns similar to those Plaintiffs present, and hold that such facts can establish severe or pervasive harassment.
See WC&M Enters.,
Finally, Defendant asserts that most Plaintiffs never asked their supervisors to stop the offending behavior, and that Plaintiffs never reported the behavior to Shipley, Jr., or Shipley, III.
24
Plaintiffs have demonstrated a fact question on this issue by presenting evidence that Plaintiffs were unable to get direct access to Shipley, Jr., and Shipley, III, because of language barriers and because they were prevented from entering the Shipleys’ offices.
25
In any event, the issue of Plaintiffs’ failure to complain is not relevant to the elements of the hostile work environment claim, but rather to the
Ellerth/Faragher
defense to vicarious liability.
See Ackel v. Nat’l Communications, Inc.,
The facts alleged in this case regarding severity and pervasiveness are sufficient to raise a fact question precluding summary judgment.
3. Retaliation
Plaintiffs allege that Defendant retaliated against them because they engaged in protected activity by complaining about Defendant’s behavior and filing a charge of discrimination with the EEOC.
26
To establish a
prima facie
case for retaliation under Title VII, a plaintiff must present evidence that (1) he engaged in a protected activity; (2) he suffered an adverse employment action; and (3) there is a causal link between the protected activity and adverse employment action.
See Turner v. Baylor Richardson Med. Ctr.,
The first element of a
prima facie
case of unlawful retaliation requires the plaintiff to show that he or she engaged in activity protected by Title VII (and § 1981). An employee engages in protected activity by either (1) opposing any unlawful employment practice under Title VII; or (2) filing a charge of discrimination or otherwise participating in any manner in a Title VII matter.
See Baker v. American Airlines, Inc.,
Second, each plaintiff must present evidence that he or she suffered an adverse employment action. In the retaliation context, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse.”
Burlington N. & Santa Fe Ry. Co. v. White,
The third element of each Plaintiffs
prima facie
case of retaliation is the existence of a causal link between the protected activity and the adverse employment action. The burden of establishing this “causal link” element of a
prima facie
case is much less onerous than the standard for proving “but for” causation required for the determination of the ultimate issue of retaliation.
Sherrod v. American Airlines, Inc.,
If Plaintiffs successfully establish a
prima facie
case, the burden shifts to Defendant to articulate a legitimate, nondiscriminatory reason for the allegedly retaliatory conduct, and then back to Plaintiff to present evidence that raises a genuine issue of material fact that the proffered reasons are pretextual.
See Baker,
The Supreme Court has held that allegations of retaliation must be evaluated in context, and that whether certain actions (such reassignment or suspension) are retaliatory is often a fact question for the jury.
Burlington,
Defendant argues that two Plaintiffs, José Maldonado and Isaac Peña Ramirez, have failed to identify any admissible record evidence supporting their retaliation claims. 27 For the reasons stated below, summary judgment is denied as to Maldonado and granted as to Peña Ramirez. The remaining Plaintiffs have presented sufficient evidence to proceed to trial on their claims.
a. José Maldonado
Plaintiffs’ Response claims that Maldonado was subject to retaliation in the form of threats of deportation, threats of physical bodily harm, meritless disciplinary action, undesirable work assignments, pressure from Defendant to recount events falsely, and pressure from Defendant not to speak to the EEOC.
28
However, in support of these broad allegations, Plaintiffs cite only to the following: (1) a letter from Plaintiffs’ counsel to Defendant’s counsel, dated August 29, 2006, which alleges ongoing harassment and retaliation but discusses all Plaintiffs generally, and makes no allegations specific to Maldonado or any other Plaintiff;
29
and
*764
(2) Maldonado’s counsel’s response to Defendant’s interrogatory regarding retaliation, which refers Defendant to Maldonado’s EEOC Charge and deposition, and then states that Plaintiffs generally (and not Maldonado specifically) were subjected to ten types of retaliation, including physical threats and undesirable work assignments.
30
The letter and unsworn interrogatory answer are merely allegations and conclusory statements, not admissible evidence, and do not defeat summary judgment.
