IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 99-50331 Summary Calendar _____________________

RUSSELL MORTLAND,

Plaintiff-Appellant,

versus

STARTRAN, INC.; CAPITAL METROPOLITAN TRANSPORTATION AUTHORITY,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas USDC No. A-98-CV-717 _________________________________________________________________

December 8, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Russell Mortland argues that the district court erred by

dismissing his Rule 60(b) motions and by granting the defendants’

summary judgment motion, which thereby dismissed his claims of

retaliatory discharge under the Family Medical Leave Act (“FMLA”)

and the Texas Labor Code. We have reviewed the record, the opinion

of the district court, and the briefs, and find, substantially for

the reasons relied upon by the district court, that the district

court’s rulings on these motions were proper.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Mortland filed two motions, which the district court

classified as Rule 60(b) motions: (1) a motion for extension of

time; and (2) a motion for reconsideration of the district court’s

order granting defendants’ summary judgment motion. Both motions

sought relief based upon the failure of Mortland’s counsel to

timely file an opposition to the defendants’ summary judgment

motion, which counsel alleged was due to her paralegal’s oversight,

and the fact that counsel was moving her offices from Austin to San

Antonio.

The negligence or carelessness of a client’s lawyer, such as

missing deadlines, does not constitute excusable neglect under Rule

60(b)(1). Lavespere v. Niagra Machine & Tool Works, Inc.,

(5th Cir. 1990), abrogated on other grounds by Little v.

Liquid Air Corp.,

(5th Cir. 1994) (en banc);

McGinnis v. Shalala,

(5th Cir. 1993). Accordingly,

the district court did not abuse its discretion in denying

Mortland’s Rule 60(b) motions.

With respect to Mortland’s claim of retaliatory discharge

under FMLA, a plaintiff must establish (1) that he engaged in

protected activity, (2) that he suffered an adverse employment

decision, and (3) that a causal connection existed between the

protected activity and the adverse employment decision. Chaffin v.

Carter Co., Inc.,

(5th Cir. 1999). Once the

plaintiff has established a prima facie case, the burden of

production shifts to the defendant to articulate a legitimate,

2 non-discriminatory reason for its actions.

If the employer

carries this burden, the presumption created by the prima facie

case is rebutted.

“To defeat summary judgment, the plaintiff

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.”

This court reviews a grant of summary judgment de

novo. Thomas v. LTV Corp.,

(5th Cir. 1994).

The summary judgment evidence presented by the defendants

indicates that Mortland took 16 workweeks off during the October

1995 through October 1996 period, and because FMLA only allows an

employee to take 12 workweeks off in a 12-month period, Mortland’s

claim cannot arise under FMLA. As Mortland did not timely file an

opposition to defendants’ summary judgment motion, the court’s

reliance on the attendance records and the defendants’

interpretation of those records was proper. For the same reasons,

the court’s conclusion that the defendants had presented

uncontroverted evidence that the reasons for Mortland’s termination

were insubordination and failure to properly report off work was

proper.

Finally, the two affidavits supporting the defendants’ summary

judgment motion attest that Mortland was not terminated because of

previously filed grievances. The court could therefore properly

conclude, based upon the uncontroverted summary judgment evidence,

that Mortland had not established a causal connection between

3 Mortland’s worker’s compensation claim and his termination.

Burfield v. Brown, Moore & Flint, Inc.,

(5th Cir.

1995).

4 For the reasons stated herein, the judgment of the district

court is

A F F I R M E D.

5