                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                            No. 92-5038



LYNN PARHAM, ET AL.,
                                              Plaintiffs,

LYNN PARHAM,
                                               Plaintiff-Appellee,


                               versus


CARRIER CORPORATION,
                                              Defendant-Appellant.



          Appeal from the United States District Court
                for the Eastern District of Texas

                         (December 7, 1993)


Before POLITZ, Chief Judge, WIENER, Circuit Judge, and LITTLE,*
District Judge.

WIENER, Circuit Judge:

     Defendant-Appellant Carrier Corporation appeals an adverse

judgment rendered against it pursuant to a jury verdict favorable

to Plaintiff-Appellee Lynn Parham, a former Carrier employee, in

his suit claiming retaliatory discharge, breach of applicable

collective bargaining agreements, and breach of an oral agreement.

We reverse and render judgment for Carrier.


     *
       District Judge of the Western District of Louisiana,
sitting by designation.
                                    I

                        FACTS AND PROCEEDINGS

     Parham was employed at Carrier's air conditioner manufacturing

plant in Tyler, Texas.        The Sheet Metal Workers' International

Association (the Union) has been the sole and exclusive bargaining

agent for all employees at this plant since 1971.          In 1986, Carrier

and the Union entered into a collective bargaining agreement (1986

CBA), that was to expire in June 1989.

     The 1986 CBA permitted employees with disabilities caused by

illness or job-related injuries to take unpaid leaves of absence

for the duration of such disabilities.         Although Carrier did not

continue to pay employees' salaries during such indefinite leaves

of absence, it did continue to provide for their medical insurance

coverage.

     While at work on January 15, 1988, Parham broke his leg when

he fell off a loading dock and into a trash compactor.             After the

accident, Parham took an indefinite medical leave of absence.             On

March 17, 1989, Parham initiated a workers' compensation claim,

which was settled in August of 1989 for $19,000.

     Meanwhile,   on   June   4,   1989,   a   new   CBA   (1989   CBA)   was

implemented to replace the 1986 CBA, which had expired at the end

of its three-year term.        Significantly, although the 1989 CBA

broadened the scope of carrier's disability leave program by

permitting leaves of absence even for non-job related injuries, it

placed a 24-month cap on all unpaid leaves of absence, job related

or not.     Employees with five years seniority at the onset of


                                    2
disability could secure an additional six months of leave if they

could demonstrate a reasonable expectation of being able to return

to work within that additional period.

     On January 15, 1990, Parham's leave of absence reached the 24-

month mark.     He was still on that leave approximately five months

later when, on June 21, 1990, Carrier mailed him a letter which

stated that he was being terminated pursuant to the disability

leave provisions of the 1989 CBA.        This notice was sent 29 months

after Parham began his leave of absence, 15 months after he filed

his workers' compensation claim, and 10 months after he settled

that claim.

     The June 21st letter also reiterated the new rule of the 1989

CBA that any employee who was on leave of absence and who had over

five years seniority at the beginning of his leave could seek a

six-month extension of the 24-month leave of absence period.            The

letter also invited Parham to contact Carrier's human resource

director   if   he   had   any   questions.    Carrier   notes   that    it

gratuitously allowed Parham six months following his receipt of the

letter to obtain a full medical release, but that he was unable to

do so.

     After receiving that letter, Parham spoke with his Union

representative and with Carrier's human resource director, but

never sought a six-month extension and never secured a full medical

release, the latter being a prerequisite to any similarly situated

employee's returning to work at Carrier.         Further, Parham never

attempted to use the grievance procedures required by the CBAs.


                                     3
Rather, he chose to file the instant suit, alleging that (1) he was

fired in retaliation for pursuing workers' compensation benefits,

in violation of Tex. Rev. Civ. Stat. Ann. article 8307c, (2) his

firing violated the terms of the CBAs,1 and (3) his firing violated

the terms of his oral contract with Carrier.

      Carrier moved for summary judgment, arguing that Parham's

claims were preempted by the Labor Management Relations Act, but

the district court denied Carrier's motion.                  Parham's suit was

tried before a jury, which found for Parham on all three of his

claims but awarded him no damages on his claim of breach of an oral

contract.    The district court entered judgment for Parham on the

jury verdict in the amount of $276,714.           Carrier timely appealed

the two     claims   that   resulted   in   damage    awards:       retaliatory

discharge and breach of the 1986 and 1989 CBAs.

