### 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 th e captioned decision: Due to a typographical error, name of counsel for t he appellant is misspelled. M. Kathryn Webb is the correct spellin g. 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 

### NOV 24 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SHELLEY A. SPRAGUE, Plaintiff-Appellant, v. THORN AMERICAS, INC. and ED KOWALSKI, Defendants-Appellees. No. 96-3021

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 himon the brief), of Foulston & Siefkin, Wichita, Kansas, for Defendants-Appellee s.

Before BRORBY, HOLLOWAY and EBEL, Circuit Judges.

HOLLOWAY, Circuit Judge.1 Sprague does not appeal the district court’s reject ion of her implied contract

claim and we will therefore not review this issue.

2 At the time Sprague was known as Shelley Rose. Add itionally, Thorn did business as Rent-A-Center. 3 Plaintiff-appellant Shelley Sprague brought the pre sent action against defendants, alleging gender discrimination and sexu al harassment in violation of Title VII and the Kansas Acts Against Discriminatio n, K.S.A. § 44-1001, etseq , constructive and retaliatory discharge, breach of c ontract, 1 and violation of the Equal Pay Act. The United States District Court fo r 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 ar e as follows: Plaintiff-appellant, Shelley Sprague, began working for defendant-appellee, Thorn Americas, Inc., as a secretary in September 1 989. 2 I Aplt. App. at 58 (statement of uncontroverted facts). While attendi ng orientation Sprague was given an employee handbook, which she signed on September7, 1989. By signing the4

handbook, Sprague acknowledged that her employment with T horn was an “at will” relationship, which permitted either Sprague or Tho rn 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 sum mary judgment). During the events forming the basis of this lawsuit , Sprague’s title with Thorn was “Market Analyst.” Aple. Supp. App. at 92. Unt il June 1992, Sprague’s duties involved the entire range of Thorn’s products and h er supervisor was J. D. Henning. In June 1992, Sprague took on additional responsibi lities as Market Analyst in the jewelry department and she was reassigned to defend ant-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 pe rformed differed from those of the APMs because the APMs had more marketing experi ence and hence were given more discretion. Id. Sprague last reported for work on September 24, 199 3, and was terminated on November 1, 1993. Id. at 82. She continued to draw her full salary, how ever, until October 28. See Appellant's Reply Brief, Attachment A at 4 (letterfrom Douglas B. Westerhaus to M. Kathryn Webb). Between September 24 and November 1, Sprague5

indicated that she would be willing to return to wo rk if Kowalski were not her supervisor. Aple. Supp. App. at 85-86. She also s ought 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 who m 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 andterminated her. Sprague filed her original complaint in the distric t court on December 1, 1993. On the next day, she filed charges of discriminatio n with the Kansas Human Rights Commission and the Equal Employment Opportunity Com mission (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 severa l 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 suc h position. Since both of Thorn's APM positions were occupied by males, she a lleges 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 A ct and Title VII. Sprague also brought a claim alleging hostile work environment s exual harassment, which is based on five incidents involving Mr. Kowalski, detailed later in Part III-C. Finally, Sprague asserts that she was subjected to construct ive and retaliatory discharge.6

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 evide nce revealed that Thorn did not have an assistant manager position in its jewelry d epartment because that department constituted a relatively minor part of Thorn’s busi ness. The judge further stated that Sprague’s job functions were not substantially simi lar to those of the two males who acted as assistant managers of other departments an d that Sprague merely performed some, but not all, of the functions of an assistantmanager. With respect to Sprague’s allegations of sexual harassment and host ile 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 reas onable 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 hos tile working environment. Id. The judge also held that Sprague failed to show that sh e was constructively discharged7

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 disc harge, the district judge concluded that Sprague failed to demonstrate any ac tion by Thorn which reflected wrongful adverse job action, other than terminating her after not returning to work for several months. The district court stressed th at 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, ap plying the same standard used by the district court. Bohn v. Pa rk 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 applyi ng this standard, we must “examine the factual record and reasonable inferenc es 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 distri ct court correctly applied the3 We are mindful that the elements and burdens of pro of 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 claim s separately in our discussion. 8 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 i n 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 Ti tle VII claim of gender discrimination, Sprague argues on appeal that defen dants’ motion for summary judgment did not specifically address this claim an d that defendants produced no specific evidence to refute the claim. Sprague thu s contends that the district court erred in granting summary judgment since defendants fail ed 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 discri mination 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.9

