Case: 21-20085 Document: 00516235769 Page: 1 Date Filed: 03/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-20085 March 11, 2022
Lyle W. Cayce
Clerk
Melinda Abbt,
Plaintiff—Appellant,
versus
City of Houston; John Chris Barrientes,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-1353
Before King, Graves, and Ho, Circuit Judges.
King, Circuit Judge:
Melinda Abbt, who formerly worked as a firefighter in the Houston
Fire Department, appeals the district court’s grant of summary judgment
dismissing her claims for sexual harassment and retaliation against the City
of Houston related to the repeated viewing of a private, intimate video of
Abbt by two senior firefighters. While we agree that there is no genuine
dispute of material fact as to Abbt’s retaliation claim, we disagree with the
district court’s conclusion that no genuine issue exists as to her sexual
harassment claim and that summary judgment for the City was appropriate.
We therefore AFFIRM in part and REVERSE in part.
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I. Facts & Procedural History
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 e-
mail. 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. 1 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. 2 Barrientes testified that, when he asked Elliott what to do, Elliott first
asked “if [Barrientes] had told anybody” about the video. When Barrientes
said he had not, Elliott responded that was “good,” that Barrientes should
not discuss the video with anyone else, and that Elliott would “get back to
[Barrientes]” about what to do.
1
While Barrientes’s testimony is that he received the video in an anonymous e-
mail, it is unclear whether this was actually how Barrientes obtained it. For example, Elliott
“reported to [the Office of Inspector General]” that Barrientes had downloaded the video
himself from Abbt’s personal laptop. However, the source of the video is irrelevant to
Abbt’s claims, which stem from actions taken after Barrientes possessed the video.
2
Barrientes testified that he did not remember Sciortino being present when
Barrientes showed the video to Elliott.
2
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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) by Dr. Jana Tran, a therapist with the City.
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. 3
3
This decision was made by the Fire Fighters’ & Police Officers’ Civil Service
Commission after a determination that Abbt “had a medical impairment” that could not
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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; 4 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).
After receiving the results of her OIG complaint, Abbt filed a charge
of discrimination with the Equal Employment Opportunity Commission
(EEOC) and the Texas Workforce Commission—Civil Rights Division. She
alleges that, after she told a counselor with the City’s Employee Assistance
Program of her intention to file charges, the counselor responded that Abbt
would “see how things change.” Approximately six weeks after Abbt filed
her charges of discrimination, a City attorney called Abbt’s therapist, Dr.
Tran, and “asked if she could ‘dissuade’ [Dr. Tran]” from continuing to
treat Abbt since Dr. Tran, as a Fire Department staff psychologist, had “the
dual role of representing the [Fire] Department and representing the client.”
be accommodated. Abbt was told that she could reapply should her medical condition
improve.
4
Elliott retired from the Fire Department in lieu of serving his suspension.
4
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Dr. Tran ultimately continued treating Abbt after consulting with another
psychologist.
Abbt later filed a lawsuit in state court alleging sexual harassment that
created a hostile work environment, retaliation by the City of Houston, and
violations of Texas Civil Practices and Remedies Code § 98B.002 (Unlawful
Disclosure or Promotion of Certain Intimate Visual Material) against
Barrientes and the City. The case was removed to federal court and the City
moved for summary judgment on Abbt’s sexual harassment and retaliation
claims.
The district court first struck several paragraphs from the declaration
Abbt introduced to support her claims, concluding that various parts of the
declaration were “based on speculation and rumors,” “based on hearsay,”
and/or “clearly contrary to her prior statements, collective bargaining
agreements, and fire department policies.” The court did not identify which
of the struck paragraphs corresponded to which deficiencies.
The district court then granted summary judgment to the City on both
Abbt’s sexual harassment claim and her retaliation claim. It first found that
Abbt’s sexual harassment claim failed because 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.”
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As to Abbt’s retaliation claim, the court granted summary judgment
to the City because (1) the denial of Abbt’s request for paid leave followed
the City’s worker’s compensation policies, and Abbt later was granted full
backpay after filing her worker’s compensation claim; (2) “[t]he City was
within its right to deny [Abbt’s] transfer and work-from-home requests[;]”
and (3) Abbt’s “allegation that the City tried to persuade [Dr.] Tran is
inadmissible and cannot support her retaliation claim.” The district court
then remanded Abbt’s state-law claims. Abbt timely appeals the district
court’s summary judgment in favor of the City.