                                       II

                                 ANALYSIS

A.   Retaliatory Discharge

      The jury found that Carrier fired Parham in retaliation for

filing a workers' compensation claim, thereby violating the Texas

Workers' Compensation Act.        It awarded Parham damages for lost

wages and benefits, past and future, and punitive damages.                  On

appeal,   Carrier     argues   that    Parham's      state    law   retaliatory

discharge claim is preempted by section 301 of the Labor Management

Relations Act (LMRA) and that there was insufficient evidence to


      1
       These claims may be fairly characterized as breach of
contract claims.

                                       4
conclude that Carrier terminated Parham in retaliation for filing

a workers' compensation claim.   Carrier thus asks us to reverse a

jury verdict, an action that we take but rarely.

     1.   Sufficiency of the Evidence

     "On appeal, this court employs the same standard that the

district court used in ruling on the defendant's motions."2      That

standard was set forth memorably in Boeing Co. v. Shipman:


     [T]he Court should consider all of the evidence))not just
     the evidence which [sic] supports the non-mover's
     case))but in the light and with all reasonable inferences
     most favorable to the party opposed to the motion. If
     the facts and inferences point so strongly and
     overwhelmingly in favor of one party that the Court
     believes that reasonable men could not arrive at a
     contrary verdict, granting of the motions is proper. On
     the other hand, if there is substantial evidence opposed
     to such motions, that is, evidence of such quality and
     weight that reasonable and fair-minded men in the
     exercise of impartial judgment might reach different
     conclusions, the motions should be denied .... A mere
     scintilla of evidence is insufficient to present a
     question for the jury .... There must be a conflict in
     substantial evidence to create a jury question.3

     Parham based his retaliatory discharge claim on article 8307c

of the Texas Workers' Compensation Act, which reads in pertinent

part:

     No person may discharge or in any other manner
     discriminate against any employee because the employee
     has in good faith filed a claim, hired a lawyer to
     represent him in a claim, instituted, or caused to be

     2
       Boggan v. Data Systems Network Corp., 969 F.2d 149, 152
(5th Cir. 1992)(quoting Fruge v. Penrod Drilling Co., 918 F.2d
1163, 1165-66 (5th Cir. 1990).
     3
       Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.
1969)(en banc); accord Turner v. Upton County, 967 F.2d 181, 184
(5th Cir. 1992); Normand v. Research Institute of America, Inc.,
927 F.2d 857, 859 (5th Cir. 1991).

                                 5
      instituted, in good faith, any proceeding under the Texas
      Workmen's Compensation Act or has testified or is about
      to testify in such proceeding.4

      In pursuing a claim under article 8307c, the plaintiff has the

burden of establishing a causal nexus between his filing of a

workers' compensation claim and his discharge by his employer.5

The   plaintiff    need     not   prove       that    his    quest   for    workers'

compensation was the sole reason for his discharge, but he must

establish that it was a determining factor.6                   In a federal case

involving a state law claim, state law determines the kind of

evidence that may be produced to support a verdict,7 but federal

law establishes      the    quantum   of      evidence      needed   to    support   a

verdict.8

      Parham    notes     correctly   that       in    Texas    "[c]ircumstantial

evidence and reasonable inferences from the evidence may provide

adequate support for the jury's affirmative finding" in a wrongful

termination case.9      But even though proof in such a case need not


      4
          TEX. REV. CIV. STAT. ANN. art. 8307c, § 1 (Vernon Supp.
1992).
      5
       Jones v. Roadway Express, Inc., 931 F.2d 1086, 1090 (5th
Cir. 1991).
      6
          Id.
      7
       Ayres v. Sears, Roebuck & Co., 789 F.2d 1173, 1175 (5th
Cir. 1986); McCandless v. Beech Aircraft Corp., 779 F.2d 220, 223
(5th cir. 1985), vacated on other grounds, 798 F.2d 163 (5th Cir.
1986).
      8
       Atchison, T. & S. F. Ry. v. Sherwin-Williams Co., 963 F.2d
746, 749 (5th Cir. 1992).
      9
       Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex.
App.))El Paso, 1989, writ denied).

                                          6
be direct, it must be sufficient.            Here we conclude that Parham has

failed to adduce sufficient evidence of a causal nexus between his

filing of a workers' compensation claim and his termination by

Carrier.