We are not persuaded by Sprague's procedural object ion to the defendants' presentation of their position on the Title VII cla im of gender discrimination. It appears from the record that defendants’ motion for s ummary judgment did, in fact, address the issue of gender discrimination under Ti tle 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 an d mistreatment she allegedly suffered as a result thereof, forms the basis of Sp rague’s entire action. Throughout their motion for summary judgment, defendants clear ly 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 Ti tle VII provide distinct causes of action and do not require precisely the s ame standard of proof, we are satisfied that defendants’ arguments contained in their motion for summary judgment adequately addressed both Sprague’s Title VII gende r 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 speci fically 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 a lleged violations of the Equal Pay Act in defendants' brief below. See I Aplt. App. at 31-35. Moreover, it appears from10

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 genderdiscrimination under Title VII was adequately presented to the district court and we further find that, in its order granting summary judgment, the district c ourt necessarily concluded by implication that defendants’ alleged failure to for mally promote Sprague to assistant manager or pay her the salary commensurate with suc h 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 wa s “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 d uties of assistant managers were given the title and salary commensurate with such aposition, while Sprague was denied a promotion to such title and salary because of her gender, even though she performed the same functions.11

“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 Dou glas Corp. v. Green , 411 U.S. 792, 802, (1973)). “Only when such a show ing has been made does the burden shift to the employer to articulate ‘some le gitimate, nondiscriminatory reason’ for the questioned action. If the employer meets t his burden, the employee must show that the stated reason is actually a pretext f or prohibited discrimination.” Id. at 558 (quoting McDonnell Douglas , 411 U.S. at 804). We have recognized that the “elements of a prima fa cie 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 fille d 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).12

We are not persuaded that Sprague established a prima facie case of failure to promote because of gender. As the record reveals, a nd the district court concluded, Thorn “did not have an Assistant Manager position i n 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 o f assistant manager of jewelry when such a position did not even exist. We theref ore find it highly questionable whether promotional opportunities were even availab le with respect to Sprague’s position. More importantly, Sprague failed to prod uce any evidence which shows that if such opportunities did, in fact, exist, Tho rn 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 e ffort to discriminate against women or deny Sprague promotional opportunities. W e 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 i n the same way it applies to” the EPA. Nulf

, 656 F.2d at 560. However, the Supreme Court in C ounty of Washington v. Gunther , 452 U.S. 161, 168-171, 180-81 (1981), determined that the EPA’s13

requirement that a plaintiff prove equal work does not apply to Title VII. Rather, “a cause of action for discriminatory compensation bas ed on sex could arise under Title VII even if a plaintiff did not allege unequa l 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) (Guntherheld that Title VII, 42 U.S.C. § 2000e-2(h), only incorporate s the affirmative defenses of the EPA, not its prohibitory language requiring equal p ay 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” und er 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 i n Ammons v. Zia Co. , 448 F.2d 117 (10th Cir. 1971), that Title VII req uired a showing of equal work, must be treated as substantially modified by the Supreme Court in Gunther

. We also acknowledged that Guntheremphasized that the purpose of the Bennett Amendment was to incorporate into Title VII the fou r 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 s imilar to that of higher paid14

males.” Meeks , 15 F.3d at 1019. “Once a prima facie case is established, the defendant must articulate a ‘legitimate, non-discri minatory reason for the pay disparity.’ This burden is ‘exceedingly light’; t he 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 justific ation, 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 sh ow that ‘a discriminatory reason more likely than not motiv ated [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 pr esent genuine issues of material fact which would support her equal pay cla im under Title VII. As the district court observed, Sprague contrasts her func tions and pay in the jewelry department to those of the assistant product manage r of electronics and the assistant product manager of furniture/appliances, both of wh om 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 approxim ately 50% of revenues and the furniture/appliance department accounts for approxi mately 45% of revenues, the jewelry department only produces approximately 4% o f revenues. Id. Thus, a difference in pay between Sprague and the assistantproduct managers is justifiable15

and is consistent with the different levels of impo rtance, 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 ar ray 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 Th orn’s review committee, and, as “a result of the review, Sprague was eventually pla ced on an action plan to be let go.” See district court’s Memorandum and Order at 6. Furth er, 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 1 993, Sprague expressed a goal in January of 1993 of being promoted to assistant p roduct 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 supportthe 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 evi dence 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’s16

