Tagupa v. VIPDesk, Inc. et al

Filing 76

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT VIPDESK, INC.'S MOTION FOR SUMMARY JUDGMENT re: 63 . Signed by JUDGE J. MICHAEL SEABRIGHT on 8/28/2015. (afc)"Summary judgment is (1) GRANTED in favor of VIPdesk as to Cou nt Two (HWPA), but (2) GRANTED in part and DENIED in part as to Count One (FLSA)."HWPA: Hawaii Whistleblower Protection Act, Hawaii Revised Statutes § 378-62 FLSA: Fair Labor Standards Act, 29 U.S.C. § 201 et seq.WRITTEN ORDER follows August 24, 2015 hearing on M/SJ. Minutes of hearing: doc. no. 74 . 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 HAWAII

LOTTIE K. TAGUPA, individually
and on behalf of all others similarly
situated,

)
)
)
)
Plaintiff,
)
)
vs.
)
)
VIPDESK, INC.; JOHN DOES 1-10, )
DOE ENTITIES 1-10,
)
)
Defendants.
)
_______________________________ )

CIV. NO. 13-00428 JMS-KSC
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT
VIPDESK, INC.’S MOTION FOR
SUMMARY JUDGMENT

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
VIPDESK, INC.’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Defendant VIPdesk, Inc. (“Defendant” or “VIPdesk”) moves for
summary judgment in this action brought by its former employee, Plaintiff Lottie
K. Tagupa (“Plaintiff” or “Tagupa”), for alleged violations of the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), and the Hawaii Whistleblower
Protection Act, Hawaii Revised Statutes (“HRS”) § 378-62 (“HWPA”).
Based on the following, the Motion is GRANTED as to Count Two
(HWPA), and GRANTED in part and DENIED in part as to Count One (FLSA).
Genuine issues of material fact remain as to certain aspects of Count One.

II. BACKGROUND
A.

Factual Background
For purposes of this summary judgment motion, the court views the

evidence in the light most favorable to Plaintiff. See, e.g., Sullivan v. Oracle
Corp., 662 F.3d 1265, 1270 (9th Cir. 2011). Applying that standard, the dispute
arises from the following circumstances:
1.

Tagupa’s Employment with VIPdesk and VIPdesk’s “Concierge
Blog”
Tagupa began working for VIPdesk on January 17, 2005 as a part-

time “remote concierge.” Doc. No. 71-22, Lottie Tagupa Decl. ¶¶ 3, 4. (“From
1996 to 2010 [she] performed work for America Online (‘AOL’) as a [freelance]
writer, and was paid for articles [she] wrote.” Doc. No. 1, Verified Compl. ¶ 9.)
She was terminated on September 8, 2011. Doc. No. 64-43, Def.’s Ex. I-29.
VIPdesk “employs home-based customer service representatives
using Web-enabled and call center technicians to act as concierge and customer
care representatives for national brand leaders in the travel, auto, financial
services, and retail industries.” Doc. No. 1, Verified Compl. ¶ 12; Doc. No. 11,
Answer ¶ 12. Tagupa’s duties as a remote concierge “included, but were not
limited to: answering customer calls; making reservations for customers for

2

airline, travel, rental/personal car, train, hotel, restaurant, theater, medical, florists;
sending customers voucher, itineraries, brochures, receipts, driving directions,
tickets, retail order confirmations/refunds; and many others.” Doc. No. 1, Verified
Compl. ¶ 13; Doc. No. 11, Answer ¶ 13.
On March 31, 2005, Tagupa’s employment status changed from partto full-time. “[F]or purposes of Federal wage-hour law[,] this position is
considered non-exempt.” Doc. No. 1, Verified Compl. ¶ 14. By October 24,
2005, “her compensation [was] $9.00 per hour, plus $3.00 per completed request.”
Id. ¶ 15. And by the end of her employment on September 8, 2011, she “was paid
$9.89 per hour, plus $3.00 per completed request, after submitting her timesheets
electronically to Defendant’s payroll department.” Id. ¶ 16.
On June 14, 2010, a VIPdesk executive sent its employees an email
announcing a “weekly blog” to “enhance” its clients’ websites. Doc. No. 71-4,
Pl.’s Ex. D. The email explained:
The blog should (obviously) be something of interest to
the customer visiting the website. It could be about a
great experience you had in a particular hotel or
restaurant, or it could be about an amazing trip you
recently took. The possibilities are endless!
So, I am looking for volunteers to help write the blogs. I
am only looking for one blog from each volunteer
(although if you would like to submit more you are
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certainly welcome!). Once I get a list of volunteers I will
send out a set of guidelines and deadlines.
If you are interested, please send me an email along with
a topic (or topics) you think you might like to write
about, no later than this Friday, June 18th.
Id. A follow-up email was sent on June 18, 2010, stating “FYI [we] have 13
volunteers so far! If you are interested, please let me know today!” Doc. No. 715, Pl.’s Ex. E.
Although the exact timing is unclear, Tagupa alleges that “[i]n order
to assist Defendant in every way possible, I immediately submitted fifteen (15)
blogs with photos which were accepted, approved and posted by Defendant on its
website.” Doc. No. 71-22, Tagupa Decl. ¶ 10. Tagupa admits, however, that some
of the blog entries that she submitted to VIPdesk “had previously been posted to
[her] own personal travel blog.” Doc. No. 64, Def.’s Concise Statement of Facts
(“CSF”) ¶ 11.1 She also admitted that the fifteen blog entries that were submitted
to VIPdesk for publication “were prepared before VIPdesk even asked employees
to prepare or submit blogs.” Id. ¶ 12.2

1

Where a fact asserted in a CSF is admitted, the court cites directly to the CSF.

2

At the August 24, 2015 hearing, Tagupa’s counsel clarified that she is not seeking
overtime for work done on these entries. (VIPdesk claims it has only identified fourteen entries
that Tagupa submitted, but accepts for purposes of summary judgment that she submitted fifteen.
See Doc. No. 64, Def.’s CSF at 2 n.1.)
4