       Parham claims to have offered evidence that (a) Carrier

officials knew he had filed a workers' compensation claim, (b)

Carrier's motive for firing him was to reduce compensation claims,

(c) Carrier retaliated against others who had filed compensation

claims, (d) Carrier's absence control policy was not neutrally

applied, and (e) he was physically qualified to return to work at

Carrier.   We find all of these evidentiary assertions to be either

patently false or based on distortions of the evidence.

            a.     Carrier's Knowledge

       Parham points to no evidence that anyone involved in his

termination      had    actual   knowledge     of   his   compensation    claim.

Rather, he relies on the willingness of Carrier officials to

acknowledge the obvious inference that employees who have been on

leave for 24 months are likely to have filed compensation claims.

This   inference       is   doubtless   correct,    but   such   a   generalized

inference is no substitute for hard evidence that those involved in

a particular discharge actually knew that the fired employee had

filed a compensation claim.             Neither does such a generalized

inference in any way suggest a retaliatory motive.

       Parham's reliance on two Texas cases for the proposition that

an employer's knowledge that an employee had filed a workers'

compensation claim is evidence of a retaliatory discharge is


                                         7
misplaced.10       In    each   case   there   was   considerable   additional

evidence of retaliatory animus; Parham can point to none. Also, in

the cases cited by Parham, the employers were specifically aware of

compensation claims filed by the employees who later filed suit;11

Parham does nothing more than ask us to infer that Carrier knew of

his compensation claim simply because he had been out on disability

leave for over two years.         We decline to take such a leap of logic.

      In the context of this case, the mere possibility that Carrier

officials might infer from Parham's leave status that he had filed

a compensation claim is not probative of retaliatory discharge. We

can   discern     no    nexus   between    that   universal   truism   and   the

retaliatory discharge alleged by Parham.

             b.     Reduction of Workers' Compensation Claims

      Parham next argues that Carrier's motive for firing employees

who had been on leave for 24 months was to reduce compensation

claims. But a generalized desire to reduce compensation claims))in

itself))is not impermissible.             What is impermissible is actively

discouraging the filing of compensation claims.               Under the right

circumstances, such discouragement may be evidence of retaliatory

discharge.12      But no such circumstances are present here.          The only

support that Parham musters to suggest that Carrier discouraged

compensation claims is an isolated statement in the deposition of

      10
        Id., and Murray Corp. of Maryland v. Brooks, 600 S.W.2d
897, 903 (Tex. Civ. App.))Tyler 1980, writ ref'd n.r.e.).
      11
           Id.
      12
            Paragon, 783 S.W.2d at 658.


                                          8
a Carrier representative, Nathaniel Ellison, who said, "We were

trying to eliminate the number of comp claims by improving our

safety." By parroting the first clause of this statement ("We were

trying to eliminate the number of comp claims")))both in his brief

and at oral argument))while de-emphasizing or omitting the latter

clause ("by improving our safety"), Parham attempts to suggest that

Carrier was engaged in some sort of persecution of employees who

filed workers' compensation claims.    That suggestion is ludicrous:

improving plant safety to reduce the number of employee injuries is

a very different thing from firing employees in retaliation for

filing compensation claims.13

          c.    Discharge of Other Compensation Claimants

      By repeating the same quotation that failed to support his

last argument, Parham attempts to support his charge that Carrier

retaliated   against   other   employees   who   had   pursued   workers'

compensation claims.    But again, Carrier's desire to reduce "the

number of comp claims by improving . . . safety," is just not

evidence of retaliation by Carrier against employees who had filed

compensation claims.

     A pattern of firing employees who have filed compensation

claims could be probative of retaliatory discharge,14 but not when

all the employees have been discharged pursuant to the same leave

     13
       Carrier also rightly points out that Mr. Ellison's
statement was made in response to a question that had nothing to
do with the new CBA termination policy, and that he denied that
the new policy was at all linked to compensation claims.
     14
       See, e.g., Chemical Express Carriers, Inc. v. Pina, 819
S.W..2d 585, 590 (Tex. App.))El Paso 1991, writ denied).

