United States District Court, D. Hawaii
LOTTIE K. TAGUPA, Plaintiff,
VIPDESK, INC., Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR CLARIFICATION AND/OR MODIFICATION OF THE COURT’S ORDER DATED AUGUST 28, 2015 BASED ON NEW EVIDENCE, DOC. NO. 124
J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
On August 28, 2015, the court granted summary judgment in favor of Defendant VIPdesk, Inc. (“Defendant” or “VIPdesk”) as to Plaintiff Lottie K. Tagupa’s (“Plaintiff” or “Tagupa”) claim for violating the Hawaii Whistleblower Protection Act (“HWPA”), but denied summary judgment as to most aspects of Tagupa’s claim for violating the Fair Labor Standards Act (“FLSA”). See Doc. No. 76 (“August 28 Order”), published at Tagupa v. VIPdesk, Inc., __F.Supp.3d __, 2015 WL 5116943 (D. Haw. Aug. 28, 2015).
On January 7, 2016 -- less than two weeks before the then-scheduled trial of the remaining FLSA claim,  and over four months after the August 28 Order -- Tagupa moved for reconsideration of the August 28 Order, seeking to revive her HWPA claim. See Doc. No. 124 (“Plaintiff’s Motion for Clarification And/Or Modification of the Court’s Order dated August 28, 2015 based on New Evidence”) (“Motion for Reconsideration”). She bases the Motion for Reconsideration on “new evidence” -- deposition testimony of her former direct supervisor, Eleu Ornellas (“Ornellas”), taken on December 9, 2015. Id. at 4. For the following reasons, the Motion for Reconsideration is DENIED.
Because the Motion for Reconsideration is limited to Plaintiff’s HWPA claim, the court focuses only on the background relevant to that claim.
The August 28 Order granted summary judgment in favor of VIPdesk on Tagupa’s HWPA claim because, applying Crosby v. State Department of Budget and Finance, 76 Haw. 332, 876 P.2d 1300 (1994), it was undisputed that VIPdesk would have terminated Tagupa even in the absence of her protected activity. Tagupa, 2015 WL 5116943, at *11. The court reasoned in part that
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. 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.
Id. (emphasis and citations to record omitted).
The court cited to multiple documented incidents of poor performance in 2008, 2009 and 2010. Id. The court also focused on more recent incidents and warnings from February 24, 2011 and March 2, 2011, regarding Tagupa’s failure to meet quality standards and a specific incident where, instead of accepting counseling or coaching, Tagupa yelled and screamed at a supervisor “basically telling [him] that VIPdesk is horrific and that [Tagupa] is constantly fighting off creditors and [it’s] all [the supervisor’s] fault.” Id.
The August 28 Order also carefully examined “[a] March 2, 2011 ‘final written warning’ based on six months of quality performance scores that did not meet company standards, and [discussed] behavior perceived as insubordinate and in violation of company policy.” Id. at *12. And the court relied extensively on VIPdesk’s September 8, 2011 termination letter, which explained that Tagupa was terminated “[b]ased on the instances of non-compliance with VIPdesk policies and Lottie’s overall performance in the Concierge position.” Id.
In support of her Motion for Reconsideration, Tagupa cites to excerpts of a December 9, 2015 deposition of Ornellas, where Ornellas testified or acknowledged that (1) “unexcused absences” are “wiped out” quarterly; (2) Tagupa was not terminated in 2009 because “she was always able to go right up to the wire with the wipeouts and then start again;” and (3) when discussing whether a 2011 “final written warning” was to be given to Tagupa, a previous final written warning “would not have come into play” because “[i]t was too far back.” Doc. No. 124-3 at 3-5, Ornellas Dep. at 101, 111, 119-20. Tagupa argues that this newly discovered evidence “proves that [she] was not fired for twenty-nine disciplinary actions as the [August 28] Order in this case incorrectly states” and “creates a question of fact as to Defendant’s true reason for firing Plaintiff after six years of wiping the slate clean time and time again.” Doc. No. 124, Mot. at 6.
III. STANDARD OF REVIEW
Local Rule 60.1 allows a party to file a motion for reconsideration of an interlocutory order. Reconsideration is permitted only where there is “(a) Discovery of new material facts not previously available; (b) Intervening change in law; [or] (c) Manifest error of law or fact.” LR 60.1; see Sierra Club, Hawaii Chapter v. City & Cty. of Honolulu, 486 F.Supp.2d 1185, 1188 (D. Haw.2007). “There may also be other, highly unusual, circumstances warranting ...