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
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
Wife Awarded Nearly $3
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.
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
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
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.
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
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.
By Patrick Dorrian
Full text of the opinion is available at