Nevertheless, Tagupa also attests that she “prepared another fifty-two
(52) blogs with photos to be submitted to Defendant,” Doc. No. 71-22, Tagupa
Decl. ¶ 10, although she never submitted them to VIPdesk for publication. Doc.
No. 64, Def.’s CSF ¶ 3. She claims that “Defendant encouraged nationwide
employees to work on, prepare and submit blogs for Defendant’s for-profit
purposes in order to be considered a team player and assist Defendant in
maximizing its bottom line.” Id.
For example, she points to a January 18, 2011 email from VIPdesk
encouraging blogs, which stated, in part:
Subject: Bloggers!! :) - Please read
We are very excited as our updated website is in the final
stages of launching and rolling out to our clients. We
will be looking for new blogs to add so please let me
know if you have any new submissions that we can get
in-line to post.
Doc. No. 71-9, Pl.’s Ex. I. Similarly, she cites a February 22, 2011 email from
VIPdesk addressed to her and others, stating in part:
You were picked to attend this call because you
expressed an interest in blogging for the VIPdesk
Concierge blog and now we need your help! Some of
you have already submitted blogs and others have not;
either way, plan on learning what’s next in this call.
. . . Our clients are very excited about this blog and can’t
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wait to see what you guys have to say.
We are ready to hit the ground running . . . We will need
all the blogs you can write in order to make this a
success! If you have already submitted a blog, be
thinking of what your next topic will be, and if you said
you could submit one but haven’t yet, get ready to polish
it up -- we need it!
Doc. No. 71-8, Pl.’s Ex. H. See also Doc. No. 71-10, Pl.’s Ex. J (Mar. 3, 2011
email reminding the “Blogger Team” to “please submit your first blog,
commitment, bio and headshot by tomorrow. . . . We need all the help we can get
to make this blog a success and you [are] all awesome for volunteering!”); Doc.
No. 71-18, Pl.’s Ex. R (Aug. 30, 2010 email from VIPdesk stating “[a]s you may
already know, we . . . are looking for volunteers to contribute to the blog. If you
are interested in volunteering, please let me know so as soon as possible, as we
would like to have a dedicated list of volunteers.”).
On March 1, 2011, a VIPdesk email to its “bloggers” emphasized that
“[w]e understand this is voluntary so please be realistic and let us know what you
think you can contribute[.]” Doc. No. 71-12, Pl.’s Ex. L. Tagupa claims that an
attachment to that email explained that “[a]t this time, the Concierge Blog is a
purely volunteer project to be done in your own free time.” Doc. No. 71-22,
Tagupa Decl. ¶ 16; see Doc. No. 64-7, Def.’s Ex. E at 31. Tagupa contends that

6

she was “shocked” that bloggers would not be paid because she was a member of a
class action (Hallissey v. America Online, Inc.) against AOL, and alleges that
“Defendant was affiliated with AOL [which] had just settled its lawsuit for not
paying employee ‘volunteers’ for fifteen million dollars[.]” Id.
Much of the suit concerns time that Tagupa claims she spent outside
of her normal working hours working on blogs (including researching and visiting
locations, and writing entries). She claims that “[i]n order to stay in Defendant’s
good graces and be eligible to receive raises or a promotion in the future, I worked
very hard to prepare and submit as many blogs as possible which Defendant
greatly appreciated.” Doc No. 71-22, Tagupa Decl. ¶ 15. “Defendant derived
direct and substantial benefits from its ‘volunteers’ [sic] work without having to
pay for it, and as the above emails indicate, Defendant asserted pressure on
employees to submit blogs.” Id.
Ultimately, Tagupa claims she “ha[s] not been paid for 2,084 hours of
time spent on the blogs at time and a half pay [amounting to] $30,926.56.” Id.
¶ 25.3 In this regard, the record contains pages of daily time sheets (along with
3

She also claims she was not paid for other overtime that apparently is not related to her
blogging. See Doc. No. 71-22, Tagupa Decl. ¶ 26 (“I have not been paid for 80 hours of time
spent traveling to and from the Post Office on Defendant’s business mailing tickets, itineraries,
brochures, email confirmations, receipts, and others to clients.”). Although most of the
Complaint concerns failure to pay “volunteers” for blogging, this same allegation regarding
(continued...)
7

what appears to be proposed blogs on travel-related topics), beginning on June 14,
2010, and continuing through September 4, 2011. See Doc. No. 64-9, Def.’s Ex.
G-1 at 99 to 284; Doc. No. 64-10, Def.’s Ex. G-2 at 2 to 286; Doc. No. 64-11,
Def.’s Ex. G-3 at 2 to 144.
2.

Tagupa’s “Protected Activity”
In March, August, and September of 2011, Tagupa complained to her

supervisors at VIPdesk, to the U.S. Department of Labor, and to the Hawaii
Department of Labor and Industrial Relations (“DLIR”) about (among other
matters) VIPdesk’s failure to pay “volunteers” for blogging. She claims that
On March 2, 2011, I engaged in protected activity when I
informed my immediate supervisor Manager Eleu
Ornellas and Supervisor Manager Rob Alexander that it
was “illegal” for Defendant not to pay employees for the
work performed researching, writing, and obtaining
photographs for the blogs because they were non-exempt
hourly employees working for a “for-profit” company.
Both informed me that I was a “volunteer” and nothing
was done about my reports of illegal non-payment to
employee bloggers including myself.
Doc. No. 71-22, Tagupa Decl. ¶ 17. She says she “engaged in protected activity
when [she] reported via written report on-line to the United States Department of
Labor” that “Defendant was not paying employees . . . for the blog posts,” as well

3

(...continued)
“other hours” is also made in the Complaint. See Doc. No. 1, Verified Compl. ¶ 34.
8

as “not compensating Plaintiff for travel to and from the U.S. Post Office for
mailing documents to customers,” and for time related to computer problems. Id.
¶ 18. The U.S. Department of Labor opened an investigation into Tagupa’s report.
See, e.g., Doc. Nos. 71-13, Pl.’s Ex. M.
Tagupa also points to an August 5, 2011 email to a VIPdesk human
resource manager that Tagupa says she sent “after repeatedly informing Defendant
that it could not escape payment to employees for work performed on the blogs by
calling employees ‘volunteers.’” Doc. No. 71-22, Tagupa Decl. ¶ 20. The email
states in part:
Here is the e-mail that started it all.
It states volunteer, but since state and federal labor law is
so clear about asking non-exept [sic] worker to work
unpaid for company gain, I NEVER thought VIPdesk
would ask non-exempt employees to work for UNPAID
for company profit.
I was under the impression that the call was put out for
those who wanted to volunteer for the project, not
volunteer for the project AND contribute
uncompensated.
Doc. No. 71-14, Pl.’s Ex. N. She claims that, on August 5, 2011, she
also informed them that it was “illegal” for Defendant
not to pay me for work I performed and I had confirmed
this with the United States Department of Labor, and the
State of Hawaii [DLIR]. Defendant’s Human Resource
9

Administrator Karyn Schneider informed me that an
investigation would be conducted as to my report of not
being paid for work I performed.
Doc. No. 71-22, Tagupa Decl. ¶ 21. She wrote to VIPdesk:
I want to have addressed the issue of not paying me for
my blog submissions. I have mentioned this more than
once to managers and have been ignored, the issue stems
from not paying non-exempt hourly employees for work
done to benefit the company financially. As I understand
it, this is illegal on the Fed and State level and I want to
be compensated for the work I have done and has been
used for the benefit of VIPdesk and their clients since
mid-2010.
Id.
Tagupa apparently aired some of her views to other employees in a
“group chat” on August 4, 2011, saying she was “not an indentured slave” and
“didn’t appreciate a company that skirts laws and makes employees pay for it,”
and was subsequently “admonished” with an August 11, 2011 email from VIPdesk
management asking her (among other things) to “use the chat for productive talk,
and not . . . to air malicious gossip.” Doc. No. Doc. No. 71-15, Pl.’s Ex. O.
She also attests that
[o]n or about September 7, 2011, I again engaged in
protected activity when I reported to the State of Hawaii
[DLIR] Specialist Lori Hamada that:
(a) Defendant was making unauthorized
deductions from my paycheck without my permission to
10

do so; and
(b) Defendant was not paying me for the work I
performed researching, writing, and obtaining
photographs for the blogs.
Doc. No. 71-22, Tagupa Decl. ¶ 24.
3.

