MEMORANDUM OPINION AND ORDER

Sam A. Lindsay, United States District Judge.

Before the court is Defendant's Motion for Summary Judgment (Doc. 72), filed November 18, 2016. After careful consideration of the motion, response, reply, appendixes, record, and applicable law, the court grants Defendant's Motion for Summary Judgment (Doc. 72).

I. Factual and Procedural Background

This case arises out of the employment of Plaintiff Christina Holmes ("Plaintiff" or "Holmes") by Defendant North Texas Health Care Laundry Cooperative Association, d/b/a North Texas Health Care Laundry ("NTHCL" or "Defendant"). Holmes alleges that shortly after she began working at NTHCL she was subjected to unwelcome sexual advances by David Hernandez ("Hernandez"), NTHCL's general manager, culminating in numerous sexual encounters over the course of several months. Holmes commenced this action on June 23, 2015, asserting federal claims against NTHCL for sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), as well as state law claims of negligence, intentional infliction of emotional distress, battery, assault, gross negligence, and negligent investigation. She seeks compensatory and exemplary damages, as well as prejudgment and postjudgment interest, attorney's fees, and costs. NTHCL has filed a motion for summary judgment, contending that no genuine disputes of material fact exist with respect to Holmes's asserted claims, and that it is, therefore, entitled to entry of judgment as a matter of law. NTHCL also seeks summary judgment on its Ellerth/Faragher1 affirmative defense with respect to Holmes's Title VII claims. The court now sets forth the facts upon which it relies to resolve the summary judgment motion. In setting forth the facts, the court applies the summary judgment standard as set forth in the following section. The facts are undisputed, unless otherwise noted.

NTHCL is a specialty laundry service based in Grand Prairie, Texas, and provides clean linens to numerous hospitals and clinics in Texas. Foussard Montague Associates, Inc. ("FMA"), NTHCL's management company, provides it with a general manager to work out of its Grand Prairie facility. At all relevant times, Hernandez held the general manager position at NTHCL and was responsible for the day-to-day operations of the facility.

On July 15, 2013, NTHCL hired Holmes to work as a customer service representative. On her first day, Holmes met with Mary Khan ("Khan"), NTHCL's human resources manager, to review and complete her employee paperwork and review safety videos. As part of her orientation that day, Holmes received a copy of NTHCL's Employee Handbook "outlin[ing] the policies and work rules of the company and [her] responsibilities as an employee." Def.'s Summ. J. App. 46. Together, Holmes and Khan reviewed portions of the Employee Handbook. Holmes also signed an acknowledgment page confirming that she received the Employee Notebook and would read it. Id. at 46.2 The Employee Handbook contains a "Policy Against Harassment," which provides:

Id. at 44-45.

Initially, Holmes was supervised by Jake McCuiston ("McCuiston"), NTHCL's Customer Service Manager. In or around September 2013, McCuiston found another job and tendered his resignation. FMA made the decision to transfer another NTHCL employee, Will Chavez ("Chavez"), into the Customer Service Manager position, and he became Holmes's direct supervisor.

In or around October 2013, Holmes and Hernandez began exchanging text and e-mail messages of an informal nature using their work e-mail accounts. Beginning in March 2014, e-mail and text messages became more frequent and more personal. On March 12, 2014, for example, Holmes sent Hernandez a text message containing a link to "Gorilla," a sexually graphic song by Bruno Mars. Id. at 544.3 Holmes also referenced romantic songs in her communications with Hernandez, such as "All of Me" by John Legend,4 stating her belief that "every verse of that song applies to us." Id. at 116.

At around this time, Holmes and Hernandez began to use private g-mail accounts to communicate with each other, rather than their work e-mails. Holmes created her own g-mail account under the name "missevasive1@gmail.com," which she only used for purposes of communicating with Hernandez. Id. at 5. On March 13, 2014, Holmes sent a g-mail message to Hernandez at his g-mail address, "dalyd72@gmail.com," stating "I am incredibly attracted to you. I don't know what it is. I feel safe when I am around you but you also make me feel sexy. I haven't felt that way, ever." Id. at 56.

After this e-mail, Holmes and Hernandez exchanged hundreds of e-mails, many of which were sexually graphic and lascivious in nature, many initiated by Holmes, others initiated by Hernandez, and many in which Holmes stated that she missed Hernandez, wanted to be with him, and loved him. See id. at 70, 81-381. Among the hundreds of e-mails are the following excerpts authored by Holmes and sent to Hernandez:

Id. at 84.

Id. at 130.

Id. at 159.

Id. at 192.

Id. at 199.

Id. at 233. These e-mails are just examples of the voluminous e-mails exchanged by Holmes and Hernandez between March 2014 and the beginning of May 2014, that are sexually graphic.

Holmes also sent e-mail messages to Hernandez stating that she did not want their relationship to end. For example, she e-mailed him and said: "I am so thankful I have found you and you have found me to bring my emotions alive. I love this feeling. I don't ever want it to stop[]"; and "I will have this memory locked away for the rest of my life. It is such a sexy and intimate memory. I want more. I thought I was addicted before, now I don't even know how to describe it[.]" Id. at 84, 119, 135, 166. Holmes also sent Hernandez photos of herself. Id. at 259, 261.

