Spraque v. Thorn Americas, Inc.

UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk

December 4, 1997

TO: All recipients of the captioned opinion

RE: 96-3021, Sprague v. Thorn Americas
November 24, 1997

Please be advised of the following correction to the captioned decision:

Due to a typographical error, name of counsel for the appellant is
misspelled. M. Kathryn Webb is the correct spelling.

Please make the appropriate correction.

Very truly yours,

Patrick Fisher, Clerk

Keith Nelson
Deputy Clerk
 F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 24 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

SHELLEY A. SPRAGUE,

Plaintiff-Appellant,
v.
No. 96-3021
THORN AMERICAS, INC. and ED
KOWALSKI,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 93-CV-1478)

M. Kathryn Webb of McDonald, Tinker, Skaer, Quinn & Herrington, Wichita,
Kansas, for Plaintiff-Appellant.

Timothy B. Mustaine (Mary Kathleen Babcock with him on the brief), of Foulston
& Siefkin, Wichita, Kansas, for Defendants-Appellees.

Before BRORBY, HOLLOWAY and EBEL, Circuit Judges.

HOLLOWAY, Circuit Judge.
 Plaintiff-appellant Shelley Sprague brought the present action against

defendants, alleging gender discrimination and sexual harassment in violation of

Title VII and the Kansas Acts Against Discrimination, K.S.A. § 44-1001, et seq,

constructive and retaliatory discharge, breach of contract, 1 and violation of the

Equal Pay Act. The United States District Court for the District of Kansas

entered summary judgment against Sprague on each of her claims and this appeal

followed, asserting error in the summary judgment ruling. Sprague also claims

error in the district court’s denial of her motion to compel. We have jurisdiction

by virtue of 28 U.S.C. § 1291, and we affirm.

I. Background

Viewing the evidence in the light most favorable to the non-moving party, as

we must when reviewing a grant of summary judgment, Kaul v. Stephan, 83 F.3d

1208, 1212 (10th Cir. 1996), the essential facts are as follows:

Plaintiff-appellant, Shelley Sprague, began working for defendant-appellee,

Thorn Americas, Inc., as a secretary in September 1989. 2 I Aplt. App. at 58

(statement of uncontroverted facts). While attending orientation Sprague was given

an employee handbook, which she signed on September 7, 1989. By signing the

1
Sprague does not appeal the district court’s rejection of her implied contract
claim and we will therefore not review this issue.
2
At the time Sprague was known as Shelley Rose. Additionally, Thorn did
business as Rent-A-Center.

3
handbook, Sprague acknowledged that her employment with Thorn was an “at will”

relationship, which permitted either Sprague or Thorn to terminate her employment

at any time, with or without cause. Id.; see also II Aplt. App. at 398-399, 407

(district court’s Memorandum and Order granting summary judgment).

During the events forming the basis of this lawsuit, Sprague’s title with Thorn

was “Market Analyst.” Aple. Supp. App. at 92. Until June 1992, Sprague’s duties

involved the entire range of Thorn’s products and her supervisor was J. D. Henning.

In June 1992, Sprague took on additional responsibilities as Market Analyst in the

jewelry department and she was reassigned to defendant-appellee Ed Kowalski.

Specifically, she conducted meetings for a jewelry task force charged with

“[u]pdating the product, putting in a new assortment.” I Aplt. App. at 116-17. She

also recorded the minutes of these meetings. Id. at 116. These tasks were ones that

were performed by Assistant Product Managers (APMs) for other departments. Id.

at 139. However, some of the tasks that Sprague performed differed from those of

the APMs because the APMs had more marketing experience and hence were given

more discretion. Id.

Sprague last reported for work on September 24, 1993, and was terminated on

November 1, 1993. Id. at 82. She continued to draw her full salary, however, until

October 28. See Appellant's Reply Brief, Attachment A at 4 (letter from Douglas B.

Westerhaus to M. Kathryn Webb). Between September 24 and November 1, Sprague

4
indicated that she would be willing to return to work if Kowalski were not her

supervisor. Aple. Supp. App. at 85-86. She also sought to have her job description

upgraded and to receive back pay back to mid-1992, when she began to perform tasks

similar to those performed by the APMs, both of whom were male. Id. at 49, 52, 82.

Thorn refused to keep Sprague in her position with a different supervisor and on

November 1 deemed her to have abandoned her job and terminated her.

Sprague filed her original complaint in the district court on December 1, 1993.

On the next day, she filed charges of discrimination with the Kansas Human Rights

Commission and the Equal Employment Opportunity Commission (EEOC), and she

amended the charges on April 15, 1994. I Aplt. App. at 3. The EEOC issued a

"Notice of Right to Sue" on May 23, 1994. Id. On November 8, 1994, Sprague filed

her first amended complaint. Sprague raised several separate claims in her lawsuit.

She contends that she should have been promoted to the position of an Assistant

Product Manager and paid a salary commensurate with such position. Since both of

Thorn's APM positions were occupied by males, she alleges that Thorn's failure to

promote her and pay her at a rate equal to that of the male APMs constituted gender

discrimination in violation of both the Equal Pay Act and Title VII. Sprague also

brought a claim alleging hostile work environment sexual harassment, which is based

on five incidents involving Mr. Kowalski, detailed later in Part III-C. Finally,

Sprague asserts that she was subjected to constructive and retaliatory discharge.

5
 The district court held that there were no genuine issues of material fact and

that defendants were entitled to summary judgment. Memorandum and Order,

II Aplt. App. at 396. Sprague v. Thorn Americas, No. 93-1478, 1995 WL 767308

(D. Kan. Dec. 18, 1995). The judge concluded that Sprague failed to present an

actionable claim under the Equal Pay Act; the evidence revealed that Thorn did not

have an assistant manager position in its jewelry department because that department

constituted a relatively minor part of Thorn’s business. The judge further stated that

Sprague’s job functions were not substantially similar to those of the two males who

acted as assistant managers of other departments and that Sprague merely performed

some, but not all, of the functions of an assistant manager. With respect to

Sprague’s allegations of sexual harassment and hostile working environment, the

judge stated the standard of liability to be that: "An employer may be liable for

sexual discrimination when it permits the existence of an atmosphere so severe or

pervasive in its offensiveness or hostility to reasonable workers that it alters the

conditions of the employees' work environment. Harris v. Forklift Systems, 126

L.Ed.2d 295 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986)."