II. Discussion
A. Stricken Paragraphs from Abbt’s Declaration
As an initial matter, we must consider the district court’s decision to
strike several paragraphs from the declaration Abbt submitted in support of
her claims and in response to the City’s motion for summary judgment. Such
evidentiary rulings are reviewed for abuse of discretion. Cohen v. Gilmore (In
re Ala. & Dunlavy, Ltd.), 983 F.3d 766, 774 (5th Cir. 2020). A court can abuse
its discretion “by failing to explain the reasons for excluding evidence.” Id.
Abbt contends that the district court abused its discretion because, while it
provided a list of reasons why the stricken paragraphs in general were
deficient, it did not match those reasons to the specific paragraphs or explain
how or why each paragraph represented incompetent summary-judgment
evidence. However, we need not consider whether the district court abused
its discretion because the answer to that question will not affect the result of
this case. Whether or not we consider the stricken paragraphs, we come to
the same result—reversing summary judgment as to Abbt’s sexual
harassment claim but affirming summary judgment as to her retaliation claim.
Abbt’s sexual harassment claim survives even without the stricken
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paragraphs, and none of the stricken evidence saves her retaliation claim as a
matter of law.
B. Standard of Review
A district court’s grant of summary judgment is reviewed de novo.
Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163 (5th Cir. 2006). A
court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one that could
ultimately “affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). This standard
applies to the district court’s summary judgment on both claims. We first
consider Abbt’s sexual harassment claim, and then turn to her retaliation
claim.
C. Sexual Harassment
The district court considered Abbt’s sexual harassment claim to be a
federal-law claim under Title VII premised on the existence of a hostile work
environment; we do the same here. A work environment is considered hostile
when it is “objectively and subjectively offensive” such that “a reasonable
person would find [it] hostile or abusive” and the victim herself “perceive[d]
[it] to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). The
hostility of a given work environment is determined based on 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.” Id. at 787–88 (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 23 (1993)).
To prove a hostile work environment claim, the plaintiff must prove
that she is (1) a member of a protected class who was (2) subject to
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“unwelcome harassment” that was (3) based on the plaintiff’s status as a
member of a protected class (here, sex) and was (4) “sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an
abusive working environment” and that (5) “the employer knew or should
have known of the harassment in question and failed to take prompt remedial
action.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012)
(quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). An
employer can be put on notice of harassment, and therefore be required to
take remedial action, if a person within the organization who has the
“authority to address the harassment problem” or an “affirmative duty” to
report harassment learns of the harassment in question. Williamson v. City of
Houston, 148 F.3d 462, 466 (5th Cir. 1998).
There is at least a genuine dispute of material fact for each element of
Abbt’s sexual harassment claim. It is undisputed that Abbt, a woman, is a
member of a protected class. It is also undisputed that Abbt experienced
unwelcome harassment—Abbt did not send Barrientes the video and did not
give either Barrientes or Elliott permission to watch it. It is important to note
that the unwelcome harassment was not limited to the theft of the video.
Instead, the harassment includes the affirmative decision by Barrientes and
Elliott to repeatedly view Abbt’s intimate video without her permission. Abbt
has presented evidence that both Barrientes and Elliott watched the video at
work, watched it multiple times, and watched it with the full knowledge that
it depicted their female subordinate nude. The full framing of the harassment
at issue in this case includes the repeated viewing of the video, not just its
theft.
Given that framing, the harassment (the repeated viewing of the
video) was based on sex, and therefore was based on Abbt’s status as a
member of a protected class. The textbook example of harassment stems
from actions across genders based on sexual desire. The Supreme Court has
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therefore noted that “[c]ourts and juries have found the inference of
discrimination easy to draw in most male-female sexual harassment
situations, because the challenged conduct typically involves explicit or
implicit proposals of sexual activity.” Oncale v. Sundowner Offshore Servs.,
523 U.S. 75, 80 (1998). It is for this reason that the Supreme Court needed to
clarify that “harassing conduct need not be motivated by sexual desire to support
an inference of discrimination on the basis of sex.” Id. (emphasis added). The
Supreme Court has made clear that a sexual motivation is not necessary to
find sexual harassment; but even though such a motivation is not necessary,
it is still clearly sufficient. And a jury could surely find that the decision of
two men to repeatedly watch a nude video of their female coworker was
motivated by the fact that she was a woman. The harassment was based on
sex.