In addition to these e-mails, Holmes informed Hernandez in many other e-mails that she missed him, wanted to be with him, and loved him. Id. at 86, 101, 111, 145, 156, 159, 162, 179, 180, 185, 200-03, 212-13, 215, 221, 227, 241, 244, 273, 276-77. Some examples are the following e-mails sent by Holmes to Hernandez:

Id. at 107.

Id. at 116.

Id. at 154.

Id. at 167-68 (original emphasis).

Id. at 252.

Id. at 277.

Id. at 296.

Id. at 313. Holmes also stated in an e-mail that it scared her to think of what they had ending. Id. at 98.5

Hernandez similarly sent voluminous e-mails to Holmes during the same time period, many containing playful banter and stating he was attracted to her, and many that were sexually graphic or described sexual fantasies and sexual acts he wanted to perform with her or had performed with her. See generally id. at 81-381. For example, after receiving the link Hernandez sent him to Bruno Mars's sexually graphic song titled "Gorilla," see supra note 3, Hernandez e-mailed Holmes stating: "I just listened to the Gorilla song. I still find that song very sexy ... like you." Id. at 92. As part of the same e-mail chain, he later stated: "I can't wait to see what fate has in store for us. Do you like it when I kiss you?" Id. at 94. On March 16, 2014, Hernandez sent Holmes a series of e-mails answering certain questions she had posed to him in a prior e-mail:

Id. at 127. The next day, Hernandez sent Holmes an explicit e-mail saying: "I love cumming when you are on top. The reason: because I get to see you and feel you [sic] expressions ... mmmh. [P]ut it on the list." Id. at 130. Hernandez also sent many e-mails describing his sexual fantasies about Holmes, including the following:

Id. at 131. The record contains e-mails from Hernandez to Holmes of this nature through May 1, 2014, see id. at 257, 259-64, including an e-mail asking Holmes to tell him "her wildest fantasies" so he could "make them come true." Id. at 266. In that same e-mail, in addition to detailing sexual activities graphically, he stated: "This might not be very romantic but you have to understand that there is a piece of our chemistry that has absolutely nothing to do with Romance or pretty. There is a part of our relationship that is just wild[,] free[,] animalistic[,] sexual desire in its purest form." Id.

In addition to the voluminous e-mail exchanges between Holmes and Hernandez described above, Holmes and Hernandez's relationship became physical beginning on March 14, 2014, when they had their first sexual encounter. Id. at 448. In March 2014 and April 2014, Holmes and Hernandez met and engaged in sexual relations on numerous occasions in various locations, including parking lots, hotels, and at NTHCL's facility in the early morning hours before other employees arrived. Id. at 448-50.6

During this time, Holmes was living with her fiancé Gary Dutchover ("Dutchover"). The two were planning to be married in October 2014. Dutchover found out about the affair between Holmes and Hernandez in the beginning of May 2014. On May 3, 2014, he confronted Holmes and she admitted to her affair with Hernandez. Dutchover called off the wedding and took back the engagement ring. On May 3, 2014, Dutchover called Hernandez's wife to tell her about her husband's relationship with Holmes and also called one of FMA's principals, Tim Montague ("Montague"), to inform him about the affair. After speaking with Dutchover, Montague conversed briefly with Holmes on the telephone to set up a meeting in Grand Prairie on May 5, 2014, to discuss the matter. On May 5, Montague, Khan, Dutchover, Holmes, and Holmes's mother held a meeting at a restaurant near Holmes's residence. Montague advised Holmes at the meeting that she would be permitted two weeks paid leave while NTHCL investigated the allegations. After being notified of the affair between Hernandez and Holmes, FMA hired a third-party investigator and instructed Hernandez to stay away from the NTHCL facility pending the investigation. Although FMA's investigation found no evidence of sexual harassment by Hernandez, citing a "breach of trust" and a loss of confidence in Hernandez, FMA demanded that Hernandez resign or he would be terminated. Id. at 402. Hernandez submitted his resignation effective May 9, 2014. Although the term "resignation" is used, Hernandez was effectively discharged or fired because he was "forced" to resign. Had he not resigned, he would have been discharged.

By letter dated May 15, 2014, NTHCL informed Holmes that Hernandez was no longer employed or associated with NTHCL, and that: "Your position as Customer Service Representative is still available to you. As such, we look forward to you returning to work on Monday, May 19, 2014." Id. at 42. Holmes did not return to work after the two weeks of paid leave, did not communicate with NTHCL about its May 15, 2014 letter inviting her to return to her position, and never returned to work.7 On September 25, 2015, more than a year later and after retaining Holmes on its group health insurance plan, NTHCL formally separated Holmes's employment.

Holmes never reported Hernandez's alleged sexual harassment to anyone at work or outside work and came forward only after Dutchover found out about the affair and reported it to Montague on May 3, 2014. Holmes filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), complaining of sexual harassment. Holmes received her right-to-sue letter on April 20, 2015, and filed this lawsuit on June 23, 2015.

On November 18, 2016, NTHCL filed its motion for summary judgment. The court now considers this motion.