Memorandum and Order at 8-9. The judge identified the occurrences complained of

and held that they did not establish a sexually hostile working environment. Id. The

judge also held that Sprague failed to show that she was constructively discharged

6
since Sprague offered no evidence that a reasonable person would have viewed the

working conditions as intolerable.

With respect to Sprague’s claim of retaliatory discharge, the district judge

concluded that Sprague failed to demonstrate any action by Thorn which reflected

wrongful adverse job action, other than terminating her after not returning to work

for several months. The district court stressed that Sprague conceded that she was

an “at will” employee and that the parties did not enter into any implied employment

contract.

II. Standard of Review

We review de novo the district court’s grant of summary judgment, applying

the same standard used by the district court. Bohn v. Park City Group, Inc., 94 F.3d

1457, 1460 (10th Cir. 1996). “Summary judgment is appropriate if ‘there is no

genuine issue as to any material fact and . . . the moving party is entitled to a

judgment as a matter of law.’” Williams v. Widnall, 79 F.3d 1003, 1005 (10th Cir.

1996) (quoting Fed. R. Civ. P. 56(c)). When applying this standard, we must

“examine the factual record and reasonable inferences therefrom in the light most

favorable to the non-moving/opposing party.” Kidd v. Taos Ski Valley, Inc., 88 F.3d

848, 851 (10th Cir. 1996). If there is no dispute concerning a genuine issue of

material fact, we then determine whether the district court correctly applied the

7
substantive law. Peck v. Horrocks Engineers, Inc., 106 F.3d 949, 951 (10th Cir.

1997).

III. Analysis

We first examine whether the district court erred in granting summary

judgment in favor of defendants on Sprague’s claims of gender discrimination under

Title VII, 42 U.S.C. § 2000e-2(a), and the Equal Pay Act (EPA), 29 U.S.C.

§ 206(d)(1). 3 At the outset we note that with respect to her Title VII claim of gender

discrimination, Sprague argues on appeal that defendants’ motion for summary

judgment did not specifically address this claim and that defendants produced no

specific evidence to refute the claim. Sprague thus contends that the district court

erred in granting summary judgment since defendants failed to meet their burden of

showing that they were entitled to judgment on the claim of gender discrimination.

Our independent review of the record also reveals that the district court did not

precisely address Sprague’s Title VII gender discrimination claim in the context of

her employment privileges, denial of promotion, and rate of pay, although the district

court did specifically address Sprague’s EPA claim.

3
We are mindful that the elements and burdens of proof differ under the Equal
Pay Act and Title VII. See Tidwell v. Fort Howard Corp., 989 F.2d 406, 409-10
(10th Cir. 1993); Meeks v. Computer Assoc. International, 15 F.3d 1013, 1020
(11th Cir. 1994). We therefore address these claims separately in our discussion.

8
 We are not persuaded by Sprague's procedural objection to the defendants'

presentation of their position on the Title VII claim of gender discrimination. It

appears from the record that defendants’ motion for summary judgment did, in fact,

address the issue of gender discrimination under Title VII, both in its discussion

regarding sexual harassment as well as equal pay. I Aplt. App. at 52-89. Indeed, the

issue of Sprague’s gender and the discrimination and mistreatment she allegedly

suffered as a result thereof, forms the basis of Sprague’s entire action. Throughout

their motion for summary judgment, defendants clearly and specifically contested

Sprague’s assertions that she was deprived certain privileges of employment due to

her gender.

Although we recognize that the Equal Pay Act and Title VII provide distinct

causes of action and do not require precisely the same standard of proof, we are

satisfied that defendants’ arguments contained in their motion for summary judgment

adequately addressed both Sprague’s Title VII gender discrimination claim as well

as her Equal Pay Act claim. We do not consider it fatal to defendants’ motion for

full summary judgment that defendants did not specifically include a separate

argument or heading on Title VII “gender discrimination,” when their argument

against that gender discrimination claim by Sprague below was essentially raised and

incorporated within defendants’ discussion of the alleged violations of the Equal Pay

Act in defendants' brief below. See I Aplt. App. at 31-35. Moreover, it appears from

9
the record that Sprague did not raise any objection below that defendants failed to

precisely challenge the Title VII gender discrimination claim in her response to

defendants’ motion for summary judgment.

In sum, we conclude that the issue regarding gender discrimination under

Title VII was adequately presented to the district court and we further find that, in

its order granting summary judgment, the district court necessarily concluded by

implication that defendants’ alleged failure to formally promote Sprague to assistant

manager or pay her the salary commensurate with such a position did not violate

Title VII.

A. Title VII Gender Discrimination Claim

Turning specifically to Sprague’s Title VII gender discrimination claim,

Sprague stated in her amended complaint that she was “discharged, discriminated

against and treated differently by defendant [Thorn] with respect to compensation,

terms, conditions and privileges of her employment due to her sex, female, in

violation of 42 U.S.C. § 2000e-2(a)(1) and (2).” I Aplt. App. at 7. Sprague

essentially contends that males who performed the duties of assistant managers were

given the title and salary commensurate with such a position, while Sprague was

denied a promotion to such title and salary because of her gender, even though she

performed the same functions.

10
 “In a Title VII case, the initial burden is on the employee to make a

prima facie showing of discrimination by the employer.” Nulf v. International Paper

Co., 656 F.2d 553, 557 (10th Cir. 1981) (citing McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802, (1973)). “Only when such a showing has been made does the

burden shift to the employer to articulate ‘some legitimate, nondiscriminatory reason’

for the questioned action. If the employer meets this burden, the employee must

show that the stated reason is actually a pretext for prohibited discrimination.” Id.

at 558 (quoting McDonnell Douglas, 411 U.S. at 804).

We have recognized that the “elements of a prima facie case set forth in

McDonnell Douglas have been applied to promotion cases.” Nulf, 656 F.2d at 558

(citations omitted). In order to establish a prima facie claim of discriminatory failure

to promote under Title VII, Sprague was required to “show that there were

promotional opportunities available that were filled by males, that she was qualified

for promotion, and that despite her qualifications she was not promoted.” Id. And

Sprague bears the ultimate burden of establishing that Thorn intentionally

discriminated against her. Tidwell v. Fort Howard Corp., 989 F.2d 406, 409

(10th Cir. 1993); see also Meeks v. Computer Associates International, 15 F.3d

1013, 1019 (11th Cir.1994) (the McDonnel Douglas framework requires a Title VII

plaintiff to establish an intent to discriminate on the part of her employer).

