Full opinion text
OPINION MURRAY M. SCHWARTZ, District Judge. I. Introduction In November of 1976, plaintiff Sara L. Ferguson commenced a sex discrimination action pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) against defendant E.I. duPont de Nemours and Company, Inc. (“Du Pont”). Basically, plaintiff claimed violations of Title VII based upon the following four theories: first, denial of promotion due to intentional sexual discrimination; second, wage discrimination; third, sexual harassment; and fourth, retaliation. The Court has jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331, 1337 and 42 U.S.C. §§ 2000e-5(f)(3). These claims were tried to the Court from September 15 through September 21,1982. Post-trial briefing was completed and oral argument held on December 28, 1982. Consequently, the action is ready for disposition and what follows constitutes the findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a). II. Factual Background A. The Principal Parties and Players In April of 1973, Ferguson applied to Du Pont for a secretarial position. She had recently received a Bachelors of Arts in Spanish Literature with a minor in Sociology from the University of Delaware in 1972. Trial Transcript (“Tr.”), A-5. Ferguson was hired as a secretary in the secretarial pool of Du Pont’s Public Affairs Department. She began work on April 30, 1973 at a salary of $600 per month. In July of 1973, she moved to the International Section of the Public Affairs Department. Initially, she performed duties for people outside the International Section, but eventually worked solely in the section. Dkt. 148, § 3, ¶ 4. When Ferguson joined the International Section, it consisted of a manager, Dimitri Andriadis, a Public Relations Representative, James F. Joines, a secretary to Andriadis, Virginia Hamilton, and another secretary, the plaintiff. Dkt. 148, § 3, ¶ 5. Ferguson worked primarily for Joines but performed some work for Andriadis. Id. In May of 1974, Joines was transferred to another position in the Public Affairs Department and Nuot D. Laetsch was transferred to the International Section. Laetsch, a Swiss resident, had been employed by Du Pont since 1972 as a Public Relations Representative in its Geneva, Switzerland, office. Id. at ¶ 7. This assignment was temporary and designed for training and development of members of the Public Affairs Department working outside the corporate headquarters. Id. at ¶ 8. Laetsch was the second European chosen for such a temporary orientation position. Tr. D-15-16. He worked in the International Section from May 1, 1974 to February 15, 1975, and in other sections of the Department thereafter before returning to Geneva. Id. While in the International Section, Laetsch occupied the office previously occupied by Joines. On November 1, 1974 Catherine Houghton joined .the International Section as a Public Relations Representative. She had worked for Du Pont as a research associate in another section of the Public Affairs Department since September, 1974. During November, Houghton’s office was located in a building other than the one housing the International Section. When she moved into the same building, her office was not in the same suite as Andriadis, Laetsch, Ferguson, and Hamilton. Dkt. 148, § 3, ¶ 9. Houghton was employed by Du Pont until September of 1975. Tr. B-13; C-171. On October 1, 1974, Hamilton retired and plaintiff became secretary to Andriadis, Laetsch, and Houghton. She received a promotional salary increase from $679 to $739 per month. Dkt. 148, § 3, ¶ 10; Tr. D-70, D-83. The International Section functioned with only one secretary for a period of time until Toni deAngelis joined the Section. Tr. B-32. Ferguson complained to the management of the Public Affairs Department about matters which ultimately were raised in this lawsuit. The Du Pont personnel involved in the investigation of Ferguson’s complaint, and their positions at that time, were: Thomas W. Stephenson, the Department Director; Harlan P. Wendell, the Department Assistant Director; George H. Soule, the Department Personnel Director; and Robert P. McCuen, a Division Manager within the Department. Tr. C-9; D-12; E-23, 31-32. B. Plaintiff’s Promotion Claim In the spring of 1974, Ferguson expressed to Andriadis an interest in a promotion to a staff level position in the Public Affairs Department. Plaintiff’s Exhibit (“PX”)-2, at 4, Tr. A-13-14. Plaintiff testified that in the spring of 1974, Andriadis related that she was being considered for a staff position with the responsibility of liaison with Latin American subsidiaries — a position which did not exist at the time. Tr. A-13; PX-2, at 4. Andriadis testified that he had no recollection of a conversation about such a specific position, Tr. C-177, and, in any case, had no ability to create a new position. Tr. B-64-65. However, Andriadis did undertake to put forward her name for consideration should a staff position come open. Tr. B-64. In addition, he urged plaintiff to better her clerical skills, retain and enhance her linguistic abilities and to attend higher education courses. All of these things could assist plaintiffs development with Du Pont and enhance her professional prospects. Tr. B-72. Andriadis recorded Ferguson’s interests in promotion in her October 1974 performance review. PX-31. In addition, on numerous occasions, he orally advised his division manager, Robert P. McCuen, of her interests and abilities. Tr. D-13, D-77. The Public Affairs Department does not administer written tests in selecting professional (staff or managerial) personnel. Dkt. 148, § 3, ¶ 12. The process, as developed through the testimony of George Soule — the personnel manager of the Public Affairs Department from 1972 through 1975 — was relatively informal. Vacancies or newly created positions would be filled in the following manner: first, employees within the Department were considered; second, employees outside the Department, but within Du Pont, as identified by the Employees Relations Department, were considered; and finally, individuals outside Du Pont were considered. Tr. C-8-10, PX-88, Answer 11. Since the Department did not maintain bulletin boards or issue circulars either posting or advising of vacancies, notice of the availability of a position was by word of mouth. Tr. B-73, C-ll. Wyatt DeLoache, the personnel manager of the Public Affairs Department from late 1975 to 1980 testified that when a vacancy occurred, rather than fill it with another person, the position might be eliminated and duties shifted to other personnel. On the other hand, a position might be created, even without an existing vacancy, for an exceptionally qualified applicant. Tr. C-68-69. In any case, DeLoache delineated the following as desirable qualifications: first, advanced quality education, preferably graduate studies in the humanities, business or law; second, experience in public affairs; and third, personal characteristics such as poise, integrity, judgment, high motivation, and gregariousness. Tr. C-72-74. Du Pont’s Public Affairs Department made a serious effort to promote secretarial level personnel to staff positions and instituted a procedure to accomplish this goal. Each fall, the Department conducted a review of all departmental