II. Legal Standard

Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court "may not make credibility determinations or weigh the evidence" in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Anderson, 477 U.S. at 254-55, 106 S.Ct. 2505.

Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, "if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). "[When] the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine [dispute] for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. (citation omitted). Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).

The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Disputed fact issues that are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.

III. Analysis

A. Holmes's Failure to Cite to the Record

As an initial matter, in considering Holmes's response, the court notes that she repeatedly fails to cite to the record and to identify the specific page in her voluminous appendix to which she is referring. See Pl.'s Resp. Br. 17, 18, 19 (referring to "Pl. App. ___."). Further, in several instances, she cites to her Affidavit without citing a particular page or paragraph. See id. at 9, 12, 13, 16, 18. As stated directly above, conclusory or unsubstantiated assertions such as those without evidence in support are not competent summary judgment evidence and are insufficient to create a genuine dispute of material fact. See Eason, 73 F.3d at 1325; Forsyth, 19 F.3d at 1533. Further, the court is under no obligation to comb or scour the record to find support for Holmes's response or evidence that creates a genuine dispute as to a material fact. See Weems v. Dallas Indep. Sch. Dist., 260 F.Supp.3d 719, 731 n.5 (N.D. Tex. 2017) (Lindsay, J.) (citing Ragas, 136 F.3d at 458); Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). As the nonmovant, it is Holmes's duty to identify evidence in the record that establishes the existence of a genuine dispute of material fact. Celotex Corporation, 477 U.S. at 324, 106 S.Ct. 2548. When the nonmovant fails to cite or refer to evidence that exists in the summary judgment record, "that evidence is not properly before the district court." Malacara, 353 F.3d at 405. Holmes's repeated failure to identify competent summary judgment evidence in the record to support her arguments in opposition to NTHCL's Motion for Summary Judgment has made the court's job more onerous. In many instances, although the court has conducted a close review of Holmes's appendix, the court has been unable to find any evidence to support her conclusory assertions. In these instances, and where Holmes has failed to meet her duty to identify evidence in the record to support her assertions, as set out more fully below, the court concludes she has failed to raise a genuine dispute of material fact on that particular issue.

B. Holmes's Abandoned Claims

NTHCL moves for summary judgment as to Holmes's Title VII sexual harassment and retaliation claim as well as her state law claims for negligence, intentional infliction of emotional distress, battery, assault, gross negligence and negligent investigation (the "state law claims"). In her response, however, Holmes only responds to NTHCL's arguments with respect to her sexual harassment claim. She fails to address her remaining claims for retaliation under Title VII or her state law claims, much less respond to any of NTHCL's arguments in support of its motion for summary judgment on these claims. The court concludes that Holmes has abandoned or waived her claims against NTHCL for retaliation under Title VII and her state law claims.

When a party fails to pursue a claim or defense beyond the party's initial pleading, the claim is deemed abandoned or waived. Black v. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (plaintiff abandoned claim when she failed to defend claim in response to motion to dismiss); Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002) (noting that "an issue raised in the complaint but ignored at summary judgment may be deemed waived[]") (citation omitted). As Holmes failed to pursue her claims against NTHCL for retaliation under Title VII or her state law claims, they are no longer before the court, as she has abandoned or waived them. Accordingly, based on Holmes's abandonment or waiver of her Title VII retaliation claim and her state law claims, the court will grant summary judgment in NTHCL's favor on these claims.8

C. Holmes's Title VII Sexual Harassment Claim

Title VII of the Civil Right Act of 1964 provides, in relevant part, that "[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). As the United States Supreme Court has recognized, "[t]he phrase `terms, conditions, or privileges of employment' evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (internal quotations and citation omitted). An employer violates Title VII when the employer allows the workplace to be "permeated with discriminatory intimidation, ridicule, and insult ... that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment[.]" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotations and citations omitted). The Court in Harris further noted that "[t]his standard ... takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury." Id.

Holmes may prove her sexual harassment claim either by establishing that a tangible employment action was taken against her because of her sex (also known as quid pro quo harassment) or by establishing that a supervisor with immediate or successively higher authority discriminated against her because of her sex and created a hostile or abusive environment. See Faragher v. City of Boca Raton, 524 U.S. 775, 786-87, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 409 (5th Cir. 2002); Casiano v. AT&T Corp., 213 F.3d 278, 283-84 (5th Cir. 2000); Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 268-69 (5th Cir. 1998). The court must first determine whether the quid pro quo or hostile work environment standard applies. Casiano, 213 F.3d at 283. The determination turns on whether Holmes has suffered a "tangible employment action," id., which is defined as a "significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761, 118 S.Ct. 2257. If an employee can show that a tangible employment action resulted from the employee's response to the sexual harassment, the employer is vicariously liable for the actions of the supervisor under Title VII. Casiano, 213 F.3d at 284. If the employee did not suffer a tangible employment action, the suit is a hostile work environment action. In this case, on the basis of the Complaint as well as the summary judgment evidence, viewed in the light most favorable to Holmes as the nonmovant, the court perceives nothing in her evidence or inferences from it supporting a sexual harassment claim based on a tangible employment action. Holmes has not alleged a tangible employment action or provided even a scintilla of competent summary judgment evidence that she suffered a tangible employment action.9 Further, as NTHCL correctly notes in its reply brief, "Ms. Holmes' Brief ... does not in any way suggest that Ms. Holmes recognizes any claim under Title VII other than one for hostile workplace environment sexual harassment." See Def.'s Reply Br. 4 n.13 (Doc. 79). Having determined the absence of a tangible employment action, "which absence pretermits the quid pro quo analysis (Casiano, 213 F.3d at 285), the court will analyze the case as a claim for hostile work environment.