Title VII gender discrimination claim, summary judg ment 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 provisi ons of this section shall discriminate, within any establishment in whi ch such employees are employed, between employees on the basis of sexby paying wages to employees in such establishment at a rate less t han the rate at which he pays wages to employees of the opposite sex in s uch establishment for equal work on jobs the performance of which req uires equal skill, effort, and responsibility, and which are performedunder similar working conditions, except where such payment is ma de 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 o f 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 w here the work was performed were basically the same; (3) the male employees were pa id more under such circumstances.” Tidwell , 989 F.2d at 409 (citing Corning Glass Works v. Br ennan , 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 reasons17

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 employerto establish that the pay differential was premised on a factor other than sex. Under Title VII, however, the plaintiff must prove that t he employer had a discriminatory intent.” Id. Sprague contends that the district court erred in g ranting 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 w as performed under similar working conditions. However, we agree with the district co urt that Sprague failed to produce evidence that her job functions were substantially similar to those of the male assistant managers. “The uncontroverted evidence i s 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 demons trate that she occupied substantially the same position or performed substantially the same tasks as the assistant managers, her EPA claim must fail. We ag ree. 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 which18

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 mal e counterparts indicates that the tasks and functions performed by Sprague were q uite dissimilar both in the level of experience required to adequately manage operations a nd the level of complexity in performing required functions. We are also pers uaded that equal pay was not required due to the varied level of experience betw een 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 “co mparable work” or “like jobs” is not actionable. See , Nulf , 656 F.2d at 560 (citing Lemons v. City and Countyof
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,’ ‘responsibili ty,’ 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, itis clear that Sprague occupied a position and performed functions that were not “sub stantially equal” to those of the male assistant managers. At most, Sprague’s job fu nctions were merely comparable4 In Sprague’s complaint, she alleged hostile work en vironment 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 th e distinction between these types of prohibited conduct. However, on appeal Sp rague directs her argument solely to hostile work environment harassment and w e therefore assume that Sprague has abandoned her quid pro quo claim. Hence, we will focus exclusively on whether the district court erred in granting sum mary 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 to those of the assistant managers. Hence, the dis trict 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 sexual ly-oriented, offensive comments either directed to her or made in her presence in asixteen 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 r emedy the situation by placing her with a different supervisor.20

It is beyond contention that Title VII prohibits se xual 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 offen sive conduct which creates a hostile work environment. Id. at 1443. However, prior to addressing the issue o f whether summary judgment was properly entered in favor of Thorn as Kowalski’s employer, we must first examine the evidence to det ermine if a genuine issue of material fact exists as to whether Kowalski’s alleg ed 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 privil ege' of employment within the meaning of Title VII." Meritor Sav. Bank, FSB v. V inson , 477 U.S. 57, 67 (1986). Rather, in order to prevail on a hostile work envir onment sexual harassment claim, Sprague is required to show that the unwelcome, sexually-oriented conduct was sufficiently severe or pervasive as to alter the co nditions 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 Hirschf eld 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 s howing, we must consider a variety of factors, including, “the frequency of th e discriminatory conduct; its21

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 p ervasive as to create a hostile work environment must be determined from the totali ty of the circumstances since no single factor is required. Id. at 23. “A plaintiff may prove the existence of hostile wor k environment sexual harassment in violation of Title VII 'where [sexual ] conduct has the purpose or effect of unreasonably interfering with an individual’s wo rk performance or creating an intimidating, hostile, or offensive working environ ment.'” Hirase-Doi , 61 F.3d at 782 (quoting Meritor , 477 U.S. at 65) (internal quotations omitted). I n Harris , the Supreme Court held that a plaintiff bringing a host ile Title VII work environment sexual harassment claim must establish both an obje ctively hostile or abusive work environment and a subjective perception by the plai ntiff that the environment was abusive. But Title VII comes into play before the harassing conduct leads to a nervous breakdown, and a discriminatorily abusive w ork environment, even one that does not seriously affect the employees' psychologi cal well-being, can and often will detract from employees' job performance, discourage e mployees from remaining on the job, or keep them from advancing in their caree rs. Harris , 510 U.S. at 22. "So long as the environment would reasonably be perceived, an d is perceived, as hostile22

