Kim v. Coach, Inc. et al

Filing 44

ORDER GRANTING DEFENDANT COACH INC.'S 30 MOTION FOR SUMMARY JUDGMENT. Signed by JUDGE DERRICK K. WATSON on 5/30/2014. ~ (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

CIVIL NO. 13-00285 DKW-RLP

CATHERINE KIM,
Plaintiff,

ORDER GRANTING DEFENDANT
COACH INC.’S MOTION FOR
SUMMARY JUDGMENT

vs.
COACH, INC., JOHN DOES 1-5,
DOE CORPORATIONS 1-5, DOE
LLCS 1-5, DOE PARTNERSHIPS
1-5, AND DOE GOVERNMENTAL
AGENCIES 1-5,
Defendants.

ORDER GRANTING DEFENDANT COACH INC.’S
MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
Plaintiff Catherine Kim alleges gender discrimination and hostile
work environment sexual harassment arising out of the alleged touching of her
arms, back, and shoulders on several occasions by two male co-workers while
working in a retail store. Even assuming a reasonable person would perceive the
alleged touching to be “sexual,” as well as sufficiently severe or pervasive, Coach
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is entitled to summary judgment because Kim fails to establish either that Coach
knew or should have known of the alleged conduct or that Coach did not properly
address it once Kim’s accusations were made. Additionally, Kim’s retaliation
claim is dismissed for failure to exhaust administrative remedies.
BACKGROUND
Kim, a Korean female, worked as a sales associate at the Coach retail
location in Ala Moana Shopping Center, Honolulu, beginning on September 24,
2006. Hazlett Decl. ¶ 3. She transferred to Coach’s Hyatt Regency Waikiki
location on November 12, 2006. Id. Kim requested and was granted a transfer
back to the Ala Moana store in April 2009. Lewis Decl. ¶ 2. The number of
hours that Kim worked at the Ala Moana store fluctuated from week to week, as
did those of other sales associates. Makiya Decl. ¶ 6. According to the general
manager of the Ala Moana store, Trisha Makiya, the number of hours that sales
associates work is based on the needs of the store and the monthly payroll budget.
Id.
Between October and December, 2011 Steve Kudo, an associate
manager at Coach’s Hyatt Regency Waikiki store, was temporarily reassigned to
the Ala Moana store during the renovation of the Hyatt location. Makiya Decl.

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¶ 10. According to Kim, during this period of time, Kudo touched her
inappropriately on at least two occasions. Def.’s Ex. C (2/1/14 Kim Dep. Tr.) at
262. She claims that while standing near a watch case in the middle of the store,
Kudo touched her arm, back, and waist area. Id. When Kudo touched her, she
told him “don’t do it.” Id. at 263. Kim said that his hand was on her body for
three to four seconds, and “he kind of gave me a smile.” Id. On the second
occasion, Kudo allegedly touched Kim on the back of her right shoulder for about
five to six seconds while she was entering the stock room. She described it as “a
little bit like push down and then brushed. And then smiling and I know when I
see he stare, I know how he feels.” Id. at 268. According to Kim, Kudo touched
her one or two more times after this incident, also in 2011. Id. at 269.
Kim claims that another employee, Casey Dungca, an Ala Moana
store assistant manager, began touching her arms and shoulders in September
2009. Kim Decl. ¶ 5. On November 27 or 28, 2011, while Kim was eating in the
employee lounge, she claims that Dungca came up from behind her and put both
his arms around her and held her. According to Kim, Dungca “was kind of
holding and almost hugging me,” and that he “grabbed, he kind of hold around
me.” Id. at 226, 270. Kim claims that she told Dungca “don't do it.” Id. at 227.

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Kim felt it “was a little bit sexual.” Id. at 227. “His, you know, his stare was a
little different than a normal staring. In his staring had something, you know, I
can feel it.” Id. at 230. She said “before that he had sometimes touched me just
the way, you know, on my wrist area, around here, patting me.” Id. at 228.
Later, on an unspecified date in 2012, Kim was working at the cash register when
Dungca allegedly came up from behind her and wrapped his arms around her, his
chest touching her back. She pushed him away and told him to stop touching her.
Kim Decl. ¶ 7.
On June 29, 2012, Coach issued a performance plan to Kim. Def.’s
Ex. J. Coach contends that Kim’s performance as a sales associate had never been
strong, and throughout 2012, Coach documented her performance problems.
Makiya Decl. ¶ 12. Managers had conversations with Kim regarding her failure to
meet performance expectations on March 21, April 11, April 22, May 8, May 16,
and May 25, 2012. Id.; Ex. J. Coach asserts that it issued the written
performance plan on June 29, 2012 because Kim’s performance failed to improve
following these meetings. Makiya Decl. ¶¶ 12-13; Ex. J. The performance plan
warned that “[f]ailure to demonstrate improved performance may lead to further
disciplinary action up to and including termination of your employment at

