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Tagupa v. VIPdesk, Inc.

United States District Court, D. Hawai'i

August 28, 2015

LOTTIE K. TAGUPA, individually and on behalf of all others similarly situated, Plaintiff,
VIPDESK, INC.; JOHN DOES 1-10, DOE ENTITIES 1-10, Defendants

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[Copyrighted Material Omitted]

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          For Lottie K. Tagupa, individually and on behalf of all others similarly situated, Plaintiff: Venetia K. Carpenter-Asui, LEAD ATTORNEY, Ocean View Center, Honolulu, HI.

         For VIPDesk, Inc., Defendant: Amy L. Woodward, Jay S. Handlin, Michael J Scanlon, LEAD ATTORNEYS, Carlsmith Ball LLP Honolulu, Honolulu, HI; Constantinos G. Panagopoulos, Theodore R. Flo, LEAD ATTORNEYS, PRO HAC VICE, Ballard Spahr LLP, Washington, DC.

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         J. Michael Seabright, United States District Judge.


         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.


         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 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 part-to 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

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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 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. 71-5, 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]

         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 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

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haven'tt 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 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 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

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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 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 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.


         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:

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(a) Defendant was making unauthorized deductions from my paycheck without my permission to 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 ...

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