Diamond Offshore Co.,
Plaintiffs’ Response also alleges that Rivera pulled a gun on Maldonado and told him “this is what happens to people who talk.” 31 In support, Plaintiffs cite only to the report of their expert, Dr. Shari Julian, who recounts the alleged threat but does not specify when it was made or give any context for it. 32 Maldonado does not address this matter in his deposition. 33 Defendant objects to Plaintiffs’ reliance on the expert report on hearsay grounds. 34 The Court agrees that Dr. Julian’s testimony on these points is hearsay at best, and is not admissible evidence for the truth of the matter asserted, i.e., that the threat actually occurred. Fed.R.Evid. 801, 802.
In the record, however, is Maldonado’s EEOC Charge, which is “sworn to,” and makes the following allegation: “Mr. Rivera threatened me with a gun and said, ‘if you talk about what is going on, you will know who I am.’ ”
35
Because the Supreme Court has defined an adverse employment action as “any action that ‘might well have dissuaded a reasonable worker from
making
or supporting a charge of discrimination,’ ”
McCoy,
b. Isaac Peña Ramirez
Plaintiffs’ briefing regarding Peña Ramirez — in contrast to the briefing on *765 each of the other Plaintiffs — does not contain a section alleging retaliation. 37 Peña Ramirez’s EEOC Charge checks the retaliation box and recites, in language identical to many other Plaintiffs EEOC Charges, that he was aware that a co-worker was discharged after complaining about Rivera, and that Rivera stated that he would fire anyone who told EEOC investigators the truth about what was happening in the warehouse. 38
This conelusory allegation in Peña Ramirez’s EEOC Charge is insufficient to defeat summary judgment.
Diamond Offshore Co.,
Summary judgment is granted on Peña Ramirez’s claims of retaliation under Title VII and § 1981.
c. Other Plaintiffs
The remaining Plaintiffs have demonstrated fact issues sufficient to survive summary judgment on their retaliation claims. Each has alleged at least one instance of retaliation after complaints to Defendant or the EEOC, such as reassignment to undesirable work duties; 40 unfair reprimands; 41 threats of deportation, revenge, or physical harm; 42 being followed by Rivera, on delivery routes or outside of work, in a manner Plaintiffs considered threatening to their personal safety; 43 eviction from company housing; 44 or termination. 45
All of these incidents, if proven, could qualify as an “adverse employment action” for purposes of a retaliation claim.
McCoy,
B. FLSA Limitations Period
Defendant argues that Plaintiffs cannot recover under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., for alleged violations occurring more than three years before Plaintiffs first asserted the claim in their Second Amended Complaint, which was filed on December 4, 2006. 48 Plaintiffs have not responded to, and appear not to oppose, Defendant’s argument.
For FLSA overtime claims, a two-year limitations period generally applies. 29 U.S.C. § 255(a);
Singer v. City of Waco, Tex.,
Summary judgment is granted on all FLSA claims for violations occurring before December 4, 2003.
C. Assault and Battery
Defendant argues that it cannot be held liable for alleged assault and battery by its employees (Rivera and Halsey) because the alleged assault was outside the scope of them employment with Defendant. 49
Under Texas law, to establish that assault was within the scope of employment, Plaintiffs must prove that Rivera and Halsey were acting (1) within the general authority given them, (2) in furtherance of Defendant’s business, and (3) for the accomplishment of the object for which they were employed.
Bodin v. Vagshenian,
Where an intentional tort is committed in the accomplishment of a duty entrusted to the employee, rather than because of personal animosity, the employer may be liable. A principal is responsible for an unlawful act of his agent where the act is committed by the agent for the purpose of accomplishing the mission entrusted to him by his principal. If the purpose of serving the master’s business actuates the servant to any appreciable extent his acts are within the scope of his employment. However, when the servant turns aside, for however short a time, from the prosecution of the master’s work to engage in an affair wholly his own, he ceases to act for the master, and the responsibility for that which he does in pursuing his own business or pleasure is upon him alone.
