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In Melinda Abbt v. City of Houston, the Fifth Circuit Court of Appeals reversed a summary judgment in favor of the City of Houston on a firefighter’s claim for sexual harassment/hostile work environment. In Abbt, a 14-year Houston firefighter learned that for as long as nine years, other colleagues in her fire department (including a Junior Captain and District Chief) had been watching – some on multiple occasions – a private nude video she made for her husband (also a Houston firefighter) which had been stored on her private laptop. At some point, Abbt brought her laptop to the fire station where the video was accessed and subsequently circulated. Importantly for the decision, Abbt was working as a Houston firefighter when she learned that her private video had been accessed, circulated, and watched by various colleagues.

Upon learning this, Abbt was “completely distraught” and “disgusted.” She repeatedly called in sick and three weeks later, she was diagnosed by a City of Houston therapist with PTSD. She received six months of unpaid FMLA leave. She also filed a worker’s compensation claim where it was found she suffered a ”compensable mental trauma injury.” She was granted worker’s compensation pay, medically separated from the City, and her employment ended approximately nine months after she first learned that her private video had been accessed and viewed.

Abbt filed suit in Harris County state district court, alleging sexual harassment/hostile work environment, retaliation, and violation of a Texas statute prohibiting the disclosure/promotion of certain intimate visual material. That suit was removed to federal court and the City moved for summary judgment, which was granted on both Abbt’s sexual harassment and retaliation claims. In reversing the summary judgment (regarding Abbt’s sexual harassment claim, the Fifth Circuit first set out the standard and elements for a hostile work environment claim. In order to be considered “hostile,” the work environment must be “objectively and subjectively offensive” such that “a reasonable person would find [it] hostile or abusive,” and the employee “perceive[d] [it] to be so.” The employee/plaintiff must also prove that he/she is:

(1) a member of a protected class;

(2) who was subject to “unwelcome harassment;”

(3) that was based on the employee’s status as a member of a protected class;

(4) that the harassment was “sufficiently severe or pervasive to alter the conditions of the [plaintiff’s] employment and create an abusive working environment;” and

(5) that “the employer knew or should have known of the harassment in question and failed to take prompt remedial action.”

The Fifth Circuit held that Abbt had presented fact issues on each and every element of her sexual harassment/hostile work environment claim, thus defeating the City’s summary judgment motion. Most importantly, the Fifth Circuit held that an employee does not have to contemporaneously experience the harassment in order for it to be actionable under Title VII of the Civil Rights Act.

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Jonathan M. Spigel is a Shareholder and member of the Cowles and Thompson Tort Litigation Practice Group.