employees. Tr. D-13; E-23-24. The Director, Assistant Director, Division Managers and the Personnel Manager participated in this review. One aspect of that review involved the identification and listing of secretaries within the Department who, by reason of their background and performance, might be viewed as candidates for promotion to appropriate exempt level positions. This was pursuant to an ongoing effort at that time to increase the number of women at the professional level, primarily from outside hiring but also in a few instances by the promotion of able and experienced secretaries. Tr. D-14; C-75. A significant number of professional level employees in the Department were women. Tr. C-74. During the early 1970’s, the above described system utilized to promote secretaries to the professional level resulted in two such promotions in the Department: Sara Garrison and Mary Huffman. Tr. C-75; C-79. Du Pont terminated this program and no other secretaries were promoted to professional level positions after 1976. Tr. C-78, C-83. During the annual personnel review of 1974, Ferguson, based on recommendations of Andriadis and McCuen, was identified as a secretary with possible potential for promotion and, after discussion by participants at the meeting, was added to a list of such secretaries. Tr. D-14; E-24. She was, however, only one of a number of secretaries on that list. Defendant’s Exhibit (“DX”)-1; DX-25 at 10; Tr. D-14. In December 1974, when plaintiff learned that Laetsch would be moving to a different section of the Public Affairs Department, she went to McCuen to advise him of her interest in the position then held by Laetsch. Dkt. 148, § 3, ¶ 13. McCuen advised her that she should discuss her interest first with her immediate supervisor, Andriadis. Tr. D-17. In January 1975, plaintiff, in conversations with Andriadis, began pressing a demand for immediate promotion. Tr. C-155. Essentially, she asserted that she should be given the soon to be vacated position occupied by Laetsch or, alternatively, that a staff level position should be created for her because she felt she was doing a significant amount of professional level work. Tr. A-47; PX-2, p. 4; PX-101, p. 3; Tr. C-156; D-17. As to the Laetsch position, however, Du Pont had decided, both because of increasing budgetary constraints and because of the reduced level of work in the section, that Laetsch would not be replaced. Tr. D-16-17; PX-101. In February 1975, when Laetsch moved to another section, no other staff member was brought into the section. Dkt. 148, § 3, ¶ 13. On February 3, 1975, plaintiff sent a memorandum to Stephenson, Director of the Public Affairs Department. Id. at ¶ 17. Ferguson claimed in the memo that she had been misled about her opportunities for promotion, that she had performed well as a secretary and had assumed a wide range of staff responsibilities, and that she felt she had not been promoted because of Andriadis’ attitude toward her as a woman. Stephenson met with Ferguson and Soule and plaintiff repeated her claims. After conferring with Wendell, Stephenson assigned responsibility for investigating the matter to McCuen. Tr. E-30-31. McCuen met with plaintiff at least five times and with Andriadis several times during February 1975. He prepared memoranda to reflect the substance of these meetings. Dkt. 148, § 3, ¶ 17. With relation to the claim that plaintiff had been doing staff work and she should, therefore, be promoted, McCuen reviewed the memorandum to Stephenson and its attachments, a memorandum from Houghton, and a memorandum from Ferguson to Andriadis endorsed by Laetsch. Nonetheless, McCuen concluded that the plaintiff was simply performing those functions usually expected from a good secretary. 81. Tr. D-30- Plaintiff expressed an objection to McCuen’s conclusion at the time and currently takes issue with this conclusion based upon her definition of secretarial work as the “typing of manuscripts, letters, memos, routine filing, taking of dictation, answering the phone, relaying phone messages.” Tr. A-8. Plaintiff testified that her nonsecretarial responsibilities included assistance with liaison of subsidiaries abroad, preparation and quarterly update of an International Handbook, handling of visits of various individuals and groups, compilation and dissemination of information of Du Pont international activities, and translation of Spanish press releases and memoranda into English. Tr. A-9. McCuen discussed with plaintiff his conclusion that her definition of secretarial work was too narrow. See Tr. D-27-33,39; PX-104; DX-2. While admitting at trial that some “grey areas” of overlapping work existed between the junior staff and particularly able secretaries, McCuen concluded that plaintiff’s occasional forays into this twilight zone simply reinforced the conclusion that she was a good secretary. Tr. D-28-31. McCuen’s conclusions regarding the secretarial function were corroborated by DeLoache and by several former and present secretaries. Tr. C-84-85, D-27-31; E-89; E-98; D-129-30; D-137. De-Loache explained, and the Court agrees, that often the distinguishing feature between staff work and secretarial work revolves around the concept of ultimate responsibility. While a secretary may do significant substantive work, the ultimate responsibility for its accuracy and validity resides with the staff member. While a secretary might perform ministerial and logistical tasks, the staff member would make the discretionary decisions giving rise to the secretary’s function. Tr. C-85-86. As to the possibility of promotion, McCuen advised plaintiff that no one would be replacing Laetsch in the International Section and that, therefore, there was no opening at that time. PX-103. McCuen also advised plaintiff that, as to future openings, she would be considered for any for which she was qualified, but only along with other qualified candidates, including other qualified secretaries in the department. Tr. D-34-35, PX-101; PX-103. C. Plaintiff’s Sexual Harassment Claim In her February 3, 1975 memorandum to Stephenson, plaintiff also alleged “that the manager’s attitude toward me as a woman is directly related to his failure to recognize my capability of performing staff duties.... I am willing to submit in writing some of the abusive comments and actions which have led me to this conclusion.” PX-2, at 1. Plaintiff reiterated this allegation at trial and stated that she was dissatisfied with the manner in which Andriadis treated her as a woman and that he made frequent sexist remarks. Tr. A-49. Specifically, plaintiff identified several instances of what she perceived as abusive conduct by Andriadis: first, he once smacked her buttocks as she was leaving the office; second, he would call her into his office for “heart-to-breast” talks; third, he referred to her as his girlfriend in the company of other persons; fourth, he inquired about her sexual proclivities and opined on her promiscuity; fifth, he made several coarse comments to her of a sexual nature; and sixth, he described his working relationship with plaintiff by analogy to the marital estate. Tr. A-53-58. By and large, Andriadis either denied making the alleged statements or stated that they were taken out of context. He did acknowledge, however, use