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anytime.” Ex. J. According to Kim, “the Coach managers were looking for a
way to terminate me by making unfair complaints about me.” Kim Decl. ¶ 10.
Kim refused to sign the performance plan, as she believed it was not fair or
accurate.
On July 1, 2012, Kim called Coach’s corporate human resources
department in New York and left a voice message saying she wanted to talk about
“working matters.” Def.’s Ex. B (1/16/14 Kim Dep. Tr.) at 110-111. Katrina
Hazlett, a manager in Coach’s human resources department in New York, returned
Kim’s call but Kim told her she did not want to discuss the matter over the
telephone. Hazlett therefore arranged for Kim to meet with Ivy Lewis, Coach’s
District Manager for Hawaii, in person, to discuss the matter. Hazlett Decl. ¶ 13.
During their July 10, 2012 meeting, Kim told Lewis that Lewis was not permitted
to ask Kim any questions. Lewis Decl. ¶ 5. Kim told Lewis that Dungca had
touched her, but refused to respond when Lewis asked her questions about the
incident. Id. ¶ 6. Kim did not mention anyone else touching her at this meeting,
including Kudo. Id. According to Kim, Lewis was not sympathetic and did not
believe her report of sexual harassment. Kim Decl. ¶ 12.

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Following the July 10, 2012 meeting between Lewis and Kim, Coach
investigated Kim’s claims and interviewed several employees. Lewis Decl.
¶¶ 7-10. During the investigation, Lewis interviewed Dungca, who told her that
he once put his hand on Kim’s shoulder to direct her to a customer that had walked
into the store. Id. ¶ 8. Dungca said that Kim reacted by telling him, “do not
touch me,” so he apologized and said he did not mean anything by it; Dungca also
said he had been careful to avoid touching Kim ever since. Id. Lewis
interviewed other employees in the store, but none reported seeing Dungca touch
Kim. Id. ¶ 9.
As a result of the investigation, Coach management concluded that
Dungca had touched Kim on one occasion, but that it was not sexual in nature. Id.
¶ 11; Richardson Decl. ¶ 4. Lewis nevertheless instructed Dungca not to touch
Kim again. Lewis Decl. ¶ 11. Hazlett informed Kim of the results of the
investigation in a July 26, 2012 letter and thanked her for bringing her concerns to
Coach’s attention. Hazlett Decl. ¶ 15; Ex. L. In the letter, Hazlett reiterated
Coach’s open door policy and invited Kim to contact her or Lewis if she had any
further questions or concerns. Hazlett Decl. ¶ 15; Ex. L. Kim later left Hazlett a
voicemail stating that she had received the letter, and appeared to disagree with the

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investigation findings, but did not make any new allegations or provide any further
information. Hazlett Decl. ¶ 16.
On August 20, 2012, Kim filed a complaint with the Hawaii Civil
Rights Commission (“HCRC”), alleging discrimination based on “sex” and “race,”
and that she was sexually harassed. Kim Decl. ¶13, Ex. 1 (HCRC Pre-Complaint
Questionnaire). Thereafter, Kim filed her complaint in state court on February 21,
2013, and Coach removed the action to this Court on June 5, 2013. The complaint
asserts that Kim was subject to sexual harassment and unwanted touching.
Complaint ¶ 5. She alleges unwanted touching by Dungca in September 2009 and
November 28, 2011, and by Kudo between August 2011 and December 2011.
Complaint ¶¶ 6-9. Kim alleges the following causes of action: (1) sexual
harassment (Count I); (2) violation of state and federal discrimination laws due to
sex (Count II); and (3) retaliation because she opposed the discrimination (Count
III).
Kim resigned from Coach in September 2013. At the time of her
resignation, she told management that she was resigning because she wanted to
work more hours. Makiya Decl. ¶ 15. Kim claims that her hours were reduced
after she filed the instant lawsuit, and she has since filed a new Charge of

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Discrimination for retaliation with the Equal Employment Opportunity
Commission (“EEOC”). Kim Decl. ¶¶ 14-15; Ex. 3 (4/11/14 EEOC Charge).
Coach seeks summary judgment on all claims.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56(a), a party is entitled
to summary judgment “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
DISCUSSION
I.