11
 We are not persuaded that Sprague established a prima facie case of failure to

promote because of gender. As the record reveals, and the district court concluded,

Thorn “did not have an Assistant Manager position in its Jewelry Department,

because that department formed such a small part of the company’s business.” See

district court’s Memorandum and Order at 10. It is indeed difficult for us to

understand how Sprague can maintain that she was the victim of discrimination due

to Thorn’s refusal to promote her to the position of assistant manager of jewelry

when such a position did not even exist. We therefore find it highly questionable

whether promotional opportunities were even available with respect to Sprague’s

position. More importantly, Sprague failed to produce any evidence which shows

that if such opportunities did, in fact, exist, Thorn intentionally gave such positions

to males because of a gender preference. Further, there is no indication that Thorn

purposely refused to create such a position in an effort to discriminate against

women or deny Sprague promotional opportunities. We therefore conclude that

Sprague failed to make a prima facie showing of intentional gender discrimination

with respect to Thorn’s refusal to promote her.

With respect to Sprague’s Title VII equal pay claim, we earlier stated that “the

equal pay/equal work concept applies to Title VII in the same way it applies to” the

EPA. Nulf, 656 F.2d at 560. However, the Supreme Court in County of Washington

v. Gunther, 452 U.S. 161, 168-171, 180-81 (1981), determined that the EPA’s

12
requirement that a plaintiff prove equal work does not apply to Title VII. Rather, “a

cause of action for discriminatory compensation based on sex could arise under

Title VII even if a plaintiff did not allege unequal pay for equal work.” Plemer v.

Parsons-Gilbane, 713 F.2d 1127, 1132 (5th Cir. 1983). See also Miranda v. B&B

Cash Grocery Store, Inc., 975 F.2d 1518, 1527 (11th Cir. 1992) (Gunther held that

Title VII, 42 U.S.C. § 2000e-2(h), only incorporates the affirmative defenses of the

EPA, not its prohibitory language requiring equal pay for equal work); Loyd v.

Phillips Brothers, Inc., 25 F.3d 518, 525 (7th Cir. 1994) (even when jobs are not

sufficiently similar to constitute “equal work” under the EPA, a Title VII claim for

wage discrimination is not precluded; however, in an action under Title VII, plaintiff

must show an intent and actual desire to pay women less than men because of

gender).

In Tidwell, 989 F.2d at 410, we acknowledged that our statement in Ammons

v. Zia Co., 448 F.2d 117 (10th Cir. 1971), that Title VII required a showing of equal

work, must be treated as substantially modified by the Supreme Court in Gunther.

We also acknowledged that Gunther emphasized that the purpose of the Bennett

Amendment was to incorporate into Title VII the four affirmative defenses of the

EPA, but not the EPA equal work requirement. Id. at 411.

Thus, “a female Title VII plaintiff establishes a prima facie case of sex

discrimination by showing that she occupies a job similar to that of higher paid

13
males.” Meeks, 15 F.3d at 1019. “Once a prima facie case is established, the

defendant must articulate a ‘legitimate, non-discriminatory reason for the pay

disparity.’ This burden is ‘exceedingly light’; the defendant must merely proffer

non-gender based reasons, not prove them.” Id., (quoting Miranda, 975 F.2d at

1529). Once the defendant advances such a justification, the plaintiff must show that

the defendant, regardless of the proffered reasons, intentionally discriminated against

her. Id.; See also Tidwell, 989 F.2d at 409. That is, “the plaintiff must show that

‘a discriminatory reason more likely than not motivated [the employer] to pay her

less.’” Meeks, 15 F.3d at 1019 (quoting Miranda, 975 F.2d at 1529).

It is apparent from the record that Sprague failed to present genuine issues of

material fact which would support her equal pay claim under Title VII. As the

district court observed, Sprague contrasts her functions and pay in the jewelry

department to those of the assistant product manager of electronics and the assistant

product manager of furniture/appliances, both of whom are males. “However, the

Electronics, Furniture/Appliances, and Jewelry Departments do not contribute

equally to [Thorn’s] revenues.” See district court’s Memorandum and Order at 5.

While the electronics department comprises approximately 50% of revenues and the

furniture/appliance department accounts for approximately 45% of revenues, the

jewelry department only produces approximately 4% of revenues. Id. Thus, a

difference in pay between Sprague and the assistant product managers is justifiable

14
and is consistent with the different levels of importance, value, and depth of

responsibility between the respective departments.

Thorn also suggests that these higher paid managers had much greater

marketing experience than Sprague, had a greater array of responsibilities, and that

Sprague did not perform all of the functions in the jewelry department that these

managers performed in their respective departments. Additionally, the district judge

noted that Sprague did not receive high marks by Thorn’s review committee, and, as

“a result of the review, Sprague was eventually placed on an action plan to be let

go.” See district court’s Memorandum and Order at 6. Further, the district judge

recognized that although Sprague contends that she began to do the work of assistant

product manager for jewelry in 1992 or January of 1993, Sprague expressed a goal

in January of 1993 of being promoted to assistant product manager in June of 1993,

“a career goal which was surely unnecessary if she had already achieved this

position.” Id. at 4. “Nor does evidence cited by Sprague support the conclusion that

she was a de facto Assistant Manager.” Id.

Given the evidence presented to the district court, we find that Sprague failed

to present a prima facie case of intentional gender discrimination. The evidence

shows a legitimate basis for the difference in pay, and none of the evidence presented

by Sprague reveals a desire on the part of Thorn to intentionally pay her less because

of her gender. Since there is no genuine issue of material fact regarding Sprague’s

15
Title VII gender discrimination claim, summary judgment on that claim was

appropriate.