or abusive, Meritor , . . . there is no need for it also to be psychologica lly injurious." Id. See also Hirase-Doi , 61 F.3d at 782. As noted above, the conduct allegedly creating a ho stile work environment consisted of five separate incidents involving Kowa lski over a span of approximately sixteen months. On one occasion in April 1992, whe n Sprague entered Kowalski’s office, he allegedly said, “Shelley, you really nee d to undo that top button.” Sprague Deposition, I Aplt. App. at 119. Sprague also comp lained 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, “He y, 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 tw o other employees were standing in a hallway. Kowalski allegedly “broughtup the subject about women and PMS and you know how they are at that time of the m onth . . . .” I Aplt. App. at 120. As the district court noted in its Memorandum and O rder granting summary judgment for defendants, p. 9, in January 1993, after the first three incidents described above, "Sprague stated in writing that she believed Kowals ki helped her in her work and that she was 'happy' to work with him." On March 20, 1993, Sprague got married. Her weddin g reception was at Crestview Country Club. I Aple. Supp. App. at 55. Sprague stated in her deposition that:23

Ed [Kowalski] was there, and he put his arm around me and I caught him looking down my dress. And, you know, I lookedat him, and he said 'well, you got to get it when you can.' I was s o uncomfortable and I was so embarrassed that I didn't even tell my hus band 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 h ad 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 incide nts, it appears to us that unpleasant and boorish conduct by Kowalski was show n, but that Sprague was not, in fact, subjected to such offensive comments or co nduct 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 occu rred at a private club, not in the workplace. Moreover, the conduct occurred sporadic ally over an extended period of some 16 months. Our review of the remarks allegedl y made by Kowalski leads us to conclude that these remarks were not sufficientl y 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 sh owing by Sprague sufficient to avoid summary judgment on this claim. Sprague did not proffer evidence of sexual24

harassment sufficiently severe or pervasive to alte r the conditions of her employment and create an abusive work environment.

D. Retaliatory and Constructive Discharge Sprague contends that the district court erroneousl y granted summary judgment in favor of defendants on her claims of retaliatoryand constructive discharge. However, we feel that the record clearly supports t he 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, Spragu e 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 will ing to return to work if, (1) Kowalski were not her supervisor, and (2) she b e given the title and salary of product manager, retroactive to June 1992. Thorn r efused 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 d ischarge. As the district court noted, Sprague’s claim of retaliatory dischar ge is based largely on the fact that she hired an attorney and that Thorn refused to acc ept her conditions for returning to work. We have held that in order to establish a prima facie case of retaliatory25

discharge, a plaintiff must show: (1) she engaged in protected activity; (2) she subsequently suffered adverse action by the employe r; and (3) there was a causal connection between the protected activity and the a dverse 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 ad verse 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 protecte d activity or because she exercised legal rights. On the contrary, the recor d 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 supp ort 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.26

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 infavor of defendants on this claim. E. Motion to Compel Discovery
I We lastly review the district court’s denial of Spr ague’s motion to compel production of documents, particularly a memorandum prepar ed by in-house counsel Doug Westerhaus for management, and testimony by We sterhaus 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 Octobe r 24, 1995. Following the deposition, on November 22, 1995, Sprague fileda 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 2 56, 258, 335. Sprague sought to compel the production of documents by Westerhaus relevant to the deposition inquiries, testimony by Westerhaus regarding 42 que stions Westerhaus was instructed not to answer by defendants’ counsel based on attorney-client and work product privileges, and, in particular, the production of amemorandum prepared by27

Westerhaus for Thorn's senior management, allegedlyaddressing 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 ju dge in his Memorandum and Order, which denied the motion to compel and grante d the defendants' motion for summary judgment. II Aplt. App. at 396-408. The o rder states in part:

