Soo Cheol Kang v. U. Lim America, Inc., Tae Jin Yoon, Does 1-100

Dissenting:

I dissent because Title VII does not apply to this case at all and Kang did not file his California wrongful termination claim on time.

A. Title VII

In order for an employer to be covered by Title VII, it must have at least 15 employees during at least a portion of the year. See 42 U.S.C. § 2000e(b). U. Lim America never had more than 5 employees. Thus, on its face, Title VII does not even apply to U. Lim America.

Kang recognizes as much, but he argues that the employees of U. Lim de Mexico should be swept into the count, and it would then be far over the 15 employee requirement. It is true that there are times when the employees of two separate entities can be treated as if they belonged to one entity for Title VII purposes. See, e.g., Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir.1995); Childs v. Local 18, Int’l Bhd. of Elec. Workers, 719 F.2d 1379, 1382 (9th Cir.1983); Armbruster v. Quinn, 711 F.2d 1332, 1337-39 (6th Cir.1983); cf. Pearson v. Component Tech. Corp., 247 F.3d 471, 486 (3d Cir.) (Worker Adjustment and Retraining Notification Act), cert. denied, — U.S. —, 122 S.Ct. 345 , 151 L.Ed.2d 261 (2001); Hukill v. Auto Care, Inc., 192 F.3d…

Opinion by Judge JAMES R. BROWNING; Dissent by Judge FERNANDEZ.

Soo Cheol Kang (Kang) appeals summary judgment in favor of his employer on Title VII and state law tort claims. We reverse and remand for further proceedings.

*814 IBackground

Kang is a United States citizen of Korean national origin. In April 1994, he began working for a California corporation called U. Lim America, Inc. All of U. Lim America’s employees shared Korean heritage. Tae Jin Yoon (Yoon) was Kang’s supervisor. Yoon subjected Kang and other Korean workers to verbal and physical abuse and discriminatorily long work hours. The verbal abuse consisted of Yoon screaming at Kang for up to three hours a day and calling him “stupid,” “cripple,” “jerk,” “son of a bitch,” and “asshole.” The physical abuse consisted of striking Kang in the head with a metal ruler on approximately 20 occasions, kicking him in the shins, pulling his ears, throwing metal ashtrays, calculators, water bottles, and files at him, and forcing him to do “jumping jacks.” 1 Kang began to cut back on the required overtime in order to spend time with his pregnant wife; Yoon fired him.

U. Lim America had six or fewer employees. However, the…

296 F.3d 810 Soo Cheol KANG, Plaintiff-Appellant, v. U. LIM AMERICA, INC., Tae Jin Yoon, Does 1-100, Defendant-Appellee. No. 00-55583. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 18, 2001. Filed July 15, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Richard E. Grey, Law Office of Richard E. Grey, San Diego, CA, for the plaintiff-appellant. John S. Battenfeld and Melissa M. Mulkey, Morgan, Lewis & Bockius LLP, Los Angeles, CA, for the defendants-appellees. Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding. D.C. No. 99-0659 JM(RBB). Before: BROWNING, FERNANDEZ, and FISHER, Circuit Judges. Opinion by Judge JAMES R. BROWNING; Dissent by Judge FERNANDEZ. JAMES R. BROWNING, Circuit Judge. 1 Soo Cheol Kang (Kang) appeals summary judgment in favor of his employer on Title VII and state law tort claims. We reverse and remand for further proceedings. I Background 2 Kang is a United States citizen of Korean national origin. In April 1994, he began working for a California corporation called U. Lim America, Inc. All of U. Lim America's employees shared Korean…