of the term “girl” or “girlfriend” and admitted that he now realizes these terms carry sexist connotations. Tr. B-10-21; B-27-31; B-46; C-161-62; PX-102. Corroboration of the statements are found in the deposition testimony of Laetsch arid Houghton. It is concluded Andriadis made statements which were sexist and abusive and were so perceived by plaintiff. In response to these allegations, Stephenson commissioned McCuen to investigate. In the course of his investigation, plaintiff related to McCuen that Andriadis “had never made any sexual advances to her and that he usually treated her with consideration.” PX-101. In further discussions she acknowledged that she felt much of the conduct was unintentional and probably not perceived by Andriadis as offensive. PX-104; DX-22, p. 41; Tr. E-69. Even though McCuen felt such conduct was uncharacteristic of Andriadis, he was willing to assume it had occurred for purposes of his investigation. McCuen reached three conclusions in making his recommendation for resolution of Ferguson’s complaint. Tr. D-37. First, McCuen was convinced that even if improper remarks had been made, no such conduct would occur in the future because he had made clear to Andriadis that any conduct of the type alleged was intolerable to Du Pont. Tr. D-37; D-76. Moreover, and on a separate occasion, Wendell had made the same point to Andriadis. DX-25, at 46-48. Plaintiff concedes that after her complaint Aftdriadis did not engage in any further conduct that plaintiff found offensive. Tr. A-120; DX-22, pp. 61-62. Second, McCuen concluded that, contrary to Ferguson’s belief that Andriadis had not been supportive of her, he had all along been “her most consistent and greatest advocate.” Tr. D-76-77; PX-101. McCuen’s perception is most vividly illustrated by his testimony that “[Andriadis] reported to me on many, many occasions that she was doing a very good job. He told me so many times that it became annoying that she was — ought to be considered for a staff job.” Tr. D-77. Third, as of February 20 McCuen concluded that it would not be necessary to separate Ferguson and Andriadis because it seemed that the matter could best be resolved simply by a discussion between Andriadis and Ferguson. Tr. D-38, DX-2. One exhibit indicates that such a discussion took place on February 24, 1975. DX-3. Andriadis indicated that he had never intended to offend plaintiff and that he was willing to apologize to her in the presence of McCuen. Plaintiff indicated that she did not intend to emphasize the personal allegations, realized that anything said or done was not done with malice or sexist intent, and that she was really only concerned about a promotion to staff member. Id. As set forth in the following section, the perceptions and positions of the individuals involved took a drastic change in course. D. Plaintiffs Retaliation Claim — Transfer and Termination As noted, after Stephenson received plaintiff’s February 3, 1975 memorandum, McCuen was charged with investigating the allegations in the hope of resolving the difficulties. In so doing, McCuen met with the plaintiff several times in February. Throughout these meetings Ferguson maintained that she wanted a promotion to an exempt position and did not want a lateral transfer. PX-103; PX-104. At a meeting on February 20 with McCuen, plaintiff had asked for a job description for her secretarial position; such a description was provided to her on February 25, 1975 by Soule and Andriadis. DX-2; DX-4. In the morning of February 28, 1975, plaintiff came to see McCuen, bringing with her the job description she had been provided. DX-5. She made it clear to McCuen that she was dissatisfied with the duties expected of her as a secretary, dissatisfied that she was not being promoted to a professional position and dissatisfied with and disinterested in performing the duties outlined in the job description. Tr. D-39; D-55; D-73. Plaintiff testified at trial that the job description included far more than secretarial duties and that she was dissatisfied doing those duties and being paid and classified as a secretary. Tr. E-113. Following that meeting, McCuen concluded that it would not be productive to leave plaintiff in that secretarial position. Tr. D-39-40; D-73; DX-5. This conclusion differed from his initial position that the differences could be worked out by communication between Ferguson and Andriadis. His reasons were that the work in that secretarial position had to be done and that Ferguson neither wanted nor was motivated to do that work. Tr. D-39; D-73. McCuen, therefore, recommended to Wendell and Stephenson that plaintiff be reassigned to a different secretarial position. Tr. D-39-40. Both agreed with McCuen’s assessment and the decision was made to transfer Ferguson. Tr. E-32. In the afternoon of February 28, Ferguson was informed of this decision in a meeting with McCuen and Soule. DX-6. Ferguson stated that she considered this transfer as a reprisal. Id.; Tr. A-67. At the end of February plaintiff was transferred to the secretarial pool. Her salary level and other employee benefits were unchanged. Tr. A-67; D-40; D-78-79. Plaintiff was advised by McCuen that she would work in the secretarial pool until a secretarial job appropriate to her level could be found. Tr. D-40; D-78-79; DX-6. Ferguson began working in the secretarial pool on March 4. Also on March 4, she filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Tr. A-123. Soule knew of the filing of the charge on that same date because Ferguson provided him with a copy. DX-7. Soule had primary responsibility for finding an appropriate position for Ferguson. Tr. D-91. After first searching the Department and rejecting possible shifts within the Department on the ground that no shift could be made that would not be somewhat unfair to another secretary, Soule turned to the Employee Relations Department for assistance. Tr. D-91. Shirley Reilly, then a Replacement Representative in the Employee Relations Department, and others in that Department began searching throughout the downtown offices for an appropriate position for plaintiff. Tr. D-121. Soule did not request Reilly to search for exempt level positions. Tr. D-123. This was, however, a difficult period in which to find a position; it was a period of economic downturn and retrenchment on the part of the Company. Tr. D-122. Nevertheless, Reilly did locate a position in the Advertising Department which Ferguson could consider. Tr. D-121. Ferguson, however, at a meeting with Reilly said that she was not interested in any secretarial position, and wanted only an exempt level position. Tr. D-124. Soule had considered the possibility of plaintiff becoming secretary to Leavitt White, a supervisor in the Public Affairs Department, for whom plaintiff had indicated she would work. Tr. A-121-22; C-39. That position did not materialize, however, because White’s secretary objected to being moved. Tr. E-50. Thereafter Soule continued to look for a position and in early April a position came open as secretary to Robert M. Roberts, a senior Public Relations Representative, and to another individual in the Plastics Department. Tr. D-92. Soule advised Ferguson of this position and that it did not appear that any other position would materialize