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Bomer v. Dallas County Historical Foundation
January 28, 1999
Unpublished Opinion

Bomer v. Dallas County Historical Foundation

Court of Appeals of Texas, Dallas.

John D. BOMER, Appellant,



No. 05-96-01724-CV.


Jan. 28, 1999.

On Appeal from the 14th District Court, Dallas County, Texas, Trial Court Cause No. 95-10951-A.

Before O’NEILL,1 JJ.



*1 John D. Bomer appeals from a summary judgment granted in favor of the Dallas County Historical Foundation (DCHF) on Bomer’s claims of retaliatory discharge. In three points of error, Bomer argues that the trial court erred in granting summary judgment on his claim that he was discharged in retaliation for (1) filing a workers’ compensation claim and (2) complaining about discrimination in the workplace. We affirm the trial court’s order granting summary judgment.


The summary judgment record in this case reflects that DCHF employed Bomer as a custodian at a museum in Dallas. In April or May of 1994, Bomer fell and injured his wrists at work. His doctor confirmed he had carpal tunnel syndrome in June 1994. Bomer met with his supervisors, who asked him to agree to accept workers’ compensation. At first, Bomer was reluctant to seek workers’ compensation benefits because he was uncertain whether his injury was job-related, and he wanted to avoid the negative connotations of a job-related injury. Nevertheless, Bomer’s supervisors encouraged him to consent to a workers’ compensation claim being filed on his behalf. Bomer took workers’ compensation leave beginning on August 29, 1994.

Meanwhile, in May 1994, DCHF fired another employee, Shannan Badgett, for using profanity in the visitors’ area of the museum. Believing that Badgett’s immediate supervisor, Nora Romero, had fired Badgett, Bomer prepared a written statement. He alleged, among other things, that Romero regularly used racially derogatory terms and made inappropriate sexual comments. Bomer submitted the statement to Dallas County commissioner John Wiley Price. The statement came to the attention of Jeff West, the museum’s executive director, in June 1994. West investigated the allegations in the statement, found that they were substantiated, and terminated Romero’s employment on June 17, 1994. Bomer later discovered that Romero was not responsible for terminating Badgett’s employment and that the decision was made by Janice Babineaux and Karen Wiley, two supervisors at DCHF. Thereafter, in October 1994, Bomer filed a thirty-four page “grievance report” against Babineaux and Wiley. The grievance alleged that Babineaux used derogatory terms when referring to homosexuals but made no allegations concerning discrimination by Babineaux based on race. Regarding Wiley, the grievance made various complaints about Wiley’s behavior but did not allege that Wiley had discriminated against anyone on the basis of race. The grievance was signed by several DCHF employees, including Bomer.

Shortly before he received the grievance, West received a memo from Babineaux in which Babineaux alleged that Bomer had used coercion to obtain signatures on the grievance. Specifically, Babineaux alleged that Bomer came to the visitors’ center and asked several DCHF employees to sign written statements concerning Babineaux and Wiley. According to Babineaux, DCHF employee Sanford Williams initially refused, saying that he did not want to become involved. Babineaux stated in her memo that Bomer intimidated and threatened Williams into signing and also coerced members of the security department into signing. Further, Babineaux stated that she perceived that Bomer was a threat to her personal well-being and wanted to cause her harm. According to Babineaux, she was in constant fear of Bomer. Babineaux stated that, because her office was in the basement and Bomer was free to move about in that area, she felt incapable of effectively performing her job duties.

*2 West investigated the allegations in the grievance and questioned employees who had signed the grievance. Two of Bomer’s fellow employees gave West written statements in which they described the circumstances under which they signed Bomer’s grievance. Rodney Richardson, a security employee, submitted the following statement:

