Repeated Viewing Of Private Intimate Video Is Sexual Harassment

Written on 06/10/2022
Will Aitchison

Melinda Abbt was a firefighter with the Houston Fire Department. From 2006 until 2009, she was assigned to Station 18, where her supervisor was Captain Chris Bar­rientes. Station 18 was overseen by District Chief David Elliott, who also had purview over three or four other stations.

In 2008, Barrientes received an anonymous email containing 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. Barrientes first watched the video in the captain’s office of Station 18. He kept the video’s existence hidden for several days before bringing it to the attention of Elliott.

When Barrientes told Elliott about Abbt’s nude video, Elliott asked to see it. Barrientes then played the video for Elliott and another firefighter, Jonathan Sciortino, who was also in the room. Elliott 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.

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 email at that time but provided his email 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 the video. 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 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 because 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.

Abbt sued, claiming she was the victim of a hostile work environment. The federal Fifth Circuit Court of Ap­peals allowed Abbt’s claim to be heard by a jury.

The Court reasoned that “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 perceived it to be so. 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 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.

“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. 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.”

Abbt v. City of Houston, 2022 WL 764999 (5th Cir. 2022).

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