Coach Is Entitled to Summary Judgment on Count I
In order to establish a prima facie Title VII hostile work environment

sexual harassment claim, a plaintiff must show that she was: “(1) [] subjected to
verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, and
(3) the conduct was sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.” Craig v. M &
O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir. 2007) (quoting Fuller v. City of
Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995)). The elements of a hostile work
environment sexual harassment claim under HRS § 378-2 are similar, requiring
that:

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(1) [the employee] was subjected to sexual advances, requests
for sexual favors, or other verbal or physical conduct or visual
forms of harassment of a sexual nature; (2) the conduct was
unwelcome; (3) the conduct was severe or pervasive; (4) the
conduct had the purpose or effect of either: (a) unreasonably
interfering with the claimant’s work performance, or (b)
creating an intimidating, hostile, or offensive work
environment; (5) the claimant actually perceived the conduct as
having such purpose or effect; and (6) the claimant’s perception
was objectively reasonable to a person of the claimant’s gender
in the same position as the claimant.”
Nelson v. Univ. of Hawaii, 97 Hawaii 376, 390, 38 P.3d 95, 109 (2001) (emphasis
omitted).
“To prevail on a hostile work environment sexual harassment claim,
the plaintiff must show that her work environment was both subjectively and
objectively hostile. . . . The plaintiff also must prove that any harassment took
place because of sex.” Dominguez–Curry v. Nevada Transp. Dep’t, 424 F.3d
1027, 1034 (9th Cir. 2005) (internal citations and quotation marks omitted); HRS
§ 378-2 (forbidding discriminatory practices taken by an employer “because of . . .
sex”).
A.

Questions of Fact Regarding “Sexual” Conduct
Coach argues that the alleged conduct by Dungca and Kudo was not

“of a sexual nature,” and that Kim’s subjective contention that her body reacted

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sexually to the unwelcome touching does not establish that it was “of a sexual
nature.” Coach contends that “a reasonable person would not perceive a touch on
the arm, shoulder or back to be sexual.” Coach Mem. in Supp. at 20. It also
argues that the alleged conduct was not sufficiently severe or pervasive. Kim
maintains that “even after telling each harasser to stop what they were doing to her,
both Dungca and Kudo continued to touch her in inappropriate and unwelcomed
ways.” Kim Opp. at 11.
Viewing the evidence in the light most favorable to Kim, the Court
finds that Kim has raised triable questions of fact as to whether the alleged conduct
was “of a sexual nature,” and whether it was sufficiently severe or pervasive. She
alleges being subjected on multiple occasions to unwelcome, physical touching
that did not cease after she told the male employees to stop. See Kim Decl. ¶ 6
(Dungca “wrapped both of his arms around my arms pinning my arms against my
sides. He was so close to me that his chest was touching my back. I told him to
stop touching me. I felt this was clearly sexual in nature. He had no reason to
put his arms around me and touch my back with his chest.”); id. ¶¶ 8-9 (“I told
[Kudo] each time he touched me to stop touching me, but he continued to do so. I
felt this was sexual in nature because he had no reason to keep touching me, even

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after I told him not to put his hands on my body. . . . After this incident [Kudo]
touched and rubbed my shoulders on several occasions. I told him each time to
stop touching, but he would not stop.”).
Considering several relevant factors, including the frequency of the
alleged misconduct, its severity, its physically threatening or humiliating nature,
and its tendency to unreasonably interfere with work performance, the Court finds
a question of fact as to whether a reasonable person with the same characteristics
as Kim would perceive the workplace as hostile. Harris v. Forklift Sys., Inc., 510
U.S. 17, 20-23 (1993); see also Arquero v. Hilton Hawaiian Village LLC, 104
Hawai‘i 423, 432, 91 P.3d 505, 514 (2004) (examining “general distinction
between name-calling and physical contact set forth in Harris and discussed by
many federal courts in analyzing whether particular conduct is ‘severe and
pervasive.’”).
B.

