ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT VIPDESK, INC.'S MOTION FOR SUMMARY JUDGMENT

J. Michael Seabright, United States District Judge.

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 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:

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

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:

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

Doc. No. 71-22, Tagupa Decl. ¶ 17. She says she "engaged in protected activity when [she] reported via written report online 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.

Doc. No. 71-14, Pl.'s Ex. N. She claims that, on August 5, 2011, she

Doc. No. 71-22, Tagupa Decl. ¶ 21. She wrote to VIPdesk:

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

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:

Id. It recounts prior warnings that VIPdesk had given to Tagupa:

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. 64-15 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 "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:

Id. at 2. For his part, in a February 25, 2011 email, Robert Alexander documents the conversation, in part, as follows:

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:

Doc. No. 64-35, Def.'s Ex. I-21 at 3. It outlined a "performance improvement plan," and warned:

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 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

Id. And it warns:

Id. at 3.

For her part, Tagupa responded on August 5, 2011(including the "protected activity" described above) stating that:

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 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 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, 106 S.Ct. 2548); 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and internal quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505). 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, 106 S.Ct. 1348; see also Posey v. Lake Pend Oreille 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 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 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 Hawai'i 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 Hawai'i 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 Hawai'i 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 as whether the activity "played a role in the employer's action." Crosby, 76 Hawai'i 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:

Id. (quoting Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568); 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

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 Hawai'i 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.

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. 71-22, 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 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:

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 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:

Id. Tagupa attempts to dispute this reason for her termination, explaining that:

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 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 Hawai'i 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, ___ U.S. ___, 135 S.Ct. 513, 516, 190 L.Ed.2d 410 (2014). "`Work,' the Supreme Court has long noted, is `physical or mental exertion (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, 64 S.Ct. 698, 88 L.Ed. 949 (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, 66 S.Ct. 1187, 90 L.Ed. 1515 (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, 66 S.Ct. 1187. "In view 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, 66 S.Ct. 1187). 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, 66 S.Ct. 1187.

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, 66 S.Ct. 1187. "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, 66 S.Ct. 1187. See also, e.g., Brock, 790 F.2d at 1448 (applying Anderson where "the fact 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,

Id.

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 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, 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, 66 S.Ct. 1187).

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, 66 S.Ct. 1187 ("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 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 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, 66 S.Ct. 1187. 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.

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."). 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").

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.