Houston Sexual Harassment Suit Reinstated by Fifth Circuit

The US Fifth Circuit Court of Appeals has reinstated a sexual harassment suit brought against the Houston Fire Department by a female firefighter. Melinda Abbt brought the action in 2019 after discovering that male firefighters obtained a nude video of her, and watched it multiple times over a period of years.

As explained in the decision:

  • Beginning in 2003, Melinda Abbt worked for the City of Houston as a firefighter in the Houston Fire Department.
  • From 2006 until 2009, she was assigned to Station 18.
  • During that time, she served under Chris Barrientes, who was a Junior Captain at Station 18.
  • Station 18 was overseen by District Chief David Elliott, who also had purview over three to four other stations.
  • According to Barrientes’s deposition testimony, the actions which led to this case began around 2008, when Barrientes received an anonymous email.
  • That e-mail contained an intimate, nude video of Abbt that she had made privately for her husband and had saved on her personal laptop, which she had brought to the fire station.
  • Barrientes first watched the video in the captain’s office of Station 18.
  • He kept the video’s existence hidden for several days, and then brought it to the attention of District Chief Elliott.
  • When Barrientes told Elliott about Abbt’s nude video, Elliott asked to see it.
  • Barrientes then played the video for Elliott; another firefighter, Jonathan Sciortino, testified that he was also in the room and viewed the video.
  • Elliott did not report the video to human resources or to a supervisor.
  • Instead, Elliott “asked [Barrientes] to forward [the video] to him” because Elliott “wanted to see it again.”
  • Barrientes did not forward the e-mail at that time, but provided his e-mail password to Elliott so that Elliott would have access to the video.
  • A year or so later, Elliott called Barrientes because the password to Barrientes’s account no longer worked and Elliott needed the new one to continue watching the video.
  • According to Barrientes, Elliott said he was “going to keep hounding [Barrientes] till [he gave Elliott] the password or let [him] see the video again.”
  • Barrientes then forwarded the video to Elliott.
  • Barrientes also continued to watch the nude video of Abbt multiple times over the next several years.
  • Abbt learned of these events on May 18, 2017, when Elliott confessed to Abbt’s husband (also a member of the Fire Department) that Elliott had seen a nude video of Melinda Abbt.
  • Upon learning that her personal, intimate video had been seen by other firefighters, Abbt was “completely distraught” and “disgusted.”
  • She called in sick the next day and continued to call in sick in the weeks that followed.
  • On June 6, 2017, Abbt was diagnosed with post-traumatic stress disorder (PTSD).
  • After the incident, Abbt received six months of unpaid leave under the Family and Medical Leave Act (FMLA); however, she was initially denied paid leave.
  • Abbt filed a worker’s compensation claim on February 16, 2018, which was opposed by the City; an Administrative Law Judge found that Abbt had suffered “a compensable mental trauma injury” and she was granted worker’s compensation pay.
  • She was medically separated from the City and her employment ended on February 12, 2019.
  • Abbt also reported the incident to the City of Houston’s Staff Services Department and, on May 26, 2017, she filed a complaint with the Houston Office of Inspector General (OIG).
  • When he learned of the investigation, Barrientes deleted the original e-mail from his e-mail account; it is unclear whether he additionally deleted the e-mail he sent to Elliott or whether he retained that copy of the video.
  • The OIG eventually sustained Abbt’s allegations. Barrientes, Elliott, and Sciortino each received suspensions of varying length; Barrientes also received a two-rank demotion.
  • However, Abbt asserts that, after the investigation, (1) she was not told how widely the video had been distributed throughout the Fire Department, (2) she did not know whether any copies of the video continued to exist and were still in the possession of others, and (3) there were no assurances that Abbt would not be required to work in the future with Barrientes or Sciortino (both of whom she knew had seen the video and were still working for the Fire Department).

Abbt filed suit in state court alleging sexual harassment and retaliation. The city had the case removed to US District Court, where the court granted summary judgment to the city  concluding:

  • no hostile work environment was created as (1) neither Barrientes nor Elliott were Abbt’s supervisors, and so the City could not be held vicariously liable for their actions; (2) “it was [Abbt’s] knowledge of what had happened that led to her purported PTSD, not the actual conduct of her coworkers viewing the video;” (3) Abbt was unable to prove that the theft of the video occurred at work; and (4) the City took sufficient remedial action once Abbt filed a complaint with the OIG. The court ultimately stated that “[b]ecause Abbt cannot show that she was subjected to a hostile work environment – just that she is angry and embarrassed – her sexual harassment claim fails” [and]
  • As to Abbt’s retaliation claim, [among other things she was] later was granted full backpay after filing her worker’s compensation claim.

The Fifth Circuit took issue with most of the District Court’s conclusions on the hostile work environment claims, noting the both Barrientes and Elliott were ranking officers, and that Abbt raised genuine issues of material fact that should be submitted to jury for determination. While the Fifth Circuit agreed with the trial court on the retaliation claim, it sent the case back to the district court with instruction to proceed toward trial.

Here is a copy of the complaint:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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