Tracy Barker v. Halliburton Company

Case: 10-20638 Document: 00511518311 Page: 1 Date Filed: 06/23/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

June 23, 2011

No. 10-20638 Lyle W. Cayce

Clerk

GALEN D. BARKER,

Plaintiff-Appellant

v.

HALLIBURTON COMPANY, doing business as KBR Kellogg Brown & Root;

KBR TECHNICAL SERVICES, INC.; SERVICE EMPLOYEES

INTERNATIONAL, INC.; KELLOGG BROWN & ROOT SERVICES, INC.;

KELLOGG BROWN & ROOT INTERNATIONAL, INC.; KELLOGG BROWN

& ROOT L.L.C.; KELLOGG BROWN & ROOT, INC.; KELLOGG BROWN &

ROOT, S. DE R. L.; KELLOGG BROWN & ROOT (KBR), INC.; KBR, INC.,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before REAVLEY, GARZA, and SOUTHWICK, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

In this appeal, we consider whether the district court erred by concluding

that Plaintiff-Appellant Galen Barker could not, as a matter of law, maintain a

loss of consortium claim because the claim arose from a civil rights violation

against his wife. We agree with the district court’s conclusion and AFFIRM that

court’s summary judgment order.

Case: 10-20638 Document: 00511518311 Page: 2 Date Filed: 06/23/2011

No. 10-20638

I

Plaintiff-Appellant’s wife, Tracey Barker, worked in Iraq as a civilian

contractor for Defendant-Appellee Halliburton Company (“KBR”). While in Iraq,

Tracey Barker was sexually assaulted by a federal employee and also sexually

harassed by fellow KBR employees. Upon her return to the United States,

Tracey Barker and her spouse, Galen Barker, sued KBR in federal district court.

Their Complaint alleged claims of sexual harassment and retaliation under Title

VII, assault and battery, intentional infliction of emotional distress, negligence,

false imprisonment, and loss of consortium. KBR moved to compel arbitration

of Tracey Barker’s claim and stay proceedings of her husband’s claim. The

district court granted the motion. The arbitrator ruled in favor of Tracey Barker

on her Title VII claims and dismissed her tort claims.1 Before the district court,

KBR then moved for summary judgment on Galen Barker’s loss of consortium

claim. KBR argued that Galen Barker’s claim failed as a matter of law because

such a claim could not derive from another individual’s Title VII claim. KBR

also asserted that Galen Barker’s claim failed under state law because the

arbitrator had dismissed Tracey Barker’s tort claims. The district court agreed

and granted summary judgment in favor of KBR. Galen Barker appealed the

order.

II

“We review a district court’s grant of summary judgment de novo, applying

the same legal standard as the district court.” Berquist v. Washington Mut.

Bank, 500 F.3d 344, 348 (5th Cir. 2007). “A summary judgment motion is

properly granted only when, viewing the evidence in the light most favorable to

the nonmoving party, the record indicates that there is no genuine issue as to

1

The arbitrator concluded that Tracey Barker’s state tort claims were barred under the

Defense Base Act, 42 U.S.C. § 1651–54. The arbitrator awarded Tracey Barker $2.93 million

in damages on her Title VII claims, but later reduced the award to $1.23 million.

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No. 10-20638

any material fact and that the moving party is entitled to judgment as a matter

of law.” Lifecare Hosps., Inc. v. Health Plus of La., Inc., 418 F.3d 436, 439 (5th

Cir. 2005) (internal quotations omitted). Here, where a factual issue has not

been raised by either party, our consideration of the appeal turns solely on an

interpretation of law. See generally Berquist, 500 F.3d at 348–49.

Galen Barker contends the district court erred by granting summary

judgment in favor of KBR because Texas law permits for a loss of consortium

claim that is derived from a spouse’s Title VII claim. We disagree. Under Texas

law, a loss of consortium claim is derivative of the tortfeasor’s liability to the

physically injured spouse. Whittlesey v. Miller, 572 S.W.2d 665, 667 (Tex. 1978).

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. Reed

Tool Co. v. Copelin, 610 S.W.2d 736, 738 (Tex. 1980); see also Motor Express, Inc.

v. Rodriguez, 925 S.W.2d 638, 640 (Tex. 1996) (per curiam). Galen Barker’s

argument fails for two reasons. First, Galen Barker’s claim must derive from a

successful tort claim. See generally Motor Express, 925 S.W.2d at 640;

Whittlesey, 572 S.W.2d 667–69. Therefore, in Texas, a loss of consortium claim

may not derive from a spouse’s federal civil rights claim. The second reason

Galen Barker’s argument fails is because the arbitrator dismissed Tracey

Barker’s tort claims. Galen Barker’s loss of consortium claim must derive from

his wife’s successful tort claim for her physical injuries. That is not possible here

because the arbitrator dismissed Tracey Barker’s tort claims with prejudice.

Therefore, the district court did not err by concluding that Galen Barker’s loss

of consortium claim failed under Texas law.

Galen Barker also asserts that the district court erred by concluding that

his loss of consortium claim could not derive from his wife’s Title VII claim.

Galen Barker’s argument, however, is incorrect. We have held that for a claim

alleging deprivation of a constitutional right, an individual plaintiff must prove

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No. 10-20638

that the defendant violated his personal rights. Coon v. Ledbetter, 780 F.2d

1158, 1160–61 (5th Cir. 1986). A third party may not assert a civil rights claim

based on the civil rights violations of another individual. Id. at 1160–61. Title

VII of the Civil Rights Act protects employees’ constitutional rights and was

enacted to prevent employment discrimination or harassment. See generally 42

U.S.C. §§ 2000e–2000e-17. The statute provides a right of action to the employee

only and the law does not permit for derivative tort claims for third-party

injuries. Alderman v. Great Atl. & Pac. Tea Co., 332 F. Supp. 2d 932, 937 (E.D.

La. 2004) (“[L]oss of consortium claims are not cognizable in employment

discrimination cases.”); see also Durley v. APAC, Inc., 236 F.3d 651, 658 (11th

Cir. 2000) (holding that Title VII claim did not “provide a basis for derivative

liability for loss of consortium” claim); Danas v. Chapman Ford Sales, Inc., 120

F. Supp. 2d 478, 489 (E.D. Pa. 2000) (concluding that “[n]o authority suggests

that civil rights violations can support loss of consortium claims”).

After the arbitrator dismissed Tracey Barker’s tort claims with prejudice

her Title VII claim served as the basis for her award. As a result of the

arbitration proceedings, Galen Barker’s loss of consortium claim derives solely

from his wife’s civil rights claim. Under our precedent, however, an individual’s

right to recover under Title VII cannot support a spouse’s loss of consortium

claim. The district court, therefore, did not err by concluding that Galen

Barker’s loss of consortium claim failed as a matter of law.

III

Accordingly, we AFFIRM the district court’s order granting summary

judgment in favor of KBR.

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