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Bennett v. Shell Oil Co.
January 28, 1999
Unpublished Opinion

Bennett v. Shell Oil Co.

Court of Appeals of Texas, Houston (14th Dist.).

Ronald BENNETT, Appellant,



No. 14-98-00088-CV.


Jan. 28, 1999.

On Appeal from the 157th District Court, Harris County, Texas, Trial Court Cause No. 96-35192.




*1 This is an appeal from a summary judgment granted in favor of appellee, Shell Oil Company (“Shell”). Appellant, Ronald Bennett, (“Bennett”) filed suit against Shell asserting claims of disability discrimination and retaliation in violation of section 451.001. Specifically, Bennett contends (1) the affidavit offered by Shell is not competent summary judgment proof, and (2) the sole ground presented by Shell in its summary judgment motion-that it terminated Bennett for a legitimate, nondiscriminatory reason-is false, and therefore, the trial court erred in granting the motion. We affirm.


Bennett began his employment as an operator for Shell at its Deer Park refinery in August 1988. In February 1989, Bennett injured his shoulder and back while trying to open some frozen valves at the refinery.1 He was treated by Shell’s medical personnel and released to return to work. Two years later, he suffered a lower back strain while checking valves for leaks. Two months later, after complaining of a pain in his legs, Bennett was evaluated by medical personnel who gave him three weeks medical restrictions from performing some of the functions of his position. Consequently, Shell placed Bennett on a six-week light duty assignment to accommodate his temporary medical restrictions.

In May 1991, while still on light duty assignment, Bennett did not report to work and informed his foreman that worsening back pain prevented him from returning. Bennett was placed on medical leave during which time he received his full salary during the first six months and one-half of his salary during the next six months, workers’ compensation benefits, and long-term disability benefits.2 In July 1994, he began a work hardening program designed to assist him in gaining physical readiness for work. At the conclusion of the program in September, Bennett’s doctors completed their reports in which they concluded Bennett had several permanent medical restrictions. In July 1995, after conducting an alternate job search and subsequently determining that there were no available positions consistent with Bennett’s qualifications and medical restrictions, Shell notified Bennett that his employment would terminate effective September 15, 1995.


Summary judgment is proper when a movant establishes there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Randall’s Food Mkts., Inc., 891 S.W.2d at 644.


A. Summary Judgment Proof

*2 In the sole issue presented for review, Bennett makes several arguments challenging the granting of summary judgment in favor of Shell. One of Bennett’s contentions is that the affidavit of Reginald Thomas, offered by Shell, is not competent summary judgment proof. He claims that Thomas’s affidavit is not based on personal knowledge, is conclusory, and that Thomas is not qualified to express an expert opinion.

In his affidavit, Thomas stated that as a Senior Human Resources Representative for Shell, his duties include staff planning and job placement. He further states these responsibilities led to his involvement in the searches for alternate positions for Bennett. Therefore, his knowledge of the matters to which he averred were derived from his duties and involvement in the job searches. Consequently, Thomas’s affidavit was made on personal knowledge as required by TEX.R.CIV.P. 166a(f).

Bennett also asserts that Thomas’s averments in his affidavit regarding Bennett’s job duties and medical restrictions are conclusory. Contrary to this assertion, Thomas’s statements as to Bennett’s duties are based upon his knowledge and experience in his capacity as a Senior Human Resources Representative. Likewise, Thomas’s opinions as to Bennett’s medical restrictions are supported by the doctors’ reports and the results of Bennett’s participation in a work hardening program to which Thomas attested in his affidavit. As such, Thomas’s affidavit is not conclusory, but is instead supported by facts and therefore constitutes proper summary judgment proof.

Bennett also claims that Thomas’s affidavit improperly contains opinions as to Bennett’s physically abilities to perform certain job requirements. He argues Thomas was not shown to be an expert and is therefore not qualified to express an expert opinion.

Thomas’s opinion that Bennett’s medical restrictions precluded him from performing essential job requirements does not constitute an expert medical opinion; rather, the facts contained in his affidavit are based upon personal knowledge as a Senior Human Resources Representative. As discussed above, this knowledge arises from his experience in staff planning and job placement, his specific involvement in attempting to locate an alternative assignment for Bennett, and the medical reports from Bennett’s doctors regarding his physical condition and ability to work. Therefore, we find Bennett’s assertion to be without merit and conclude that the affidavit offered by Shell constitutes competent summary judgment proof.

B. Summary Judgment Grounds

As a preliminary matter, we address Bennett’s contention that summary judgment was improperly granted because Shell was not entitled to rely upon Rule 166a(c) in its motion, not 166a(i), and thereby deprived Bennett of notice of the ground upon which it sought summary judgment.

