                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                                 F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                 March 15, 2004
                       FOR THE FIFTH CIRCUIT
                       _____________________                  Charles R. Fulbruge III
                                                                      Clerk
                            No. 03-40953
                       _____________________

TRAVIS HORTMAN,
                                               Plaintiff - Appellant,

                               versus

RANSOM INDUSTRIES, doing business
as Tyler Pipe Industries, Inc.,

                                             Defendant - Appellee.
__________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                        USDC No. 6:02-CV-80
_________________________________________________________________

Before JOLLY, DUHÉ, and STEWART, Circuit Judges.

PER CURIAM:*

     Travis Hortman was injured while working for Ransom Industries

(“Ransom”) and filed for workers’ compensation.        After a year’s

absence from work, Ransom discharged Hortman under its neutrally

applied   absence-control   policy,   which   was   derived     from    the

collective bargaining agreement between Ransom and Hortman’s union.

Hortman sued Ransom for discrimination and retaliatory discharge

under TEX. LAB. CODE ANN. § 451.001 (West 2004).    The district court

granted summary judgment to Ransom, and we affirm.




     *
       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this opinion should not be published and is not precedent except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.
      Hortman offered no evidence that the filing of his claim

motivated his discharge, certainly not that it constituted a

“determining factor” as required by § 451.                       Moreover, it is well

established       that    §   451    “does        not    prohibit      an   employer    from

enforcing a ‘neutrally applied absence control policy’ against a

workers’ compensation            claimant.”             Swearingen     v.    Owens-Corning

Fiberglas Corp., 968 F.2d 559, 561 (5th Cir. 1992); Texas Div.-

Tranter, Inc. v. Carroza, 876 S.W.2d 312, 313 (Tex. 1994) (“Uniform

enforcement of a reasonable absence-control provision . . . does

not   constitute         retaliatory         discharge.”).1             Ransom    provided

undisputed evidence of its uniform application of its absence-

control   policy,        which      on   a   motion       for   summary      judgment    was

sufficient to require Hortman to present controverting evidence.2

Hortman’s   conclusory           allegations            are   simply    insufficient      to

establish     a    genuine       issue       of    material      fact       regarding   the

application of the policy to him, which would preclude summary

judgment.




      1
      See also Continental Coffee Products v. Cazarez, 937 S.W.2d
444, 451 (Tex. 1996) (“If an employee’s termination is required by
the uniform enforcement of a reasonable absentee policy, then it
cannot be the case that termination would not have occurred when it
did but for the employee’s assertion of a compensation claim or
other conduct protected by section 451.001.”).
      2
     See Carroza, 876 S.W.2d at 313 (affidavits of supervisory and
administrative personnel stating that employee’s discharge was
result of reasonable absence-control policy were sufficient for
summary judgment).

                                              2
     Similarly, it is clear that Hortman has not alleged actionable

discrimination based on retaliation short of discharge under §

451's substantial threshold.       A prima facie case of retaliation

under § 451.001 requires proof that: (1) plaintiff engaged in a

protected activity; (2) an adverse employment action occurred; and

(3) there is a causal connection between participation in the

protected activity and the adverse employment decision. See, e.g.,

West v. Maintenance Tool & Supply Co., 89 S.W.3d 96, 105 (Tex. App.

- Corpus Christi 2002).        A few Texas courts have applied this

analysis to actions falling short of discharge, but they have

demanded   proof   of   a   discriminatory   change   in   the   status   of

plaintiff’s employment.       Here, there was no change in job status

other than Hortman’s ultimate discharge.3

     In sum, we find, for the reasons set forth by the district

court, that Hortman presented no issue of material fact and that

Ransom is entitled to judgment as a matter of law.           Accordingly,

the district court’s judgment is

                                                                 AFFIRMED.




     3
      Hortman also did not present evidence that employees without
workers’ compensation claims were treated differently, which is
obviously the gravamen of any discrimination claim. See, e.g.,
Baptist Mem. Healthcare Sys. v. Casanova, 2 S.W.3d 306, 311 (Tex.
App. - San Antonio 1999).      Moreover, Ransom’s absence-control
policy gives employees injured on the job (and filing for workers’
compensation) twelve months of leave prior to discharge, while it
gives those absent for non-work related illness or injury only nine
months.

                                    3