I Rodney Richardson was working in security (September 30, 1994) and was asked by John Bomer if I would sign a letter stating that Janice B. was telling some of the girls in admissions and the bookstore that Jeff West was a fat ass fagot [sic.]. And if he received a car phone the Foundation better not be paying the bill or she wants one too. Also the letter stated that Karen Wiley was not doing her job as well as it seems and he wants her fired or he will go to the Board of Directors and talk to them about the problem. John ask [sic] me to find out anything I can about Janice, Karen, or Stacy Conaway and let him know. He says that he’s going to have Jeff really check out Stacy’s experience because, he don’t [sic] think she has that much experience to have the job that she is doing. John told me that when he comes back he will do his best to have Janice, Karen, and Stacy relieved of there [sic] jobs. He says he’s trying to get Norma Romero and Janice B. for gay bashing, and if he has to go to Comm [sic] Price that’s fine with him. He says he’s going to have this place running alot [sic] better when he returns. He said he was gonna [sic] have Sanford sign the letter also and if he didn’t, he would tell them Sanford heard Janice talk about Jeff being a fat ass fagot [sic]. Because the first time he asked Sanford about it he declined to sign the letter or talk about it. He said he has enough signatures to present the letter to Jeff or the Commissioners. He also told me he will give me a copy of the letter when he is finish [sic] with, its [sic] about 30 pages long. (as he says)

Another employee, Richard Oats, submitted a statement in which he denied hearing Babineaux make any statements that he would characterize as “gay bashing.” Oats stated that he only signed the grievance because Bomer said he was being harassed about “gay-bashing,” but Bomer did not say who was harassing him. Oats concluded with the following:

The statement does not look the same as the document I signed. The text looks basically the same, but the format has been changed and I’m not sure if the wording has been changed or not. I think what I signed was just two pages and more of a letter form. I hadn’t heard Janice say anything. As far as I’m concerned this doesn’t have anything to do with Janice. It’s just secondary information-“he said, she said....”

Thus, although Richardson and Oats signed Bomer’s grievance, their subsequent statements contradict the allegations set forth therein. In his deposition testimony, Bomer himself admitted he thought the grievance contained false statements. Further, the summary judgment evidence indicates that Bomer intended to do his best to have Babineaux, Wiley, and Stacy Conaway fired, and at least one employee who signed the grievance denied hearing Babineaux say anything he would characterize as “gay-bashing.”

*3 The summary judgment record also contains the statement of DCHF employee Sue Hilty who related an incident in September 1994 when Bomer came to the administrative office to pick up his paycheck. Hilty was the only one on duty at the time. Hilty told Bomer that his paycheck had been mailed the day before, and Bomer became angry and agitated. Bomer said that he needed the check immediately to cover checks he had already written. Hilty explained that the check had been mailed the day before and that it was probably at his house. Hilty felt Bomer had a “very scary look in his eyes,” and he made her “very uneasy.” Hilty had the feeling that Bomer “might be the type of person who would then go home, get a gun and come back and start shooting people.” Hilty discussed the incident with Wiley, and Wiley said Bomer had never informed her about the disposition of the paycheck, and she had mailed it to him. Several weeks later, Bomer left a card for Hilty in which he apologized for his behavior and explained that he was upset over his paycheck because he had written checks and had company arriving that weekend.

As a result of his investigations, West concluded that many of the allegations in Bomer’s grievance were false, were based on nothing more than unsubstantiated rumor, and bordered on insubordination. West further concluded that Bomer had coerced employees to join his grievance although the employees did not have knowledge of Bomer’s accusations and did not agree with his ultimate goals. Accordingly, West concluded that Bomer had engaged in misconduct disruptive of the workplace, that Bomer’s actions were likely to continue to disrupt the harmonious work environment at DCHF, and that certain employees felt threatened by Bomer. West was concerned for the safety and well-being of other DCHF employees in light of what he viewed as Bomer’s aggressive and deceptive behavior. Based on these conclusions, West decided in November 1994 to terminate Bomer’s employment. West did not immediately communicate his termination decision to Bomer because Bomer was undergoing surgery. Babineaux and Wiley expressed concern regarding the complaints still outstanding against them, and in February 1995 West called Bomer to tell him he was terminated. West followed up with a letter stating that Bomer’s termination was for cause due to misconduct on his part.