*767
Bodin,
As for the first element — whether the alleged assault was within the general authority given to Rivera and Halsey — evidence from both sides establishes that Defendant left the warehouse generally, or entirely, in Rivera’s hands. Defendant cites to the affidavit of Shipley, III, which states that no supervisor was authorized to use physical force of any sort on other employees. 50 However, the affidavit also states that Shipley, III, and his father worked in the front office and “did not regularly work or interface with the warehouse workers,” other than the supervisors; that Shipley, III, does not speak Spanish; that (at the times relevant to this lawsuit) requests to him from warehouse workers came to him through the supervisors (i.e., Rivera, Halsey, and Garcia); and that his primary source of information about warehouse operations was “from the supervisors, as well as [his] own observations.” 51 In other words, the summary judgment record contains evidence that the supervisors’ authority to run the warehouse was broad and often unchecked.
As to the second and third elements, Plaintiffs argue that Rivera and Halsey assaulted Plaintiffs as a form of discipline and intimidation, in furtherance of Defendant’s business.
52
Defendant argues that, under Plaintiffs’ theory that the alleged behavior was intended to harass Plaintiffs, the behavior would have detracted from Defendant’s business and, as a matter of law, cannot be within the scope of employment.
53
However, the facts could alternately support a theory that the alleged behavior served to discipline and intimidate warehouse workers, and thus was “committed in the accomplishment of a duty entrusted to the employee.”
See Bo-din,
Whether Rivera and Halsey acted out of personal animosity, or out of duty to their employer, is not clear at this stage, but the question’s existence precludes summary judgment on Plaintiffs’ assault and battery claims.
IY. CONCLUSION
For all the foregoing reasons, it is hereby
ORDERED that Defendant’s Motion for Partial Summary Judgment [Doc. # 78] is GRANTED in part and DENIED in part. Specifically, summary judgment is granted on (1) Plaintiffs’ claims under 42 U.S.C. § 1981 for hostile work environment and retaliation based on national origin, (2) Isaac Peña Ramirez’s retaliation claims under Title VII and § 1981, (3) Plaintiffs’ FLSA claims for violations occurring before December 4, 2003, and (4) Plaintiffs’ claims for assault and battery occurring outside the two-year limitations period. Summary judgment is denied as to all other claims.
Notes
. Bill Shipley is the nephew of Shipley, Jr., and cousin of Shipley, III.
. EEOC Determination for Pedro Paz Estada (Exhibit 14 to Response); EEOC Determinations for all other Plaintiffs except José Maldonado (Exhibit 2 to Response).
. The EEOC brought suit on a Title VII retaliation claim for one Plaintiff, Gerardo Guzman. EEOC v. Shipley Donut Flour & Supply Co., Inc., d/b/a Shipley Do-Nuts, No. H-06-2106 (S.D.Tex.2007) (Ellison, J.). On September 24, 2007, Judge Ellison signed a Consent Decree which, among other things, permanently enjoins Defendant from discriminating or retaliating against any individual and from employing Rivera in a supervisory position; orders Defendant to pay $6,500 to Guzman in settlement of his claims; and requires Defendant to amend or implement policies and procedures for housing eviction, employee complaints, employee discipline, and prohibition of discrimination and retaliation. Consent Decree (Exhibit A to Surre-piy).
. Plaintiffs have abandoned their claims for negligence; negligent hiring, supervision, retention, and training; gross negligence; and intentional infliction of emotional distress. Surreply, at 10 n. 5.
. MPSJ, at 47.
. See Response, at 62.
. MPSJ, at 47 n. 20.
. Defendant seeks summary judgment on the Title VII claims of hostile work environment based on national origin brought by eight of the twelve Plaintiffs, but not as to Miguel Paz, Gerardo Guzman, Oscar Espinosa, Feliciano Gil. MPSJ, at 3.
.MPSJ, at 43.
.
Cf. Ledbetter v. Goodyear Tire & Rubber Co.,
— U.S. -,
. MPSJ, at 45.
.See Plaintiffs’ EEOC Charges (Exhibits 1-12 to MPSJ). Plaintiffs' charges reflect that they complained to the EEOC about derogatory slurs and other harassment motivated by them being Mexican, and the facts they rely on to support their claims of race discrimination are the same as those relied upon to support their national origin discrimination claims.
.Plaintiffs’ claims are not defeated simply because two of the alleged harassers, Rivera and Garcia, are Mexican-American.
