United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
LINDSAY, UNITED STATES DISTRICT JUDGE.
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).
Factual and Procedural Background
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/Faragher 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
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.
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. The Employee Handbook
contains a “Policy Against Harassment, ” which
North Texas Health Care Laundry Cooperative Association is
committed to providing a work place that is free of unlawful
discrimination based on race, color, religion, national
origin, sex, disability, age or citizenship. Unlawful
harassment, including that of a sexual nature, is also
prohibited. Sexual harassment is strictly prohibited.
Unwelcome sexual advances, requests for sexual favor, and
other verbal or physical conduct of a sexual nature
constitute sexual harassment when submission to such
conduct is either explicitly or implicitly made a condition
of employment, used as a basis for employment decisions, or
has the purpose or effect of unreasonably interfering with
work performance or creates a hostile atmosphere.
Employment means anything that affects the employment
relationship. Examples include promotions, disciplinary
actions and work assignments. Sexual harassment also
includes, but is not limited to, unsolicited and unwelcome
sexually related comments or jokes, touching, art work,
magazines or calendars. If you believe you have been sexually
harassed, you are expected to report it promptly to your
manager or supervisor or General Manager.
An investigation will follow. Any warranted corrective action
will be taken. Retaliation against any employee who has
reported a sexual harassment complaint is strictly
Id. at 44-45.
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.
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. Holmes also referenced romantic songs
in her communications with Hernandez, such as “All of
Me” by John Legend,  stating her belief that
“every verse of that song applies to us.”
Id. at 116.
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 “email@example.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,
“firstname.lastname@example.org, ” 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.
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:
• March 13, 2014
I look forward to each morning that I get to see you and
don't want this time with you to end. You have turned me
into a teenager again, and I am all giddy and happy now. I
try not to show it because I don't want anyone to suspect
anything, but it is oh so hard to contain my feelings. My
favorite is doggy style. I want you to be in control,
that's what I like. I am not a big fan of oral, has to do
with my messed up head (part of my story that has yet to be
told). My fantasy have [sic] never been very interesting,
until recently. Now it's you.
Id. at 84.
• March 16, 2014:
First time I thought of you while pleasuring myself was when
I stayed in Temple the first time for the transition. . . . .
It was the first time I thought about us in detail. You
knocked on my door, walked in, and started kissing me. I
pulled you by your tie and you lifted my skirt. I was sitting
on the desk when I felt you inside me. We made it to the bed
and I was riding you. You finish...
Id. at 130.
• March 20, 2014:
And I want you. I am sitting in a hot bath thinking of you. I
want to play with my p***y but I know it couldn't feel
even remotely close to you eating or f**king it. Damn it I
want your c**k inside me morning and night.
Id. at 159.
• March 22, 2014:
I am sitting in a bubble bath right now. I am so wet right
now, and I don't mean from the water. I wish you were
sitting behind me while I hold you [sic] c**k. I am sliding
my left hand down to my wet p***y. Now I am gently caressing
between my lips. Mmmmmm.... You do this much better. I
don't know how you are so in tune with my body. More so
than me. How do you do that?
Id. at 192.
• March 24, 2014:
I love when you have my back, and my front, and when I am
sitting on you. I like that I can feel you inside me even
when I am not with you. Each time I think about it I can feel
you hitting my spot deep inside. You are so good and I cant
[sic] get enough.
Id. at 199.
• March 28, 2014:
Then you flip me around by grabbing my hair and thrust all 9
inches of your rock hard c**k into my wet p***y and instantly
make me cum again. Over and over. Then I ride your c**k,
while you hold onto my high heels, until I make you cum.
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
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
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:
• March 15, 2014
When he [sic] is gone, I am checking this email like crazy! I
can't wait to see you [sic] have to say. I can't wait
for any and every opportunity to communicate and think about
• March 16, 2014
I cherish every minute I have with you and I don't want
it to end.
Id. at 116.
• March 19, 2014
I would live [sic] to be able to run into your arms every
night. I would be the happiest girl in the world . . . I
can't wait to see you tonight, until then You will be on
my mind. ...