In November 2017, two years out of law school, Kelsi Stayart White won a federal jury trial for two insurance clients that she co-led with Cameron Byrd, a fellow associate at Houston litigation boutique Ahmad, Zavitsanos, Anaipakos Alavi & Mensing. The trial involved complex facts and a rare section of federal lending laws.
Fast forward four-plus years and numerous additional opportunities, and White has secured another unique win, this time in the U.S. Court of Appeals for the Fifth Circuit.
On March 11, a three-judge panel at the Fifth Circuit found for White’s client, a former Houston female firefighter, in a unanimous ruling that — as significant as it is unique — broadens sexual harassment protection and sets two new precedents in hostile work-environment cases.
White’s client, Melinda Abbt, will now go back to two trial courts in Houston to pursue sexual harassment claims against the City of Houston and Chris Barrientes, a junior captain at Houston Fire Station 18 who obtained and circulated an intimate video Abbt had made for her husband. Abbt did not learn Barrientes had obtained the video (and had shown it to others at the fire station) until nine years after the fact.
White persuaded the Fifth Circuit to unanimously rule for the first time that harassment did not need to be experienced contemporaneously to be actionable. The court also ruled for the first time that the City of Houston can be liable if a workplace report goes up the command chain but stops because the supervisor who got the notice is also a participant in the harassment. The panel included U.S. Circuit Judges Carolyn King, James Graves and James Ho.
Even though the opinion was unanimous, Judge Ho appeared to feel so strongly in favor of ruling for White’s client that he wrote a concurring opinion to express his own views, including that the trial court “should have treated this misconduct as unlawful as well as disgraceful.”
“Not only did we win on our harassment claim, but the court really validated her experience,” White told The Texas Lawbook.
Plus, the legal tests that needed to be met in order for the Fifth Circuit to side with Abbt were “pretty strict,” White added.
“To meet them is a pretty big deal, but to also have [the court] write an opinion that really expresses concern for what happened, sympathy for her and outrage at the city … I think that meant a lot to her,” White said.
White is one of many examples of AZA associates showing command in the courtroom, even as their opposing counsel are decades older. Leaders at the firm are known to trust their young lawyers with taking leading roles in important client matters shortly after joining the firm.
“Our firm is about going to trial and we attract talented lawyers with the promise that they will be handling important work from the get-go,” AZA name partner John Zavitsanos said at the time White won the 2017 insurance jury verdict.
Abbt’s case against the City of Houston is now back in federal court in U.S. District Judge Lynn Hughes’ courtroom.
In addition to Abbt’s sexual harassment claim against Houston, Abbt is also pursuing a claim against Barrientes in state court in Harris County’s 165th Civil District Court under the Texas statute for unlawful disclosure of intimate visual material, the state’s “revenge porn” law. Warshauer said Abbt’s case was one of the first lawsuits filed under the statute, which went into effect in 2015.
How it Started
The case dates to 2008, when a nude video that Abbt had made for her husband was pulled from her personal laptop at Houston’s Station 18, where she worked as a junior captain. The original petition says Abbt would occasionally bring her personal laptop to the station to work on personal tasks, typically from her bunk in the station dormitory. When the laptop was not in use, she left it closed and under a blanket on her bunk so “it could not be seen by a casual observer,” the lawsuit says.
Barrientes, who was Abbt’s supervisor, said in a pre-suit deposition that he received an anonymous email with the video and showed it to District Chief David Elliott several days later. Whether Barrientes pulled the video from Abbt’s email himself is still up for debate in the litigation. Another firefighter, Jonathan Sciortino, was in the room when Barrientes showed Elliott the video. Elliott oversaw Station 18 and three to four other stations. Instead of reporting the video to human resources or someone up the command chain, Elliott asked Barrientes to forward the video to him because he wanted to see it again, the Fifth Circuit’s opinion says.
Both Barrientes and Elliott repeatedly watched the video over the coming years. Abbt discovered that in May 2017 after Elliott confessed to her husband (also a firefighter) that he had seen the video. She called in sick the next day and continued to do so in the following weeks. She filed a report with the Houston Office of Inspector General and the city’s staff services department. The next month, a City of Houston-employed therapist diagnosed Abbt with post-traumatic stress disorder. Abbt took six months’ unpaid leave after being denied paid leave.
The city’s inspector general supported Abbt’s allegations and Barrientes, Elliott and Sciortino were disciplined. But Abbt was still not comforted because the OIG report did not reveal how many others at the Fire Department had seen the video, she did not know whether copies still existed and whether they were in the hands of others. The city also refused to promise she would not have to work with the three men in the future who had certainly seen the video.