To establish a sexual harassment claim based on hostile work environment, the employee must show: (1) that she belongs to a protected class; (2) that she was subject to unwelcome sexual harassment; (3) that the harassment was based on sex; (4) that the harassment affected a "term, condition, or privilege" of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt remedial action. Harvill v. Westward Commn'cs, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005); Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999); Pfeil v. Intercom Telecomm., 90 F.Supp.2d 742, 748 (N.D. Tex. 2000). In Faragher and Ellerth, the Supreme Court modified this test with respect to cases where the alleged harasser is a supervisor with immediate or higher authority over the harassed employee. Watts, 170 F.3d at 509. In such cases, the employee need only meet the first four elements of the test. If a plaintiff can prove the first four elements, an "employer is subject to vicarious liability to a victimized employee." Id. (quoting Faragher, 524 U.S. at 807, 118 S.Ct. 2275).

NTHCL argues that it is entitled to summary judgment because Holmes fails to raise a genuine dispute of material fact that the alleged harassment was unwelcome (the second prong of her prima facie case), and that it affected a "term, condition, or privilege" of her employment (the fourth prong of her prima facie case). The court first addresses NTHCL's argument that Holmes fails to raise a genuine dispute of material fact that the alleged harassment was unwelcome.

1. Unwelcome sexual harassment

"Unwelcome sexual harassment" includes "sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome in the sense that it is unsolicited or unincited and is undesirable or offensive to the employee." Marquez v. Voicestream Wireless Corp., 115 Fed.Appx. 699, 701 (5th Cir. 2004) (quoting Wyerick v. Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir. 1989)). "The gravamen of any sexual harassment claim is that the alleged sexual advances were `unwelcome.'" Meritor, 477 U.S. at 68, 106 S.Ct. 2399 (quoting 29 C.F.R. § 1604.11(a)). "[T]he fact that sex-related conduct was `voluntary,' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII." Id. Whether Hernandez's sexual advances were "unwelcome" under Title VII cannot be determined by Holmes's subjective state of mind. The Supreme Court holds that "[t]he correct inquiry is whether [plaintiff] by her conduct indicated that the alleged sexual advances were unwelcome." Id. (emphasis added). Generally, "whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact." Id. This general premise, however, does not necessarily preclude summary judgment in all cases as to whether the alleged sexual harassment or conduct is unwelcome:

Greco v. Velvet Cactus, LLC, 2014 WL 2943600, at *9 (E.D. La. 2014) (internal citations and punctuation omitted) (dismissing an employee's Title VII sexual harassment claim against his employer because uncontroverted evidence demonstrated that the employee's behavior failed to send a consistent signal that the alleged harasser's conduct was unwelcome).

Further, if an employee engaged in the same type of workplace conduct of which she complains in court, "she must be able to identify with some precision a point at which she made known to her co-workers or superiors that such conduct would hencefor[th] be considered offensive." Loftin-Boggs v. City of Meridian, Miss., 633 F.Supp. 1323, 1327 n.8 (S.D. Miss. 1986), aff'd sub nom. Loftin-Boggs v. Meridian, 824 F.2d 971 (5th Cir. 1987).10

In her opposition brief, Holmes argues that whether the sexual relationship between her and Hernandez was welcome is a question for the trier of fact, and that her e-mail comments to him were "an attempt to appease him, to placate him, to tell him what he wanted to hear." Pl.'s Resp. Br. 16 (Doc. 76-1). Holmes does not cite the court to any evidence in the record to support this assertion. As already stated, the court is under no obligation to comb or scour the record to find support for Holmes's response or evidence that creates a genuine dispute as to a material fact. See Malacara, 353 F.3d at 405. As the nonmovant, it is incumbent upon Holmes to identify evidence in the record that establishes the existence of a genuine dispute of material fact. Celotex Corporation, 477 U.S. at 324, 106 S.Ct. 2548. When the nonmovant fails to cite or refer to evidence that exists in the summary judgment record, "that evidence is not properly before the district court." Malacara, 353 F.3d at 405. In any event, in diligently searching through her appendix, the court has located support for this assertion in her Affidavit. See Pl.'s Summ. J. App. 5 (Doc. 76-2). As previously stated, however, whether or not Holmes was trying to appease Hernandez is not the relevant inquiry; instead, as the Supreme Court stated in Meritor, "[t]he correct inquiry is whether [plaintiff] by her conduct indicated that the alleged sexual advances were unwelcome." 477 U.S. at 68, 106 S.Ct. 2399 (emphasis added).

