Prewitt, Sr. v. Continental Automotive

Filing 47

ORDER Striking Pleading 43 Response to Motion, ORDER Granting in Part nad Denying in Part 36 MOTION for Summary Judgment filed by Continental Automotive. Signed by Judge David A. Ezra. (aej)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
LARRY W. PREWITT, SR.,
Plaintiff,
vs.
CONTINENTAL AUTOMOTIVE,
Defendant.

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No. SA: 12-CV-582-DAE

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT AND STRIKING
PLAINTIFF’S SUR-REPLY
Plaintiff Larry W. Prewitt filed suit against Defendant Continental
Automotive alleging violations of the Texas Labor Code and Title VII. On
February 4, 2014, the Court heard argument on Defendant’s Motion for Summary
Judgment (Dkt. # 36). Adam Poncio, Esq., appeared on behalf of Plaintiff, and
Santiago T. Alaniz, Esq., represented Defendant. Upon careful consideration of
the supporting and opposing memoranda, as well as the parties’ arguments at the
hearing, the Court GRANTS IN PART AND DENIES IN PART Defendant’s
Motion for Summary Judgment. Additionally, the Court STRIKES Plaintiff’s
sur-reply (Dkt. # 43) from the record.

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BACKGROUND
Plaintiff began working for Motorola around November 29, 1999.
(Dkt. # 33, “FAC” ¶ 5.) Defendant bought Motorola in December 2006. (FAC
¶ 6.) Between March 13, 2009 and May 11, 2009, Plaintiff filed a discrimination
charge with the Equal Employment Opportunity Commission (“EEOC”) claiming
he was discriminated against because of his national origin, age, and disability
(“First Charge”). (Id. ¶ 7.)
On April 24, April 25, May 26, and May 27, 2010, Defendant sent
Plaintiff home stating that there was not enough work. (Id. ¶ 9.) Defendant gave
Plaintiff the choice to either use his paid time off (“PTO”) or go home without
pay.1 (Id.)
On July 12, 2010, Defendant issued a verbal warning to Plaintiff
because Plaintiff was absent on July 8, 2010, without having sufficient PTO to
cover those hours. (Id. ¶ 11.)
On July 23, 2010, Plaintiff filed a second charge with the EEOC
alleging retaliation (“Second Charge”). (Id. ¶ 12.)
On August 10, 2010, Defendant issued Plaintiff a written warning
after he was absent on July 16, 2010, without having sufficient PTO to cover his

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Plaintiff alleges that on these dates, other workers were given different
assignments and not sent home. (Id. ¶ 10.) However, Plaintiff has provided no
support for this claim.

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hours. (Id. ¶ 14.) Then on September 15, 2010, Plaintiff received a second written
warning for being absent on September 7, 2010, without sufficient PTO to cover
his absence. (Id. ¶ 15.)
On June 21, 2011, Plaintiff filed a sexual discrimination and
harassment complaint against a Hispanic female co-worker. (Id. ¶ 16.)
Defendant’s supervisor, a Hispanic male, moved Plaintiff to work in another
location. (Id. ¶ 17.) Plaintiff alleges the co-worker he complained about was not
moved. (Id.) Plaintiff also claims that after filing the sexual harassment
complaint, Defendant began to give him unwarranted negative performance
reviews. (Id. ¶ 18.)
On July 15, 2011, Plaintiff received a ‘written counseling’ because a
former co-worker had filed a sexual harassment complaint against Plaintiff.
(Id. ¶ 19.)
On July 19, 2011, Plaintiff filed a third complaint with the EEOC, this
time alleging retaliation and discrimination based on national origin (“Third
Charge”). (Id. ¶ 20.) Plaintiff later amended the Third Charge to include a claim
that Defendant retaliated against Plaintiff in violation of the ADA.2

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The Amendment to the Third Charge states, “I also believe my present
termination and the retaliation I suffered were because of my present charges and
the prior charges I filed, which is a violation of the Americans with Disabilities
Act, as amended and the Texas Labor Code.” (Dkt. # 8 at 9.)