Coach Is Not Liable for Alleged Harassment
Notwithstanding this conclusion, “where harassment by a co-worker

[as opposed to a supervisor or manager] is alleged, the employer can be held liable
only where ‘its own negligence is a cause of the harassment.’” Swenson v. Potter,
271 F.3d 1184, 1191 (9th Cir. 2001) (citing Burlington Indus., Inc. v. Ellerth, 524

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U.S. 742, 759 (1998)). “Title VII liability is direct, not derivative: An employer is
responsible for its own actions or omissions, not for the co-worker’s harassing
conduct.” Swenson, 271 F.3d at 1191-92; see also Vance v. Ball State Univ., 133
S. Ct. 2434, 2441 (2013) (“[W]e have held that an employer is directly liable for an
employee’s unlawful harassment if the employer was negligent with respect to the
offensive behavior.”). Here, Kim does not contest the absence of negligence on
the part of Coach. Rather, Kim argues that Coach is directly liable for Dungca
and Kudo’s conduct because they were “supervisors,” not “employees.” In Vance,
the Supreme Court considered which employees qualify as “supervisors” for
purposes of harassment cases, and held that:
an employer may be vicariously liable for an employee’s
unlawful harassment only when the employer has empowered
that employee 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.
Vance, 133 S. Ct. at 2443 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
761 (1998)). Notably, the “ability to direct another employee’s tasks is simply not
sufficient” to make someone a supervisor. Id.

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Kim argues that Dungca and Kudo were “assistant store managers,”
that she worked under their “direct supervision,” and that she “would need to
follow their instructions because they were my supervisors.” Kim Decl. ¶ 4.
Even assuming that Dungca was present at the June 2012 meeting to discuss Kim’s
performance plan, Kim presents no evidence that Dungca was able to hire, fire,
promote, demote, or reassign any employee, much less herself. See Makiya Decl.
¶¶ 8-11 (Dungca and Kudo did not have “authority to hire or fire employees, to
promote or demote employees, to reassign employees to different jobs or to change
any employee’s pay or benefits. I am the only one at Coach’s Ala Moana store
that has the authority to take any of those actions, and I would only take such
actions after first consulting with my District Manager, Ivy Lewis.”). There is no
question of fact that neither Dungca nor Kudo had the authority to hire or fire
employees, to promote or demote employees, to reassign employees to a different
job, or to make any decision causing a significant change in benefits at Coach’s
Ala Moana store. Therefore, neither Dungca nor Kudo could affect the terms of
Kim’s employment and were not “supervisors” within the meaning of Vance.
Where, as is the case here, an employee is allegedly harassed by
co-workers, the employer may still be liable if it knows or should know of the

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harassment but fails to take steps “reasonably calculated to end the harassment.”
Dawson v. Entek Int’l, 630 F.3d 928, 938 (9th Cir. 2011). It is undisputed that
Coach’s anti-harassment policy in its Retail Employee Guides was available to all
employees and that Coach provided information about this policy and phone
numbers to report harassment on its intranet page. See Hazlett Decl. ¶¶ 4-11, Exs.
E-I. When Kim contacted Coach in July 2012 to complain that Dungca had
touched her, Coach immediately initiated an investigation and instructed Dungca
not to touch Kim again, even though its investigation revealed no inappropriate
conduct. See Richardson Decl. ¶ 4; Lewis Decl. ¶ 11; Ex. L. Kim admits that
since Coach’s investigation, Dungca has not touched her. After Coach later
received Kim’s HCRC Charge of Discrimination, it investigated the additional
allegations of touching not previously disclosed. Richardson Decl. ¶ 6. At the
hearing on the motion, Kim acknowledged that Coach has not been negligent in its
response to her complaints of harassment.
In sum, even finding a genuine issue of material fact regarding
whether severe and pervasive harassment of a sexual nature occurred, Coach is
entitled to summary judgment on Count I.

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II.

Coach Is Entitled to Summary Judgment on Count II
The Court applies the burden-shifting framework, set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to Kim’s Count II
gender discrimination claims under Title VII, 42 U.S.C. § 2000e, and Hawaii
Revised Statutes § 378-2. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097,
1103 (9th Cir. 2008) (applying McDonnell Douglas framework to Title VII case);
Hac v. Univ. of Hawaii, 102 Hawai‘i 92, 101, 73 P.3d 46, 55 (2003) (“This court
has adopted the McDonnell Douglas analysis in HRS § 378-2 discrimination
cases.”).
Under this framework, Plaintiff has the initial burden to
establish a prima facie case of discrimination. E.E.O.C. v.
Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009) (citation and
quotation omitted). “The requisite degree of proof necessary
to establish a prima facie case for Title VII . . . on summary
judgment is minimal and does not even need to rise to the level
of a preponderance of the evidence.” Cordova v. State Farm
Ins. Cos., 124 F.3d 1145, 1148 (9th Cir. 1997) (citation
omitted).
Hughes v. Mayoral, 721 F. Supp. 2d 947, 957-58 (D. Haw. 2010).
A prima facie case under McDonnell Douglas requires a plaintiff to
prove that: (1) she belongs to a protected class; (2) she performed her job
adequately or satisfactorily; (3) she suffered an adverse employment action; and