Tagupa’s Termination of Employment
Tagupa was terminated by a written “Request to Terminate” dated

September 8, 2011. Doc. No. 64-63, Def.’s Ex. I-29. This document gives the
reason for termination as “[b]ased on the instances of non-compliance with
VIPdesk policies and Lottie’s overall performance in the Concierge position,
VIPdesk has decided to terminate Lottie’s employment effective immediately.” Id.
It explains:
VIPdesk randomly listened to calls from Lottie and
discovered a call on 8/24/11 that did not meet VIPdesk’s
customer service and call handling expectations. The
customer wanted to add additional information to an
existing travel case that was being handled by another
Concierge. Lottie told the customer that she had to email
the information and also told the customer that we do not
take credit cards over the phone, which is not the correct
policy. Lottie did not notate the case that the customer
called in to update her information. This call is
considered a refusal to provide service as Lottie did not
follow policies and did not provide service to the
customer, which is a form of call avoidance.
Id. It recounts prior warnings that VIPdesk had given to Tagupa:

11

Lottie has received two recent warnings related to her
conduct and following policies.
On 8/4/11, Lottie received a Final Written Warning for
quality and Misconduct. Lottie did not follow policy and
procedure regarding VIPdesk’s Multiple Request policy
and was warned that any future occurrences violating our
policies would result in immediate termination.
On 3/2/11, Lottie received a Final Written Warning for
Quality and Misconduct. Lottie was warned about her
conduct when speaking with her manager and the
Director, Service Delivery after a call in which Lottie
spoke inappropriately to the management team members.
Lottie has received prior warnings regarding her quality,
mishandling of cases, and attendance. Lottie was
reminded of VIPdesk’s policies when she received these
warnings. In addition, Lottie has been sent the VIPdesk
Team Member Handbook and the Concierge Operations
Policies Manual and has access to VIPdesk’s policies
and expectations.
Id. The “Request to Terminate” thus reveals the context in which to view
Tagupa’s blogging activities, and her protected activity described above.
The record reflects that from October 2008 to September 2011,
Tagupa had received twenty-nine written disciplinary actions against her in the
form of “emails, written performance evaluations, coaching records, final written
warnings, or requests to terminate.” Doc. No. 64, Def.’s CSF ¶ 29; Doc. Nos. 6415 to 64-43, Def.’s Exs. I-1 to I-29. Of these twenty-nine incidents, twenty of
them occurred before March 2, 2011 (the first documented incident of Tagupa’s
12

“protected activity”). For example, Tagupa had received a “final written warning”
on December 29, 2008 for poor work (sub-par “quality performance scores” for
every month from July to December 2008). Doc. No. 64-17, Def.’s Ex. I-3. This
warning included a notice that Tagupa could “be subject to further disciplinary
action up to and including termination.” Id. at 3.
VIPdesk records also detail a February 24, 2011 telephone conference
between Tagupa, her supervisor (Eleu Ornellas), and the VIPdesk Director of
Service Delivery (Robert Alexander). See Doc. No. 64-34, Def.’s Ex. I-20. A
February 26, 2011 email from Eleu Ornellas to VIPdesk personnel provides in
part:
The intention of the call on [February 24, 2011] was to
inform Lottie that her performance did not meet our
Quality standards and provide her with written
documentation and her probationary action plan. The
call quickly shifted focus from substandard quality
performance to Lottie’s financial problems due to what
she claimed was a 25% decrease in her income due to
changes made by VIPDesk to the commission structure.
No matter how many times Rob and I tried to steer the
conversation back to the topic of quality Lottie kept
coming back to her pay, interrupting us and often
shouting. . . .
The call lasted for about 40 minutes most of which was
not spent discussing quality. . . . I reviewed with her
what we were going to do which was pull her off the
phones for 5 days so that she could focus on emails. I
13

also told her that I would meet with her on Sunday to
review call recordings together. Finally I told her that I
would be sending her an email immediately following
the call which would give her a break down of her emails
for the last 6 months and the categories in which she
needs to focus.
I will meet with Rob on Monday and discuss the [Final
Written Warning].
Id. at 2. For his part, in a February 25, 2011 email, Robert Alexander documents
the conversation, in part, as follows:
After Lottie’s action on yesterday’s call with her we are
going to proceed with a [Final Written Warning],
including subordination with her Quality issues. . . .
Here is my recap of the call:
Lottie was extremely agitated with both Eleu and I from
the start of the call. At the beginning, I told her she was
not meeting quality standards of 85 points a month, that
she had not scored that high for most of the past year.
She needed to work on her scores. She then said that her
customers love her. We let her know that our contract
with BCD requires her to maintain a level of quality. It
was then that Lottie began yelling and screaming at me,
telling me that I was responsible for her possible going
into foreclosure.
....
She then really blew up. Crying, yelling and basically
telling us that VIPdesk is horrific and that she is
constantly fighting off creditors and [it’s] all my fault.
She would not listen to anything about quality. She said
that it makes no difference. She insisted that we are
leaving her in a state of limbo, not knowing when we are
going to change the rules and her pay again. She then
14

yelled WHAT ARE THE NEXT CHANGES[?] WHAT
IS NEXT[?] HOW CAN I HAVE PEACE WHEN YOU
ARE CHANGING THE RULES ALL THE TIME[?]
After I told her that she needed to relax, Eleu jumped in
and led with the game plan going forward. I hung up the
call furious and insulted.
Id. at 3.
This February 24, 2011 conversation, and Tagupa’s subpar quality
performance scores for the prior six months, were reflected in the March 2, 2011
“Final Written Warning” (referred to in the September 8, 2011 Request to
Terminate) issued to Tagupa. After listing six consecutive months of quality
performance scores that were below VIPdesk’s required scores, the March 2, 2011
Final Written Warning documents the February 24, 2011 conversation:
On 2/24/11, Robert Alexander, Director, Service
Delivery and Eleu Ornellas, Concierge Manager, called
[Tagupa] to discuss her quality scores and provide
feedback and an outline of a performance improvement
plan. Lottie raised her voice and used a tone that was
perceived as inappropriate and disrespectful.
Throughout the call, Lottie would not discuss her quality
scores and continued to raise her voice to the
management team regarding topics such as pay.
These actions are a violation of VIPdesk’s Team
Member Conduct policy, outlined in VIPdesk’s Team
Member Handbook.
....
As outlined on this document, Lottie’s quality
performance and Team Member conduct is below
15

VIPdesk’s expectations. Lottie has received training on
quality expectations and has received prior warnings
outlining her performance and improvements needed.
While VIPdesk is fully confident of Lottie’s ability to
succeed in her job it is important that she improve her
performance immediately and sustain her performance to
meet VIPdesk’s expectations consistently going forward.
In addition, VIPdesk’s culture is one that embraces
respect, working as a team, and being helpful to fellow
team members. VIPdesk expects that Lottie will uphold
these beliefs starting immediately and adhere to VIPdesk
standards of conduct and communications etiquette.
Doc. No. 64-35, Def.’s Ex. I-21 at 3. It outlined a “performance improvement
plan,” and warned:
While VIPdesk is fully confident in Lottie’s ability to
succeed and improve, it is important to know that further
inability to consistently follow Company policies and/or
meet Company’s expectations will be grounds for
disciplinary action up to and including termination of
employment.
Id. at 4.
Finally, the September 8, 2011 Request to Terminate refers to another
Final Written Warning (of August 4, 2011) which documents four additional
consecutive months (from March to June of 2011) of sub-par quality performance
scores. Doc. No. 64-40, Def.’s Ex. I-26. It also documents a customer request on
July 8, 2011 that was not serviced in a timely fashion, and an associated violation