Castaneda v. Partida,
. MPSJ, at 48-49 ("[m]ost of the conduct complained of by Plaintiffs — Rivera’s soliciting and accepting of bribes, the offensive and sexual physical contact allegations, and much of the name-calling — even if it occurred as alleged, has nothing whatsoever to do with Plaintiffs' race or national origin”).
. Id. at 51.
. Id. at 53.
. Id. at 53-54.
. Similarly, in
Marroquin v. City of Pasadena,
. MPSJ, at 55.
.
See Richardson v. N.Y. State Dept. of Correctional Serv.,
. See e.g., Pedro Paz Deposition (Exhibit 32 to MPSJ), at 41-44 (Rivera used slurs against him multiple times every day, demanded massages frequently); Isaac Peña Ramirez Deposition (Exhibit 33 to MPSJ), at 42-43 (Rivera grabbed or slapped his bottom sometimes two or three times a day); Miguel Paz Deposition (Exhibit 31 to MPSJ), at 24, 72 (Garcia and Rivera used slurs against him almost every time they talked to him); Joel Sixtos Deposition (Exhibit 39 to MPSJ), at 50-56 (Rivera, Garcia, and Halsey all used slurs against him several times a week or daily; Rivera touched him offensively about four times per week).
.
See WC&M Enters.,
. MPSJ, at 57. Plaintiffs have presented evidence that they were not willing participants in mutual horseplay. See, e.g., Gonzales Affidavit (Exhibit 1 to Response), ¶¶ 3, 8 (Rivera used slurs against workers frequently, poked sex toys at them, and hit them; "These guys were not willing participants in any of Jimmy [Rivera]’s antics; they were afraid of him.”); José Maldonado Deposition (Exhibit 30 to MPSJ), at 61-63 (Rivera grabbed his buttocks and those of other workers; Maldonado never saw anyone else, other than Chris Halsey, *761 grab anyone's buttocks); Alvarado Deposition (Exhibit 13 to MPSJ), at 60-61 (Rivera touched his buttocks on four or five occasions; his co-workers never did).
. MPSJ, at 60.
. See, e.g., Guzman EEOC Deposition (Exhibit 24 to MPSJ), at 60 (Guzman never dealt with Shipley, Jr. and only saw him on "two or three occasions”; “Everything was through Jimmy [Rivera]”); E. Garcia Deposition (Exhibit 19 to MPSJ), at 75-77 (non-plaintiff Garcia, unlike the other workers, had access to Shipley, Jr., because had a job that put him in contact with Shipley, Jr., and because he spoke English; the other workers could not talk with Shipley, Jr. without going through Rivera); José Maldonado Deposition (Exhibit 30 to MPSJ), at 63-64 (Maldonado never complained to the any member of the Shipley family "[bjecause there was no access to anyone in the company. The door would be locked”).
. Defendant argues, as part of its motion on Plaintiffs' retaliation claims, that Plaintiffs cannot satisfy the standard for a claim of constructive discharge. MPSJ, at 97-104;
see Harvill,
. Reply, at 13.
. Response, at 17.
.Letter from Katrina Patrick, dated August 29, 2006 (Exhibit 8 to Response).
. . Plaintiff José Angel Maldonado's First Amended Responses and Objections to Defendant’s Second Set of Interrogatories (Exhibit 53 to MPSJ), Response No. 3. Maldonado did not sign his interrogatory responses; they are signed instead by his counsel.
. Response, at 17.
. Dr. Julian's Expert Report (Exhibit 4 to Response), at 10.
. Maldonado Deposition (Exhibit 30 to MPSJ).
.
See
Reply at 4. Defendant has filed a separate motion to exclude Dr. Julian's testimony. Defendant's Motion to Exclude Expert Testimony of Dr. Julian [Doc. # 92] (arguing that Dr. Julian's proffered testimony should be stricken under
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
. Maldonado EEOC Charge (Exhibit 12 to MPSJ).
. Defendant also argues that Maldonado’s retaliation claim must be dismissed because he failed to exhaust his administrative remedies. MPSJ, at 86 n. 40. The retaliation box on Maldonado’s EEOC Charge is not checked. However, because the Charge’s narrative alleges Rivera's threat, described above, a retaliation claim could “reasonably be expected to grow’’ out of the Charge.