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On August 17, 2011, Defendant terminated Plaintiff after he was
absent on August 9, 2011, without having sufficient PTO to cover the hours.
(Id. ¶ 21.) According to Defendant’s records, Plaintiff had already accumulated
nine Attendance Policy violations prior to August 9, 2011, and had progressed
through all available disciplinary steps, making Plaintiff eligible for termination.
(Dkt. # 36 at 1.)
Plaintiff filed a complaint with this Court on June 13, 2012, alleging
Defendant, through its officers and agents, harassed Plaintiff, retaliated against
him, and discriminated against him based on national origin, race, sex, and
disability in violation of Title VII, the ADA, and the Texas Labor Code.
(Dkt. # 1.) On August 31, 2012, Defendant moved in part to dismiss the complaint
and moved for a more definite statement of the claims. (Dkt. # 7.) In this Court’s
February 26, 2012 Order, the Court found that all of Plaintiff’s claims based upon
the events covered in the First or Second Charges filed with the EEOC were
time-barred, and the Court dismissed those claims. (Id. at 12–14.) However, the
Court found that the claims for retaliation and discrimination based on race, arising
from events detailed in the Third Charge, were still viable. (Id. at 15, 29.) The
Court concluded that although Plaintiff’s race discrimination claim was viable, he
failed to plead sufficient facts in support. (Dkt. # 29 at 36.) The Court granted
Plaintiff leave to amend his complaint to cure the deficiency. (Id.)

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Plaintiff subsequently filed his First Amended Complaint asserting
claims for discrimination based on race and retaliation in violation of Texas Labor
Code and Title VII. (FAC.) On September 13, 2013, Defendant moved for
summary judgment on all claims. (Dkt. # 36.) Plaintiff filed a Response
(Dkt. # 41); however, Plaintiff ignored the Local Rules, and his Response far
exceeded the permissible length.3 Defendant timely replied. (Dkt. # 42.) Plaintiff
then, without seeking leave of the Court, filed a sur-reply (Dkt. # 43) in response to
Defendant’s reply. Pursuant to Local Rule CV-7(f)(1), after the filing of a reply,
“[a]bsent leave of court, no further submissions on the motion are allowed.”
Because Plaintiff’s sur-reply (Dkt. # 43) was filed without leave of the Court, the
Court STRIKES it from the record.
LEGAL STANDARD
A court must grant summary judgment when the evidence
demonstrates “that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
In seeking summary judgment, the moving party bears the initial
burden of demonstrating the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden,
the burden then shifts to the non-moving party “to go beyond the pleadings and by

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Nonetheless, the Court will consider the arguments Plaintiff presented therein.
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[his or her] own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for
trial.” Id. at 324 (internal quotation marks omitted). The non-moving party “must,
either by opposing evidentiary documents or by referring to evidentiary documents
already in the record, set out specific facts showing a genuine issue as to a material
fact exists.” Leghart v. Hauk, 25 F. Supp. 2d 748, 751(1998). “[Non-movants] are
required to identify the specific evidence in the record and to articulate the precise
manner in which that evidence supports their claim.” Id. “Rule 56 does not
require the district court to sift through the record in search of evidence to support
a [non-movant’s] opposition to summary judgment.” Id.
The Court evaluates the evidence in the light most favorable to the
non-moving party. Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir.
1994). The Court “examines the pleadings, affidavits, and other evidence
introduced in the motion, resolves any factual doubts in favor of the non-movant,
and determines whether a triable issue of fact exists.” Leghart, 25 F.Supp. 2d
at 751. However, if a party “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial,” the Court must grant summary judgment against
that party. Celotex, 477 U.S. at 322.

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DISCUSSION
Defendant moved for summary judgment on Plaintiff’s claim for
discrimination based on race and on Plaintiff’s claim that Defendant engaged in
retaliation. (Dkt. # 36.)
I.