B. Equal Pay Act Claim

We now examine Sprague’s claim under the EPA, 29 U.S.C. § 206(d)(1). The

EPA provides that:

No employer having employees subject to any provisions of this section
shall discriminate, within any establishment in which such employees
are employed, between employees on the basis of sex by paying wages
to employees in such establishment at a rate less than the rate at which
he pays wages to employees of the opposite sex in such establishment
for equal work on jobs the performance of which requires equal skill,
effort, and responsibility, and which are performed under similar
working conditions, except where such payment is made pursuant to (i)
a seniority system; (ii) a merit system; (iii) a system which measures
earnings by quantity or quality of production; or (iv) a differential
based on any other factor other than sex: Provided, That an employer
who is paying a wage rate differential in violation of this subsection
shall not, in order to comply with the provisions of this subsection,
reduce the wage rate of any employee.

To establish a prima facie case under the EPA, Sprague “has the burden of

proving that (1) she was performing work which was substantially equal to that of

the male employees considering the skills, duties, supervision, effort and

responsibilities of the jobs; (2) the conditions where the work was performed were

basically the same; (3) the male employees were paid more under such

circumstances.” Tidwell, 989 F.2d at 409 (citing Corning Glass Works v. Brennan,

417 U.S. 188 (1974)). “If a prima facie case is so established under the EPA the

defendant must undertake the burden of persuading the jury that there existed reasons

16
for the wage disparity which are described in the [EPA].” Tidwell, 989 F.2d at 409

(emphasis in original). If the defendant fails in this respect, the plaintiff will prevail

on her prima facie case. Id. Thus, under the EPA, “the onus is on the employer to

establish that the pay differential was premised on a factor other than sex. Under

Title VII, however, the plaintiff must prove that the employer had a discriminatory

intent.” Id.

Sprague contends that the district court erred in granting summary judgment

on her EPA claim because there was a genuine issue of material fact as to whether

she was paid less than two male employees for equal work in a job which required

equal skill, effort, and responsibility and which was performed under similar working

conditions. However, we agree with the district court that Sprague failed to produce

evidence that her job functions were substantially similar to those of the male

assistant managers. “The uncontroverted evidence is that Sprague was not an

Assistant Manager, and that at most, she performed only ‘some’ functions of an

Assistant Manager.” See district court’s Memorandum and Order at 11. The district

judge concluded that because Sprague did not demonstrate that she occupied

substantially the same position or performed substantially the same tasks as the

assistant managers, her EPA claim must fail. We agree.

Much of our analysis regarding Sprague’s equal pay claim under Title VII

applies here as well. As previously noted, Sprague worked in a department which

17
produced less than one-tenth of the revenues of the departments managed by the male

assistant managers. Such a substantial difference in revenues between Sprague’s

department and those departments managed by her male counterparts indicates that

the tasks and functions performed by Sprague were quite dissimilar both in the level

of experience required to adequately manage operations and the level of complexity

in performing required functions. We are also persuaded that equal pay was not

required due to the varied level of experience between Sprague and the male assistant

managers, the somewhat poor review given to Sprague’s performance, the

recommendation that Sprague eventually be “let go”, and the fact that no assistant

manager position existed in the jewelry department.

We do not construe the “equal work” requirement of the EPA broadly, and we

have stated that failure to furnish equal pay for “comparable work” or “like jobs” is

not actionable. See, Nulf, 656 F.2d at 560 (citing Lemons v. City and County of

Denver, 620 F.2d 228, 229-30 (10th Cir.), cert. denied, 449 U.S. 888 (1980)).

Rather, in order to prevail in such an EPA action, the jobs “must be ‘substantially

equal’ in terms of ‘skill,’ ‘effort,’ ‘responsibility,’ and ‘working conditions.’” Nulf,

656 F.2d at 560 (citing Ammons v. Zia Co., 448 F.2d at 120). We conclude that,

based on the materials submitted by the parties, it is clear that Sprague occupied a

position and performed functions that were not “substantially equal” to those of the

male assistant managers. At most, Sprague’s job functions were merely comparable

18
to those of the assistant managers. Hence, the district court did not err in holding

that no genuine issue of material fact existed and in granting summary judgment in

favor of defendants on the EPA claim.

C. Sexual Harassment

Sprague argues that the district court erred in granting summary judgment to

defendants on her sexual harassment claim. 4 As discussed more fully below, Sprague

alleges five separate incidents of allegedly sexually-oriented, offensive comments

either directed to her or made in her presence in a sixteen month period. All such

incidents involved Mr. Kowalski. 5 She further alleges that management was aware

of at least three of these incidents, as well as a pattern of abuse directed toward other

women by Kowalski, but that management refused to remedy the situation by placing

her with a different supervisor.

4
In Sprague’s complaint, she alleged hostile work environment harassment as
well as quid pro quo sexual harassment. See Harrison v. Potash, 112 F.3d 1437,
1443 (10th Cir.1997), for a discussion regarding the distinction between these
types of prohibited conduct. However, on appeal Sprague directs her argument
solely to hostile work environment harassment and we therefore assume that
Sprague has abandoned her quid pro quo claim. Hence, we will focus exclusively
on whether the district court erred in granting summary judgment against Sprague
on her hostile work environment harassment claim.
5
We note, however, that Kowalski was not Sprague’s supervisor with respect
to the three incidents occurring prior to June 1992. Kowalski became Sprague's
supervisor after Sprague's review in June 1992, at which she was told that she
"would be working specifically for the product group under Ed [Kowalski]."
Sprague Dep., I Aplt. App. at 114.

19
 It is beyond contention that Title VII prohibits sexual harassment in the

workplace. Harrison v. Potash, Inc., 112 F.3d 1437, 1442 (10th Cir.1997) (citations

omitted); 42 U.S.C. § 2000e-2(a)(1). Further, in certain circumstances, the employer

can be held liable for an employee’s sexually offensive conduct which creates a

hostile work environment. Id. at 1443. However, prior to addressing the issue of

whether summary judgment was properly entered in favor of Thorn as Kowalski’s

employer, we must first examine the evidence to determine if a genuine issue of

material fact exists as to whether Kowalski’s alleged conduct created a hostile work

environment within the meaning of Title VII.

It is clear that not all "workplace conduct that may be described as

'harassment,' affects a 'term, condition, or privilege' of employment within the

meaning of Title VII." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).