The next element to consider is whether the harassment was severe
or pervasive enough to create an abusive and hostile work environment and
alter a term or condition of Abbt’s employment. This element is
disjunctive—if a single instance of the conduct (here, the viewing of the
video) was severe enough on its own to create a hostile work environment,
then it need not have been pervasive for this element to be satisfied. Harvill
v. Westward Commc’ns, L.L.C., 433 F.3d 428, 435 (5th Cir. 2005) (“The
Supreme Court has stated that isolated incidents, if egregious, can alter the
terms and conditions of employment.”). This prong of the test has both an
objective and subjective element—we consider whether a reasonable person
would have found that the harassment created a hostile work environment
and also whether the harassment created a hostile work environment for the
plaintiff herself.
Abbt has presented sufficient evidence to create a genuine dispute of
material fact as to this prong. First, the complained-of conduct is sufficiently
severe to objectively create a hostile work environment. Looking to “all the
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circumstances,” Faragher, 524 U.S. at 787 (quoting Harris, 510 U.S. at 23),
a reasonable person could consider the repeated viewing of her intimate,
nude video by her coworkers to be sufficiently severe to constitute sexual
harassment. Such invasive and violative conduct goes well beyond a “mere
offensive utterance” and rendering it actionable under Title VII does not risk
turning the statute into a “general civility code.” Id. at 787. Barrientes and
Elliott’s conduct was not only a clear violation of Fire Department policy but,
in Barrientes’s case, was also potentially a crime under Texas law. See Tex.
Penal Code § 21.15(b)(3) (criminalizing the distribution of nude
photographs or videos of a person “without the other person’s consent and
with intent to invade the privacy of the other person”). The conduct was
objectively offensive, and could have objectively created a hostile work
environment.
In addition, the conduct was subjectively offensive to Abbt and
affected a term or condition of her employment. After learning that
Barrientes and Elliott had repeatedly watched an intimate video of her nude,
she developed PTSD and was unable to return to work. Abbt additionally did
not know, and still does not know, how far and wide the video had spread
throughout the Fire Department. What she did know was that, as a firefighter
living in a firehouse, she would be required to eat, sleep, and live with other
firefighters while on duty. Therefore, she would be returning to a work
environment where she could be sleeping and living next to a person who had
seen her intimate video. She would be returning to a work environment with
no assurances that she would not have to work with or sleep next to
Barrientes, who she knows had repeatedly watched her nude video. She would
be returning to a work environment with no guarantees that copies of her
intimate video were not still being shared amongst her coworkers. These
possibilities stem directly from the harassment at issue, and subjectively
affected Abbt’s employment by preventing her return to work.
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The district court discounted these possibilities by noting that “it was
[Abbt’s] knowledge of what had happened that led to her purported PTSD,
not the actual conduct of her co-workers viewing the video.” But that fact
does not control; we decline to hold as a matter of law that a person must
contemporaneously experience harassment for it to be actionable under Title
VII. As discussed above, the term or condition of Abbt’s employment that
was affected by the harassing conduct was her inability to return to work. A
term or condition of her employment was thus affected, as this is not a case
where the victim had already retired or left the company, which would leave
no possibility that a term or condition of employment could ever be affected.
