United States District Court, D. Hawai'i
LOTTIE K. TAGUPA, individually and on behalf of all others similarly situated, Plaintiff,
VIPDESK, INC.; JOHN DOES 1-10, DOE ENTITIES 1-10, Defendants
[Copyrighted Material Omitted]
Lottie K. Tagupa, individually and on behalf of all others
similarly situated, Plaintiff: Venetia K. Carpenter-Asui,
LEAD ATTORNEY, Ocean View Center, Honolulu, HI.
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.
GRANTING IN PART AND DENYING IN PART DEFENDANT VIPDESK,
INC.'S MOTION FOR SUMMARY JUDGMENT
Michael Seabright, United States District Judge.
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" ).
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.
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:
Tagupa's Employment with VIPdesk and VIPdesk's "
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
" 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.
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.
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 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.
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. 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. ¶
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.
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
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
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.
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.
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. 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.
Tagupa's " Protected Activity"
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 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.
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.
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.
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 do so; and
(b) Defendant was not paying me for the work I performed
researching, writing, and obtaining photographs for the
Doc. No. 71-22, Tagupa Decl. ¶ 24.