Rather, in order to prevail on a hostile work environment sexual harassment claim,

Sprague is required to show that the unwelcome, sexually-oriented conduct was

sufficiently severe or pervasive as to alter the conditions of her employment and

create an abusive working environment. Hirase-Doi v. U.S. West Communications,

Inc., 61 F.3d 777, 782 (10th Cir.1995) (quoting Hirschfeld v. New Mexico

Corrections Dep’t., 916 F.2d 572, 575 (10th Cir.1990), and Meritor, 477 U.S. at 67).

In determining whether Sprague made the requisite showing, we must consider a

variety of factors, including, “the frequency of the discriminatory conduct; its

20
severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work

performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Moreover,

whether the complained of conduct is sufficiently pervasive as to create a hostile

work environment must be determined from the totality of the circumstances since

no single factor is required. Id. at 23.

“A plaintiff may prove the existence of hostile work environment sexual

harassment in violation of Title VII 'where [sexual] conduct has the purpose or effect

of unreasonably interfering with an individual’s work performance or creating an

intimidating, hostile, or offensive working environment.'” Hirase-Doi, 61 F.3d at

782 (quoting Meritor, 477 U.S. at 65) (internal quotations omitted). In Harris, the

Supreme Court held that a plaintiff bringing a hostile Title VII work environment

sexual harassment claim must establish both an objectively hostile or abusive work

environment and a subjective perception by the plaintiff that the environment was

abusive. But Title VII comes into play before the harassing conduct leads to a

nervous breakdown, and a discriminatorily abusive work environment, even one that

does not seriously affect the employees' psychological well-being, can and often will

detract from employees' job performance, discourage employees from remaining on

the job, or keep them from advancing in their careers. Harris, 510 U.S. at 22. "So

long as the environment would reasonably be perceived, and is perceived, as hostile

21
or abusive, Meritor, . . . there is no need for it also to be psychologically injurious."

Id. See also Hirase-Doi, 61 F.3d at 782.

As noted above, the conduct allegedly creating a hostile work environment

consisted of five separate incidents involving Kowalski over a span of approximately

sixteen months. On one occasion in April 1992, when Sprague entered Kowalski’s

office, he allegedly said, “Shelley, you really need to undo that top button.” Sprague

Deposition, I Aplt. App. at 119. Sprague also complained of an incident in February

or March 1992 where an unknown person asked, “Hey, are the girls going down to

aerobics,” to which Kowalski allegedly replied, “Hey, you can’t call them girls. You

have to call them ladies.” Aple. Supp. App. at 38. Another incident allegedly

occurred in May 1992 when Sprague, Kowalski, and two other employees were

standing in a hallway. Kowalski allegedly “brought up the subject about women and

PMS and you know how they are at that time of the month . . . .” I Aplt. App. at 120.

As the district court noted in its Memorandum and Order granting summary judgment

for defendants, p. 9, in January 1993, after the first three incidents described above,

"Sprague stated in writing that she believed Kowalski helped her in her work and that

she was 'happy' to work with him."

On March 20, 1993, Sprague got married. Her wedding reception was at

Crestview Country Club. I Aple. Supp. App. at 55. Sprague stated in her deposition

that:

22
 Ed [Kowalski] was there, and he put his arm around me and I caught
him looking down my dress. And, you know, I looked at him, and he
said 'well, you got to get it when you can.' I was so uncomfortable and
I was so embarrassed that I didn't even tell my husband for a few weeks
because he would have been extremely upset, and he was when he heard
it.

I Aplt. App. at 125. Finally, a week before Labor Day in 1993, in discussing what

to call "neck chains," Sprague testified that she had said "neck chains," and "Ed said,

'neck chains! That sounds kind of kinky.'" Aple. Supp. App. at 56.

From the record evidence respecting the five incidents, it appears to us that

unpleasant and boorish conduct by Kowalski was shown, but that Sprague was not,

in fact, subjected to such offensive comments or conduct as to create a "hostile or

abusive" work environment. Harris, 510 U.S. at 22. The incident at Sprague's

wedding reception was the most serious, but it occurred at a private club, not in the

workplace. Moreover, the conduct occurred sporadically over an extended period of

some 16 months. Our review of the remarks allegedly made by Kowalski leads us

to conclude that these remarks were not sufficiently severe or pervasive as to alter

the condition of Sprague's employment and create an actionable hostile work

environment.

In sum, considering Sprague's evidence concerning the five incidents at issue,

the totality of the circumstances, and the standard of Harris and Meritor, which the

district judge properly applied, there was not a showing by Sprague sufficient to

avoid summary judgment on this claim. Sprague did not proffer evidence of sexual

23
harassment sufficiently severe or pervasive to alter the conditions of her employment

and create an abusive work environment.

D. Retaliatory and Constructive Discharge

Sprague contends that the district court erroneously granted summary judgment

in favor of defendants on her claims of retaliatory and constructive discharge.

However, we feel that the record clearly supports the district court’s ruling.

As set out more fully above, Sprague’s last day of work with Thorn was

Friday, September 24, 1993. On the following Monday, Sprague called in sick with

a sinus headache, and she never returned to work. However, Sprague continued to

draw her full salary until October 28. On October 1, 1993, Sprague, along with her

attorney, went to Thorn and indicated that she would be willing to return to work if,

(1) Kowalski were not her supervisor, and (2) she be given the title and salary of

product manager, retroactive to June 1992. Thorn refused to accept Sprague’s

demands. Although Sprague was repeatedly urged to return to work by

representatives of Thorn, on November 1, 1993, Thorn deemed her to have

abandoned her job and therefore terminated her.

These facts hardly support a claim of retaliatory discharge. As the district

court noted, Sprague’s claim of retaliatory discharge is based largely on the fact that

she hired an attorney and that Thorn refused to accept her conditions for returning

to work. We have held that in order to establish a prima facie case of retaliatory

24
discharge, a plaintiff must show: (1) she engaged in protected activity; (2) she

subsequently suffered adverse action by the employer; and (3) there was a causal

connection between the protected activity and the adverse action. Richmond v.

Oneok, Inc., 120 F.3d 205, 208-09 (10th Cir.1997); Archuleta v. Colorado Dep’t of

Institutions, Division of Youth Services, 936 F.2d 483, 486 (10th Cir. 1991).