                                   9
of absence policy.    Here the pattern reflects application of the

policy, not some invidious retaliatory motive.        If Carrier had

discharged twenty employees for a variety of proffered reasons, and

all of them had previously filed compensation claims, we might

suspect an ulterior motive.      But, as all Carrier's employees on

disability leave were discharged pursuant to the same written

policy, the evidence demonstrates nothing more than that Carrier

was applying the terms of the 1989 CBA as it understood them.15

           d.    Inconsistent Enforcement of Leave Policy

     Parham next argues that Carrier's policy of firing employees

who had been on leave for more than 24 months was not neutrally

applied.     In support of his claim Parham states:    "In our case,

Carrier admits this policy was not neutrally applied.    Instead, it

was implemented to eliminate workers' compensation claims, targeted

at those who had filed such claims, and, in fact, applied only to

those who had filed such claims."         Parham favors us with no

references to the record to substantiate this statement, and we can

find none.

     If Carrier did fail to apply the 1989 CBA neutrally, it failed

in a way that benefitted Parham.       The 1989 CBA grants employees

only twenty-four months of disability leave.    But Parham was given

notice of termination approximately twenty-nine (29) months after

he began his leave of absence.    He therefore received a five-month

     15
       Parham does not dispute that each of twenty discharged
people had been on leave for more than 24 months before they were
fired. Neither does he respond to Carrier's claim that over 100
of its 600 employees had previously filed compensation claims
without being terminated by Carrier.

                                  10
moratorium.16         Moreover, after Parham received the termination

letter    he    was    afforded   an   additional   six   months   before   his

termination became final in which to secure a full-duty release

from a physician.         This, coupled with his five-month moratorium,

gave him a leave of absence eleven months longer than he was

entitled to under the literal terms of the 1989 CBA, as understood

by the parties that negotiated the agreement.17               Thus, even if

Carrier did fail to apply its new policy rigidly and uniformly,

such a flexible and inconsistent application of the 1989 CBA

actually inured to Parham's benefit; he cannot be heard to complain

about that.

               e.     Physically Qualified to Return to Work

     Finally, Parham claims to have established that he could have

returned to work at Carrier.           In support of this claim, he points

only to his own self-serving testimony that he obtained similar

employment at McDonald's after he was fired from Carrier, and that

he believed he could do everything physically necessary to work at

Carrier. In response, Carrier points to several critical pieces of

     16
       An additional six months of leave are granted to injured
"employees with over five (5) years seniority . . . where there
is a reasonable expectation that the employee will be able to
return to work within this . . . period." Based on Parham's
inability to secure a full-duty medical release to return to work
at Carrier, however, the additional five months of leave granted
Parham must be regarded as a windfall. He got them without
having to demonstrate a reasonable expectation that he would be
able to return to work, a demonstration that he was unable to
make.
     17
       Parham did not respond to evidence that another employee
was allowed to return to work at Carrier because he was able to
secure a full-duty medical release within the six-month extension
provided by Carrier.

                                        11
evidence))evidence that Parham conveniently fails to address.



     First,     Parham    was   never    able   to   obtain    the    requisite

physician's full-duty release to return to work, even as of the

time of trial.18    Second, while he was on leave, Parham actively

sought to be classified as permanently and completely disabled: he

probably should be estopped now from claiming to be capable of

full-duty employment.19         Third, Parham's own testimony reflects

that, although his job at McDonald's is similar to his job at

Carrier, it is less strenuous.          And, finally, Parham admitted that

he still suffered from some disability.20            Parham's bald assertion

that he could have returned to work at Carrier thus suffers from a

fatal defect:    it flies in the face of all objective evidence, and

is supported by none.

     In summary, Parham failed totally to satisfy his burden of

establishing a causal nexus, as required under Article 8307c,

between   his    filing    a    workers'     compensation     claim   and   his

discharge.21    His evidence is insufficient as a matter of law to


     18
        The requirement that employees who have been on unpaid
leaves of absence secure full-duty medical releases before
returning to work at Carrier is contained in both the 1986 and
the 1989 CBAs, as well as several earlier CBAs.
     19
       Alternatively, perhaps his earlier claim of permanent
disability was fraudulent.
     20
       During questioning Parham admitted, "I can't lift like I
used to lift."
     21
       Jones v. Roadway Express, Inc., 931 F.2d 1086, 1090 (5th
Cir. 1991); accord Swearingen v. Owens-Corning Fiberglas Corp.,
968 F.2d 559, 562 (5th Cir. 1992).

                                        12
support his claim of retaliatory discharge.                 To the extent that

Parham's evidence tends to show anything, it is that Carrier

terminated Parham in accordance with a neutrally-applied absence

control policy, an action that we have expressly held not to

violate article 8307c.22      We conclude that the facts and inferences

favor Carrier to such an overwhelming extent that an impartial and

reasonable     fact-finder))fully          apprised     of      all    relevant

information))could      not   reach   a    verdict    for    Parham.    We   are

therefore constrained to reverse the jury's verdict and render a

take-nothing judgment against Parham on his retaliatory discharge

claim.