The court has at hand the plaintiff's motion to compel the production of documents and testimony from Doug Wes terhaus, an attorney employed by the defendant THORN Americas. The court finds that the motion to compel should be denied, since the m atters sought to be discovered reflect privileged information and th e 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 di scretion 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 nee ds and rights of both plaintiff and6 In the Brief of Appellant at 1-2, plaintiff Sprague alludes to her several

federal claims and also to her claims under the Kan sas Acts Against Discrimination, K.S.A. § 44-1001, etseq. Sprague does not separately argue her state and federal claims and instead asserts genera l arguments of alleged errors in the rulings on her claims of sex discrimination, se xual 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-Ma rt 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 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 clai ms and state law pendent jurisdiction claims are asserted in the instant cas e. 6 The briefs of Sprague on appeal make no argument focusing on any distinction betwee n federal and state law and cite only one federal case and Fed. R. Civ. P. 26b(5) wi th its provisions concerning the required procedure when a party withholds informati on, otherwise discoverable, by claiming privilege or protection of it as trial pre paration material. Brief of Appellant at 26-27; Appellant's Reply Brief at 10-12. The d efendants likewise make no assertion as to the applicability of federal as opposed t o 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 their29

attorney-client privilege claim concerning the West erhaus 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 fe deral and state claims. We said that as to the state causes of action, a federal co urt 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 proc eedings, 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 Motleyand Fed. R. Evid. 501. If the privilege is upheld by one body of law, but denied by the oth er, problems have been noted. "In this situation, permitting evidence ina dmissible for one purpose to be admitted for another purpose defeats the purpose of a privilege. The moment privileged information is divulged the point of hav ing the privilege is lost." 37 See, e.g. , Hancock v. Hobbs , 967 F.2d 462, 466-67 (11th Cir.1992) (federal

law applied rejecting psychiatrist-patient privileg e claim in § 1983 case although pendent state law counts were asserted and conflict ing 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, exi stence 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 st atutory privilege against use of test result from employer' s drug or alcohol testing program not applied due to Fed. R. Evid. 501 instru ction "to apply privileges in light of reason and experience"); von Bulow v. vonBulow , 811 F.2d 136, 141 (2d Cir. 1987) (where federal RICO claim was assert ed 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 Medic al Studies Act). 30 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 analyti cal solution must be worked out to accommodate the conflicting policies embodied in th e state and federal privilege law. 7Here, however, for reasons given below we are con vinced that both federal and Kansas law support application of the attorney-clie nt privilege. Therefore we need not articulate an analytical solution here for conf licts in attorney-client privilege rules. We turn now to the consideration of the merits of t he privilege claims here.
III31

Plaintiff Sprague supported her motion to compel disc overy with an affidavit of Ms. Melanie Owens which was attached to her memo randum in support of her motion to compel. II Aplt. App. 283-85. The princ ipal facts are stated in the affidavit of Owens, who was employed by Thorn for s ome six years from early January 1990 until September 1995. Her affidavit s tates she filled the position of Manager of Compensation in the Human Resources Department during her employment with Thorn. Her responsibilities includ ed developing and implementing salary range structures and incentive programs, eva luating 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. West erhaus indicated he wanted to talk with Ms. Owens. During the course of theirconversation, Westerhaus advised Ms. Owens, according to the affidavit, that he was concerned about the disparate treatment of women at Thorn, mentioning specific wo men employed at Thorn. The critical portion of the affidavit stated:

7. Westerhaus proceeded to inform me that he had sen t 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 inte nded to follow up on the subject of the memorandum with Egan and othe r members of senior management including Mr. Alan St. Clair, Vic e President of Human Resources.32

II Aplt. App. 283. Owens' affidavit says that she told Westerhaus her department had been responsible for preparing historical data, includin g 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 wo men received disparate treatment at Thorn. Westerhaus commented on the fact that th ere were no women in executive level positions with the company, which amounted to disparate treatment. The affidavit continues with specific examples given byWesterhaus 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 We sterhaus is protected by the attorney-client privilege. It was prepared forhigher management by in-house counsel acting within the scope of his employment a nd, 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 p rotect 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 C orp. , 619 F.2d 980, 986 (3d Cir. 1980) ("Legal advice or opinion from an attorney to his client, individual or33

corporate, has consistently been held by the federa l 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 s tatements 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 pri vilege 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 approach es were discussed. Under a narrower approach, the attorney-client privilege is held not to protect from disclosure a legal opinion and advice communicated in confiden ce 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 protec tion. Id. at *5. Loftis noted, however, that some courts have held that th e privilege protects communications from the lawyer, regardless of wheth er the lawyer's communications reveal confidences from the client, citing United S tates 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 clie nt made in the course of giving legal advice is protected. In re LTV Securities Li tigation , 89 F.R.D. 595, 602 (N.D. Tex. 1981). The LTVopinion rejects the narrower view, pointing out th at the34