in the foreseeable future. Tr. D-92, Dkt. 148, § 3 ¶ 18. Plaintiff initially indicated that she would not be interested in that position, but was given about three weeks to consider the position. Tr. A-123; D-93. Plaintiff was advised by Soule that Stephenson made the decision that, if she did not accept that position, she would not have a position with Du Pont and, in effect, would be terminating her employment. Tr. D-93; E-37. The position offered to plaintiff was appropriate to her secretarial level and involved no reduction in pay or benefits. DX-25, p. 21-22; Tr. D-92; E-36. Moreover, Soule and Wendell viewed the position as secretary to Roberts not as only a real position that had to be filled, but as a very good opportunity. Id. Roberts was one of the most senior and most highly regarded professional members of the department, having previously been a division manager (a position he voluntarily relinquished because of a personal preference to work as a Public Relations Representative). Tr. D-45; C-135; E-56. Additionally, he was very supportive of individuals who worked for him and at least one of his prior secretaries had been promoted to an exempt level position. Tr. D-93. Furthermore, the position offered plaintiff exposure to an industrial operating department of Du Pont. Plaintiff’s position was that she was unwilling to accept any job other than as secretary to a manager which, in her view, necessarily meant working for but one person. Tr. A — 122. This was somewhat inconsistent with her prior favorable disposition to work for White, who was not a manager and whose secretary worked for several people. Tr. C-121. Furthermore, prior to her transfer, she had been secretary not only to Andriadis, but to Laetsch and Houghton as well. Dkt. 148, § 3, ¶ 10. She acknowledged she had no personal objection to either Roberts or the other individual for whom she would be working; she did not inquire as to whether this job would in any respect limit her future opportunities or the nature of the work expected of her in that position; she understood, however, that she would suffer no reduction in pay or benefits. Tr. A-124. During the period she considered the position, she consulted with an attorney, and, as noted, she filed a charge of discrimination with the EEOC. Tr. A-123. After having about three weeks to consider the matter, Tr. A-123, plaintiff, on April 21, 1975, decided not to accept the position offered, even though she knew it would result in the termination of her employment with the Du Pont Company. Tr. A-124. Ferguson testified concerning two other instances which might be considered relevant to a claim of retaliation. First, when in November of 1974 the Equal Employment Office of the Atomic Energy Commission (“AEC”) came to Du Pont to interview employees, Andriadis told Ferguson “not to speak to those people.” Tr. A-48. Andriadis testified that he jokingly told Ferguson that she should not speak to the AEC personnel. Tr. B-28. Andriadis’ testimony is corroborated by Houghton and the Court finds no threat or attempt at intimidation. PX-52, at 36. Second, Ferguson maintains that she was chastised by Soule and McCuen for talking with other employees about the grievance and that they threatened her with criminal liability. Tr. A-71. There is no corroboration of this testimony and the Court does not credit Ferguson’s testimony. Plaintiff maintained that she was willing to remain in Andriadis’ office if he changed his conduct towards her. Even though Andriadis’ conduct did change, McCuen found that a productive working relationship was no longer possible and refused to honor Ferguson’s desires. Similarly, after being transferred to the secretarial pool, she was willing to remain in the pool until a secretarial position which met her primary criterion — secretary to a manager — became open. E. Plaintiffs EEOC Filing and the Position to Which She Claims Entitlement Plaintiff mailed a charge of discrimination, dated March 4, 1975, to the EEOC, which was received by the EEOC on March 5, 1975. Dkt. 148, § 3, ¶ 19. On March 24, 1975, the EEOC referred that charge to the Delaware Department of Labor. On May 28, 1975, the EEOC deemed plaintiff’s charge filed because the Delaware Department of Labor had not yet taken formal action. On March 30, 1976, the EEOC issued a determination with respect to the charge. On December 1, 1976, plaintiff received a notice of right to sue. Id. Plaintiff claims that between 1974 and 1980 she was unlawfully denied sixteen professional level positions in the Public Affairs Department. Dkt. 148, § 3, ¶ 15. At no time, however, did plaintiff specifically raise with the EEOC a claim of entitlement to any of these positions, Tr. A-115-16, and nothing indicates that the EEOC ever investigated these positions. Rather, the EEOC investigation focused on four unspecified positions of Public Relations Representatives filled between August 1974 and March 1976. No position at issue here was that of a Public Relations Representative filled in that time frame. Dkt. 148, § 3, ¶ 15. The first time plaintiff evidenced any specific interest in the sixteen positions at issue was in late 1980, when she sought leave to amend her complaint to add claims with respect to those positions and fourteen other positions. Dkt. 127. Plaintiff claims to have applied for these positions in the following ways: as to those six positions filled while plaintiff was employed by Du Pont, through her previously discussed general expression of interest in promotion; and as to those ten positions filled after she left Du Pont, by means of an application filed with the Du Pont in March 1975 for an exempt position anywhere in Du Pont and by means of this lawsuit. When in March 1975 plaintiff had submitted an application to the Employee Relations Department for an exempt level position anywhere in Du Pont, there were no openings for which plaintiff was qualified, and she was so advised. PX-108; DX-23, pp. 66 and 73. According to Linford, the practice of Du Pont, apparently followed in this instance, was to retain such applications for one year, after which they were discarded. Tr. D-148. Of the sixteen positions plaintiff now claims, eight were filled by women. The general criteria utilized by the Department to fill staff positions encompassed three areas: first, education; second, experience; and third, personal characteristics. See supra at 1179. Ferguson graduated from the University of Delaware with a B.A. in Spanish Literature and a minor in Sociology. She travelled to Europe prior to accepting a position with Du Pont and had not quite two years of “hands-on” experience with the Public Affairs Department as a secretary. See supra note 5. In all but four of the sixteen positions — those filled by Sara T. Garrison, Mary Elaine Huffman, Cynthia G. Loew, and Sue Lois Daly — Ferguson was not qualified for the position and therefore was not or would not have been considered. However, had Ferguson been considered for any of the sixteen positions, she would not have received any of the positions due to the superior qualifications of each of the sixteen hired or promoted individuals. F. Plaintiff’s Post-Termination Employment At the time of her termination, plaintiff’s salary was $808 per month and