*3 In articulating the standard of review to be used in considering a summary judgment motion, Shell clearly indicated that it moved for summary judgment pursuant to Rule 166a(i). We find Bennett’s first ground without merit.

Bennett next contends that the sole ground which Shell presented in its motion for summary judgment-that it terminated Bennett for a legitimate, nondiscriminatory reason-is false. Therefore, Bennett concludes, because no other ground was alleged, the trial court erred in granting Shell’s motion. We disagree.

Contrary to Bennett’s assertion, a review of Shell’s motion for summary judgment reveals that the primary ground upon which it sought summary judgment was Bennett’s failure to demonstrate a causal link between the filing of his workers’ compensation claims and his subsequent termination.3 As noted above, a defendant is entitled to summary judgment if it can disprove at least one element of a plaintiff’s cause of action and the plaintiff produces no controverting evidence that raises a fact issue on that element. See Terry v. Southern Floral Co., 927 S.W.2d 254, 257 (Tex.App.-Houston [1st Dist.] 1996, no writ). Shell contends that it affirmatively negated the requisite element of causation and that Bennett subsequently failed to produce any controverting proof raising a fact issue on that element. Shell emphasizes that this is the primary ground upon which it sought summary judgment. We now consider whether Shell negated the element of causation entitling it to summary judgment.

The Texas Supreme Court has held that the standard of causation in retaliatory discharge cases brought under the Texas Workers’ Compensation Act is the same as that applied in cases under the Texas Whistleblower Act. See Palmer v. Miller Brewing Co., 852 S.W.2d 57, 61 (Tex.App.-Fort Worth 1993, writ denied).

*4 In its summary judgment motion, Shell asserted there was no proof of animus by Shell toward Bennett for having filed his workers’ compensation claim. In support of its assertion, Shell points out that during his medical leave, Bennett received all or one-half of his salary, worker’s compensation benefits, and long-term disability benefits without disruption. In addition, Bennett took college courses for which Shell paid the tuition. In addition to the absence of any animus, Shell also asserts that the five-to-six year period between Bennett’s filing of his claims and his termination by Shell precludes a finding of a retaliatory inference. In support of this claim, Shell cites to Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583 (5th Cir.1995). Applying Texas law, the Burfield court upheld the district court’s grant of summary judgment in favor of the employer and determined that a fifteen-to-sixteen month period between the filing of the employee’s workers’ compensation claim and his discharge “militates against a finding of retaliation.” Id. at 590.4 Consequently, a five-to-six year period belies the assertion that Shell terminated Bennett because he filed workers’ compensation claims. In light of the absence of any proof of animus by Shell and the significant time period between the filing of Bennett’s claims and his discharge, we find that Shell affirmatively negated the causation element of Bennett’s retaliatory discharge claim. We now consider whether Bennett produced any controverting proof raising a material fact issue on causation so as to preclude summary judgment in favor of Shell.

A review of the record demonstrates that Bennett produced no controverting proof of a causal connection between the filing of his workers’ compensation claims and his discharge. There was likewise no proof presented which would give rise to a retaliatory inference. Furthermore, Bennett’s statement that Shell terminated him because he had filed workers’ compensation claims is insufficient to support a causal connection. It is well established that an employee’s subjective beliefs “ ‘are no more than conclusions’ and do not raise a fact issue precluding summary judgment in a retaliatory discharge action....” City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).5

We affirm the judgment of the trial court.



Senior Justice Bill Cannon sitting by assignment.


Bennett filed workers’ compensation claims relating to those injuries in 1989 and 1990.


During Bennett’s medical leave, Shell conducted searches to locate alternate job assignments for Bennett which corresponded to his qualifications and medical restrictions.


Bennett correctly notes that he does not have the burden of proving his cause of action in a summary judgment proceeding and refutes what he interprets as Shell’s assertion to the contrary. Admittedly, Shell makes numerous references to Bennett’s initial burden to establish causation as part of his prima facie case of retaliatory discharge under section 451.001. While this is an accurate statement of the plaintiff’s burden at trial, this is not the case in a summary judgment proceeding and Shell’s references to such a burden serve to obfuscate the issue. Nevertheless, we read these references as integral to Shell’s assertion that Bennett failed to present controverting evidence to rebut Shell’s negation of the element of causation.


Texas courts have conversely found retaliatory motive where the employee’s termination occurred a few days or one month after a claim was filed. See Chemical Express Carriers, Inc. v. Pina, 819 S.W.2d 585, 590 (Tex.App.-El Paso 1991, writ denied).


As we conclude that Shell was entitled to summary judgment upon this ground, we need not address the alternative ground-that it terminated Bennett for a legitimate, nondiscriminatory reason-presented in its motion for summary judgment.

End of Document