Race Discrimination Claim
Plaintiff asserts claims for discrimination based on race under both

Title VII and the Texas Commission on Human Rights Act (“TCHRA”).
The Texas Commission on Human Rights Act provides that it is
unlawful for an employer to discharge an individual or discriminate against an
individual in any other matter based on race, color, disability, religion, sex,
national origin, or age. Tex. Lab. Code § 21.051.
Title VII provides that “[i]t shall be an unlawful employment practice
for an employer . . . to fail or refuse to hire or to discharge any individual, or
otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or nation origin; or to limit, segregate, or classify his
employees . . . in any way which would deprive or tend to deprive any individual
of employment opportunities or otherwise adversely affect his status as an
employee, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2.

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The analysis for claims under either the TCHRA or Title VII is
essentially identical. Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403
n.2 (5th cir. 1999). “An employer’s decision to terminate an individual’s
employment violates Title VII when that decision was based on race, whether that
race be white or black.” Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425
(5th Cir. 2000). When a race discrimination case is presented, but lacks direct
evidence of discrimination based on race, the Court applies the analysis articulated
in McDonnell Douglass Corp. v. Green, 411 U.S. 792, 802-04 (1973). Byers, 209
F.3d at 425.
Under the McDonnell analysis, a plaintiff must first establish a prima
facie case of discrimination based on race. McDonnell, 411 U.S. at 802. To
establish a prima facie case of reverse discrimination, a plaintiff must show
“(1) that he is a member of a protected group; (2) that he was qualified for the
position held; (3) that he was discharged from the position; and (4) that he was
replaced by someone outside of the protected group.” Byers, 209 F.3d at 426.
Courts tailor the fourth element to the specific facts of the case; here, Plaintiff must
show he was treated less favorably than others who were similarly situated.
McDonnell, 411 U.S. at 802 n.13 (“The facts necessarily will vary in Title VII
cases, and the specification above of the prima facie proof required from [a

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plaintiff] is not necessarily applicable in every respect to differing factual
situations.”).
If a plaintiff establishes a prima facie case, then the burden shifts to
the defendant employer to proffer a “legitimate, non-discriminatory reason for the
employee’s rejection.” Byers, 209 F.3d at 425. If the defendant meets its burden,
the plaintiff must then prove “by a preponderance of the evidence, that the
proffered reason was mere pretext for discrimination.” Id.
During oral argument, Plaintiff conceded that it had not put forth
sufficient evidence to show that Plaintiff was discriminated against because of his
race. The Court agrees that Plaintiff has failed to show a genuine issue of material
fact regarding the race discrimination claim. Therefore, the Court GRANTS
Defendant’s motion for summary judgment on the claim of discrimination based
on race.
II.

Retaliation Claim
Plaintiff alleges that Defendant retaliated against him in violation of

Title VII and the Texas Labor Code4 because Plaintiff filed the Third Charge with

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As discussed above, the law governing claims under Title VII and the TCHRA is
essentially identical. Shackelford, 190 F.3d at 404. The Court will refer to Title
VII in this opinion.

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the EEOC on July 19, 2011 and because Plaintiff filed an internal sexual
harassment complaint. (Dkt. # 33 ¶ 23.) Title VII5 provides
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has opposed
any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing
under this subchapter.
42 U.S.C. § 2000e-3(a).
The Court applies the McDonnell burden shifting analysis to claims
for retaliation. Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 575
(5th Cir. 2004). Under this framework, the Plaintiff must first establish a prima
facie case of retaliation by establishing “(1) that the employee engaged in a
protected activity; (2) that an adverse employment action followed the protected
activity; and (3) that there was a causal connection between that adverse action and
the protected activity.” Galvan v. Caviness Packing Co., Inc., 546 F.Supp. 2d 371,
379 (N.D. Tex. 2008). If Plaintiff establishes a prima facie case, the burden then
shifts to Defendant “to rebut the presumption of retaliation by articulating a
legitimate, non-retaliatory reason for its decision to terminate the plaintiff.”
Martinez v. Bohls Bearing Equip. Co., 361 F.Supp. 2d 608, 617 (W.D. Tex. 2005).