Holmes cites one case in support of her argument: Clegg v. Falcon Plastics, Inc., 174 Fed.Appx. 18, 25 (3d Cir. 2006). She does not analyze the facts of the case or explain why it supports her position. Clegg is readily distinguishable from this case. In Clegg, the plaintiff brought a Title VII sexual harassment suit against her supervisor and employer. In support of its argument that Clegg could not recover for harassment, her employer argued that an e-mail she sent her supervisor "asking him to talk dirty to her" was evidence "that Clegg indicated, by her conduct, that [her supervisor's] advances were welcome." Id. at 25 n.7. Clegg later contended that this e-mail was a joke. Id. Rejecting the employer's argument, the Third Circuit in a footnote stated with specific reference to this e-mail that although Clegg's "conduct may raise a question as to whether [the alleged harassing conduct] was unwelcome, it does not prove as a matter of law that [she] invited what allegedly followed." Id. As NTHCL argues in its reply brief, "[t]he record in this case, of course, stands in stark contrast to that faced by the court in Clegg. Ms. Holmes did not write a single e-mail that could potentially be construed as `a joke.' She wrote dozens of e-mail messages that leave no room for ambiguity." Def.'s Reply Br. 5 (Doc. 79). The court agrees. Based on the content of the e-mails already quoted by the court at length, as well as those in NTHCL's summary judgment appendix that the court has not quoted due to spatial constraints, the Clegg case is easily distinguished on this basis alone and lends little to no support to Holmes's arguments.

Further, as Clegg is an opinion of the Third Circuit Court of Appeals, it is not binding on this court. Accordingly, the court declines to accept the reasoning of Clegg and the result reached by the Third Circuit insofar as its applicability to the distinct facts of this case.

Further, turning to the standard set forth in Loftin-Boggs, supra, Holmes does not identify a particular point at which she clearly indicated that, going forward, Hernandez's conduct would be considered offensive. See Loftin-Boggs, 633 F.Supp. at 1327 n.8. In her response brief, she cites the following language extracted from one e-mail: "Personally, I don't think it is right. I totally disagree with relationships in the work place. This is one of the reasons I resisted for so long." Pl.'s Resp. Br. 17 (Doc. 76-1). She describes these as "magic words to determine whether a sexual advance was unwelcome." Id. As NTHCL notes in its reply brief, however, she misleadingly omits the remainder of the same e-mail message, which provides the full context:

Def.'s Summ. J. App. 273. Viewing the entire e-mail, and not just the portion quoted by Holmes, the court concludes that this e-mail cannot reasonably be interpreted under Loftin-Boggs as a particular point at which Holmes clearly indicated that, going forward, Hernandez's conduct would be considered offensive.11

In examining the "record as a whole" and considering the "totality of the circumstances" (Meritor, 477 U.S. at 69, 106 S.Ct. 2399), including the plethora of e-mail communications between Holmes and Hernandez in which she unambiguously stated her desires to have sexual relations with him, described how much she enjoyed these encounters, how much she wanted to be with him, missed him, and loved him, and in light of Holmes's failure to provide any evidence that she clearly indicated to Hernandez that his conduct would be considered offensive, the court concludes that Holmes has failed to present evidence from which a reasonable juror could conclude that Hernandez's sexual advances were "unwelcome." Instead, the only evidence of her conduct indicates that she welcomed and invited Hernandez's sexual advances. While the court recognizes that, in many instances, the question of whether particular conduct was unwelcome presents problems of proof and can turn on credibility determinations committed to the trier of fact, see Meritor, 477 U.S. at 68, 106 S.Ct. 2399, that does not preclude summary judgment in cases like this when, accepting as true the plaintiff's sworn assertions, it cannot be reasonably disputed that, based on her own conduct, Hernandez's interactions with Holmes were welcomed and encouraged. See, e.g., Zhao v. Kaleida Health, 2008 WL 346205 (W.D.N.Y. Feb. 7, 2005) (citing Loftin-Boggs, 633 F.Supp. at 1327 n.8) (granting summary judgment in employer's favor on Title VII hostile work environment sexual harassment claim in which plaintiff alleged a series of unwelcome sexual advances culminating in assault, in light of voluminous and uncontroverted e-mails demonstrating that sexual conduct by defendant was welcome).

In sum, because no reasonable juror could conclude that Holmes was subjected to unwelcome sexual advances by Hernandez, she cannot establish her hostile work environment claim, and summary judgment in NTHCL's favor is warranted. Accordingly, on this basis, the court will grant NTHCL's motion for summary judgment and enter judgment as a matter of law in its favor on Holmes's Title VII sexual harassment claim.

In ruling on whether Holmes was subjected to unwelcome sexual harassment or conduct, the court in no way approves or condones Hernandez's conduct. His conduct is no cause for approbation. His conduct was ignominious, reprehensible, and showed a total lack of judgment on his part, as he was the general manager of NTHCL. The record, however, shows that Holmes and Hernandez were mutual and willing participants in the sexual banter and conduct, and no competent summary judgment evidence indicates otherwise. Based on the record, the court determines that a reasonable jury would not conclude that Hernandez's conduct was unwelcome.