However, as the district court correctly recognized, Sprague failed to identify any

action by Thorn, “other than her termination after not returning to work for several

months, which supposedly reflects . . . wrongful adverse job action.” See district

court’s Memorandum and Order at 11. There is no indication that Thorn terminated

Sprague because she attempted to engage in protected activity or because she

exercised legal rights. On the contrary, the record supports the conclusion that

Sprague was terminated because she refused to return to work after a period of

prolonged absence. Thus, we conclude that Sprague failed to show that any genuine

issue of material fact existed with respect to her retaliation claim, and summary

judgment was therefore properly granted in favor of defendants.

Turning to Sprague’s constructive discharge claim, we similarly conclude that

Sprague failed to present material facts which support her claim. A plaintiff alleging

constructive discharge must show that the employer by its unlawful acts made

working conditions so intolerable that a reasonable person in the employee’s position

would feel forced to resign. Thomas v. Denny’s Inc., 111 F.3d 1506, 1514 (10th Cir.

25
1997) (citing Spulak v. K Mart Corp., 894 F.2d 1150, 1154 (10th Cir. 1990)). We

agree with the district court that Sprague offered no evidence such that a reasonable

person would have viewed her working conditions as intolerable. Accordingly, the

district court properly granted summary judgment in favor of defendants on this

claim.

E. Motion to Compel Discovery

I

We lastly review the district court’s denial of Sprague’s motion to compel

production of documents, particularly a memorandum prepared by in-house counsel

Doug Westerhaus for management, and testimony by Westerhaus in response to 42

questions which he refused to answer on his counsel's advice and assertion of

privilege.

Sprague took the deposition of Westerhaus on October 24, 1995. Following

the deposition, on November 22, 1995, Sprague filed a motion to compel with a

supporting memorandum, and she subsequently filed an addendum to the supporting

memorandum on December 1, 1995. II Aplt. App. at 256, 258, 335. Sprague sought

to compel the production of documents by Westerhaus relevant to the deposition

inquiries, testimony by Westerhaus regarding 42 questions Westerhaus was instructed

not to answer by defendants’ counsel based on attorney-client and work product

privileges, and, in particular, the production of a memorandum prepared by

26
Westerhaus for Thorn's senior management, allegedly addressing disparate treatment

of women at Thorn. On appeal, Sprague has focused her arguments mainly on the

memorandum. See, e.g., Appellant's Reply Brief at 10-12.

There was apparently no substantial argument below on Sprague's motion to

compel. The motion was disposed of by the trial judge in his Memorandum and

Order, which denied the motion to compel and granted the defendants' motion for

summary judgment. II Aplt. App. at 396-408. The order states in part:

The court has at hand the plaintiff's motion to compel the
production of documents and testimony from Doug Westerhaus, an
attorney employed by the defendant THORN Americas. The court finds
that the motion to compel should be denied, since the matters sought to
be discovered reflect privileged information and the plaintiff has failed
to identify any actions by the defendant indicating a waiver of that
privilege.

Id. at 396.

II

We review rulings related to discovery under an abuse of discretion standard.

Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995) (quoting

Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir. 1992), cert. denied, 507 U.S.

910 (1993)). Although discovery in discrimination cases should not be narrowly

circumscribed, the desire to afford "broad discovery is not without limits and the trial

court is given wide discretion in balancing the needs and rights of both plaintiff and

27
defendant." Gomez, 50 F.3d at 1520 (quoting Scales v. J.C. Bradford & Co., 925

F.2d 901, 906 (6th Cir. 1991)).

This discovery issue turns on the claim of attorney-client privilege and

attorney work product privilege. In addressing the issue, we face consideration of

both federal and Kansas law since both federal claims and state law pendent

jurisdiction claims are asserted in the instant case. 6 The briefs of Sprague on appeal

make no argument focusing on any distinction between federal and state law and cite

only one federal case and Fed. R. Civ. P. 26b(5) with its provisions concerning the

required procedure when a party withholds information, otherwise discoverable, by

claiming privilege or protection of it as trial preparation material. Brief of Appellant

at 26-27; Appellant's Reply Brief at 10-12. The defendants likewise make no

assertion as to the applicability of federal as opposed to state law, or the reverse, in

their brief before us, although they cite our Gomez opinion on the scope of review

and Upjohn Co. v. United States, 449 U.S. 383 (1981), in support of their

6
In the Brief of Appellant at 1-2, plaintiff Sprague alludes to her several
federal claims and also to her claims under the Kansas Acts Against
Discrimination, K.S.A. § 44-1001, et seq. Sprague does not separately argue her
state and federal claims and instead asserts general arguments of alleged errors in
the rulings on her claims of sex discrimination, sexual harassment, violation of
the Equal Pay Act, and retaliatory and constructive discharge. The standards
governing sexual harassment claims under the Kansas statute are identical to
those under Title VII in any event. Ulrich v. K-Mart Corp., 858 F. Supp. 1087,
1091 n.4 (D. Kan. 1994); see also Reber v. Mel Falley, Inc., 683 P.2d 1229,
1230-32 (Kan. 1984).

28
attorney-client privilege claim concerning the Westerhaus memorandum. Brief of

Appellees at 28-29.

In Motley v. Marathon Oil Co., 71 F.3d 1547 (10th Cir. 1995), cert. denied,

116 S. Ct. 1678 (1996), the plaintiff asserted both federal and state claims. We said

that as to the state causes of action, a federal court should look to state law in

deciding privilege questions, citing Fed. R. Evid. 501 and White v. American

Airlines, Inc., 915 F.2d 1414, 1424 (10th Cir. 1990). Motley, 71 F.3d at 1551. Rule

501 provides in part that in civil actions and proceedings, with respect to an element

of a claim or defense as to which state law supplies the rule of decision, privilege of

a witness or person, inter alia, shall be determined in accordance with state law. In

White v. American Airlines, Inc., 915 F.2d 1414 (10th Cir. 1990), we applied

Oklahoma law in deciding an attorney-client privilege question in a civil case based

on a state cause of action, where the case had been removed to federal court. Id. at

1423-24.