plaintiff received pay through May 28, 1975. Dkt. 148, § 3 ¶ 18. Plaintiff was denied unemployment compensation by the State of Delaware based on the determination of the hearing examiner that Ferguson had voluntarily terminated her employment. Tr. A-77. Following the termination of her employment, Ferguson applied to other companies for various positions in the public relations/public affairs area, but received no offers. Tr. A-76-77. She did, however, receive an offer of employment as a secretary with the United States State Department, which she declined to accept. Beginning in August 1975, plaintiff was employed as a secretary by the Prosher Corporation in California at a salary of $850 per month. Dkt. 148, § 3 ¶20.' She was discharged by that company in October 1975. Id. Shortly thereafter she was employed by Arthur Young & Company in Beverly Hills, California, again as a secretary, at a salary of $830 per month. Dkt. 148, § 3 ¶ 21. She voluntarily left that company in January 1976 to travel for six months in South America. Id. After her return from South America, during which she did not work, plaintiff was employed at the Palace Club in Reno, Nevada and later at the Horseshoe Club in Reno, Nevada as a 21 dealer. She was discharged from both jobs. Tr. A-98; Dkt. 148, § 3 ¶ 21. Ferguson then worked at Cerrito’s Neptune’s Table in Monterey, California and later at the Double Tree Inn in Monterey, California as a cocktail waitress. She was discharged from both positions and later worked as a cocktail waitress at the Whaling Station Inn in Monterey, California. She voluntarily left this position in November 1981. Tr. A-84-86. From November 1981 until June 1982 plaintiff traveled in Central America and Mexico, and did not work. Tr. A-86. III. The Promotion Claim — Disparate Treatment Plaintiff alleges that Du Pont violated Title VII by failing to promote her due to intentional sex discrimination. Defendant raises several procedural defenses to the allegation and also attacks the substantive merits of the claim. A. Defendant’s Procedural Defenses Du Pont raises four procedural defenses to Ferguson’s promotional discrimination claim: first, that any claims to any of the sixteen positions alleged to be at issue are barred because none of these specific positions was ever presented to or investigated by the EEOC; second, that any claims to five specific positions are time barred because these positions were filled outside the statutory 300-day period in which to file a claim; third, that any claims to any of the positions are time barred because they were not asserted within 90 days of the right to sue letter; and fourth, that any claim- to one specific position is time barred because neither the complaint nor the amended complaint lists the position. Before embarking on an odyssey in search of the proper resolution of the defendant’s procedural defenses, a fundamental problem should be examined. There appears to be some confusion between the utilization of the term “position” by the parties. The defendant links the term to specific persons occupying specific jobs, while the plaintiff focuses on the position of a Public Relations Representative. The Court will utilize the term position with regard to specific instances of discrimination — thus by alleging that she has a claim to a position, Ferguson simply articulates a specific instance of discrimination. As to the first procedural defense, Du Pont states that since the EEOC investigation considered only four unspecified positions filled between August, 1974 and March 1976 in regard to Ferguson’s complaint, and none of these fall within the time frame encompassed by the sixteen contested positions, plaintiff cannot maintain this action because the EEOC never investigated any of those positions. Plaintiffs in Title VII actions, however, are not confined to the specific elements contained in the charge before the EEOC. The subject matter of the complaint may be broader than the charge if the expansion is either reasonably related to the original charge or may reasonably be expected to grow from the original charge. See Hicks v. ABT Associates, Inc., 572 F.2d 960, 963-64 (3d Cir. 1978); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977). The test focuses upon the scope of the EEOC’s investigation. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465-66 (5th Cir.1970); Zalewski v. M.A.R.S. Enterprises, Ltd., 561 F.Supp. 601, 605 (D.Del.1982). The concept of scope falls into three basic categories: subject matter, time, and class characterization. See A. Larson, Employment Discrimination § 49.83c at 9B-193. Subject matter of the complaint is not at issue because both the charge and the complaint concern discrimination in promotion. Similarly, class characteristics do not differ. Defendant focuses, instead, on the time frame of the activities, alleging that the EEOC investigation concerned only the August 1974 to March 1976 time period, a period which does not encompass at least ten of the sixteen specified positions. In Ostapowicz the Court of -Appeals for the Third Circuit recognized that the scope of the investigation could include new acts during the pendency of the proceedings. 541 F.2d at 399. The Court did not, contrary to defendant’s position, erect a limitation that only subsequent acts occurring during the pendency of the EEOC investigation could be asserted. Such a position would exclude subsequent acts after the EEOC investigation. This position is appropriate when the subsequent acts constitute discriminatory treatment wholly unrelated to the original charge. However, when a continuing violation or several instances of discrimination are alleged, the plaintiff need not traverse the procedural hurdle of filing new EEOC charges for each subsequent act of discrimination if the subsequent acts could reasonably be expected to grow out of the charge before the EEOC or its investigation. King v. New Hampshire Department of Resources and Economic Development, 420 F.Supp. 1317, 1320 (D.N.H.1970), aff’d, 562 F.2d 80 (1st Cir.1977); cf. Love v. Pullman Co., 404 U.S. 522, 526, 92 S.Ct. 616, 618, 30 L.Ed.2d 679 (1972) (creation of additional procedural technicalities inappropriate in Title VII actions which are usually initiated by lay person). Secondly, Du Pont argues that plaintiff may not assert claims with respect to five specific positions because they were not timely asserted to the EEOC. Title VII requires that charges must be filed with the EEOC within 180 days of the alleged unemployment practice. 