2. A "term, condition, or privilege" of employment

As an alternative basis for summary judgment, NTHCL argues that Holmes has failed to raise a genuine dispute of material fact that the alleged harassment was sufficiently severe or pervasive to affect a "term, condition, or privilege," of her employment. Regarding this fourth element of a prima facie case for a Title VII sexual harassment hostile work environment claim,

Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (citations and internal quotation marks omitted); see also Walker v. SBC Servs., Inc., 375 F.Supp.2d 524, 538 (N.D. Tex. 2005) (Lindsay, J.) ("Central to the court's inquiry into a hostile environment claim is whether the alleged harasser's actions have undermined the victim's workplace competence, discouraged her from remaining on the job, or kept her from advancing in her career.") (citations omitted). "A hostile work environment exists `when the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 328 (5th Cir. 2009) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)).

Merely offensive conduct is not actionable. See Harris, 510 U.S. at 21, 114 S.Ct. 367. The legal standard for workplace harassment is "high." Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 509 (5th Cir. 2003). "[T]he Supreme Court has warned that these high standards are intentionally demanding to ensure that Title VII does not become a general civility code, and when properly applied, they will filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language." Howard v. United Parcel Serv., Inc., 447 Fed.Appx. 626, 632 (5th Cir. 2011) (per curiam) (citations and internal quotation marks omitted) (quoting Faragher, 524 U.S. at 788, 118 S.Ct. 2275).

On the record before the court, viewing all evidence in the light most favorable to Holmes and drawing all reasonable inferences in her favor, the court concludes that Holmes has failed to present a genuine dispute of material fact that Hernandez's conduct affected a "term, condition, or privilege" of her employment. As already stated in the previous section, Holmes points to no evidence that she perceived Hernandez's alleged conduct to be hostile or abusive. Instead, the e-mails quoted at length above evidence that she welcomed a sexual relationship with Hernandez. Further, Holmes provides no evidence that she was unable to do her job as a result of Hernandez's conduct. See, e.g., Moyer v. Jos. A. Bank Clothiers, Inc., 2013 WL 4434901, at *12 (N.D. Tex. Aug. 19, 2013) (Lindsay, J.), aff'd, 601 Fed. Appx. 247 (5th Cir. 2015) (finding it significant that the plaintiff "was nonetheless able to perform her job" and was "a good employee and met all of her job requirements"); Davis v. Wal-Mart Stores, Inc., 2007 WL 836860, at *9 (N.D. Tex. Mar. 19, 2007) (Lindsay, J.) ("Plaintiff has failed to submit evidence that the alleged conduct unreasonably interfered with her work performance."). Holmes has produced no evidence showing that she failed to perform her job, was discouraged from continuing to work for NTHCL and sought employment elsewhere, or failed to advance in her career as a result of the harassment. The only evidence in the record shows that Holmes was performing her job in a satisfactory manner until Dutchover confronted her about her affair with Hernandez and reported it to Montague.12 It was only after her two-week paid leave of absence that she did not return to work.

Because no reasonable juror could conclude that Hernandez's conduct affected a "term, condition, or privilege of employment," that is, that the alleged sexual harassment was sufficiently severe or pervasive so as to alter the conditions of Holmes's employment and create a hostile work environment, she cannot establish her hostile work environment claim. Accordingly, in the alternative to granting summary judgment in NTHCL's favor on the basis that Holmes failed to raise a genuine dispute of material fact that Hernandez's conduct was unwelcome, the court will grant NTHCL's motion for summary judgment and enter judgment as a matter of law in its favor on Holmes's Title VII sexual harassment claim on this basis as well.

D. Ellerth/Faragher Affirmative Defense

The Supreme Court has explained that Title VII was designed to encourage "antiharassment policies and effective grievance mechanisms." Ellerth, 524 U.S. at 764, 118 S.Ct. 2257. "Normally, an employer is strictly liable for a supervisor's harassment of an individual whom he or she supervises." Pullen v. Caddo Parish Sch. Bd., 830 F.3d 205, 209 (5th Cir. 2016) (citation omitted). "The Ellerth/Faragher affirmative defense is an exception and is available to employers when a plaintiff alleges sexual harassment by a supervisor but does not claim that the harassment resulted in a tangible employment action." Id. (citation omitted). "The defense has two elements. First, the employer must show that it exercised reasonable care to prevent and correct sexual harassment. Second, it must establish that the employee unreasonably failed to take advantage of preventive or remedial opportunities provided by the employer." Id. at 209-10 (citation omitted); see also Faragher, 524 U.S. at 807, 118 S.Ct. 2275.

NTHCL has asserted the Ellerth/Faragher affirmative defense to avoid vicarious liability for any of Hernandez's alleged actions. See Answer (Doc. 4) ¶¶ 18-20. In the alternative to its argument that it is entitled to summary judgment because Holmes has failed to raise a genuine dispute of material fact as to her sexual harassment hostile work environment claim, NTHCL seeks summary judgment on its Ellerth/Faragher affirmative defense, contending that it has met both prongs of its affirmative defense on the summary judgment evidence and is, therefore, entitled to judgment as a matter of law on Holmes's sexual harassment claims.