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The Texas Labor Code provides that “[a]n employer . . . commits an unlawful
employment practice if the employer . . . retaliates or discriminates against a
person who, under this chapter: (1) opposes a discriminatory practice; (2) makes or
files a charge; (3) files a complaint; or (4) testifies, assists or participates in any
manner in an investigation, proceeding, or hearing.” Tex. Lab. Code § 21.055.

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Finally, if Defendant meets its burden, “Plaintiff must then produce evidence that
the proffered reason for discharge is merely a pretext, and that the real reason for
[Plaintiff’s] termination is an illegal retaliatory animus.” Id. (citing Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 255 n. 10 (1981). Plaintiff is then
held to a high standard; “a plaintiff making a retaliation claim under § 2000e-3(a)
must establish that his or her protected activity was a but-for cause of the alleged
adverse action by the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct.
2517, 2534 (2013).
The Fifth Circuit has “consistently held that in retaliation cases where
the defendant has proffered a nondiscriminatory purpose for the adverse
employment action the plaintiff has the burden of proving that ‘but for’ the
discriminatory purpose he would not have been terminated.” Septimus v. Univ. of
Hous., 399 F.3d 601, 608 (5th Cir. 2005); see Hernandez v. Yellow Transp., Inc.,
670 F.3d 644 (5th Cir. 2012). Therefore, to show a defendant’s reasons were
pretext for unlawful retaliation, a plaintiff must show that but for the protected
activity, the adverse employment action would not have occurred. Gollas v. Univ.
of Tex. Health Science Ctr. at Hous., 425 F. App’x. 318, 321–22, 324 (5th Cir.
2011) (noting that “but for” causation requires a showing that the protected activity
was the “sole motivating factor for the adverse employment action”).

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To survive summary judgment, a plaintiff must show a “conflict in
substantial evidence on the ultimate issue of retaliation.” Gollas, 425 F. App’x. at
322 (citing Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998)).
Evidence is substantial if “it is of such quality and weight that reasonable and fair
minded persons in the exercise of impartial judgment might reach different
conclusions.” Id. In this case, to create a genuine issue of fact that Defendant’s
reasons are pretext for retaliation, the question is whether Plaintiff has put forth
sufficient evidence to raise a genuine issue of material fact as to whether he would
not have been terminated but for his filing of charges with the EEOC. See Strong
v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 806 (5th Cir. 2007).
A.

The Prima Facie Case
Here, Plaintiff’s filing of the Third Complaint with the EEOC and the

internal sexual harassment complaint with Defendant were protected activities.
Additionally, his termination on August 19, 2011 constituted an adverse
employment action. Therefore, Plaintiff has satisfied the first two requirements of
a prima facie case.
To satisfy the third requirement of a prima facie case, Plaintiff must
demonstrate a causal connection between the adverse employment action and the
protected activity. To establish a causal connection, a plaintiff does not need to
prove but-for causation. Long v. Eastfield College, 88 F.3d 300, n.4 (5th Cir.

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1996). “[T]he causal-link element is much less stringent than showing “but for”
causation.” Gollas, 425 F. App’x at 324.
Here, Plaintiff filed the Third Charge with the EEOC on July 19,
2011, and he was terminated on August 17, 2011. (FAC ¶¶ 20, 21.) Plaintiff
argues that the close temporal proximity between his protected activities and his
termination supports his claim for retaliation. (Dkt. # 41 at 27.)
When confronted with the question of whether a plaintiff has
established a causal connection, courts examine a number of factors including the
employee’s past disciplinary record, whether the employer followed its typical
policies and procedures in terminating the employee, and the temporal distance
between the employee’s conduct and the discharge. Nowlin v. Resolution Trust
Corp., 33 F.3d 498, 508 (5th Cir. 1994). The Fifth Circuit has held that “[t]he
timing of the adverse employment action can be a significant, although not
necessarily determinative, factor.” Mayberry v. Vought Aircraft Co., 55 F.3d
1086, 1092 (5th Cir. 1995).
The requirement of a prima facie case was not meant to be an onerous
one. Plaintiff here has shown that he engaged in protected activities under Title
VII, he suffered an adverse employment action, and that these two things were
quite close in time. In evaluating these facts with a generous view towards

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Plaintiff’s allegations, the Court finds that Plaintiff has established his prima facie
case for retaliation.
B.