16

of VIPdesk policy. Specifically, it provides that “Eleven (11) additional requests
were added to the case after the customer declined further assistance from Lottie.
The requests were not approved by the customer and should not have been added
to the case, violating VIPDesk’s Multiple Request policy.” Id. at 3. It explains
that
Logging requests that were not initiated by the customer
is a serious infraction and violates VIPdesk’s Team
Member Conduct Policy in addition to the Operations
policy. Lottie was paid for requests that were not
authorized and she did not earn.
Id. And it warns:
Lottie is to immediately improve her quality scores to
meet VIPdesk’s expectations. Lottie has received
numerous warnings and coachings from her manager and
Lottie is aware of the Quality Program expectations.
Lottie’s August quality score must meet VIPdesk’s
Quality Score guidelines.
In addition, Lottie will follow all VIP desk Operations
policies immediately and going forward. Lottie’s pay
will be deducted by $10 on the 8/15/11 pay period to
recover the amount she was overpaid for false requests
that were in violation of our policies.
Further inability to follow policies will result in
immediate termination.
Id. at 3.
For her part, Tagupa responded on August 5, 2011 (including the
17

“protected activity” described above) stating that:
1) the request in question were [sic] not intentional.
They were placed on the wrong case while I was
working multiple cases with tech problems.
2) I checked with the state labor board here in Hawaii
and imposing a $10 “fine” is illegal in the state of
Hawaii.
3) I want to have addressed the issue of not paying me
for my blog submissions. I have mentioned this more
than once to managers and have been ignored. The
issue stems from not paying non-exepmt [sic] hourly
employees for work done to benefit the company
finalncially [sic]. As I understand it, this is illegal on the
Fed and State level and I want to be compensated for the
work I have done and has been used for the benefit of
VIPdesk and their clients since mid-2010.
Id. at 4.
These incidents are analyzed more fully below, when discussing
whether VIPdesk’s termination could have been motivated by Tagupa’s protected
activity.
B.

Procedural Background
Tagupa filed this action on August 27, 2013, asserting claims for

violations of the FLSA (Count I), violations of the HWPA (Count II), and

18

Wrongful Termination in Violation of Public Policy (Count III).4 Doc. No. 1.
On June 3, 2015, VIPdesk filed its Motion for Summary Judgment.
Doc. No. 63. Tagupa filed her Opposition on July 27, 2015, Doc. No. 68, and
VIPdesk filed a Reply on August 3, 2015. Doc. No. 73. The Motion was heard on
August 24, 2015.
III. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
4

Count III was dismissed with prejudice by stipulation. Doc. No. 49. Plaintiff brought
the FLSA claim both individually and as an “opt in” class action, but she subsequently notified
the court that she will not file a motion for class certification. Doc. No. 16.
Public records indicate that Plaintiff previously filed a pro se action against VIPdesk in
the District Court of the Third Circuit of the State of Hawaii, but that action was dismissed by
Plaintiff without prejudice in lieu of this federal action. See Tagupa v. VIPdesk, ___ P.3d ___,
2015 WL 3946796, at *1 (Haw. June 29, 2015) (affirming award of fees and costs to VIPdesk
after Tagupa dismissed the suit without prejudice, “acknowledg[ing] that she filed the case, pro
se, in the wrong court, and attached a ‘draft lawsuit for the correct court,’ i.e., the United States
District Court for the District of Hawai‘i, to her motion to dismiss”).
19

informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)], its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and
internal quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986) (stating that a party cannot “rest upon the mere
allegations or denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
20

Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor.” (citations omitted)).
IV. DISCUSSION
A.

Hawaii Whistleblower Claim -- Standards
Section 378-62 of the HWPA provides in relevant part:
An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the
employee’s compensation, terms, conditions, location, or
privileges of employment because:
(1) The employee, or a person acting on behalf of the
employee, reports or is about to report to the employer,
or reports or is about to report to a public body, verbally
or in writing, a violation or a suspected violation of:
(A) A law, rule, ordinance, or regulation, adopted
pursuant to law of this State, a political
subdivision of this State, or the United States[.]
An HWPA claim under § 378-62 has three requirements. First, an

employee must have “engaged in protected conduct” as defined by HRS § 37862(1). Griffin v. JTSI, Inc., 654 F. Supp. 2d 1122, 1131 (D. Haw. 2008) (citing
Crosby v. State Dept. of Budget & Fin., 76 Haw. 332, 342, 876 P.2d 1300, 1310
(1994)). Second, the employer must take some “adverse action” against the
employee. Id. And third, there must be “a causal connection between the alleged
21

retaliation and the ‘whistleblowing.’” Id. To meet the causal connection
requirement, an “employer’s challenged action must have been taken ‘because’ the
employee engaged in protected conduct.” Id.
To analyze the causal connection requirement, the HWPA follows
“traditional labor management relations discharge cases,” Crosby, 76 Haw. at 342,
876 P.2d at 1310, where “the employer bears the burden of negating causation
once the employee makes an initial showing of a causal connection.” Griffin, 654
F. Supp. 2d at 1131 (internal quotation marks and citations omitted). Thus, the
causal connection requirement has two stages. “First, the employee must make a
prima facie showing ‘that his or her protected conduct was a “substantial or
motivating factor” in the decision to terminate the employee.’” Id. at 1131
(quoting Crosby, 76 Haw. at 342, 876 P.2d at 1310). “Second, once the employee
makes its prima facie showing, the employer must then ‘defend affirmatively by
showing that the termination would have occurred regardless of the protected
activity.’” Id. at 1132 (quoting Crosby, 76 Haw. at 342, 876 P.2d at 1310 (internal
quotation marks and citation omitted)).
1.

Causal Connection -- Prima Facie Showing
In addressing whether an employee’s protected activity was a

“substantial or motivating factor” for an adverse action, Crosby describes the test
22

as whether the activity “played a role in the employer’s action.” Crosby, 76 Haw.
at 342, 876 P.2d at 1310; see also Griffin, 654 F. Supp. 2d at 1131 n.20 (“The
Hawaii Supreme Court seems to agree that there is no required level of
substantiality, requiring only that the employee’s protected conduct ‘played a role
in the employer’s action.’”) (citing Crosby). And “a plaintiff can introduce
evidence regarding the ‘proximity in time between the protected action and the
allegedly retaliatory employment decision,’ from which a ‘jury logically could
infer’ [the connection].” Griffin, 654 F. Supp. 2d at 1132 (quoting Coszalter v.
City of Salem, 320 F.3d 968, 977 (9th Cir. 2003)). That is, “[although] an
employee may always present direct evidence of motive, proximity in time is one
type of circumstantial evidence that is sufficient on its own to meet the plaintiff’s
burden.” Id. (citation omitted).
2.