The undisputed facts show that NTHCL has satisfied the affirmative defense as a matter of law. With respect to the first element, which focuses on the company's conduct, it is undisputed that NTHCL had a detailed "Policy Against Harassment." It is further undisputed that as part of her orientation on her first day on the job, Holmes received a copy of NTHCL's Employee Handbook "outlin[ing] the policies and work rules of the company and [her] responsibilities as an employee." Defs.' Summ. J. App. 46. Holmes signed an acknowledgment page confirming she received the Employee Notebook and would read it. Id. The Employee Handbook, as previously stated, contains a "Policy Against Harassment," which expressly addresses the issue of sexual harassment, includes a detailed description of the types of conduct that can be considered sexual harassment, and contains a specific directive to report any conduct viewed as harassing to one's manager, supervisor, or general manager. Id. at 44-45.

When Hernandez's alleged harassment was reported to Montague on May 3, 2014, it is undisputed that FMA and NTHCL investigated the claim promptly and informed Hernandez not to return to the Grand Prairie facility and then informed him that he needed to resign or would be terminated, and this occurred less than one week of first finding out about the alleged harassment. From this uncontroverted evidence, the court concludes that it is undisputed that NTHCL exercised reasonable care to prevent and to promptly investigate and address the reported sexual harassment of Holmes. In response, Holmes cites to one case — a case in which the court held that an employer's policy was deficient in a way that would negate the employer's Ellerth/Faragher affirmative defense — to support her argument that NTHCL's "Policy Against Harassment" was deficient. See Pl.'s Resp. Br. 19 (citing E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 731 F.3d 444, 463-65 (5th Cir. 2013)). The policy considered by the Fifth Circuit in Boh Brothers, unlike NTHCL's policy, supra, was a "vague and general antidiscrimination policy without any mention of sexual harassment, the policy did not specify complaint procedures, and employees were not informed of the policy save for inconspicuous postings that the employees did not read or see." Pullen, 830 F.3d at 210 (citing Boh Bros., 731 F.3d at 463). As stated by the Fifth Circuit, the policy set forth only "generic statements" such as "[a]ll working conditions will be maintained in a non-discriminatory manner." Boh Bros., 731 F.3d at 463.

NTHCL contends that the "Policy Against Harassment" in its Employee handbook differs from that in Boh Brothers, in that its policy "expressly addresses the issue of sexual harassment in no uncertain terms, including both a description of the types of conduct that can be considered sexual harassment and a specific directive to report any conduct viewed as harassing" to one's manager, supervisor, or general manager. See Def.'s Reply Br. 12 (Doc. 79). After comparing NTHCL's policy with the policy at issue in Boh Brothers, the court agrees. In addition, NTHCL's Policy Against Harassment was contained in the Employee Handbook, which Holmes acknowledged receiving and agreed to read. Further, although Holmes asserts that "[t]he policies and procedures of NTHCL were clearly a facre[,]" Pl.'s Resp. Br. 19 (Doc. 76-1), it is undisputed that, after receiving its first report about Hernandez's alleged harassing conduct, Hernandez was instructed not to return to the Grand Prairie facility pending the investigation, and ultimately ordered to either resign or be terminated, after which he resigned, all within less than one week of the first report of his alleged sexual harassment. Finally, the policy unambiguously specifies that an employee was expected to report any sexually harassing conduct to her manager, supervisor, or general manager.

With regard to the second element of the Ellerth/Faragher affirmative defense, which focuses on whether the employee unreasonably failed to take advantage of an employer's preventative or corrective opportunities, the record demonstrates that Holmes never reported the harassment of which she complains, notwithstanding that she acknowledged receiving the Employee Handbook and the "Policy Against Harassment," until after Dutchover informed Montague of Hernandez's alleged harassment on May 3, 2014. From this evidence, the court concludes that Holmes failed to avail herself of any preventative or corrective opportunities provided by NTHCL, and she has failed to offer any legitimate reason for her failure to do so. See Faragher, 524 U.S. at 807, 118 S.Ct. 2275; see also Casiano, 213 F.3d at 287 (employee unreasonably failed to take advantage of employer-provided preventive or corrective opportunities when he suffered at least fifteen propositions over a four-month period but never reported any of the incidents until months after the last one); Scrivner v. Socorro Ind. Sch. Dist., 169 F.3d 969, 971 (5th Cir. 1999) (employee failed to reasonably avail herself of employer's preventive and corrective sexual harassment policies, in part, because "from the summer of 1995 to March 1996, [the plaintiff] never complained about [her principal's] increasingly offensive behavior."). Further, Holmes's statement in her Affidavit that it was not clear to her to whom she should report Hernandez's conduct is not supported by the record. The policy itself explicitly stated that the conduct was to be reported to either her manager or supervisor. Further, the undisputed facts show that on May 3, 2014, Hernandez's conduct was reported to FMA's principal, Montague. On this record, the court concludes that NTHCL has satisfied the second element of the affirmative defense. No reasonable trier of fact could find that Holmes has raised a genuine dispute of material fact that she took advantage of NTHCL's preventive or corrective opportunities.

