Texas: No Loss of Consortium Claim for Husband Of Worker Raped in Iraq, Fifth Circuit Says

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

The husband of a woman allegedly raped by a federal employee and sexually harassed by her colleagues while working for KBR in Iraq could not sustain his loss of consortium claim because his wife lost her state law tort claims in arbitration and her successful federal civil rights claims did not provide the necessary predicate for a loss of consortium claim under Texas law, a federal appeals court held June 23 (Barker v. Halliburton Co. d/b/a KBR Kellogg Brown & Root, 5th Cir., No. 10-20638, 6/23/11).
[I]n Texas, a loss of consortium claim may not derive from a spouse's federal civil rights claim, Judge Emilio M. Garza wrote for the U.S. Court of Appeals for the Fifth Circuit. Instead, Galen Barker's loss of consortium claim must derive from his wife's successful tort claim for her physical injuries, he said.
That was not possible here, the unanimous panel noted, because the arbitrator dismissed the tort claims asserted by Barker's wife, Tracy. Therefore, the district court did not err by concluding that Galen Barker's loss of consortium claim failed under Texas law, it ruled, affirming summary judgment to Halliburton Co., doing business as KBR Kellogg Brown & Root (KBR).
Wife Awarded Nearly $3 Million
The Barkers sued KBR in federal court in 2007, alleging that, while stationed in Iraq as a civilian contractor for KBR in 2005, Tracy was sexually assaulted by a State Department employee and sexually harassed by her fellow KBR employees. Tracy asserted claims of sexual harassment and retaliation under Title VII of the 1964 Civil Rights Act and assault and battery, intentional infliction of emotional distress, negligence, and false imprisonment under Texas tort law, and Galen asserted a claim for loss of consortium under Texas law.
In January 2008, the U.S. District Court for the Southern District of Texas granted KBR's motion to compel arbitration of Tracy's claims under an employment agreement she had signed and stayed court proceedings on Galen's claims (30 EDR 241, 2/20/08). [A similar ruling in a case by another KBR worker who also claimed she was raped while stationed in Iraq led to Congressional activity that ultimately resulted in changes to Department of Defense regulations, which now bar certain defense contractors from requiring mandatory arbitration of Title VII and other claims (35 EDR 655, 12/29/10 and see related story, p. 6).]
The arbitrator in Tracy's case dismissed her tort claims but found in her favor on her Title VII claims. She was awarded $2.93 million (33 EDR 659, 12/9/09). According to trial court documents, after adjustment for Title VII damages caps, she was awarded $363,417 in back pay, $214,951 for medical expenses, $150,000 in compensatory damages, $150,000 in punitive damages, $356,000 in front pay, and $147,333 in attorneys fees and costs.
Back in federal court, KBR sought summary judgment on Galen Barker's loss of consortium claim, arguing that it failed as a matter of law because Tracy's tort claims were dismissed and a loss of consortium claim under Texas law cannot derive from a spouse's Title VII claims. The trial court agreed and granted the motion.
Judgment Affirmed
The appeals court found no error. Under Texas law, it noted, a loss of consortium claim is derivative of the tortfeasor's liability to the physically injured spouse. Thus, when a husband asserts a loss of consortium claim, he must establish that the tortfeasor was liable for the tort claim of his physically injured wife.
The court rejected Barker's contention that Texas law recognizes a loss of consortium claim derived from a spouse's Title VII claim. We have held that for a claim alleging deprivation of a constitutional right, an individual plaintiff must prove that the defendant violated his personal rights. A third party may not assert a civil rights claim based on the civil rights violations of another individual, it wrote, citing Coon v. Ledbetter, 780 F.2d 1158 (5th Cir. 1986).
Moreover, Title VII provides a cause of action to employees protecting the right to be free from discrimination and harassment in the workplace, Garza added. It does not, however, permit for derivative tort claims for third-party injuries, he said.
Here, the arbitrator dismissed Tracy's tort claims with prejudice, Garza noted. As a result of the arbitration proceedings, Galen Barker's loss of consortium claim derives solely from his wife's civil rights claim, which is impermissible under Texas law, he said.
Judges Thomas M. Reavley and Leslie H. Southwick joined the opinion.
Michael T. Conway of Michael T. Conway Co. in Brunswick, Ohio, represented Barker.
Warren W. Harris of Bracewell & Giuliani and Vanetta L. Christ and Shadow M. Sloan of Vinson & Elkins, all in Houston, and Morris C. Carrington of MehaffyWeber in Beaumont, Texas, represented KBR.
Full text of the opinion is available at http://op.bna.com/eg.nsf/r?Open=pdon-8j5rdz.

Request Labor & Employment on Bloomberg Law