      2.   Preemption

      Carrier also argues that Parham's retaliatory discharge claim

is preempted by section 301 of the Labor Management Relations Act

(LMRA).    As we hold Parham's evidence to be insufficient as a

matter of law to support a finding of retaliatory discharge, we

need not consider whether Parham's retaliatory discharge claim is

preempted by the LMRA.

B.   Breach of Contract

      At trial Parham argued that his discharge by Carrier violated

the terms of (1) the 1986 CBA, (2) the 1989 CBA, and (3) an oral

contract that he purportedly made with Carrier. The jury found for

      22
        Swearingen v. Owens-Corning Fiberglas Corp., 968 F.2d
563-64. Parham argues that Swearingen does not apply because it
was a summary judgment case. The procedural posture of
Swearingen, however, cuts against Parham: if the two cases are
factually similar, and the plaintiff in Swearingen was unable
even to defeat a motion for summary judgment, surely Parham
cannot marshal enough evidence to justly win a verdict.

                                      13
Parham on all three breach of contract claims, but awarded no

damages for breach of the supposed oral contract.                  As Carrier

understandably does not appeal the verdict on the breach of oral

contract claim, we do not address it.

      In its appeal of Parham's breach of CBA claims, Carrier argues

that they are preempted by section 301 of the LMRA, which reads as

follows:

      Suits for violation of contracts between an employer and
      a labor organization representing employees in an
      industry affecting commerce . . . or between any such
      labor organizations, may be brought in any district court
      of the United States having jurisdiction of the parties,
      without respect to the amount in controversy or without
      regard to the citizenship of the parties.23

State law causes of action for violation of a collective bargaining

agreement))essentially      breach     of   contract   claims))are    entirely

displaced by section 301.24         Additionally, when a state tort claim

cannot be resolved without interpreting a provision of a collective

bargaining agreement, the application of state law is preempted,

and federal law must be employed to resolve the dispute.25               Only

when a state claim sounding in tort can be resolved without having

to   interpret     a   collective    bargaining   agreement   is     otherwise

      23
           NATIONAL LABOR RELATIONS ACT § 301, 29 U.S.C. § 185(a).
      24
       Medrano v. Excel Corp., 985 F.2d 230, 232 (5th Cir.
1993)(citing United Steelworkers v. Rawson, 495 U.S. 362, 368,
110 S. Ct. 1904, 109 L. Ed. 2d 362 (1990)); accord Franchise Tax
Bd. v. Laborers Vacation Trust, 463 U.S. 1, 23, 103 S. Ct. 2841,
77 L. Ed. 2d 420 (1983)("the pre-emptive force of § 301 is so
powerful as to displace entirely any state cause of action 'for
violation of contracts between an employer and a labor
organization.'").
      25
       Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399,
405-06, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988).

                                       14
applicable state law not preempted.26

     Parham's claims that Carrier breached the 1986 and 1989 CBAs

are))by    definition))state     law    causes   of   action    that    allege

violations of collective bargaining agreements.             As such, they are

automatically preempted by section 301.27              Thus, we need not

consider    whether   Parham's   breach     of   contract    claims    require

interpretation of the CBAs:       as Parham's claims are breach of CBA

claims, preemption is automatic.28           Consequently, they must be

resolved by resorting to federal rather than state law.29                   We

proceed to do so.

     In the section 301 context, federal law ordinarily requires a

     26
          Medrano, 985 F.2d at 232 (quoting Lingle, 486 U.S. at
410).
     27
          See supra note 27.
     28
       Id. Even if we were required to undertake such an
analysis, however, it is clear that an interpretation of both
CBAs' provisions would be absolutely necessary to determine
whether Carrier violated those agreements, a point forthrightly
conceded by Parham's counsel at oral argument, and approved by
the district court in its Memorandum Opinion. Parham v. Carrier
Corp., No. 90-CV-319, Memorandum Opinion at 5-6 (E.D. Tex., Jan.
14, 1992)(unpublished). At trial Parham claimed that Carrier
violated "vested rights" conferred upon him by the 1986 CBA when
it negotiated the new, 1989 CBA. Obviously, to decide the merits
of Parham's claim, a court would have to interpret the 1986 CBA
to determine whether that CBA was intended to confer vested
rights upon Parham and other employees. Parham also argued that
Carrier violated the 1989 CBA by applying its leave of absence
terms retroactively. A court would clearly have to interpret the
1989 CBA to determine whether its leave of absence provisions
were intended to apply retroactively. Thus, interpretation of
both CBAs would be essential to resolving Parham's claims, even
if they were not automatically preempted as breach of CBA claims,
but were somehow deemed to be delictual or otherwise non-
contractual in nature.
     29
       United Steelworkers v. Rawson, 495 U.S. 362, 368, 110 S.
Ct. 1904, 109 L. Ed. 2d 362 (1990).