Abbt wanted to return to her work as a firefighter in the Houston Fire
Department, but was unable to because of the fear that she might have to
work with Barrientes (who had watched her intimate video) and other
coworkers who might have also been shown or sent the video. That fear began
to exist when Abbt learned about Barrientes and Elliott’s actions, and still
exists today regardless of when those actions actually occurred. True, the
largest harm that Abbt suffered (her PTSD), which had the largest effect on
her employment (which she could not return to), actually began to manifest
when Abbt learned of the repeated viewings of her intimate video. But the
actual viewing of that video was a necessary prerequisite to Abbt learning of
those viewings and suffering harm. After all, had Barrientes and Elliot not
repeatedly watched her intimate video, there would have been no harassment
for Abbt to discover. And the pain the harassment caused is logically just as
real and viscerally felt whether Abbt learned of the actions immediately (by,
say, walking in on a viewing), days later, or decades later. Nothing about the
time elapsed could do anything to diminish the harm caused by the
harassment, the PTSD it caused, or the effect it had on her ability to return
to work. Whether that harm can support a hostile work environment claim is
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a question for a jury, not a judge. 5 See Hirase-Doi v. U.S. West. Commc’ns.,
Inc., 61 F.3d 777, 782–83 (10th Cir. 1995); Liberti v. Walt Disney World Co.,
912 F. Supp. 1494, 1505 (M.D. Fla. 1995) (“The extent of [the victims’
knowledge] of [the harassing] activities and how this knowledge affected their
perception of their working environments at different times is a question of
fact.”).
Lastly, Abbt has presented sufficient evidence to create a genuine
dispute as to whether the City knew or should have known about the
harassment, and thus can be held liable. In Williamson v. City of Houston, our
court held that “[i]f the employer has structured its organization such that a
given individual has the authority to accept notice of a harassment problem,
then notice to that individual is sufficient to hold the employer liable.” 148
F.3d 462, 467 (5th Cir. 1998). In the instant case, that individual was Elliott,
a District Chief at the time. Williamson involved the Houston Police
Department which, just like the Houston Fire Department, featured “a
strong chain of command.” Id. at 466. Just like the supervisor in Williamson,
Elliott “could have directed [Barrientes] to cease his harassing behaviors,
and [Barrientes] would have been subject to discipline for failing to obey.”
Id. As in Williamson, “if [Elliott] failed to report harassment of which he was
aware to his superiors, he was breaching an affirmative duty of his position.”
Id. Therefore, in our case as in Williamson, “[t]he City is hard pressed to
explain why [a supervising employee’s] knowledge of harassment should not
be imputed to the City when its own policy placed an affirmative duty on him
5
We additionally note that, at bottom, Title VII exists to “root out discrimination
in employment.” EEOC v. Shell Oil Co., 466 U.S. 54, 77 (1984); see also Burlington Indus.
v. Ellerth, 524 U.S. 742, 764 (1998); McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352,
358 (1995). That purpose would be ill-served should we state that, as a rule of law,
objectively harassing and humiliating actions, if successfully hidden for a period of time,
automatically become unactionable.
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to pass such information up the chain of command.” Id. Our case fits squarely
under our precedent in Williamson; therefore, that case’s holding controls
and “notice to [Elliott] can be imputed to the City of Houston for purposes
of liability under Title VII.” Id. at 467.
There is a genuine dispute of material fact for every element of Abbt’s
sexual harassment/hostile work environment claim. Summary judgment was
therefore improper, and we reverse the grant of summary judgment to the
City of Houston.
D. Retaliation
Abbt also filed a claim against the City for retaliation, which the
district court also considered under Title VII. “There are three elements to
a prima facie case of retaliation under Title VII: (1) that the plaintiff engaged
in activity protected by Title VII, (2) that an adverse employment action
occurred, and (3) that a causal link existed between the protected activity and
the adverse action.” Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th
Cir. 2002). In addition to tangible adverse actions, such as firing an employee,
the definition of adverse employment action includes any act which “well
might have ‘dissuaded a reasonable worker from making or supporting a
charge of discrimination.’” Burlington N. & Santa Fe Ry. v. White, 548 U.S.
53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir.
2006)). If the plaintiff succeeds in satisfying these elements, “the burden
then shifts to the employer to articulate a legitimate, nondiscriminatory or
nonretaliatory reason for its employment action.” McCoy v. City of
Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). “The employer’s burden is one
of production, not persuasion, and involves no credibility assessment.” Id.
“If the employer meets this burden of production, the plaintiff then bears the
burden of proving that the employer’s reason is a pretext for the actual
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retaliatory reason.” Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484
(5th Cir. 2008).