42 U.S.C. § 2000e-5(d). An exception exists, however, when the aggrieved person, here Ferguson, resides in what is commonly referred to as a deferral state. Id. A deferral state is one which has a state or local agency with authority to grant or seek relief. An aggrieved person who files first with the EEOC and fails to file with the state or local agency is not penalized; rather, Title VII requires the EEOC to defer to the state or local agency until that agency has had at least sixty days to act on it. 42 U.S.C. § 2000e-5(d); see Lanyon v. University of Delaware, 544 F.Supp. 1262 (D.Del.1982). The Supreme Court in Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), construed these provisions to erect effectively a 240-day period within which a complainant must file with the state agency to preserve the right to federal relief. Id. at 814 n. 16, 100 S.Ct. at 2491 n. 16. Therefore, Ferguson must have filed a charge of discrimination with the state agency within 240 days of a discriminatory act in order to have filed timely. The parties have engaged in a confusing series of arguments in relation to the running of either the 240-day or 300-day periods. Initially, they disagree as to which date the period starts to run. Defendant asserts that the latter period runs from May 28, 1975 — the date the complaint was deemed filed with the EEOC after the running of the requisite 60-day deferral period. This construction presumably would cutoff actions prior to August 5, 1974. Plaintiff contends that the 300-day period runs from March 4 or 5, 1975, the former being the date plaintiff mailed the complaint to the EEOC and the latter, the date it was received by the EEOC. Plaintiff’s position directly contravenes Mohasco and as such is unacceptable. Nonetheless, a dispute remains concerning whether the 240-day period runs from March 5 or from March 24. The Court need not decide the issue of which of the resulting cutoff dates of August 5, 1974 or July 17, 1974 is the applicable date because in each of the five cases, the decision to hire was made well before either date. Plaintiff could not maintain an independent action as to these five positions because they do not fall within the 300-day period mandated by the statute. Plaintiff, however, alleges that she may assert claims to these positions on the basis of a continuing violation theory. The proper focus in this type of action is whether any of the alleged discriminatory actions took place within the statutory time limits. This criterion clearly is established in this instance. Once it is found that the plaintiff has a timely claim, evidence relating to past practices, even though not separately actionable, constitutes evidence relevant to discriminatory intent and recovery. This construction is virtually dictated by the remedial provisions of section 706(g) which limit the award of back pay to a time period of two years prior to the filing of the charge with the EEOC. 42 U.S.C. § 2000e-5(g); see Jewett v. International Telephone & Telegraph Co., 653 F.2d 89, 92 & n. 5 (3d Cir.), cert. denied, 454 U.S. 969, 102 S.Ct. 515, 70 L.Ed.2d 386 (1981); EEOC v. Hay Associates, 545 F.Supp. 1064 (E.D.Pa.1982); cf. Croker v. Boeing Co., 662 F.2d 975, 990 (3d Cir.1981) (en banc) (critical question is whether there was a timely assertion of a present violation). Accordingly, defendant’s second procedural defense cannot carry the day. Du Pont raises a third procedural defense by alleging that claims to any of the sixteen positions are barred because none were timely asserted. Ferguson complied with the statutory requirement imposed by Title VII that suit must be filed within 90 days of receipt of the EEOC right to sue letter. Defendant argues that while timely filed, the complaint failed to enumerate any of the sixteen positions plaintiff now claims, and as such these claims are barred. Defendant has misconstrued the impact of the 90-day rule. Once suit is timely filed, amendment of the complaint is permitted. The basic allegation of the original complaint is discrimination in promotion. The claims to the sixteen specific positions clearly relate back to the original complaint and are not barred. A prior opinion of this Court permitted plaintiff to amend her complaint pursuant to Fed.R.Civ.P. 15(a). Ferguson v. E.I. duPont de Nemours and Co., Civ.Act. 76-407/77—48 (Consolidated) (D.Del. May 20, 1981). Defendant simply seeks to reargue its opposition to the motion to amend and has offered no compelling or reasonable rationale to deviate from the prior decision. Finally, Du Pont asserts that any claim to the position occupied in 1976 by Mary Elaine Huffman is barred because it was neither part of the original complaint nor the amended complaint. Plaintiff counters with the argument that the Huffman position was enumerated in the pretrial order which the defendant signed. Plaintiff also argues that the record contains no objection to the addition of the Huffman position and therefore defendant should not be permitted to argue this point. Plaintiff need only review the pretrial order to see the futility of her position because the defendant clearly contested the addition of Huffman. Dkt. 148, § 5, Defendant’s Statement ¶4. Since there has been no motion to amend with regard to the Huffman position, Ferguson may not assert any claim to that position. In summary, based upon defendant’s procedural defense, Ferguson has no claim to the Huffman position. Plaintiff may, however, pursue her claim of discrimination in promotion due to impermissible gender-based factors as to all other positions. B. The Merits of the Disparate Treatment Promotion Claim The Supreme Court has recently refined the concept of the respective burdens imposed upon plaintiff and defendant in a Title VII action: First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (citations omitted). . Notwithstanding this three step process, the ultimate burden of proof, to demonstrate that similarly situated employees were treated differently, remains with the plaintiff. Id. at 253, 258, 101 S.Ct. at 1093, 1096; Lanyon, 544 F.Supp. at 1273. Of course, Ferguson must also carry the burden of proving discriminatory intent or motive. Scott v. University of Delaware, 601 F.2d 76, 80 (3d Cir.1979), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 189 (1980). In a discrimination in hiring case, plaintiff may make a prima facie case by showing four elements: first, that the plaintiff is a member of a protected class; second, that plaintiff applied for and was qualified for a position which the employer was seeking to fill; third, that plaintiff was rejected; and fourth, that the employer continued to seek applicants that were similarly qualified. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The formula has been applied to promotion cases in the following four step process: first, the plaintiff belongs to a protected group; second,.that she was qualified for and applied for a promotion; third, that she was considered for and denied the promotion; and fourth, that other employees with similar qualifications who were not members of the protected group were indeed promoted in the same time frame. Aikens v. United States Postal Service Board of Governors, 665 F.2d 1057, 1059 (D.C.Cir.1981); Bundy v. Jackson, 641 F.2d 934, 951 (D.C.Cir.1981). Once established, the prima facie case raises an inference of discrimination because if the facts remain unexplained, the decision was likely to have been based on impermissible factors. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). Thus, the prima facie case gives rise to a presumption of discrimination which the defendant may refute by articulating a legitimate business reason and plaintiff may counter with evidence that the reason was simply a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. at 254-56, 101 S.Ct. at 1094-95. Proceeding upon the orderly fashion established by McDonnell Douglas and its progeny, the Court first looks to whether Ferguson applied for any of the positions at issue. She expressed a generalized interest in a promotion to Andriadis in the spring of 1974. This interest was focused on becoming a Public Relations Representative in the International Section. Of the positions at issue filled in this 1974 to early 1975 time period, none were in the International Section. Nonetheless, Ferguson was seeking a professional level job as a Public Relations Representative and the Court is unwilling to find that she did not apply for a position. This conclusion constitutes a close factual determination. While Ferguson’s initial interest apparently was confined to the International Section, Du Pont treated her expression as a broader one. The fundamental reason for this conclusion focuses upon the promotion process in the Public Affairs Department. Since specific positions were not posted or advertised, specific applications would be impossible. Furthermore, Andriadis virtually pestered McCuen with regard to Ferguson’s promotion. As such, Ferguson’s generalized expression of interest can be considered an application. During the twilight era while plaintiff’s charges were being investigated internally, she did express interest in any exempt level position. Similarly, her general job application sent to Du Pont in March 1975 sought an exempt level position anywhere in Du Pont. Under the circumstances, Ferguson clearly applied for the positions at issue. Those positions filled after March 1976, however, a year after her only application, cannot be considered as relevant since Du Pont neither kept nor was under an obligation to keep her application after the running of one year. In summary, Ferguson only applied for those positions filled prior to March of 1976. Focusing upon the third attribute of the applied and qualified prerequisite, however, yields a different result. As the findings of fact indicate in twelve of the positions, the persons hired were either more qualified than Ferguson or that she did not have the necessary qualifications for the specific positions. Furthermore, she was legitimately not considered for the majority of the positions. As to four of the positions — those of Garrison, Huffman, Lowe and Daley — while plaintiff might have been qualified, in each case the person promoted or hired was more qualified. See infra note 48. Moreover, all of these positions were filled by women, thereby rebutting any inference of discrimination. Finally, with respect to the final prong of the McDonnell Douglas/Bundy prima facie case test, Ferguson has failed to demonstrate that all the positions either remained open or that members from an unprotected class assumed the position. In fact, eight of the sixteen positions were filled by women. In summary the Court finds that Ferguson has failed to establish a prima facie case of gender-based discrimination. Even had plaintiff met her initial production burden, Du Pont articulated legitimate business reasons for its failure to promote Ferguson. Board of Trustees v. Sweeney, 439 U.S. 24, 25, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978); Furnco Construction Corp. v. Waters, 438 U.S. at 577-78, 98 S.Ct. at 2949-50. Furthermore, plaintiff has not demonstrated that these reasons were a pretext to camouflage intentional discrimination. IV. Disparate Impact It is now well settled that a plaintiff may establish liability under Title VII under two distinct legal theories: first, disparate treatment which focuses upon the discriminatory motive underlying the treatment of members of protected classes; see General Building Contractors Associates, Inc. v. Pennsylvania, - U.S. -, 102 S.Ct. 3141, 73 S.Ct. 835 (1982); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981); and second, disparate impact which focuses upon the outcome regardless of how benign the motive underlying the treatment might have been. See Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1970); Wilmore v. City of Wilmington, 699 F.2d 667 at 669 (3d Cir.1983). The disparate impact theory is applicable whenever “ ‘practices that are facially neutral in their treatment of different groups but in fact fall more harshly on one group than another and cannot be justified by business necessity.’ ” Croker v. Boeing Co., 662 F.2d 975, 991 (3d Cir.1981) (en banc) (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977)). Plaintiff must establish a prima facie case of disparate impact by either proof of a facially neutral employment policy or practice which nonetheless imposes a substantially disproportional burden upon a protected class as compared to another class, see id. at 991, or by statistical proof of gross under-representation of a protected group without identifying any particular policy as its cause. Wilmore, at 670. Despite attempts by the Court to have plaintiff both define and substantiate the disparate impact theory as applied to these facts, plaintiff has provided scant guidance on this claim. Statistical proof was not offered at trial and therefore cannot be considered. Plaintiff, instead, appears to attack the promotion policy of the Public Affairs Department on the basis that it was subjective and implicitly discriminated against women. Plaintiff argues that the promotion process as it applies to the elevation from secretarial positions to professional positions is subjective because it relies on the views of the employee’s immediate supervisor. Acknowledging that this policy is facially neutral, plaintiff alleges that the subjective aspect allows supervisory personnel to discriminate on the basis of sexual bias. As presented, plaintiff’s position is fatally flawed. Simply establishing that one prong of a promotion system invokes subjectivity, without more, does not demonstrate disparate impact. See Kunda v. Muhlenberg College, 621 F.2d 532, 548 (3d Cir.1980). As the Supreme Court recognized in Connecticut v. Teal,-U.S. -, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982), disparate impact claims are designed to reflect the congressional intent to remove arbitrary barriers to the opportunity to compete with members of nonprotected classes for positions. Opportunity, not guarantee, is the operative word. Members of a protected class do not possess an entitlement to a position; rather, they are entitled to the eradication of barriers which effectively bar their professional opportunities. Ferguson was considered eligible for promotion to a professional-level position. That she was not promoted in a system which resulted in the promotion of two female secretaries and the hiring of other professional women highlights plaintiff’s difficulty in articulating a disparate impact theory for there is none applicable on these facts. V. Wage Discrimination Plaintiff claims that she performed the same duties as a male classified as a Public Relations Representative and therefore asserts a claim of wage discrimination. Ferguson claims that she was: classified as a stenographer yet she successfully performed the vaious [sic] duties and had the resonsibilities [sic] requiring the same skill and effort of persons in Public Affairs staff positions.... Ferguson was actually performing Laetsch’s duties while she had neither the position title not rhe [sic] position pay. Dkt. 165, at 29 (Plaintiff’s Opening Post-Trial Brief). A claim of wage