                                       15
plaintiff   to    exhaust     grievance   procedures   established   in    a

collective bargaining agreement before filing a claim in court.30

Parham    did    not   even   institute))much   less   exhaust))grievance

procedures available through the CBAs before he initiated the

instant lawsuit.       The jury, however, excused Parham's failure to

use the Union's grievance procedures, finding "that it would have

been futile [for Parham] to have used the grievance procedure to

contest his discharge from . . . Carrier . . . ."31

     Although a disgruntled employee may bring a suit without first

exhausting available grievance procedures if exhaustion of those

remedies would be futile,32 such an employee may not simply assert

that his use of grievance procedures would have been futile:              he

must ordinarily at least have attempted to use them.33 Parham cites

Glover v. St. Louis-San Francisco Railway Co. for the proposition

that employees need not even attempt to use available grievance

procedures if they would have to submit their concerns "to a group

which is in large part chosen by the [defendants] against whom




     30
       Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 205 n.1,
220-21, 105 S. Ct. 1904, 85 L. Ed. 2d 206 (1985).
     31
       Guided by comments made in the district court's
Memorandum Opinion Denying Carrier's Motion for Summary Judgment,
Parham amended his complaint to include the argument that it
would have been futile to use available grievance procedures.
     32
       Rabalais v. Dresser Indus., Inc., 566 F.2d 518, 519 (5th
Cir. 1978).
     33
       Vaca v. Sipes, 386 U.S. 171, 184-85, 87 S. Ct. 903, 17 L.
Ed. 2d 842 (1967); accord Republic Steel Corp. v. Maddox, 379
U.S. 650, 652, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965).

                                     16
their real complaint is made."34 But Glover is distinguishable from

the instant case and does not absolve Parham of his failure even to

attempt to invoke the grievance procedures available to him, much

less exhaust them.

     The factual contours of Glover differ materially from the

instant    case.     In   Glover    the   plaintiffs   were   blacks   who

believed))probably justifiably))that the same discrimination that

allegedly impeded their promotions would prevent their receiving

fair arbitration of their complaints, thereby rendering grievance

procedures futile.35      In that factual context, the Supreme Court

rejected     the   requirement     that   "employees   alleging    racial

discrimination should be required to submit their controversy to 'a

group which is in large part chosen by the [defendants] against

whom their real complaint is made.'"36        In contrast, there is no

evidence that any racial animus pollutes the instant case. Neither

is there evidence that the representatives of Parham's Union who

would participate in the grievance procedures would be selected by

Carrier, which is the real target of Parham's complaint.

     By urging us to sever the Court's language in Glover from the

secure moorings of its factual context of racial discrimination,

Parham would have us adopt a rule of law that would allow an


     34
       Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324,
330, 89 S. Ct. 548, 21 L. Ed. 2d 519 (1969)(citing Steele v.
Louisville & Nashville Ry. Co., 323 U.S. 192, 206, 65 S. Ct. 226,
89 L. Ed. 173 (1944).
     35
          See generally Glover, 393 U.S. 324.
     36
          Id. (emphasis added).

                                     17
employee       to   circumvent     grievance   procedures   contained   in   an

applicable CBA whenever his employer or his union have significant

involvement in the grievance process.              We decline the invitation

thus to set adrift the requirement that employees exhaust available

grievance procedures.         "Congress has expressly approved contract

grievance procedures as a preferred method for settling disputes .

. .," and we will not allow congressional will to be so easily

thwarted.37

     The       futility    exception    requires    exactly   that))futility.