It is undisputed that Abbt engaged in a protected activity under Title
VII when she filed a complaint with the OIG and a charge with the EEOC.
This case therefore turns on whether Abbt can point to retaliatory actions
taken by the City for which it cannot offer a legitimate, non-retaliatory
explanation.
She cannot. Abbt points to two actions taken by the City which she
claims were retaliatory: (1) the fact that the City denied Abbt paid leave for
over a year and opposed her worker’s compensation claim, and (2) the phone
call a City attorney made to Abbt’s therapist, Dr. Tran, to try to convince her
to cease treating Abbt. However, the City proffered legitimate reasons for
each action, and Abbt has not offered proof that those reasons were
pretextual.
Abbt first asserts that she was entitled to paid leave because the City
often granted paid leave to employees who were being investigated, and thus
denying Abbt paid leave left her, a victim of alleged harassment, worse off
than alleged perpetrators of misconduct. The City responded that, under its
policies, Abbt was not entitled to paid leave, and therefore the City was under
no obligation to provide it to her. The City’s explanation provides a
nonretaliatory reason for its decision to deny paid leave; an employer does
not retaliate by following its own policies without singling out the
complainant or enforcing that policy in a retaliatory manner. Cf. Feist v.
Louisiana, 730 F.3d 450, 455 (5th Cir. 2013) (stating that evidence of
retaliation can include “an employer’s departure from typical policies and
procedures”). Further, the City opposed her worker’s compensation claim
based on a colorable argument that Abbt’s claim was time-barred, and paid
her backpay when an Administrative Law Judge issued a contrary decision.
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Abbt has presented no evidence that she was entitled to paid leave, or that
the City took its actions to retaliate and is now offering pretextual
explanations.
Similarly, the City offered a legitimate explanation for the phone call
placed to Dr. Tran. In its reply brief at the summary-judgment stage, the City
stated that “the attorney’s reasons for approaching Dr. Tran was due to Dr.
Tran’s perceived dual role of being a representative of both the City and
[Abbt].” That explanation is plausibly supported by Dr. Tran’s description
of the phone call in her chart notes and is a legitimate explanation for the City
attorney’s actions. Abbt has not responded with any evidence demonstrating
that this explanation is pretextual. By proffering the “dual role” explanation,
the City has met its burden; Abbt has failed to meet her burden of
demonstrating pretext. The same is true for the City’s denial of paid leave
and contestation of Abbt’s worker’s compensation claim. Because the City
has offered legitimate explanations for its allegedly retaliatory actions which
have not been shown to be pretextual, summary judgment for the City was
appropriate. We affirm the district court’s grant of summary judgment on
Abbt’s retaliation claim.
III. Conclusion
For the foregoing reasons, the judgment of the district court is
AFFIRMED in part and REVERSED in part and the case is
REMANDED for further proceedings consistent with this opinion.
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James C. Ho, Circuit Judge, concurring:
Melinda Abbt is a firefighter. But at least two of her male superiors at
the Houston Fire Department—Chris Barrientes and David Elliott—and
perhaps countless others treated her as nothing more than a sexual object.
They accessed a private, intimate, nude video that Abbt had obviously made
exclusively for her husband. They did so without her knowledge or
permission. And they watched it repeatedly, both on and off-duty, alone and
in front of co-workers, for over nine years. The only reason Abbt ever
discovered this most invasive violation of privacy was because Elliott finally
confessed to her husband. Even to this day, Abbt cannot be sure whether
anyone else at the Department has already seen the video—or may watch it
in the future.
These are disturbing facts. Even the City of Houston admits that
Barrientes and Elliott were guilty of “morally reprehensible” conduct.
The question before us, of course, is not whether this behavior was
immoral, but whether it is actionable under Title VII of the 1964 Civil Rights
Act. But I agree that the district court should have treated this misconduct
as unlawful as well as disgraceful. 1
***
To be sure, we normally think of sexual harassment as something done
to you—not behind your back, as is the case here. After all, it is bedrock
sexual harassment law under Title VII that “a sexually objectionable
1
And as if we needed another creepy fact about this case: Our decision today is
only the latest addition to a string cite of “peeping tom” cases under Title VII. See, e.g.,
Liberti v. Walt Disney World Co., 912 F. Supp. 1494 (M.D. Fla. 1995); Ciesielski v. Hooters
of Am., Inc., 2004 WL 1699020 (N.D. Ill. July 28, 2004); Cottrill v. MFA, Inc., 443 F.3d 629
(8th Cir. 2006); Edwards v. Murphy-Brown, L.L.C., 760 F. Supp. 2d 607 (E.D. Va. 2011).