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(4) other similarly situated employees who do not belong to the same protected
class were treated differently. McDonnell Douglas, 411 U.S. at 802; Cornwell v.
Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006).
After a plaintiff establishes a prima facie showing of
discrimination, the burden under the McDonnell Douglas
framework shifts to a defendant to put forward a legitimate,
non-discriminatory reason for its actions. McDonnell Douglas
Corp., 411 U.S. at 802, 93 S.Ct. 1817. A defendant’s burden
to articulate some legitimate, nondiscriminatory reason for the
challenged action is merely a burden of production, not
persuasion. Chuang v. Univ. of Cal. Davis Bd. of Trs., 225
F.3d 1115, 1123-24 (9th Cir. 2000). If a defendant puts forth a
legitimate, nondiscriminatory reason, the burden shifts back to
the plaintiff to show that the given reason is merely pretext for a
discriminatory motive. Boeing Co., 577 F.3d at 1049 (citation
and quotation omitted).
Hughes, 721 F. Supp. 2d at 957-58.
In opposition, Kim offers no allegation or fact showing disparate
treatment. To be clear, she offers no evidence that females were treated any
differently than males. In fact, Kim makes no attempt to demonstrate that she is
similarly situated to any employees that receive more favorable treatment. See
Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). Rather, Kim’s opposition
focuses on her sexual harassment claim, and does not appear to address her claim

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for gender discrimination. Accordingly, Kim fails to establish a prima facie case
of gender discrimination, entitling Coach to summary judgment on Count II.
III.

The Court is Without Subject Matter Jurisdiction to Hear Count III
This Court has subject matter jurisdiction over discrimination and

retaliation claims only after a plaintiff has exhausted his or her administrative
remedies by filing an administrative complaint with the HCRC or EEOC and
allowing the agency the opportunity to investigate. See, e.g., B.K.B. v. Maui
Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002) (“Under Title VII, a plaintiff
must exhaust her administrative remedies by filing a timely charge with the EEOC,
or the appropriate state agency, thereby affording the agency an opportunity to
investigate the charge.”); Ross v. Stouffer Hotel Co. (Hawai‘i) Ltd., Inc., 76
Hawai‘i 454, 460, 879 P.2d 1037, 1043 (1994) (Holding that “the timely filing of
an administrative complaint with the [state agency] was precondition to civil suit
under HRS § 378-2.”).
It is undisputed that Kim’s HCRC Charge of Discrimination did not
check the box for “retaliation,” did not otherwise mention retaliation, and did not
assert a factual basis for retaliation, such as through a reduction of hours following
Kim’s complaint of harassment. See Ex. Q; see also Vasquez v. County of Los

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Angeles, 349 F.3d 634, 645 (9th Cir. 2003) (“Because [plaintiff] did not present the
legal theory of unlawful retaliation, and the operative facts regarding this part of
his claim were not related to the facts in the EEOC charge, he did not exhaust his
administrative remedies. Thus, we have no jurisdiction to hear the claim that
[defendant] retaliated against [plaintiff] for filing an EEOC charge.”) (footnote
omitted). At the hearing on Coach’s motion, Kim conceded that she had not
exhausted her claim for retaliation, and noted that she filed a new charge with the
EEOC in April 2014, alleging retaliation for the first time. Accordingly, this
Court does not have subject matter jurisdiction over Kim’s present retaliation claim
and Count III is hereby dismissed.

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CONCLUSION
On the basis of the foregoing, the Court GRANTS Defendant Coach,
Inc.’s Motion for Summary Judgment. The Clerk of the Court is directed to close
the case.
IT IS SO ORDERED.
DATED: May 30, 2014 at Honolulu, Hawai’i.

Kim v. Coach, Inc., Civ. No. 13-285; ORDER GRANTING DEFENDANT
COACH INC.’S MOTION FOR SUMMARY JUDGMENT

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