                                                                          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                            NOT FOR PUBLICATION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




                                           2
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


                                           3
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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