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 a nd carries too great a price tag." Id. at 602. The LTVopinion concludes that a broader rule prevails in the federal courts, one that protects from forced disclosure any commun ication from an attorney to his client when made in the course of giving legal advice, c iting our opinion in Natta v. Hogan , discussed earlier. Id. The distinction between the narrow and broad approaches was also noted in Potts v. Allis-Chalmer s Corp. , 118 F.R.D. 597 (N.D. Ind. 1987). The court there concluded that attorne ys' communications to their clients are not uniformally privileged but that resolution of t he conflict of case law was not necessary for decision in that case. Id. at 603. We are persuaded that our Natta v. Hoganopinion, 392 F.2d at 692-93, does represent an application of the broader rule, which was the view of the LTVopinion. 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 b etween 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 represe nting the client and includes disclosures of the client to a representat ive, associate or employee of the lawyer . . . ." (Emphasis added). In State of Kan sas v. Breazeale , 713 P.2d 97335

(Kan. App. 1986), the court held that the "lawyer-c lient privilege protects statements transmitting information between a lawyer and his c lient 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 inte rpreting it, we are convinced that the Kansas courts favor the broader approach, namel y protecting an attorney's communications to his client without the qualificat ion that the communications must contain confidential matters revealed by the clientearlier to the attorney. One further argument of plaintiff Sprague against application of the privilege is that Westerhaus has not produced any facts estab lishing a basis for withholding the memorandum and that he therefore should be comp elled to produce it, along with all other items described in the deposition subpoen a. 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 m embers of senior management of Thorn. II Aplt. App. at 283-85. These circumst ances properly supported application of the attorney-client privilege, unles s there was a waiver or other special ground for disregarding the privilege. We will nowdiscuss those questions as argued by Sprague.8 The Kansas attorney-client privilege is afforded byK.S.A. § 60-426, which

provides in part: 60-426. Lawyer-client privilege. (a) General rule. Subject to K.S.A. 60-437, and e xcept as (continued...) 36 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 employe e 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 waiv ed the attorney-client privilege of the corporation with respect to the memorandum a s required by federal law. We must also consider the Kansas law on the attorney-c lient privilege since Sprague asserts both federal claims and Kansas pendent stat e law claims. Kansas affords protection by statute to the privilege, giving the same basic protection to communications between lawyer and client which we d iscussed 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 circumstances8 (...continued)

otherwise provided by subsection (b) of this sectio n communications found by the judge to have been between lawyer and his or her client in the course of that relationship and in professio nal 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 th e knowledge of such witness (i) in the course of its transmittal b etween the client and the lawyer, or (ii) in a manner not reasonably to b e 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 perso n or by his or her lawyer, or if an incapacitated person, by either hi s or her guardian or conservator, or if deceased, by his or her personal representative. 37 where the judge may find that the client (a person or corporation, directly or through an authorized representative) has waived the privil ege 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 t hat the attorney-client privilege does not apply because of the crime or fr aud exception. Brief of Appellant at 28. We have recognized that there is an excepti on 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 wa s sufficient evidence that the38

communication was sought to enable or aid the commi ssion 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. Rob ins Co., Inc. , 107 F.R.D. 2, 9 (D. Kan. 1985). However, Sprague points to no reco rd evidence to support a contention that Westerhaus' advice was sought to pe rpetuate a crime, a fraud or a tort, and we have found none. In sum, we are convinced that under federal and Kan sas law the critical memorandum and information sought by the motion to compel are protected by the attorney-client privilege. Since this privilege ap plies, it is unnecessary for us to consider the work product privilege. We are persua ded that the district judge properly denied the motion to compel. Accordingly, the judgment of the district court is AFFIRMED.