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July 26, 1996

H&E MACHINERY, INC., Defendant.

The opinion of the court was delivered by: LARIMER


 Plaintiff Sherry Kellogg Detrick ("Detrick") contends that she was the victim of sexual harassment while employed with defendant H&E Machinery, Inc. ("H&E"). Detrick began her employment with H&E on its production floor in September 1990, as a machine operator. H&E manufactures highly refined, computer designed turbine blades and related products. She contends that she suffered sexual harassment from several co-employees, but that the main offender was the plant manager, Whit Hastings ("Hastings"). Detrick was promoted several times until ultimately, she was transferred off the floor (she contends to get away from Hastings) to the position of purchasing assistant. She remained in this position until she was terminated in March 1994, allegedly due to her failure to adequately perform her job.

 On November 1, 1994, Detrick filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights ("DHR"). On May 16, 1995, the EEOC issued a "right to sue" letter. On July 27, 1995, Detrick filed her complaint in this Court alleging violations under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq., the New York Human Rights Law, Executive Law § 290, et. seq., the Equal Pay Act, 29 U.S.C. § 206, et. seq., and pendant State claims for intentional infliction of emotional distress and negligence.

 H&E now moves for summary judgment dismissing Detrick's first cause of action for sexual harassment on the ground that her action is time-barred because she failed to file her complaint with the EEOC within 300 days of the alleged improper conduct. H&E contends Detrick's pendant state law claims are also time-barred.

 Finally, H&E contends that it is entitled to judgment on Detrick's Equal Pay Act claim. For the reasons set forth below, H&E's motion is granted in all respects.


 In September 1990, Detrick was employed at H&E on its production floor as a machine operator. According to Detrick, the sexual harassment began almost immediately. She was subjected to a constant barrage of vulgar sexual remarks and innuendo by Hastings, the primary offender, and other H&E employees. Within approximately three months, she was promoted to a machining line and was directly supervised by Hastings. The harassment continued. Hastings continually referred to Ms. Kellogg's claimed sexual relationships with others, deliberately brushed against her and touched her, bought her flowers, told offensive sex-related jokes and made sexually explicit comments to her, constantly interrupted her work, and complained when she talked to other H&E workers. *fn1" (Detrick's Affidavit.) Detrick contends that other H&E employees-joined in the harassment. In July 1991, she was promoted to the position of production coordinator and the harassment allegedly continued.

 Detrick claims to have reported these alleged incidents to management "many times;" however, H&E contends they were notified of the allegedly improper behavior on only two occasions. *fn2" The first incident occurred on February 14, 1992, when Hastings gave Detrick flowers but did not give flowers to any other woman at H&E. Detrick contends that the next day, she was summoned to general manager Paul Stearns' ("Stearns") office and was asked about the flower incident. The second incident occurred on May 17, 1992, when Detrick found a yellow "post-it" note with the word "slut" written on it stuck to her time card. She immediately took it to Stearns. The facts regarding what was said and the ultimate resolution of these incidents are in dispute. *fn3" However, Detrick contends H&E failed to take adequate remedial measures and the harassment continued. Detrick contends that she repeatedly told Sterns that the harassment was continuing and repeatedly asked to be moved to a position away from Hastings.

 In March 1993, Detrick was "promoted" to the position of purchasing assistant. The major benefit of this promotion was that it was in the office, away from the shop floor and the harassment. Detrick contends that although she was initially relieved to be away from Hastings, the new position was completely unsuitable." She argues that she was expected to do the work of a purchasing assistant (her new position) as well as that of her new supervisor, Jutta Locker, a co-owner of H&E, while Locker was on maternity leave. Detrick contends that Locker had support staff and that Detrick was expected to perform the work without any such staff. She contends she repeatedly asked Stearns, her new supervisor, for help or asked that the workload be made more manageable.

 On March 3, 1994, Detrick was told that she was not capable of performing the work expected of her and that there was no other position suitable for her in the company. Accordingly, Detrick believed that her employment with H&E was terminated.

 On November 1, 1994, Detrick filed her complaint with the EEOC and the DHR. There, she states that she was employed with H&E from September 1990, through March 3, 1994, and that "during the period of [her] employment with H&E" she "endured a steady barrage" of hostile and offensive comments and conduct. On July 27, 1995, Detrick filed the instant action.


 A. Summary Judgment Standards

 A party is entitled to summary judgment under Federal Rule of Civil Procedure 56 when there is no disputed material issue of fact and judgment in favor of the moving party is appropriate as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party has carried its burden to demonstrate that there is no evidence to support the nonmoving party's case, the nonmoving party must come forward, and by "affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,'" identify specific facts demonstrating the existence of a genuine issue for trial. Id. at 324-25. The evidence presented must be admissible under the evidentiary standard to be used at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Finally, any "inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the [nonmoving] party" and any admissible facts asserted by the nonmoving ...

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