Here, with both federal claims and pendent state law claims implicated, we

should consider both bodies of law under Motley and Fed. R. Evid. 501. If the

privilege is upheld by one body of law, but denied by the other, problems have been

noted. "In this situation, permitting evidence inadmissible for one purpose to be

admitted for another purpose defeats the purpose of a privilege. The moment

privileged information is divulged the point of having the privilege is lost." 3

29
Weinstein's Federal Evidence, § 501.02[3][b] (Matthew Bender 2d ed.) (citing

Perrigon v. Bergen Brunswig Corp., 77 F.R.D. 455, 458 (N.D. Cal. 1978)). If such

a conflict on the privilege exists, then an analytical solution must be worked out to

accommodate the conflicting policies embodied in the state and federal privilege

law. 7 Here, however, for reasons given below we are convinced that both federal and

Kansas law support application of the attorney-client privilege. Therefore we need

not articulate an analytical solution here for conflicts in attorney-client privilege

rules.

We turn now to the consideration of the merits of the privilege claims here.

III

7
See, e.g., Hancock v. Hobbs, 967 F.2d 462, 466-67 (11th Cir.1992) (federal
law applied rejecting psychiatrist-patient privilege claim in § 1983 case although
pendent state law counts were asserted and conflicting state law might provide
different result); Hancock v. Dodson, 958 F.2d 1367, 1372-73 (6th Cir. 1992) (In
federal question case involving a § 1983 claim, existence of pendent state law
claims held not to relieve court of obligation to apply federal law of privilege);
United States v. Prouse, 945 F.2d 1017, 1024 (8th Cir. 1991) (Minnesota statutory
privilege against use of test result from employer's drug or alcohol testing
program not applied due to Fed. R. Evid. 501 instruction "to apply privileges in
light of reason and experience"); von Bulow v. von Bulow, 811 F.2d 136, 141
(2d Cir. 1987) (where federal RICO claim was asserted along with pendent state
law claims and a diversity claim, it was held that federal law of privilege
controlled question of journalist's privilege); Wm. T. Thompson Co. v. General
Nutrition Corp., 671 F.2d 100, 104 (3d Cir. 1982) (when there are federal claims
in a case also presenting state law claims, federal rule favoring admissibility
rather than state law privilege is the controlling rule); Memorial Hospital for
McHenry County v. Shadur, 664 F.2d 1058, 1061 and n.3 (7th Cir. 1981) (in
federal antitrust suit with pendent state law claim, federal rule denying privilege
applied to reject privilege claim under state Medical Studies Act).

30
 Plaintiff Sprague supported her motion to compel discovery with an affidavit

of Ms. Melanie Owens which was attached to her memorandum in support of her

motion to compel. II Aplt. App. 283-85. The principal facts are stated in the

affidavit of Owens, who was employed by Thorn for some six years from early

January 1990 until September 1995. Her affidavit states she filled the position of

Manager of Compensation in the Human Resources Department during her

employment with Thorn. Her responsibilities included developing and implementing

salary range structures and incentive programs, evaluating jobs and placing them in

a salary range, researching compensation schemes, inter alia. Id.

On July 12, 1995, at about 6:15 p.m. as Owens exited the building after work,

she saw Doug Westerhaus in the parking lot. He was the staff attorney at Thorn

responsible for the Human Resources Department. Westerhaus indicated he wanted

to talk with Ms. Owens. During the course of their conversation, Westerhaus advised

Ms. Owens, according to the affidavit, that he was concerned about the disparate

treatment of women at Thorn, mentioning specific women employed at Thorn. The

critical portion of the affidavit stated:

7. Westerhaus proceeded to inform me that he had sent a
memorandum addressing the subject of the disparate treatment of
women by the company to Mr. Dave Egan, Senior Vice President and
General Counsel for THORN. Westerhaus said he intended to follow
up on the subject of the memorandum with Egan and other members of
senior management including Mr. Alan St. Clair, Vice President of
Human Resources.

31
II Aplt. App. 283.

Owens' affidavit says that she told Westerhaus her department had been

responsible for preparing historical data, including graphic analysis and backup

information for the Legal Department that provided statistical support for the

memorandum. Westerhaus said that he had reviewed that information, and that

information made available to him indicated that women received disparate treatment

at Thorn. Westerhaus commented on the fact that there were no women in executive

level positions with the company, which amounted to disparate treatment. The

affidavit continues with specific examples given by Westerhaus dealing with the

allegedly disparate treatment. The conversation of Owens and Westerhaus lasted

between 15 and 30 minutes. II Aplt. App. 284-85.

We are persuaded that the critical memorandum of Westerhaus is protected by

the attorney-client privilege. It was prepared for higher management by in-house

counsel acting within the scope of his employment and, as paragraph 7 of the

affidavit demonstrates, it related to the rendition of legal services and advice. As the

Supreme Court has noted, "the privilege exists to protect not only the giving of

professional advice to those who can act on it but also the giving of information to

the lawyer to enable him to give sound and informed advice." Upjohn Co. v. United

States, 449 U.S. at 390; United States v. Amerada Hess Corp., 619 F.2d 980, 986

(3d Cir. 1980) ("Legal advice or opinion from an attorney to his client, individual or

32
corporate, has consistently been held by the federal courts to be within the protection

of the attorney-client privilege"); Natta v. Hogan, 392 F.2d 686, 692-93 (10th Cir.

1968) ("The recognition that privilege extends to statements of a lawyer to a client

is necessary to prevent the use of the lawyer's statements as admissions of the

client").

A dichotomy in treatment of the attorney-client privilege has been noted in

several cases. In Loftis v. Amica Mutual Insurance Co., _____ F.R.D. _____, 1997

WL 453173 (D. Conn. 1997), the two general approaches were discussed. Under a

narrower approach, the attorney-client privilege is held not to protect from disclosure

a legal opinion and advice communicated in confidence by an attorney to his client

where that opinion and advice do not reveal client confidences. Id. at *4. Predicting

Connecticut law, Loftis held that the narrower approach should be applied and a

letter from counsel to the client was denied protection. Id. at *5.

Loftis noted, however, that some courts have held that the privilege protects

communications from the lawyer, regardless of whether the lawyer's communications

reveal confidences from the client, citing United States v. Amerada Hess Corp.,

discussed above. Id. at *3. This broader approach has been applied in cases holding

that any communication from an attorney to his client made in the course of giving

legal advice is protected. In re LTV Securities Litigation, 89 F.R.D. 595, 602 (N.D.