Causal Connection -- Affirmative Defense
In allowing an employer to demonstrate it would have taken the same

action against an employee regardless of the employee’s protected activity, Crosby
articulated the same “mixed motive” analysis used to address whether public
employees suffer a constitutional violation by being retaliated against for making
protected speech. See, e.g., Gilbrook v. City of Westminster, 177 F.3d 839, 853-54
(9th Cir. 1999). Gilbrook summarized this analysis as follows:
23

[Mt. Healthy City School District v. Doyle, 429 U.S. 274
(1977)] formulated a two-part burden-shifting inquiry for
cases involving mixed motives for discharge. First, the
plaintiff must show that his or her conduct was
constitutionally protected and that the conduct was a
“substantial” or “motivating” factor in the defendant’s
employment decision. If the plaintiff makes those
showings, then the burden shifts to the defendant to
show “by a preponderance of the evidence that it would
have reached the same decision . . . even in the absence
of the [plaintiff’s] protected conduct.”
Id. (quoting Mt. Healthy, 429 U.S. at 287); see also, e.g., Knickerbocker v. City of
Stockton, 81 F.3d 907, 911 & n.2 (9th Cir. 1996) (discussing and adopting Mt.
Healthy’s “dual motive” test under the Fair Labor Standards Act’s anti-retaliation
provision, 29 U.S.C. § 215(a)(3)).
Under this analysis, employers are “entitled to summary judgment if
they can demonstrate that they ‘would have reached the same adverse employment
decision even in the absence of the employee’s protected conduct.’” Anthoine v.
N. Cent. Counties Consortium, 605 F.3d 740, 752 (9th Cir. 2010) (quoting Eng v.
Cooley, 552 F.3d 1062, 1072 (9th Cir. 2009)). “In other words, [they] may avoid
liability by showing that the employee’s protected speech was not a but-for cause
of the adverse employment action.” Id.5
5

University of Texas Southwest Medical Center. v. Nassar, 133 S. Ct. 2517 (2013), held
in a Title VII context that “retaliation claims must be proved according to traditional principles of
(continued...)
24

Furthermore, in analyzing the HWPA, Griffin explained that “[a]n
employer may negate causation ex post facto by presenting evidence of other
reasons for termination outside of the protected conduct, even if the other reasons
were unknown to the employer at the time of termination.” 654 F. Supp. 2d at
1132 (citing Nabors Alaska Drilling Inc. v. N.L.R.B., 190 F.3d 1008, 1015 (9th
Cir. 1999) (“The employer can fulfill its burden by demonstrating that facts
discovered after termination gave rise to a legitimate basis for discharge, even if
the employee was originally fired for an improper reason.”)).
“[A]n aggrieved employee always retains the ultimate burden of
proof” under the HWPA. Crosby, 76 Haw. at 342, 876 P.2d at 1310 (citing
Sonicraft, Inc. v. N.L.R.B., 905 F.2d 146, 150 (7th Cir. 1990)). Although “the
employer has an affirmative defense (no causation), as to which of course he bears
the burden of persuasion, but so far as the main case is concerned the burden of
persuasion never shifts.” Id.
5

(...continued)
but-for causation,” and explained that this “requires proof that the unlawful retaliation would not
have occurred in the absence of the alleged wrongful action or actions of the employer.” Id. at
2533. “Whether and to what extent Nassar . . . may have a bearing on retaliation claims under
the FLSA is at this point unclear[.]” Avila v. Los Angeles Police Dep’t, 758 F.3d 1096, 1107 n.3
(9th Cir. 2014) (Vinson, D.J., dissenting); see also id. at 1101 n.3 (majority declining to address
whether Nassar affects an FLSA anti-retaliation analysis). Regardless of how federal law is
developing, however, the court analyzes the issues here as discussed in Crosby, mindful that it is
applying a state statute (albeit one that follows “traditional labor management relations discharge
cases”). Crosby, 76 Haw. at 342, 876 P.2d at 1310.
25

B.

Hawaii Whistleblower Claim -- Application of Standards
The first two elements of an HWPA claim (“protected activity” and

“adverse action”) are not at issue for purposes of this Motion. Construing the
evidence in favor of Tagupa, she reported violations of wage and overtime laws to
the U.S. Department of Labor and the Hawaii DLIR, and complained to
supervisors about the same or similar issues. See, e.g., Doc. No. 71-22, Tagupa
Decl. ¶¶ 17-24. She thus engaged in “protected activity” under HRS § 37862(1)(A). Furthermore, Tagupa was terminated on September 8, 2011, after
engaging in such activity. Id. ¶ 33; Doc. No. 64-43, Def.’s Ex. I-29. Discharging
an employee constitutes “adverse action” under § 378-62. Rather, the focus is on
the third element (causation) -- VIPDesk argues that Tagupa cannot prove she was
terminated “because of” her protected activity and is thus entitled to summary
judgment on the HWPA claim. The court agrees.
Initially, construing all inferences in the evidence in her favor,
Tagupa has established a prima facie case under Crosby. Tagupa attests that she
complained to a manager and a human resources administrator of VIPdesk in
March and August 2011 regarding a failure to pay non-exempt workers for
“voluntary” work, telling them she had “confirmed” the illegality of such a
practice with the U.S. Department of Labor and the Hawaii DLIR. Doc. No. 7126

22, Tagupa Decl. ¶¶ 18, 20, 47. As evidence of retaliation, she cites an August 11,
2011 email from VIPdesk’s “Director of Service Delivery, Robert Alexander,”
counseling her for an August 4, 2011 improper use of a “group chat” with
VIPdesk employees in which Tagupa complained that she was “an indentured
slave” and referred to VIPdesk as a “company that skirts laws.” Id. ¶ 22.
She also attests that “[o]n or about September 7, 2011 [she] reported
to the State of Hawaii, Department of Labor and Industrial Relations . . . that . . .
Defendant was not paying Plaintiff for the work she performed researching,
writing, and obtaining photographs for the blogs.” Id. ¶ 48. She was told that an
employer “could not escape payment by labeling [her] a ‘volunteer.’” Id. She was
terminated the next day, although there is no evidence in the record that VIPdesk
was aware of this particular complaint, and -- when pressed at oral argument -Tagupa’s counsel was also unable to point to any evidence that VIPdesk was
aware at that time of a September 7, 2011 complaint to the Hawaii DLIR.
Given a relatively short time, however, between at least some of her
protected activity and her termination (for example, VIPdesk was aware of
protected activity in August 2011), questions of material fact exist as to whether
Tagupa’s actions were a “substantial or motivating factor” in her termination. See,
e.g., Griffin, 654 F. Supp. 2d at 1132 (“[G]iven the close temporal proximity
27

between Plaintiffs’ reporting to outside government officials and their ultimate
removal and termination . . . a reasonable jury could infer that Plaintiffs were
removed and terminated because of their [protected activity.]”).
But VIPDesk has met its burden at the final Crosby stage, that is, it
has uncontested evidence that it would have terminated Tagupa even in the
absence of her protected activity. Tagupa has not disputed that she received
multiple poor performance reviews -- VIPDesk gave her twenty nine separate
written negative performance evaluations, reviews, or warnings about her poor
performance before it terminated her. See Doc. No. 64, Defs.’ CSF ¶¶ 28-30; Doc.
Nos. 15 to 43, Def.’s Exs. I-1 to I-29. These include twenty incidents that
occurred before March 2, 2011, which is when Tagupa first engaged in “protected
activity,” that, at minimum, establish that Tagupa had a poor work history. The
incidents include:
(1) a “final written warning” of December 29, 2008 for poor
work (sub-par “quality performance scores” for every month
from July to December 2008. Doc. No. 64-17, Def.’s Ex. I-3.
This warning included a notice that Tagupa could “ be subject
to further disciplinary action up to and including termination.”
Id. at 3;
(2) Multiple incidents of tardiness and unexcused absences in
2009 and 2010. Doc. Nos. 64-18 to 64-33, Def.’s Exs. I-4 to I19. These warnings also stated that “[i]f Lottie Tagupa does
not limit her absences to the maximum allotted per company
28