Those three facts were particularly problematic because, as Judge King noted in the Fifth Circuit’s majority opinion, “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.”
Abbt’s time with the Fire Department ended in February 2019, after she was “medically separated from the city,” the Fifth Circuit’s opinion says.
Abbt retained Ahmad and Warshauer because AZA had previous successes representing other firefighters in workplace- discrimination matters, including sexual harassment. A recent win came in October 2020, when Ahmad settled an employment-discrimination case on behalf of Houston firefighter Jane Draycott, whose case against the city started a decade earlier when racist and sexist slurs were scrawled across her belongings, including on a photo of her dead daughter.
“We take on these cases because it is important to hold employers accountable when they don’t protect their employees from harassment,” Warshauer said. “This (Abbt’s) case concerned an egregious violation of privacy and trust.”
Abbt sued the city and Barrientes at the end of 2018 in Harris County district court alleging sexual harassment that created a hostile work environment, retaliation by the city and violations of the revenge porn law. The following spring, the city removed the case to federal court, where it landed in Judge Hughes’s courtroom. The city filed for summary judgment in early 2020.
Judge Hughes, who has generated headlines in the past for making questionably misogynistic comments in open court and being pulled from other sex discrimination matters, granted summary judgment in January 2021 for the city that shot down Abbt’s retaliation claim and determined Abbt’s sexual harassment claim failed because Abbt’s knowledge of the video led to her purported PTSD, not the actual conduct of her co-workers viewing the video. As part of his ruling, Judge Hughes struck from the record parts of a declaration Abbt submitted to support her claims. Abbt appealed the summary judgment the following month.
The claims against Barrientes were not included in the summary judgment and, because the claims against Barrientes as the remaining defendant did not have jurisdiction in Judge Hughes’ court, Hughes remanded Abbt’s claims against Barrientes to state court after issuing his summary-judgment ruling. Warshauer said the legal team is also seeking a trial date as soon as possible in that case.
How it’s Going
White spent the first year of her legal career clerking at the Fifth Circuit for Judge Leslie Southwick, so when it came time to map strategy for Abbt’s appeal she knew what to do.
White said her clerkship taught her “how to look fairly at two sides of the issue and not get caught up in your own argument.”
“You start your legal career just listening to both sides of an argument … instead of starting out your career making an argument,” White said. “I always think about, what should the rule be? I wanted my client to win, but I made sure that we were articulating a test and a rule that made sense and had boundaries that made sense, and I think that really helped.”
Exhibit A of White’s strategy came during oral arguments, when Judge Ho asked White if her client would have a claim if she found out about the video after leaving the Fire Department.
“I conceded that she wouldn’t under the current state of U.S. Supreme Court precedent,” White said. “I think that concession helped the court see the position we were taking was not just a position of, ‘this is how we win,’ but the position we were taking is, ‘this makes sense based on what the law is.’”
A case White relied on to develop her arguments was a 1998 Fifth Circuit sexual harassment case called Williamson v. City of Houston, which involved the Houston Police Department.
Judge King also cited the Williamson case in the court’s ruling and held the facts in Abbt’s case are actionable under Title VII and the Civil Rights Act of 1964, based on what the court had previously ruled in Williamson.
Just as the supervisor in Williamson, Elliott “could have directed Barrientes to quit his harassment and Barrientes would have been subject to discipline for failing to obey,” Judge King wrote. “Therefore, in our case as in Williamson, [t]he City is hard pressed to explain why his knowledge of harassment should not be imputed to the City when its own policy placed an affirmative duty on him to pass such information up the chain of command.”
White said the Fifth Circuit’s ruling applies existing law to “modern twists of a typical harassment lawsuit” in today’s era.
Senior Assistant City Attorney Robert Higgason, who argued at the Fifth Circuit on the city’s behalf, deferred comment on the Fifth Circuit’s ruling to the mayor’s press office. In a statement, Houston Fire Chief Sam Peña focused on the retaliation ruling that the Fifth Circuit upheld in favor of the city and pointed out that “each of the firefighters identified in the court’s opinion” (Barrientes, Elliott and Sciortino) got suspended and one (Barrientes) also was demoted.
“I did suspend employee Barrientes for 90 days and demoted him down two ranks, from senior captain to engineer/operator, where he still is today,” Peña’s statement said. “However, because [state law] allows firefighters to take a promotional exam to rank higher than a rank they’ve held for at least two years … Barrientes tested for district chief. I bypassed him for promotion three times. He has appealed the bypass to an arbitrator and we’ve completed the hearing. We are awaiting the arbitrator’s ruling.”