Catherine Kim v. Coach, Inc. , 692 F. App'x 478 ( 2017 )

FILED
NOT FOR PUBLICATION
JUN 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CATHERINE KIM, No. 14-16248
Plaintiff-Appellant, D.C. No.
1:13-cv-00285-DKW-RLP
v.
COACH, INC.; JOHN DOES, 1-5; DOE MEMORANDUM*
CORPORATIONS, 1-5; DOE LLCS, 1-5;
DOE PARTNERSHIPS, 1-5; DOE
GOVERNMENTAL AGENCIES, 1-5,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Submitted June 14, 2017**
Honolulu, Hawaii
Before: FISHER, PAEZ and NGUYEN, Circuit Judges.
Catherine Kim appeals the judgment in favor of Coach, Inc. on her sexual
harassment claims under Title VII and Hawaii law. We have jurisdiction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. § 1291, we review de novo, see Feldman v. Allstate Ins. Co., 322 F.3d
660, 665 (9th Cir. 2003), and we affirm.
1. The district court properly granted summary judgment to Coach on Kim’s
claim under Title VII. Applying Vance v. Ball State University, 133 S. Ct. 2434(2013), the court correctly concluded that Casey Dungca and Steven Kudo were
not “supervisors,” because neither of them had the authority “to take tangible
employment actions against the victim, i.e., to effect a ‘significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits.’” Id. at 2443 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
761 (1998)). The undisputed evidence shows that only Trisha Makiya, the general
manager of the Ala Moana Store where Kim worked, had such authority.
Kim points out that Dungca or Kudo sometimes “g[a]ve [her] instructions
about [her] work or g[a]ve [her] copies of company policies and talk[ed] to [her]
about them.” She also “need[ed] to follow their instructions.” Under Vance,
however, these facts do not give rise to supervisor status. It is not enough that an
employee “have the ability to direct a co-worker’s labor to some ill-defined
degree.” Id. Nor does Dungca’s mere presence at Kim’s performance plan
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meeting create a triable issue that he exercised the authority to take tangible
employment actions.
This is not a case, moreover, in which Coach “attempt[ed] to insulate [itself]
from liability for workplace harassment by empowering only a handful of
individuals to take tangible employment actions.” Id. at 2452. Coach placed the
authority to take tangible employment actions in Makiya, who worked directly
with Kim and was able to evaluate her work performance without delegating that
responsibility to others.
2. The district court properly granted summary judgment to Coach on Kim’s
sexual harassment claim under Hawaii law, Haw. Rev. Stat. § 378-2. Kim waived
her argument that the Vance standard does not apply under Hawaii law by raising
the argument for the first time on appeal. See Bolker v. Comm’r, 760 F.2d 1039,
1042 (9th Cir. 1985). In the district court, Kim consistently argued Vance applied
to her claims without distinguishing between her claims under federal and state
law. In any event, it is not clear Hawaii would decline to follow Vance, see Lales
v. Wholesale Motors Co., 328 P.3d 341, 356 (Haw. 2014) (explaining that Hawaii
courts look to Title VII case law for guidance unless the “state’s statutory
provision differs in relevant detail” (quoting Furukawa v. Honolulu Zoological
Soc., 936 P.2d 643, 649 (Haw. 1997))), and it is not clear Dungca and Kudo would
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qualify as supervisors even under the broader standard she says should apply, see
Vance, 133 S. Ct. at 2461 (Ginsburg, J., dissenting) (explaining that, even under
the broader standard, “an employee ‘who directs only a limited number of tasks or
assignments’ ordinarily would not qualify as a supervisor” (quoting EEOC
Guidance 405:7655)).
3. We need not address Kim’s contention that the district court improperly
dismissed her retaliation claim with prejudice. First, the record does not establish
whether the court dismissed the claim with or without prejudice. Second, even if
the former, the error was harmless because Kim was able to raise the claim and
litigate it on the merits in a subsequent lawsuit.
AFFIRMED.
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