policy, she will be [the] subject of disciplinary action up to an
including termination.” Doc. No. 64-33, Def.’s Ex. I-19 at 4.
(3) Counseling for poor performance on February 24, 2011 for
not meeting quality standards and to discuss a “probationary
action plan.” Doc. No. 64-34, Def.’s Ex. I-20. Instead of
accepting counseling or coaching, a supervisor describes
Tagupa’s behavior as “yelling and screaming at me, telling me
that I was responsible for her possib[ly] going into
foreclosure.” Id. at 2. She “blew up” and was “[c]rying,
yelling and basically telling us that VIPdesk is horrific and that
she is constantly fighting off creditors and [it’s] all my fault.
She would not listen to anything about quality.” Id.
(4) A March 2, 2011 “final written warning” based on
six months of quality performance scores that did not
meet company standards, and on behavior perceived as
insubordinate and in violation of company policy. Doc.
No. 64-35, Def.’s Ex. I-21.6
These documented instances of poor performance, which occurred
before any protected activity (and thus could not have been generated as a pretext
for retaliation), provide ample (non-discriminatory) reason for Tagupa’s
termination.
Moreover, VIPdesk has proffered a declaration from Tagupa’s
supervisor Eleu Ornellas testifying that Tagupa was terminated “[d]ue to her poor

6

Although there may be some question whether Tagupa’s March 2, 2011 report to the
U.S. Department of Labor occurred before or after this March 2, 2011 warning from VIPdesk, it
is undisputed that VIPdesk had counseled Tagupa about her poor performance on February 24,
2011, and had decided in February 2011 to issue this March 2, 2011 written warning. See Doc.
No. 64-34, Def.’s Ex. I-20.
29

performance [and] the seriousness of her violations of company policy as reflected
in company disciplinary records.” Doc. No. 64-1, Ornellas Decl. ¶ 7. Ornellas
attests that “VIPdesk would have terminated Ms. Tagupa whether or not she had
engaged in any whistleblowing protected under the Hawaii Whistleblower
Protection Act.” Id. And Tagupa has offered no evidence to contradict these
statements.7
Similarly, VIPdesk’s September 8, 2011 termination (“Request to
Terminate”) explains that Tagupa was terminated “[b]ased on the instances of noncompliance with VIPdesk policies and Lottie’s overall performance in the
Concierge position[.]” Doc. No. 64-43, Def.’s Ex. I-29. It recounts prior “final
Written Warnings” of March 2, 2011, and August 4, 2011, and describes a further
instance of a violation of company policy on August 24, 2011:
VIPdesk randomly listened to calls from Lottie and

7

She contends that some negative reviews were not justified because warnings for
tardiness or absenteeism were “automatically generated” and some were caused by computer
problems. See Doc. No. 71, Pl.’s CSF ¶ 28; Doc. No. 71-22, Tagupa Decl. ¶ 36 (“The ‘coaching
sessions’ were generated automatically by the computer when there were no key strokes.”). She
does not dispute, however, that twenty-nine actions were taken against her, and that twenty
occurred before she engaged in protected activity. She claims, however, that “Defendant did not
fire employees for ‘computer problems’ and ‘lates’ for computer key strokes. . . . If Defendant
did, it would have fired me years ago for other ‘final warnings’ issued.” Doc. No. 71-22, Tagupa
Decl. ¶ 38. She thus appears to admit that she could have been terminated earlier, but simply was
not. Moreover, as VIPdesk points out, if the negative reviews for tardiness or absenteeism were
automatically generated by computer monitoring of an employee’s work station, then these
reviews could not indicate a subjective intent to discriminate or retaliate against her.
30

discovered a call on 8/24/2011 that did not meet
VIPdesk’s customer service and call handling
expectations. The customer wanted to add additional
information to an existing travel case that was being
handled by another Concierge. Lottie told the customer
that she had to email the information and also told the
customer that we do not take credit cards over the phone,
which is not the correct policy. Lottie did not notate the
case that the customer called in to update her
information. This call is considered a refusal to provide
service as Lottie did not follow policies and did not
provide service to the customer, which is a form of call
avoidance.
Id. Tagupa attempts to dispute this reason for her termination, explaining that:
A customer called back complaining about the cost
quoted by another CSR. I discovered that the previous
CSR did not apply the customer’s ‘kamaaina rate’
quoting him twice what he had to pay. . . . I received the
standard $3[] fee for each call I assist. I did not ‘falsify’
any records to obtain the $3[] fee. Defendant routed the
caller to me, I did my job by assisting the caller.
Doc. No. 71-22, Tagupa Decl. ¶ 37.8 Tagupa’s explanation, however, does not
dispute that she failed to follow company policies (regarding credit cards or to
“notate the case”). And her response does not create a triable issue of fact that the
circumstances were untrue or pretextual, much less dispute that VIPdesk had

8

It is not clear whether Tagupa is disputing the circumstances of the August 24, 2011
customer phone call, or is referring to the July 8, 2011 service requests that were not approved by
a customer that apparently violated VIPDesk’s “multiple request policy.” Either way, her
response does not create a dispute of fact that she would have been terminated regardless of her
protected activity.
31

warned her on August 4, 2011 that “[f]urther inability to follow policies will result
in immediate termination.” Doc. No. 64-40, Def.’s Ex. I-26.
In sum, even construing material disputes of fact in Tagupa’s favor,
VIPdesk has met its burden to show that “the termination would have occurred
regardless of the protected activity.” Crosby, 76 Haw. at 342, 876 P.2d at 1310;
Anthoine, 605 F.3d at 752 (reiterating that employers are “entitled to summary
judgment if they can demonstrate that they would have reached the same adverse
employment decision even in the absence of the employee’s protected conduct.”)
(citation omitted).
C.

