Sprague v. Thorn Americas, Inc.

• Decision Date: 24 November 1997
• Docket Number: No. 96-3021,96-3021
• Citation: 129 F.3d 1355
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 1111, 72 Empl. Prac. Dec. P 45,104, 39 Fed.R.Serv.3d 706, 97 CJ C.A.R. 2990, 97 CJ C.A.R. 3234 Shelley A. SPRAGUE, Plaintiff-Appellant, v. THORN AMERICAS, INC. and Ed Kowalski, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1355

129 F.3d 1355

75 Fair Empl.Prac.Cas. (BNA) 1111,

72 Empl. Prac. Dec. P 45,104, 39 Fed.R.Serv.3d 706,

97 CJ C.A.R. 2990, 97 CJ C.A.R. 3234

Shelley A. SPRAGUE, Plaintiff-Appellant, v. THORN AMERICAS, INC. and Ed Kowalski, Defendants-Appellees.

No. 96-3021.

United States Court of Appeals, Tenth Circuit.

Nov. 24, 1997.

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

Timothy B. Mustaine (Mary Kathleen Babcock with him on the brief), Foulston & Siefkin, Wichita, KS, 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 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 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.

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, 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49 (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 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 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.

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, ...