In light of the foregoing, the court determines that, even had Holmes presented evidence creating a genuine dispute of material fact regarding whether the alleged sexual harassment was unwelcome or whether it affected a "term, condition, or privilege" of her employment, her claim nevertheless fails because NTHCL has demonstrated, under these facts, that it is entitled to summary judgment on the Ellerth/Faragher affirmative defense. For all of the foregoing reasons, the court concludes that no genuine disputes of material fact exist regarding the Ellerth/Faragher defense, and because NTHCL has established both requirements of its affirmative defense, NTHCL is, therefore, entitled to judgment as a matter of law on Holmes's sexual harassment hostile work environment claim.

E. Evidentiary Objections

NTHCL has filed various objections to Holmes's summary judgment evidence, and Holmes has filed various objections to NTHCL's evidence. To the extent the court has relied upon any evidence to which an objection was made, the court has ruled on the objection in the footnotes to this decision. Holmes has also included with her appendix an affidavit from her expert witness, Shari Julian, Ph. D., a licensed professional counselor See Pl.'s Summ. J. App. 116-213 (Affidavit and attachments). Holmes does not identify for the court the capacity in which Dr. Julian will be providing expert testimony. In her response brief, Holmes cites to Dr. Julian's Affidavit once, namely, to support her assertion that not being allowed to work from home caused her to be subjected to ridicule in the workplace. See Pl.'s Resp. Br. 18 (Doc. 76-1). Holmes fails to identify a specific page in her appendix to support this assertion and, as previously noted by the court, it is not incumbent upon the court to scour the record for evidentiary support. Further, under the "sham affidavit" doctrine, the court previously sustained NTHCL's objection to Holmes's statement in her Affidavit that after Hernandez resigned, she was not permitted to work from home and was fired by NTHCL, as these statements contradicted her sworn deposition testimony that she was not terminated or fired, but just never went back to work, notwithstanding NTHCL's open invitation for her to return to work. See supra note 7. As the only basis for which Holmes cites Dr. Julian's Affidavit has been rendered moot by the court's ruling, Dr. Julian's testimony is not relevant to any matter at hand and, therefore, will not be considered. On this basis alone, the court sustains NTHCL's objection to the Affidavit of Dr. Julian submitted with Holmes's appendix.

In addition, the court agrees with NTHCL that Holmes has failed to meet her burden of showing how Dr. Julian's testimony satisfies Rule 702 of the Federal Rules of Evidence.

Rule 702 of the Federal Rules of Evidence provides guidance on the admissibility of expert testimony:

The Supreme Court has held that Rule 702 requires the district court to act as a "gatekeeper" to ensure that "any and all scientific evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Further, the Court clarified that the Daubert gatekeeping function applies to all forms of expert testimony, not just scientific. Kumho Tire Company v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The district court fulfills its role as gatekeeper by screening the proposed evidence and evaluating it in light of the specific circumstances of the case to ensure that it is reliable and sufficiently relevant to assist the jury in resolving the factual disputes. Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. The Fifth Circuit on more than one occasion has reminded district courts of their important gatekeeping function. See Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199 (5th Cir. 2016); In re Air Crash Disaster at New Orleans, La., 795 F.2d 1230, 1233 (5th Cir. 1986) ("Our point is that the ultimate issue in such cases can too easily become whatever an expert witness says it is, and trial courts must be wary lest the expert become nothing more than an advocate of policy before the jury. Stated more directly, the trial judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument.").

Dr. Julian's opinions concerning whether the alleged harassment was welcome or regarding various human resources issues are not necessary, as there are no issues before the court requiring any specialized knowledge. The issues before the court that remain after the court has granted judgment as a matter of law in NTHCL's favor on Holmes's abandoned claims are: whether Hernandez's conduct was unwelcome; whether his alleged conduct affected a "term, condition, or privilege" of Holmes's employment, and whether NTHCL is entitled to prevail on its Ellerth/Faragher affirmative defense. The matters have been fully briefed by the parties, and Dr. Julian's Affidavit is not helpful to the court. Otherwise stated, the issues before the court are not so impenetrable as to require the aid of an expert. Further, the court concludes that Dr. Julian does brings to the trier of fact "more than the lawyers can offer in argument." In re Air Crash Disaster at New Orleans, La., 795 F.2d at 1233.

In sum, the court determines that Holmes has not met her burden of showing that Dr. Julian's proffered expert testimony is relevant or helpful under Rule 702, Daubert, supra, and Kumho Tire, supra. As such, the court need not address whether Dr. Julian's Affidavit contains conclusions that are reliable. The court, therefore, sustains NTHCL's objections to Dr. Julian's Affidavit.

With respect to all remaining objections, they are overruled as moot because the court has not relied on that evidence in reaching its decision.

IV. Conclusion

For the reasons herein stated, no genuine dispute of material fact exists as to any federal or state claims asserted by Holmes, and NTHCL is entitled to judgment as a matter of law. Accordingly, the court grants Defendant's Motion for Summary Judgment (Doc. 72), and all of Holmes's claims and this action are dismissed with prejudice. As required by Federal Rule of Civil Procedure 58, a judgment will issue by separate document.

It is so ordered this 18th day of January, 2018.