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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).
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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.
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