Before     a    plaintiff    may     safely    disdain   available   grievance

procedures, his invocation of those procedures must truly be

futile:    not annoying, bureaucratic, insensitive, or unpromising,

but futile.         An employee has the burden of producing some evidence

that resort to available grievance procedures would in fact be

futile: his mere subjective belief or conclusionary assertion will

not suffice.38

     More importantly, given the grievance procedures available

under the 1989 CBA, the futility problem posed by Glover does not

even arise in this case.           The 1989 CBA provides that the Union may

submit a controversy to a neutral arbitrator for binding resolution

     37
       Republic Steel v. Maddox, 379 U.S. 650, 653, 85 S. Ct.
614, 13 L. Ed. 2d 580 (1965).
     38
       Vaca v. Sipes, 386 U.S. 171, 184-85, 87 S. Ct. 903, 17 L.
Ed. 2d 842 (1967). Even in Glover the Court required the
plaintiffs to produce evidence that they had attempted to exhaust
contractual remedies; a requirement that was satisfied by
plaintiffs' "repeated complaints to company and union officials,"
which the Court evidently believed to be tantamount to a plea for
the resolution of their grievances. No comparable evidence
supports Parham's claims. Glover, 393 U.S. at 331.

                                         18
if the grievance is not satisfactorily settled, "thus removing any

possibility of the futility problem present in Glover."39                        Parham

had   no   justification       whatsoever         for    ignoring    the     grievance

resolution machinery available to him.

      Parham insists that filing a grievance would have been futile

because his Union representative did not strongly encourage him to

file one, or volunteer to file one for him.                    That hardly proves

futility.         This    particular      Union     representative         had   helped

negotiate the 1989 CBA and probably was simply expressing his

opinion    that    Parham     had    no    realistic      claim     because      he   was

discharged pursuant to a lawfully negotiated CBA that both Carrier

and Union officials evidently intended to apply retroactively.

Thus, Parham introduced no objective evidence))none))for this claim;

only his own self-serving testimony.

      To recapitulate, we are unwilling to embrace a rule that would

allow disgruntled          employees      to    circumvent   mandatory       grievance

procedures solely because they may subjectively believe, even in

good faith, that resort to those procedures would be a hollow act.

We hold that the jury's finding that it would have been futile for

Parham     to   use      available     grievance        procedures    is    based     on

essentially no evidence, and is insupportable as a matter of law.

We therefore reverse the jury's finding excusing for futility

Parham's failure to invoke those procedures, and we render judgment

dismissing his breach of CBA claims.


      39
       Rabalais v. Dresser Indus., Inc., 566 F.2d 518, 519 (5th
Cir. 1978).

                                           19
C.   Damages

      As we reverse the jury's verdict and the district court's

judgment,     and    hold      for    Carrier       on   both   Parham's    retaliatory

discharge and breach of contract claims, we need not address in

depth the legal and factual errors suffusing the jury's damage

awards.   We note in passing, however, that had we been required to

reach   the    issue      of   damages,       we    almost      certainly   would     have

concluded     that       the   jury's    awards      were    factually      and   legally

erroneous, as well as irreconcilably inconsistent.

                                              III

                                        CONCLUSION

      Parham has failed to adduce any relevant, probative evidence

to   establish       a    causal      nexus    between      his   filing    a     workers'

compensation claim and his termination by Carrier.                          As proof of

such a nexus is essential to prevailing in an Article 8307c claim,

we reverse the jury's verdict and render for Carrier on the issue

of retaliatory discharge.               Having thus determined that Parham's

evidence of retaliatory discharge was insufficient as a matter of

law, we     need     not))and        therefore      do   not))consider      whether    his

retaliatory discharge claim is preempted by section 301 of the

LMRA.

      Parham's breach of contract claims are, however, clearly

preempted by section 301. Consequently, Parham had a duty at least

to attempt to use the grievance procedures available to him.

Based solely on his subjective belief in the futility of those

procedures, however, Parham made no such attempt, choosing instead


                                              20
to file a suit.   We find no probative evidence to support Parham's

belief that resort to the grievance procedures available under the

1989 CBA would have been futile.      We therefore reverse the jury's

finding of futility and its excusing Parham from the requirement

that he at least attempt to use those procedures. Consequently, we

render a take-nothing judgment against Parham on his breach of

collective bargaining agreement claims, for failure to invoke the

grievance procedures required under the CBAs.

     For the foregoing reasons, the jury's verdict and the district

court's judgment awarding damages to Parham are in all respects

REVERSED, and judgment is RENDERED for Carrier and against Parham,

dismissing all of his claims with prejudice.




                                 21