Bomer sued DCHF, alleging that DCHF discriminated against him and terminated his employment in retaliation for his complaint that a co-worker’s termination was racially motivated and for his filing of a workers’ compensation claim. DCHF filed a motion for summary judgment asserting that Bomer’s employment was terminated for misconduct, and no genuine issue of material fact existed on the issue of whether Bomer’s complaint or workers’ compensation claim had any causal connection with his termination. Bomer filed a response in which he re-emphasized his claims that his employment at DCHF was terminated in violation of the Texas Commission on Human Rights Act (TCHRA) and the Texas Labor Code. Included in Bomer’s response was his affidavit in which he stated that West reprimanded him for going outside the chain of command with his complaint against Romero. Bomer also asserted that the stated reason for his termination was not true and that he had not disrupted the workplace or threatened employees but only tried to eliminate racism, retaliation, and poor management techniques from the workplace. Specifically, Bomer stated that he stood up for Badgett, an African-American employee he believed was the victim of a racial termination. Bomer stated he believed at the time of Badgett’s termination that her termination was racially motivated, and DCHF’s stated reason for Bomer’s termination was not true. The trial court granted DCHF’s motion for summary judgment, and this appeal followed.


*4 The function of summary judgment is not to deprive a litigant of the right to a full hearing on the merits of any real issue of fact but to eliminate patently unmeritorious claims and untenable defenses. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (Tex.1952). In reviewing a summary judgment record, this Court applies the following standards:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).

In a summary judgment case, the question on appeal is whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the cause of action. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).


In Bomer’s second point of error, he argues the trial court erred in granting summary judgment on his claims that he was discharged in retaliation for filing a workers’ compensation claim. Under Texas law, an employer may not discharge or in any other manner discriminate against an employee because the employee has filed a workers’ compensation claim in good faith. Carrozza, 876 S.W.2d 314.

*5 In his response to DCHF’s motion for summary judgment, Bomer argued that his workers’ compensation claim contributed to DCHF’s decision to terminate his employment. Specifically, Bomer argued that DCHF had knowledge of his workers’ compensation claim, DCHF delayed processing his claim, and DCHF offered only pretextual reasons for terminating his employment. Bomer argued in his response and continues to argue in his brief that when he was initially notified of his termination West told him it was because his services were no longer needed. Bomer emphasizes the fact that the accusation of misconduct appeared for the first time in his termination letter, and he argues that this discrepancy creates a fact issue regarding the pretextual nature of DCHF’s reason for terminating him. We disagree.

We have reviewed the summary judgment evidence, and we conclude that Bomer has failed to establish a causal link between his filing for workers’ compensation and his termination. We note that the undisputed summary judgment evidence shows West and other administrators at DCHF met with Bomer and encouraged him to file for workers’ compensation benefits. Bomer himself was reluctant to do so because he was unsure whether or not his injury was job-related. Bomer ultimately filed for benefits and received them for several months. DCHF terminated Bomer’s employment after investigating other employees’ complaints concerning Bomer’s threatening behavior and concluding that Bomer had engaged in misconduct.

The statements in Bomer’s affidavit are insufficient to raise a fact issue or refute DCHF’s neutral explanation for Bomer’s termination: that he engaged in misconduct. See 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993) (holding summary judgment proof must consist of more than “mere refutation of the employer’s legitimate nondiscriminatory reason”). Bomer admitted in his deposition that he knows of no facts to suggest that West did not honestly believe that Bomer had engaged in misconduct. Thus, Bomer’s own testimony establishes that West terminated Bomer for misconduct and not for filing a workers’ compensation claim. We overrule Bomer’s second point of error.


In Bomer’s third point of error, he argues that the trial court erred in granting summary judgment in favor of DCHF on Bomer’s claim that he was terminated in retaliation for filing a complaint regarding the termination of Badgett, an African-American co-worker. The TCHRA protects an employee from retaliation or discrimination by an employer because the employee “opposed a discriminatory practice.” Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.1995).

*6 Similar to the evidentiary burdens in the discriminatory treatment context, if a plaintiff establishes a prima facie case of retaliation, the employer has the burden of producing some legitimate nondiscriminatory reason for the adverse employment decision, and, if the employer satisfies this burden, the plaintiff must prove that the proffered reason is pretext for retaliation. McDaniel v. Temple Indep. Sch. Dist., 770 F.2d 1340, 1346 (5th Cir.1985). In a retaliation case, the ultimate determination is whether or not retaliation for filing a charge under Title VII was a “but for” cause of the adverse employment decision. Id. Whether or not there were other reasons for the employer’s action, the employee will prevail only by proving that “but for” the protected activity he would not have been subjected to the action of which he claims. Id.

