United States District Court, S.D. Texas, Houston Division
MEMORANDUM & ORDER
S. HANEN UNITED STATES DISTRICT JUDGE.
before this Court is Defendant General Plastics and
Composites, L.P.'s ("General Plastics") Motion
for Summary Judgment, filed on May 20, 2019. (Doc. No. 35).
Plaintiff North ("North" or "Plaintiff')
moved for several extensions to respond to General
Plastic's motion, which the Court granted. Pursuant to
the last extension, North was given until July 5, 2019 to
file his response but failed to do so. Therefore, General
Plastic's motion for summary judgment is now ripe. For
the reasons described below, the Court is of the opinion that
the motion should be granted.
pending before the Court is General Plastics' Motion for
Immediate Relief from Pretrial Filing Deadlines Pending
Resolution of Summary Judgment Motion. (Doc. No. 50). That
motion will be denied as moot.
originally filed two lawsuits against General Plastics, the
first of which was filed on August 24, 2017 alleging that
General Plastics did not pay him overtime under the FLSA, and
the second of which was filed on December 1, 2017 asserting
claims of discrimination and retaliation under Title VII of
the Civil Rights Act of 1964. This Court ordered that the two
lawsuits be consolidated on January 23, 2019. (Doc. No. 31).
The Parties conducted discovery under an extended scheduling
Plastic's Motion for Summary Judgment was filed on May
20, 2019. (Doc. No. 35). This Court's Local Rules state:
Opposed motions will be submitted to the judge 21 days from
filing without notice from the clerk and without appearance
by counsel .... Failure to respond to a motion will be taken
as a representation of no opposition.
S. Dist. Tex. L.R. 7.3, 7.4 (emphasis added); see
also Hanen L.R. 7(D). Accordingly, North's response
in opposition was due no later than June 10, 2019.
that date, several motions to extend this deadline have been
filed and granted. On June 10, 2019, North filed his
Unopposed Motion for Extension of Time to respond to the
motion (Doc. No. 39), which the Court granted on June 12,
2019 (Doc. No. 40), thereby extending the filing deadline to
June 12, 2019-the first new deadline requested by Plaintiffs
that day, on June 12, 2019, North filed a Second Motion for
Extension of Time (Doc. No. 41), requesting that the Court
further extend the deadline for filing his response in
opposition to June 20, 2019. The Court granted this motion on
June 18, 2019, in which it extended the deadline to June 24,
2019. (Doc. No. 42).
that second extended deadline passed, Plaintiffs counsel
filed a Motion for Leave to File Amending Pleading on June
29, 2019. (Doc. No. 47). Plaintiffs counsel did not attach
any summary judgment response in conjunction with this
motion. Opposing counsel agreed for Plaintiffs counsel to
file the response on June 29, 2019. Nevertheless, the Court
granted a longer extension than requested, with a new (third
extended) deadline set for July 5, 2019. (Doc. No. 49). That
deadline has passed with no response or additional requests
for extensions filed by Plaintiff or his counsel.
The Facts Established by the Summary Judgment
Plastics makes engineered components and turnkey products for
oilfield services companies, such as composites, elastomers,
and metal. (Doc. No. 35, Ex. A ("Williams Decl.")
¶ 4). The company hired North on March 1, 2013 as the
Quality Control Inspector. (Id. ¶ 4). His title
was changed in May 2015 to Quality Auditor. (Id.
¶ 5). In these positions, North's job
responsibilities included "inspecting parts and
processes to ensure quality and conformance with applicable
standards." (Id. ¶ 5). In August 2015,
North was promoted to Filament Wind Supervisor, a position in
which he supervised the production process involved in
winding filaments to make composite materials. (Id.
position that North held with General Plastics, he was paid
on an hourly basis as a non-exempt employee. (Id.
¶ 8). General Plastics' former HR director avers
that the company never paid a salary to any employee who had
held any of the three positions held by North. (Id.
¶ 8). In addition to this hourly rate, North was paid
time and one-half for all overtime hours worked over forty
hours per week. (Id. ¶ 9). In each position
North held, he answered to a Production Supervisor, who was
tasked with overseeing the seven departments in General
Plastics (of which North supervised one department).
(Id. ¶ 7). The only person at General Plastics
with authority to fire employees is the company's CEO,
David Walstad ("Walstad"). (Id. ¶ 2).
Plastics had in place company policies and procedures during
the entirety of North's employment. (See Id.
¶¶ 10-11). Many of those policies and procedures
were contained in the Employee Information Handbook.
(Id. ¶ 11; Doc. No. 35, Ex. A-7 ("Employee
Info. Handbook")). All employees are expected to comply
with these policies and procedures. The handbook states the
terms of General Plastic's at-will employment agreement:
"[T]he right of the employee or of the Company to
terminate the employment relationship 'At
Will' is recognized and affirmed as a term of
employment. 'At will' means that any
employee's employment can be terminated at any time with
or without notice." (Employee Info. Handbook at 12). The
Handbook further notes that while there are generally two
steps to the disciplinary process, "[c]ause for
immediate termination may include . . . violation of the
drug-free workplace policy, the conflicts of interest policy
or the harassment policy." (Id. at 31).
amongst those policies were rules regarding compliance with
the company's electronic time-keeping system, equal
employment opportunity policies, and anti-harassment
policies. (See Williams Decl. ¶¶ 10-11).
North signed agreements that he understood and would follow
company policies. (Doc. No. 35, Ex. A-8; Ex. A-9). General
Plastics' anti-harassment policies delineate sexually
harassing actions and explain that such conduct is
prohibited. General Plastics' sexual harassment policy
reads, in relevant part:
Prohibited conduct includes . . . Unwelcome acts of a sexual
nature, committed by either supervisor or non-supervisory
personnel, that interferes with an employee's performance
and/or creates an intimidating, hostile or offensive work
environment. Such acts include, but are not limited to:
- Unwelcome sexual flirtations, advances and/or propositions;
- Verbal or written comments, jokes, teasing and/or other
communications of a sexual nature;
- Graphic comments about an individual's body;
- The use of sexually degrading words to describe an
- The display of sexually suggestive objects and/or pictures;
- Foul or obscene language and/or gestures; - Unwelcome
(Employee Info. Handbook at 37; Williams Decl. ¶ 11).
The policies encourage employees to report perceived
discrimination or harassment to an immediate supervisor, and
if the issue remains unresolved, then to a company officer.
(Employee Info. Handbook at 38; Williams Decl. ¶ 11).
Plastics' time-keeping policies and procedures required
all hourly employees to work at the physical premises and
always complete their work while clocked-in. (Williams Decl.
¶ 12). General Plastics provides overtime pay of time
and one-half for all hourly employees who work more than
forty hours per week. (Id. ¶ 12). General
Plastics, according to Williams' sworn declaration, has
never instructed supervisors, managers, or employees to work
off-the-clock or permitted managers or supervisors to trim or
otherwise adjust employee work time in a manner inconsistent
with the time actually worked. (Id. ¶ 12). The
handbook explains that employees are to use swipe cards for
recording time, and that this method was implemented to
fulfill the requirements of federal law. (Employee Info.
Handbook at 38). The handbook states:
Swipe Cards are the sole means of recording the time each
employee has spent working. Employees are required to swipe
their card to fulfill the requirements of federal law, which