Legitimate, Non-Discriminatory Reasons
Because Plaintiff has established his prima facie case, the burden

shifts to Defendant to demonstrate “a legitimate, non-discriminatory reason that
explains both the adverse action and the timing.” Swanson v. Gen. Servs. Admin.,
110 F.3d 1180, 1188 (5th Cir. 1997).
Defendant here has stated that Plaintiff was terminated not because he
complained to the EEOC, but rather because he violated Defendant’s Attendance
Policy. In support of this proffer, Defendant included a copy of the company’s
Attendance Policy, a declaration from a Human Resources Specialist detailing
Plaintiff’s infractions, documentation of Plaintiff’s absences, Defendant’s
Disciplinary Policy, documentation of the disciplinary actions taken against
Plaintiff, and excerpts from Plaintiff’s deposition.
Plaintiff does not appear to dispute that Defendant has an Attendance
Policy or that the copy attached as an exhibit to Defendant’s Motion for Summary
Judgment is accurate. (Dkt. # 41 at 12, 17.) Defendant’s attendance policy defines
attendance issues as
ABSENCE – any unplanned time away from work of two (2) hours or
more after 40 hours of unplanned/excused PTO has been consumed.
For each ABSENCE generated, the employee will be subject to the
next level of progressive discipline.

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LATE IN/EARLY OUT – any unplanned time away from work which
is less than two (2) hours in duration for hourly and non-exempt
salaried employees*, up through nine (9) occasions per calendar year.
The tenth (10th) occasion would generate the next level of progressive
discipline. After every three additional instances of late in/early out,
the next level of progressive discipline may be issued. (*Does not
apply to salaried exempt employees).
(Dkt. # 36-1 Ex. A.)
Defendant also provided a copy of its Disciplinary Action Policy.6
(Dkt. # 36-1 Ex. C.) The Disciplinary Policy details a three-step process: first, an
employee will receive a verbal warning; second, the employee will receive a
formal first written warning; third, the employee will receive a second written
warning. (Dkt. # 36-1 Ex. C.) Once the disciplinary process has progressed
through all three steps, the employee may be terminated “at any time for any
additional violations or infractions.” (Id.) Disciplinary actions “will remain active
at the level written for twelve (12) months from the date they were issued.” (Id.)
The policy states that disciplinary actions for attendance “will build on the most
recent, active, progressive step of the process.” (Id.)
In support of its motion, Defendant also included a screen-shot listing
the attendance events incurred by Plaintiff. (Dkt. 31-1 Ex. B.) This listing
indicates that Plaintiff incurred attendance events in 2011 on January 24, February

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Plaintiff does not dispute the accuracy of this document. (See Dkt. # 41.)
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11, February 28, March 13, March 26, March 30, April 19, May 25, July 20, and
August 9. (Id.)
Defendant’s evidence of Plaintiff’s Attendance Policy violations and
Defendant’s application of its Disciplinary Policy creates a legitimate,
non-retaliatory reason for Plaintiff’s termination.
C.

Pretext and Causation
The burden then shifts back to Plaintiff to demonstrate that

Defendant’s reason was mere pretext and that Plaintiff’s protected activities, his
filing of the Third Charge and the sexual harassment complaint, were the but-for
cause of his termination.
Plaintiff contends that he should not have incurred attendance
violations because (1) he was forced to use his PTO to avoid going home without
pay on four occasions when Defendant claimed there was not enough work, (2) he
received approval for one of his absences, and (3) Defendant’s record-keeping
system was faulty.7 (See Dkt. # 41.) Plaintiff argues that because the attendance
violations used as a basis for his termination were not legitimate, Defendant’s
reason for terminating him was mere pretext.