First, to establish that the employee opposed a discriminatory practice, the employee must demonstrate a good faith reasonable belief that the underlying discriminatory practice of the employer violated the law. See 455 U.S. 1000, 102 S.Ct. 1630, 71 L.Ed.2d 866 (1982). Bomer argues that he has satisfied this initial requirement by showing that he participated in a protected activity when he filed his complaint regarding Badgett’s termination because he believed Badgett’s termination was unfair and racially motivated. Bomer states in his affidavit that, at the time he filed his complaint against Romero, it was his good faith belief that Badgett had been terminated as a result of racial prejudice. Bomer claims he subsequently suffered an adverse employment action when he was “treated negatively by management” and ultimately terminated. Bomer “felt that Babineaux and Wiley were retaliatory against him for taking a stand on behalf of [Badgett], which then led to Romero’s termination.”

Bomer’s complaint against Romero alleged that Romero used racially derogatory terms and made inappropriate sexual comments. However, Bomer’s complaint against Romero did not relate to Badgett’s termination. West investigated Bomer’s complaint against Romero, discovered that Bomer’s allegations were substantiated, and terminated Romero’s employment. In his affidavit, West stated that DCHF did not discipline or otherwise negatively counsel Bomer for having submitted his statement regarding Romero. Bomer filed an affidavit in which he stated that West reprimanded him for going outside the chain of command with his complaint. Bomer said he told West that next time he would come to West first, and West said there would be no action taken against him. Bomer’s affidavit also asserted that the stated reason for his termination was not true and that he had not disrupted the workplace or threatened employees but only tried to eliminate racism, retaliation, and poor management techniques from the workplace. Specifically, Bomer stated that he stood up for Badgett, an African-American employee he believed was the victim of a racial termination. Bomer merely stated he believed at the time of Badgett’s termination that her termination was racially motivated, and DCHF’s stated reason for Bomer’s termination was not true.

*7 Bomer’s grievance against Wiley and Babineaux did not allege racism. In fact, Bomer agreed in his deposition that he did not think Wiley was “racist” in firing Badgett, merely “unfair.” Badgett herself did not allege racial discrimination in her written statement regarding her termination. Nevertheless, Bomer argues that he was retaliated against for “fighting discrimination.” On the contrary, the summary judgment evidence shows that Bomer did not believe Wiley was “racist” in firing Badgett, and his grievance against Wiley and Babineaux did not allege discrimination based on race. Bomer’s complaint against Romero, which did allege racially discriminatory behavior, resulted in Romero’s termination. Finally, Bomer admitted that he knows of no facts to suggest that West did not honestly believe that Bomer had engaged in misconduct. Thus, the summary judgment record shows that DCHF fired Romero, the only employee about whose racially-motivated misconduct Bomer complained. Further, the record shows that Bomer could point to no facts to refute DCHF’s neutral explanation that Bomer had engaged in misconduct, and Bomer agreed that Wiley was not “racist” in firing Badgett. We conclude that, under these circumstances, Bomer has not demonstrated that DCHF engaged in a discriminatory practice that violated the law. See Payne, 654 F.2d at 1140-41.

Even taking as true Bomer’s assertions that Wiley and Babineaux were rude to him and resented his behavior and his complaints against them, such behavior does not rise to the level of “ultimate employment decisions.” See Nixon, 690 S.W.2d at 548-49. We overrule Bomer’s third point of error. Because we have concluded summary judgment was proper in this case, we overrule Bomer’s first point of error in which he argues generally that the trial court erred in granting DCHF’s motion for summary judgment.

We affirm the trial court’s judgment.



The Honorable Ron Chapman, Justice, was a member of the original panel and participated in the submission of this case; however, he did not participate in this opinion. The Honorable Michael J. O’Neill, Justice, succeeds Justice Chapman. Justice O’Neill has reviewed the briefs and the record in this case.

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