Fair Labor Standards Act Claim -- Standards
“It is axiomatic, under the FLSA, that employers must pay employees

for all hours worked.” Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir. 2003)
(citations and internal quotation marks omitted). And, subject to certain
exemptions not relevant here, “29 U.S.C. § 207(a)(1) requires that employers pay
time-and-a-half for hours worked in excess of 40 per workweek.” Navarro v.
Encino Motorcars, LLC, 780 F.3d 1267, 1270 (9th Cir. 2015). “But the FLSA did
not define ‘work’ or ‘workweek,’ and [the Supreme] Court interpret[s] those terms
broadly.” Integrity Staffing Sols., Inc. v. Busk, 135 S. Ct. 513, 516 (2014).
“‘Work,’ the Supreme Court has long noted, is ‘physical or mental exertion
32

(whether burdensome or not) controlled or required by the employer and pursued
necessarily and primarily for the benefit of the employer.’” Alvarez, 339 F.3d at
902 (quoting Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590,
598 (1944)).9 “Work not requested but suffered or permitted is work time.” 29
C.F.R. § 785.11.10
“An employee seeking to recover . . . overtime under the FLSA ‘has
the burden of proving that [she] performed work for which [she] was not properly
compensated.’” Brock v. Seto, 790 F.2d 1446, 1447-48 (9th Cir. 1986) (quoting
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)). But
“[e]mployees seldom keep such records themselves; even if they do, the records
may be and frequently are untrustworthy.” Anderson, 328 U.S. at 687. “In view

9

In the Portal-to-Portal Act, Congress subsequently overruled aspects of Tennessee Coal
and a subsequent case, Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), by exempting
two categories of work-related activities that “occur either prior to the time on any particular
workday at which such employee commences, or subsequent to the time on any particular
workday at which he ceases . . . principal activity[.]” Integrity Staffing Sols., Inc., 135 S. Ct. at
517 (quoting 29 U.S.C. § 254(a)).
10

29 C.F.R. § 785.11 provides:
Work not requested but suffered or permitted is work time. For
example, an employee may voluntarily continue to work at the end
of the shift. He may be a pieceworker, he may desire to finish an
assigned task or he may wish to correct errors, paste work tickets,
prepare time reports or other records. The reason is immaterial.
The employer knows or has reason to believe that he is continuing
to work and the time is working time.
33

of the remedial purpose of the FLSA and the employer’s statutory obligation ‘to
keep proper records of wages, hours and other conditions and practices of
employment,’ this burden is not to be ‘an impossible hurdle for the employee.’”
Brock, 790 F.2d at 1448 (quoting Anderson, 328 U.S. at 687). Where an employer
has failed to keep records, “the solution . . . is not to penalize the employee by
denying [her] any recovery on the ground that [she] is unable to prove the precise
extent of uncompensated work.” Anderson, 328 U.S. at 687.
Rather, Anderson enunciated a burden-shifting standard that applies
“where the employer’s records are inaccurate or inadequate and the employee
cannot offer convincing substitutes.” Id. “[A]n employee has carried out [her]
burden if [she] proves that [she] has in fact performed work for which [she] was
improperly compensated and if [she] produces sufficient evidence to show the
amount and extent of that work as a matter of just and reasonable inference.” Id.
(emphasis added). “The burden then shifts to the employer to come forward with
evidence of the precise amount of work performed or with evidence to negative
the reasonableness of the inference to be drawn from the employee’s evidence.”
Id. at 687-88. “If the employer fails to produce such evidence, the court may then
award damages to the employee, even though the result be only approximate.” Id.
at 688. See also, e.g., Brock, 790 F.2d at 1448 (applying Anderson where “the fact
34

of damage is certain,” and the “only uncertainty is the amount of damage”).
Additionally, if an “employer knows or has reason to believe that [an
employee] is continuing to work [then] the time is working time.” 29 C.F.R.
§ 785.11. That is, “an employer must have actual or constructive knowledge that
its employees performed work without being compensated.” Lillehagen v.
Alorica, Inc., 2014 WL 6989230, at *17 (C.D. Cal. Dec. 10, 2014) (citation
omitted). This is because “an employer who knows or should have known that an
employee is or was working overtime must comply with [the FLSA].” Forrester
v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981). “An employer
who is armed with this knowledge cannot stand idly by and allow an employee to
perform overtime work without proper compensation, even if the employee does
not make a claim for the overtime compensation.” Id.
On the other hand,
where an employer has no knowledge that an employee
is engaging in overtime work and that employee fails to
notify the employer or deliberately prevents the
employer from acquiring knowledge of the overtime
work, the employer’s failure to pay for the overtime
hours is not a violation of [the FLSA].
Id.

35

D.

Fair Labor Standards Act Claim -- Application of Standards
VIPdesk argues that Tagupa’s FLSA claim fails as a matter of law for

three reasons. First, Tagupa has admitted that the fourteen or fifteen blog entries
that she submitted to VIPdesk were prepared before VIPdesk asked employees to
prepare or submit blog entries. See Doc. No. 64, Def.’s CSF ¶ 12; Doc. No. 71,
Pl.’s CSF at 3 (admitting Def.’s CSF ¶ 12); Doc. No. 64-3, Def.’s Ex. 3 at 19
(Tagupa Dep. at 188). That is, she had previously prepared the blogs, presumably
for other purposes. VIPdesk thus contends that hours associated with those entries
could not have been incurred “‘necessarily and primarily for” VIPdesk’s benefit.
Alvarez, 339 F.3d at 902. Essentially, it argues that any such work was not
“suffered or permitted.” 29 C.F.R. § 785.11.
Second, VIPdesk contends that it could not have known about any
overtime because Tagupa, who worked remotely, (1) “did not obtain permission
from her supervisor to work overtime hours preparing blog entries, performing
work-related mailings, performing pre-shift work, or addressing technical issues,”
and (2) “did not inform VIPdesk that she was performing overtime pre-shift work,
work-related mailings, or work on technical issues until well after the fact.” Doc.
No. 64-1, Ornellas Decl. ¶¶ 3, 4.
Third, VIPdesk argues that Tagupa has fabricated or falsified her time
36

sheets in an attempt to satisfy her burden to provide evidence of overtime hours
worked. During discovery, Tagupa responded to an interrogatory that asked how
she “tracked the time [she] spent preparing each blog entry” by answering “I
logged hours daily.” Doc. No. 64-6, Def.’s Ex. D. The record contains three
different sets or compilations of time records (one submitted to the Hawaii
Department of Labor, and two to Defendants in response to discovery requests in
this case), see Doc. Nos. 64-7, 64-8, 64-9 to 11, Def.’s Exs. E, F, and G, which
each reflect different numbers of hours. Tagupa admitted in her deposition that
she “didn’t create [her] log until [she] submitted something the first time to the
Hawaii Department of Labor,” explaining her interrogatory response to mean she
“logged them in my head.” Doc. No. 64-3, Def.’s Ex. A at 21, Tagupa Dep. at
196. VIPdesk characterizes Tagupa’s responses as “perjury,” arguing that such
fabricated evidence by itself justifies dismissing the action.11 In any event,

11

It is not appropriate to address VIPdesk’s accusation of “perjury” in this summary
judgment proceeding. In any event, a factfinder might well disbelieve Tagupa’s answer that she
logged hours “in her head,” without determining that she committed perjury -- generally defined
as giving “false testimony concerning a material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or faulty memory.” United States v.
Dunnigan, 507 U.S. 87, 94 (1993). After all, “a literally true answer, even though unresponsive
or ‘shrewdly calculated to evade,’ cannot form the predicate for [] perjury[.]” United States v.
Sainz, 772 F.2d 559, 563 (9th Cir. 1985) (quoting Bronston v. United States, 409 U.S. 352, 362
(1973)). To be clear, the court does not condone false testimony, but in this instance, the
question whether Tagupa committed perjury during discovery involves a factual interpretation
that is inappropriate at summary judgment.
37