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Plaintiff also argues that his listed Attendance Policy violations should not have
counted against him because “employees [were] not made aware of the meaning of
an ‘event’ and therefore, did not know that he had accumulated such events.”
(Dkt. # 41 at 12.) However, Plaintiff admits in his affidavit that he had been aware
of Defendant’s Attendance Policy, and therefore had knowledge of what
constituted an event. (Dkt. # 41 Ex. A.)

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1.

Forced Use of PTO

Plaintiff first argues that he only lacked sufficient PTO to cover some
of his absences because took PTO rather than going home without pay four times
in April and May 2010 when Defendant stated there was not enough work.
(Dkt. # 41 at 11.) In Plaintiff’s deposition, he admitted that he was given a choice
either to use PTO to cover that time or to go home without pay. (Dkt. # 42-1
Ex. A.) Although Plaintiff may not have been happy with the options he was
provided, he nonetheless made the choice to use his PTO time to cover these work
days. Plaintiff cannot now complain that he was entitled to extra PTO, negating
his attendance events.
2.

Prior Approval for Time Off

Plaintiff next argues that he had received approval from his supervisor
to leave early in August 2011, and therefore, that absence should not have counted
as an attendance event. (Dkt. # 41 Ex. A.) In his affidavit, Plaintiff specifically
names John Taylor as the supervisor who approved Plaintiff’s request to leave
early in August 2011. (Id.) Plaintiff has raised a genuine issue of material fact as
to whether he accumulated a sufficient number of violations of Defendant’s
attendance policy to warrant termination.

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3.

Faulty Records

Plaintiff additionally claims that he did not actually incur the ten listed
Attendance Policy violations.8 Plaintiff argues that Defendant’s record-keeping
system is faulty, and therefore, his Attendance Policy violations could not provide
legitimate grounds for terminating him. In his affidavit, Plaintiff stated:
I know of several occasions where the time system did not show me
as scanned in and I had to notify my supervisor (William Garcia) and
he had to make correction to the time system. So, Continental’s time
system is flawed and can not [sic] be trusted to show a true
verification as to my attendance or tardies.
(Dkt. # 41 Ex A.)
Defendant’s evidence of Plaintiff’s Attendance Policy violations and
the disciplinary action taken pursuant to Defendant’s Disciplinary Policy creates a
legitimate, non-retaliatory reason for terminating Plaintiff. However, if
Defendant’s time-keeping system is flawed, it undermines the legitimacy of
Defendant’s arguments, and raises a genuine issue of material fact as to whether
Defendant’s stated reason for termination is mere pretext.

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Plaintiff alleges that he should not have been eligible for termination under
Defendant’s Disciplinary Policy because his first two disciplinary actions, issued
on July 12, 2010 and August 10, 2010, respectively, should not have counted
against him because the original action was more than a year old. (Id.) However,
Plaintiff’s argument is foreclosed by Defendant’s Attendance Policy that states that
disciplinary actions for attendance “will build on the most recent, active,
progressive step of the process.” (Dkt. # 36-1 Ex. C.) Therefore, because
Plaintiff’s most recent disciplinary action was within a year, Plaintiff was eligible
for termination.

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Plaintiff has created a genuine issue of material fact as to whether he
did in fact incur ten Attendance Policy violations within a one-year period, and
thus, whether Defendant’s reason for terminating him was pretextual. Therefore,
Defendant’s motion for summary judgment on Plaintiff’s claim for retaliation is
DENIED WITHOUT PREJUDICE.
III.

Plaintiff’s Other Claims
Plaintiff spends a significant portion of his Response discussing

allegations of discrimination based on a disability. However, this Court has
already dismissed those claims, and they are no longer part of this suit.
(Dkt. # 29.)
CONCLUSION
For the reasons stated above, the Court hereby GRANTS IN PART
AND DENIES IN PART Defendant’s Motion for Summary Judgment Plaintiff
(Dkt. # 36). Additionally, the Court STRIKES Plaintiff’s sur-reply (Dkt. # 43)
from the record because it was filed without seeking leave of the Court.
IT IS SO ORDERED.
DATED: San Antonio, Texas, February 21, 2014.

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