See Pacheco,
. Response, at 18-19.
. Peña Ramirez EEOC Charge (Exhibit 8 to MPSJ).
. Peña Ramirez Deposition (Exhibit 33 to MPSJ). Peña Ramirez does testify that Rivera threatened to report him to "his friends," deport him, or fire him. Id. at 50-51. However, he further testified that he did not know why Rivera made those comments to him, and that they were not in the context of any dispute with Rivera. Id. at 51-55. His testimony is vague about the time of the alleged threats. Id.
. See, e.g., Alvarado Deposition (Exhibit 13 to MPSJ), at 19-21.
. See, e.g., Gil Deposition (Exhibit 22 to MPSJ), at 56-63; Espinosa Deposition (Exhibit 17 to MPSJ), at 31-37; Ramos Deposition (Exhibit 34 to MPSJ), at 67-71.
. See, e.g., Castillo Deposition (Exhibit 14 to MPSJ), at 24, 62-63; Hernandez Deposition (Exhibit 23 to MPSJ), at 49-50.
. See, e.g., Miguel Paz Deposition (Exhibit 31 to MPSJ), at 11-13; Joel Sixtos Deposition (Exhibit 39 to MPSJ), at 10.
. See, e.g., Ramos Deposition (Exhibit 34 to MPSJ), at 80-85.
. See, e.g., Pedro Paz Deposition (Exhibit 32 to MPSJ), at 61-64.
. See, e.g., Alvarado Deposition (Exhibit 13 to MPSJ), at 53.
. See, e.g., Castillo Deposition (Exhibit 14 to MPSJ), at 12-13; Gil Deposition (Exhibit 22 to MPSJ), at 50-51.
. See Second Amended Complaint [Doc. # 45]. Defendant’s Motion states that the claim was brought on December 5, 2006, and therefore requests the Court to bar recovery for violations occurring before December 5, 2003. The Court’s filing records, however, indicate that Plaintiffs’ Second Amended Complaint was filed on December 4, 2006.
.MPSJ, at 62. Under Texas law, assault and battery claims are governed by a two-year statute of limitations. Tex. Civ. Prac & Rem. Code Ann. § 16.003(a) (Vernon 2002).
. Affidavit of Lawrence William Shipley, III (Exhibit 69 to MPSJ), ¶ 24.
. Id. ¶¶ 14-15. Many Plaintiffs corroborated these facts, testifying that the Shipleys did not keep an eye on Rivera in the warehouse. See, e.g., José Maldonado Deposition (Exhibit 30 to MPSJ), at 15-16 (Shipley, Jr. and Shipley III "did something pretty grave [by] not checking on Jimmy Rivera”); Pedro Paz Deposition (Exhibit 32 to MPSJ), at 66 (when Paz and his wife complained to Shipley III, Shipley III said he did not care what happened in the warehouse).
. See Response, at 69 (alleging that Defendant knowingly and purposefully operated the warehouse as a "sweatshop" to exploit uneducated workers in order to maximize company profits, and that the physical assaults served to manipulate and control the workers).
. MPSJ, at 65.
. See, e.g., Castillo Deposition (Exhibit 14 to MPSJ), at 25.
. See, e.g., José Maldonado Deposition (Exhibit 30 to MPSJ), at 18-22 (Rivera grabbed his private parts repeatedly); Isaac Peña Ramirez Deposition (Exhibit 33 to MPSJ), at 42-43 (Rivera grabbed or slapped his bottom sometimes two or three times a day); Winger Ramos Deposition (Exhibit 34 to MPSJ), at 53-58 (on two occasions, Halsey grabbed Ramos and pushed his body against Ramos', and on another occasion Halsey grabbed and squeezed his bottom; Rivera touched him offensively two or three times a week, including holding his testicles, grabbing his penis, putting sexual toys in his bottom); Castillo Deposition (Exhibit 14 to MPSJ), at 51-53 (Halsey touched his buttocks and, on one occasion, pushed Castillo and caused his to crash into flour pallets).