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No. 21-20085
environment must be both objectively and subjectively offensive.” Faragher
v. City of Boca Raton, 524 U.S. 775, 787 (1998).
The theoretical challenge in this case is the subjective element.
Because a plaintiff cannot “in fact . . . perceive” conduct as hostile if they are
unaware of it. Id. And “if the victim does not subjectively perceive the
environment to be abusive, the conduct has not actually altered the
conditions of the victim’s employment, and there is no Title VII violation.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993).
But notably, the City conceded at oral argument that Abbt’s work
environment was subjectively hostile. And rightly so.
That’s because Abbt was still working at the Department when she
learned what her superiors had been doing behind her back. It is a curious
consequence of Title VII sexual harassment doctrine that her hostile work
environment claim would not have been viable had she learned of the
misconduct only after she left the Department. But it’s one that Abbt’s
counsel acknowledges, and the court today affirms. Because then, the
conditions of her employment would not have been altered. See id.; see also,
e.g., Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1522 (11th Cir. 1995)
(explaining that incidents “made known to” a plaintiff only “after her
termination . . . could not have contributed to her subjective view of a hostile
environment”). But that’s not a problem here, because there’s no dispute
that Abbt was employed at the Department at the time she learned of the
misconduct.
It seems obvious how a rational jury could find that Abbt’s discovery
of the misconduct “actually altered the conditions of [her] employment” and
caused a subjectively hostile work environment. Harris, 510 U.S. at 21–22.
By all indications, Abbt would have wanted to continue to work at the
Department—but for multiple reasons no longer felt comfortable doing so.
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For one, as the court today notes, Abbt had “no assurances that she
would not have to work with or sleep next to Barrientes, who she knows had
repeatedly watched her nude video.” Ante, at 11.
What’s worse, Abbt had no way of knowing whether anyone else at the
Department had ever seen—or would continue to watch—her video. She
certainly got no assurance from Barrientes, who admitted in his deposition
testimony that he did not know whether or not he had deleted every copy of
the video from his email account.
Abbt’s fear of the unknown is not only justified—it provides further
support for her claim. Cf. Liberti v. Walt Disney World Co., 912 F. Supp. 1494,
1505 (M.D. Fla. 1995) (Plaintiffs’ “after-the-fact knowledge” of a
colleague’s “peeping and videotaping scheme” supported their hostile work
environment claims where “[a]dditional and new holes were discovered after
[the perpetrator’s] arrest and termination, and the Plaintiffs continued to be
concerned about the security of their dressing areas”).
Finally, there is no serious dispute that Abbt was profoundly injured
as a result of her changed working conditions. She was understandably
“humiliated, disgusted, and upset” by her discovery of what her superiors
had done. The city’s own therapist diagnosed her with post-traumatic stress
disorder. And she subsequently left the Department for medical reasons.
So there is ample evidence here for a jury to determine that Abbt
subjectively found her work environment sufficiently “hostile or abusive” to
have “actually altered the conditions of [her] employment.” Harris, 510
U.S. at 21–22. And there is likewise ample evidence for a jury to find that an
objectively reasonable person would agree with Abbt. See, e.g., Hernandez v.
Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012) (Title VII’s “dual
standard asks both whether the plaintiff was offended by the work
environment and whether a reasonable person would likewise be offended”)
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(quotations omitted); Shepherd v. Comptroller of Pub. Accts., 168 F.3d 871, 874
(5th Cir. 1999) (“To be actionable, the challenged conduct must be both
objectively offensive, meaning that a reasonable person would find it hostile
and abusive, and subjectively offensive, meaning that the victim perceived it
to be so.”).
In sum, I agree that the district court erred in granting summary
judgment on Abbt’s hostile work environment claim. I accordingly concur.
19
Abbt v. City of Houston
Combined Opinion