     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.
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                                      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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