VIPdesk contends that Tagupa’s evidence of her overtime is insufficient “to show
the amount and extent of that work as a matter of just and reasonable inference.”
Doc. No. 73, Def.’s Reply at 12 (quoting Anderson, 328 U.S. at 687).
Tagupa admits that the records are inconsistent. See Doc. No. 71,
Pl.’s CSF at 3 (admitting Defendant’s CSF ¶ 21, Doc. No. 64, that Tagupa
“claimed to have worked 102 hours more in overtime to Defendants in this
litigation than she claimed to the Department of Labor”). She contends, however,
that she “estimated the time she spent working on blogs as best she could after the
fact[.]” Id. ¶ 20. Estimating time is allowable, depending on the circumstances.
See Anderson, 328 U.S. at 687 (“Employees seldom keep such records themselves;
even if they do, the records may be and frequently are untrustworthy.”).
Given the evidence in the record -- which the court is obligated to
construe in Tagupa’s favor -- the court is unable to grant VIPDesk’s Motion as to
all of her FLSA claim. Even if some of Tagupa’s time records seek overtime for
the fifteen blogs that she prepared before VIPdesk asked for “volunteers,” she also
declares that she spent overtime hours working “another fifty-two (52) blogs for
Defendant’s for-profit purposes in order to be considered a team player.” Doc.
No. 71-22, Tagupa Decl. ¶ 10. She also declares that she “was in the process of
creating additional blogs but was fired on 9/8/2011, and . . . was unable to submit
38

those blogs.” Id. ¶ 32.
Moreover, Tagupa’s FLSA claim is based on more than just overtime
for blog work. Even VIPdesk’s Motion characterizes Tagupa’s claims as “based
on her allegation that she is owed overtime compensation for . . . drafting blog
entries for Defendant and for time and money she allegedly spent on work-related
mailings.” Doc. No. 63-1, Def.’s Mot. at 6 (emphasis added). Many of the
timesheets in the record indicate Tagupa is seeking overtime for matters such as
“dri[ving] 4 miles to and from Ewa Beach Post Office, [and] wait[ing] in line to
mail travel documents to VIPdesk customer.” Doc. No. 64-9, Def.’s Ex. G-1 at 2
to 79 (multiple requests for that task); see also id. at 80 to 98 (similar task to and
from Kamuela Post Office). Tagupa is also claiming overtime for other work such
as “‘pre shift’ time that she spent working for VIPdesk, post-shift time spent on
work-related mailings, and time spent addressing technical issues.” Doc. No. 64,
Def.’s CSF ¶ 22; Doc. Nos. 64-12 to 64-14, Def.’s Exs. H-1 to H-3. Such a claim
is apparently similar to Tagupa’s claim made to the Hawaii DLIR that she worked
at least eight hours a day from September 1, 2010 to September 8, 2011, but was
only paid for 7.5 hours per week. See Doc. No. 71-20, Pl.’s Ex. T.
In other words, the record contains prima facie evidence (if believed)
“of just and reasonable inference” of at least some overtime work performed on
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VIPdesk’s behalf, and VIPdesk has not -- at least at this stage -- “negat[ed] the
reasonableness” of all of such evidence. Anderson, 328 U.S. at 688. It may be
that many of the hours that Tagupa claims as overtime were not, in reality,
performed for VIPdesk’s benefit (if they were performed at all). But VIPdesk
seeks summary judgment on the FLSA claim as a whole, and the record is disputed
as to some of Tagupa’s claim.
At oral argument, Tagupa’s counsel clarified that she does not seek
overtime for work done on the fourteen or fifteen blogs that were actually
submitted to, and published by, VIPdesk. Tagupa admits that she already prepared
these blogs for other purposes, before VIPdesk announced its “Concierge Blog.”
That is, she only seeks overtime for work done on other blogs -- some fifty two
blogs that were apparently never actually submitted to VIPdesk, and for other
blogs that she claims to have been preparing. And indeed, the blogging-related
timesheets that she provided to VIPdesk during discovery appear to be dated on or
after June 14, 2010 (when VIPdesk first announced it was seeking blogs from its
employees).12 See, e.g., Doc. No. 64-9, Def.’s Ex. G-1 at 99.

12

The record contains over 750 pages of unclassified timesheets or compilations of hours
submitted by Tagupa. See Doc. No. 64-9, Def.’s Ex. G-1 (284 pages); Doc. No. 64-10, Def.’s
Ex. G-2 (286 pages); and Doc. No. 64-11, Def.’s Ex. G-3 (148 pages). The parties have not
categorized them by task, and did not attempt to excise and compile hours that represent
(continued...)
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Similarly, VIPdesk might well be able to prove that it had no notice
of (and no reason to know of) some or all of these claimed overtime hours. But
the record in this regard is unclear -- although Ornellas indicates that VIPdesk was
not informed until “well after the fact,” it is unclear what that means. There is
evidence that Tagupa complained to the U.S. Department of Labor in March 2011
that VIPdesk “failed to pay for hours worked,” Doc. No. 71-13, Pl.’s Ex. M at 3,
including a complaint that it “was not compensating Plaintiff for travel to and
from the U.S. Post Office for mailing documents.” Doc. No. 71-22, Tagupa Decl.
¶ 18. There is also evidence from which it can reasonably be inferred that
VIPdesk knew (or should have known) that she was working on blogs, and wanted
to be paid for such work. See, e.g., id. ¶ 22; Doc. No. 71-14, Pl.’s Ex. N (email
stating, in part, “the issue stems from not paying non-exepmt [sic] hourly
employees for work done to benefit the company finalncially [sic]. As I
understand it, this is illegal on the Fed and State level and I want to be
compensated for the work I have done . . .”); Doc. No. 71-22, Tagupa Decl. ¶ 21
(August 5, 2011 communication from Tagupa to VIPdesk, allegedly stating in part
“I want to have addressed the issue of not paying me for my blog submissions.”).

12

(...continued)
recoverable and unrecoverable hours.
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In short, summary judgment is inappropriate to the extent VIPdesk contends it had
no notice of Tagupa’s overtime claims. See Forrester, 646 F.2d at 414.
Accordingly, VIPdesk’s Motion is GRANTED, but only to the extent
that Tagupa’s Complaint in this action could be construed as seeking overtime
under the FLSA for any work performed on blogs before June 14, 2010 (that is,
the fourteen or fifteen blogs submitted to VIPdesk that she had already prepared).
In all other respects, VIPdesk’s Motion as to the FLSA claim is DENIED. The
record contains sufficient evidence, construed in Tagupa’s favor, to create a
genuine issue of material fact as to whether Tagupa is entitled to at least some
amount of recovery under the FLSA. See Brock, 790 F.2d at 1448 (applying
Anderson where the “only uncertainty is the amount of damage”).
///
///
///
///
///
///
///
///
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V. CONCLUSION
Defendant VIPdesk, Inc.’s Motion for Summary Judgment, Doc. No.
63, is GRANTED in part and DENIED in part. Summary judgment is
(1) GRANTED in favor of VIPdesk as to Count Two (HWPA), but (2) GRANTED
in part and DENIED in part as to Count One (FLSA).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 28, 2015.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Tagupa v. VIPdesk, Inc., Civ. No. 13-00428 JMS KSC, Order Granting in Part and Denying in
Part Defendant VIPdesk, Inc.’s Motion for Summary Judgment

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