                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                November 22, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-20315
                           Summary Calendar



SAM EDMONSOND,

                                      Plaintiff-Appellant,

versus

THE BROOKWOOD COMMUNITY,

                                      Defendant-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:03-CV-486
                      --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Sam Edmonsond has appealed the district court’s order and

judgment granting the motion for summary judgment of The

Brookwood Community (“Brookwood”) and dismissing his action under

the Family and Medical Leave Act (“FMLA”) complaining that he had

been discharged wrongfully in retaliation for taking temporary

leave for medical reasons.    “The FMLA requires a covered employer

to allow an eligible employee up to twelve weeks of unpaid leave

if the employee suffers from ‘a serious health condition that


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                             No. 04-20315
                                  -2-

makes the employee unable to perform the functions of the

position of such employee.’”     Hunt v. Rapides Healthcare System,

LLC, 277 F.3d 757, 763 (5th Cir. 2001) (quoting 29 U.S.C.

§ 2612(a)(1)(D)).    Under the FMLA, an employer may not penalize

an employee for exercise of FMLA rights.      Id. (citing 29 U.S.C.

§ 2615(a)(1)–(2)).

     The district court’s conclusions that Edmonsond had

established a prima facie case for retaliation under the FMLA and

that Brookwood has articulated legitimate nonretaliatory reasons

for its adverse employment decision are not at issue.      See

Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319–20 (5th

Cir. 1999).   Because Brookwood has rebutted Edmonsond’s prima

facie case, to avoid summary judgment, Edmonsond “must produce

substantial probative evidence that the proffered reason was not

the true reason for the employment decision and that the real

reason was the plaintiff’s participation in the protected

activity.”    Id. at 320.   Edmonsond’s excessive absenteeism and

poor job performance provided legitimate reasons for his

discharge.    See Hypes ex rel. Hypes v. First Commerce Corp., 134

F.3d 721, 726–27 (5th Cir. 1998).    Edmonsond has not presented

substantial probative evidence showing that there is a genuine

issue whether Brookwood retaliated against him for taking FMLA-

protected medical leave.    The judgment is

     AFFIRMED.