discrimination can be stated under Title VII. County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). When, as here, a wage discrimination claim rests on an assertion of unequal pay for equal work, the standards governing Equal Pay Act claims apply and a plaintiff bears the initial burden of showing that: (1) The work of the employees of one sex required the exercise of substantially equal skill, effort, and responsibility and was performed under working conditions similar to that of employees of the opposite sex; and (2) the pay to men and women was unequal. Piva v. Xerox Corp., 654 F.2d 591, 598 (9th Cir.1981). Plaintiff has not presented any evidence demonstrating that she performed work equal to that of a male. Despite her protestation to the contrary, the evidence demonstrates that Ferguson performed only that work expected of all good secretaries, and that such work did not in any way require “equal skill, effort, and responsibility” as the work of professional level employees. The record further establishes that there were significant differences between the work plaintiff did and the work of the male (Laetsch) with whom she compared herself. Insofar as plaintiff may claim that she otherwise was discriminated against in her salary, she has offered no evidence to support such a claim. The mere assertion that she was doing work not expected of a secretary, even if true, does not give rise to an inference of discrimination. Walter v. KFGO Radio, 518 F.Supp. at 1317 (showing of salary differences between male and female holding same title insufficient to establish prima facie case when record does not reflect that jobs were substantially equal in skill, effort, or responsibility). In all events, the record establishes numerous legitimate reasons for any pay differential between plaintiff and Laetsch. First, during the relevant period, Du Pont management responsible for salary level was not even aware that plaintiff claimed to be doing work like that of Laetsch and, indeed, plaintiff admits that she never asked for any adjustment of her pay based on such work. Second, Laetsch was in Wilmington on a special training assignment where it was recognized that he would not be fully productive and where part of his training assignment was to learn by doing many things of a routine nature. Third, Laetsch had significant experience as a public affairs professional and his salary reflected this experience. Fourth, the record reflects that, in fact, plaintiff and Laetsch did work that was dissimilar with regard to accountability and that, while it may have overlapped in areas, such overlap was consistent with the respective responsibilities of secretaries and professional level people. Finally, when plaintiff presented her claim, a good faith assessment was made by McCuen that plaintiff was not doing anything not expected of a secretary. In sum, the record establishes numerous legitimate non-discriminatory reasons for the salary differential between plaintiff and Laetsch. There is no evidence that any of the reasons are pretextual. In conclusion, despite Ferguson’s contention that she performed the work of a staff person and should have received a commensurate salary, the Court finds that she simply was not performing work of the same nature. The fundamental difference lies in the realm of accountability. Her work was not “substantially identical” and she may not recover. VI. Sexual Harassment Ferguson alleges that she was subjected to sexual harassment based upon a hostile, intimidating, or offensive working environment. Plaintiff bases this claim on a series of comments and one alleged incident of offensive touching. See supra at 1181— 1182. It is now well established that a cause of action for sexual harassment is cognizable under section 703 of Title VII. The parameters of the cause of action, however, remain in a state of flux and no consensus exists concerning when and under what circumstances the employer will be held responsible for acts of supervisory personnel, coworkers or non-employees. The initial cases recognizing this cause of action considered claims that plaintiffs had been deprived of a tangible job benefit for their failure to succumb to sexual advances. See Tomkins v. Public Service Electric & Gas Co., 568 F.2d 1044, 1048-49 (3d Cir. 1977); see also MacKinnon, Sexual Harassment of Working Women (1979); Note, Sexual Harassment and Title VII: The Foundation for the Elimination of Sexual Cooperation as an Employment Condition, 76 Mich.L.Rev. 1007 (1978). Not every unwelcome sexual advance, however, constitutes a violation of Title VII. For example, a mere flirtation has been held insufficient because such an isolated incident fails to establish the requisite, showing that “submission to the sexual suggestion constituted a term or condition of employment.” Heelan v. Johns-Manville Corp., 451 F.Supp. 1382, 1388 (D.Colo.1974); see also, Clark v. World Airways, 24 Fair Empl.Prac. (BNA) Cases 305, 307 (D.D.C.1980) (Title VII does not reach sexual relationships which have no substantial effect on the employment). Furthermore, sexually aggressive conduct and explicit conversation on the part of the plaintiff may bar a cause of action for sexual harassment. See Gan v. Kepro Circuit System, 27 Empl.Prac.Dec. (CCH) ¶ 32,279, at 23,648 (E.D.Mo.1982). More recently, courts have held that Title VII contemplates a cause of action when the harassment creates a hostile and discriminatory working environment even though there has been no loss of a tangible job benefit. See Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir.1982); Bundy v. Jackson, 641 F.2d at 943—44; Brown v. City of Guthrie, 22 Fair Empl.Prac. Cases (BNA) 1627, 1631 (W.D.Okla.1980); see generally, Case Comment, Expanding Title VII to Prohibit a Sexually Harassing Work Environment, 70 Geo.L.J. 345 (1981). In an effort to bring consistency to the confusion generated by inconsistent judicial decision, the EEOC published interim guidelines regarding sexual harassment in April of 1980 and final guidelines on September 23, 1980. The guidelines state: Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when 1. submission to such conduct is made explicitly or implicitly a term or condition of an individual’s employment, 2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or 3. such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. 29 C.F.R. § 1604.11(a). As noted previously, and as recognized by the EEOC guidelines, cases based upon sexual harassment generally fall within two broad categories: first, sexual coercion or quid pro quo cases, where the employee suffers a tangible job detriment in retaliation for refusing sexual advances of supervisors; and second, offensive or hostile environment cases where no tangible employment loss is involved. Plaintiff’s theory on her sexual harassment claim is somewhat unfocused. Ferguson appears to state a hostile environment cause of action yet clutters the environmental landscape with allegations of retaliation. See Dkt. 165, at 38-44. (Plaintiff’s Opening Post-trial Brief). Since no evidence was adduced at trial concerning sexual advances, the Court granted defendant’s motion for an involuntary dismissal pursuant to Fed.R.Civ.P. 41(b) as to these allegations. As such, plaintiff