Hortman v. Ransom Industries

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
March 15, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
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.

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1See 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.”).
2See 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
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.

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3Hortman 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
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.

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