Tex. 1981). The LTV opinion rejects the narrower view, pointing out that the

33
predictability of confidence is central to the role of the attorney and that "[a]doption

of such a niggardly rule has little to justify it and carries too great a price tag." Id.

at 602. The LTV opinion concludes that a broader rule prevails in the federal courts,

one that protects from forced disclosure any communication from an attorney to his

client when made in the course of giving legal advice, citing our opinion in Natta v.

Hogan, discussed earlier. Id. The distinction between the narrow and broad

approaches was also noted in Potts v. Allis-Chalmers Corp., 118 F.R.D. 597 (N.D.

Ind. 1987). The court there concluded that attorneys' communications to their clients

are not uniformally privileged but that resolution of the conflict of case law was not

necessary for decision in that case. Id. at 603.

We are persuaded that our Natta v. Hogan opinion, 392 F.2d at 692-93, does

represent an application of the broader rule, which was the view of the LTV opinion.

We are further persuaded that under the wording of the statutory privilege in Kansas,

K.S.A. § 60-426, the Kansas courts would apply the broader rule. That statute

protects, inter alia, "communications found by the judge to have been between

lawyer and his or her client in the course of that relationship and in professional

confidence . . . ." § 60-426(a). Also K.S.A. § 60-426(c) defines "communication"

to include "advice given by the lawyer in the course of representing the client and

includes disclosures of the client to a representative, associate or employee of the

lawyer . . . ." (Emphasis added). In State of Kansas v. Breazeale, 713 P.2d 973

34
(Kan. App. 1986), the court held that the "lawyer-client privilege protects statements

transmitting information between a lawyer and his client that are made in

professional confidence." (Syllabus 1 by the court). Because of the breadth of the

language of the Kansas statute and the opinion interpreting it, we are convinced that

the Kansas courts favor the broader approach, namely protecting an attorney's

communications to his client without the qualification that the communications must

contain confidential matters revealed by the client earlier to the attorney.

One further argument of plaintiff Sprague against application of the privilege

is that Westerhaus has not produced any facts establishing a basis for withholding

the memorandum and that he therefore should be compelled to produce it, along with

all other items described in the deposition subpoena. Brief of Appellant at 27. We

disagree. Owens' affidavit, attached to the motion to compel of plaintiff Sprague,

itself asserted the relationship of Westerhaus as an attorney, that the memorandum

addressed the legal subject of allegedly disparate treatment of women by the

company, and that the memorandum had been sent to members of senior management

of Thorn. II Aplt. App. at 283-85. These circumstances properly supported

application of the attorney-client privilege, unless there was a waiver or other special

ground for disregarding the privilege. We will now discuss those questions as

argued by Sprague.

35
 We are not persuaded by Sprague's contention that the attorney-client privilege

was waived here. As the Supreme Court has noted, "the power to waive the

corporate attorney-client privilege rests with the corporation's management and is

normally exercised by its officers and directors." Commodity Futures Trading

Comm'n v. Weintraub, 471 U.S. 343, 348-49 (1985). Hence, "a corporate employee

cannot waive the corporation's privilege." United States v. Chen, 99 F.3d 1495, 1502

(9th Cir. 1996), cert. denied, 117 S. Ct. 1429 (1997); In re Claus von Bulow, 828

F.2d 94, 100-101 (2d Cir. 1987). Here there is no showing that the officers or

directors of Thorn ever expressly or impliedly waived the attorney-client privilege

of the corporation with respect to the memorandum as required by federal law. We

must also consider the Kansas law on the attorney-client privilege since Sprague

asserts both federal claims and Kansas pendent state law claims. Kansas affords

protection by statute to the privilege, giving the same basic protection to

communications between lawyer and client which we discussed in Natta v. Hogan,

392 F.2d at 692-93, in treating federal law on the attorney-client privilege. See

K.S.A. § 60-426. 8 Further, the waiver of the privilege is confined to circumstances

8
The Kansas attorney-client privilege is afforded by K.S.A. § 60-426, which
provides in part:

60-426. Lawyer-client privilege.

(a) General rule. Subject to K.S.A. 60-437, and except as
(continued...)

36
where the judge may find that the client (a person or corporation, directly or through

an authorized representative) has waived the privilege in accordance with the

conditions in the Kansas statutes. K.S.A. § 60-437. Here no such waiver satisfying

the Kansas requirements is shown.

There remains the contention by plaintiff Sprague that the attorney-client

privilege does not apply because of the crime or fraud exception. Brief of Appellant

at 28. We have recognized that there is an exception under federal law that "the

attorney-client privilege does not apply where the client consults an attorney to

further a crime or fraud." Motley, 71 F.3d at 1551 (quoting In re Grand Jury

Proceedings, 857 F.2d 710, 712 (10th Cir. 1988), cert. denied, 492 U.S. 905 (1989)).

In Kansas there is also a statutory provision that the attorney-client privilege and

others do not extend to a communication if there was sufficient evidence that the

8
(...continued)
otherwise provided by subsection (b) of this section communications
found by the judge to have been between lawyer and his or her client
in the course of that relationship and in professional confidence, are
privileged, and a client has a privilege (1) if he or she is the witness
to refuse to disclose any such communication, and (2) to prevent his
or her lawyer from disclosing it, and (3) to prevent any other witness
from disclosing such communication if it came to the knowledge of
such witness (i) in the course of its transmittal between the client and
the lawyer, or (ii) in a manner not reasonably to be anticipated by the
client, or (iii) as a result of a breach of the lawyer-client relationship.
The privilege may be claimed by the client in person or by his or her
lawyer, or if an incapacitated person, by either his or her guardian or
conservator, or if deceased, by his or her personal representative.

37
communication was sought to enable or aid the commission or planning "of a crime

or a tort . . . ." K.S.A. § 60-426(b). See Burton v. R. J. Reynolds Tobacco Co., 167

F.R.D. 134, 140-41 (D. Kan. 1996); In re A. H. Robins Co., Inc., 107 F.R.D. 2, 9

(D. Kan. 1985). However, Sprague points to no record evidence to support a

contention that Westerhaus' advice was sought to perpetuate a crime, a fraud or a

tort, and we have found none.

In sum, we are convinced that under federal and Kansas law the critical

memorandum and information sought by the motion to compel are protected by the

attorney-client privilege. Since this privilege applies, it is unnecessary for us to

consider the work product privilege. We are persuaded that the district judge

properly denied the motion to compel.

Accordingly, the judgment of the district court is AFFIRMED.

38