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Douglas Bassett, On Behalf of Himself and All Others "Similarly Situated v. Tennessee Valley Authority

February 22, 2013

DOUGLAS BASSETT, ON BEHALF OF HIMSELF AND ALL OTHERS "SIMILARLY SITUATED"
PLAINTIFF
v.
TENNESSEE VALLEY AUTHORITY
DEFENDANT



MEMORANDUM OPINION AND ORDER

This matter comes before the Court on the Defendant's motion to decertify the conditionally-certified class of plaintiffs alleging violations of the Fair Labor Standards Act. (Def.'s Mot., Docket Number ("DN") 111.) The named Plaintiff has responded. (Pl.'s Resp., DN 113.) The Defendant has replied. (Def.'s Reply, DN 117.) Fully briefed, this matter is now ripe for adjudication. Having considered the matter and being fully advised, the Defendant's motion is GRANTED IN PART and DENIED IN PART.

I.

The named plaintiff, Douglas Bassett ("Bassett"), was employed by Defendant Tennessee Valley Authority ("TVA") from 1987 until his retirement in 2008. Throughout this period, he worked as a heavy equipment operator in the Project Services branch of TVA's Heavy Equipment Division. During his employment, Bassett was assigned to the TVA station in Paducah, Kentucky. Although Paducah served as his home station, Bassett was part of a dredging crew that traveled to remote TVA facilities and projects throughout the Tennessee Valley, a region following the Tennessee River and stretching across several southeastern states. These remote projects often lasted several weeks and required Bassett to travel away from home overnight.

Bassett brings this action alleging that TVA violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., by failing to pay him overtime wages.*fn1 He allegedly earned those wages during time he spent traveling to and from TVA's remote project locations. Specifically, he argues that he should have been paid overtime for travel time incurred during non-voluntary trips to and from Paducah on a remote project's interim weekends and other rest days (hereinafter "non-workdays"). He does not appear to dispute that he was compensated for his travel time during his first and last trips to and from a remote project, which occurred on both work and nonworkdays. (See Mar. 10, 2011 Bassett Dep., DN 116-2, p. 9:15-20.) Nor does he dispute that he received a per diem for room and board on workdays at remote projects and that TVA paid him a mileage allowance for his travel to and from Paducah on non-workdays. Bassett does, however, vehemently contest TVA's claim that his travel to Paducah on non-workdays was voluntary. Furthermore, Bassett vigorously rebuts TVA's allegation that a per diem for room and board was available to him if he remained at a remote project on non-workdays. Bassett asserts that he did not know and could not have known that TVA would provide him a per diem for these periods. Finally, he claims that even if per diems were available under TVA policy on non-workdays, his supervisors refused to pay them.

Viewed from Bassett's prospective, he was left with two choices on non-workdays. He could either pay for room and board out of his own pocket or could drive home on the mileage allowance offered by TVA. Unable to afford room and board and support his family simultaneously, Bassett selected the latter option. Because he was never made aware that per diems were available for non-workdays, Bassett argues that his travel time during these periods was involuntary and should have been compensated by TVA as overtime when it exceeded his normal bulletined hours of forty hours per week.

The Court conditionally certified Bassett's claims as a FLSA collective action. See Bassett v. TVA, No. 5:09-CV-39, 2010 WL 716094, at *5-7 (W.D. Ky. Feb. 22, 2010). By way of an amended complaint, Bassett was ultimately identified as the representative plaintiff of a class including "all present and former employees who work or worked in Project Services for Defendant, TVA[.]" (Am. Compl., DN 88 ¶ 8.) After this action was conditionally certified, the parties conducted additional discovery relating to each of the fourteen opt-in plaintiffs. One goal of this discovery was to determine whether the opt-in plaintiffs were "similarly situated" to Bassett. If not similarly situated, then this case may not proceed collectively. Upon the completion of discovery, TVA now moves to decertify the class on grounds that the opt-in plaintiffs are not similarly situated to Bassett.

II.

An employee alleging violations of the Fair Labor Standards Act may bring suit against his employer on "behalf of himself . . . and other employees similarly situated." 29 U.S.C. § 216(b). A FLSA action on behalf of "similarly situated" employees is referred to as a "collective action." A FLSA collective action differs from a class action brought under Federal Rule of Civil Procedure 23. See Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). "Unlike class actions under Fed. R. Civ. P. 23, collective actions under FLSA require putative class members to opt into the class." O'Brien v. Ed Donnnelly Enters., Inc., 575 F.3d 567, 583 (6th Cir. 2009). Furthermore, the standard for certifying a collective action is less stringent than that required for a class action. Id. at 584. To certify a class action under Rule 23, the class representative must show that "issues subject to generalized proof and applicable to the class as a whole predominate over those issues that are subject to only individualized proof." Randleman v. Fid. Nat'l Title Ins. Co., 656 F.3d 347, 352-53 (6th Cir. 2011) (emphasis added). There is no "predominance" requirement for a FLSA collective action, and "opt-in plaintiffs only need to be 'similarly situated.'" O'Brien, 575 F.3d at 584.

In order to determine whether opt-in plaintiffs are similarly situated, the majority of district courts follow a two-step certification process. First, like the Court here, they conditionally certify the collective action after minimal discovery so that the lead plaintiff can issue notice to the putative class, allowing potential class members to opt into the action if desired. See Bassett v. TVA, No. 5:09-CV-39, 2010 WL 716094, *5-7 (W.D. Ky. Feb. 22, 2010). Second, after other plaintiffs have joined and additional discovery has been taken, courts conduct a final certification analysis to determine whether the plaintiffs are, in fact, similarly situated. At this stage, courts "require a higher level of proof than for initial conditional certification." 7B Charles Alan Wright, et al., Federal Practice & Procedure § 1807 (3d ed. 2012). Here, certification "should not be based on any single factor in isolation, but on a variety of factors." Id. Indeed, in O'Brien, the Sixth Circuit stated that it was not "creat[ing] comprehensive criteria for informing the similarly-situated analysis." O'Brien, 575 F.3d at 585. The court did, however, identify three factors that are often examined in the second step of the certification analysis: 1) the factual and employment settings of the individual plaintiffs, 2) the different defenses to which the plaintiffs may be subject on an individual basis, and 3) the degree of fairness and procedural impact of certifying the action as a collective action. Id. at 584 (citing 7B Wright, supra, § 1807).

Again, the "similarly situated" requirement for a FLSA collective action is less stringent than the "predominance" requirement for a Rule 23 class action. "Plaintiffs are not required to show a 'unified policy' by the defendant in order to be similarly situated." Monroe v. FTS USA, LLC, 763 F. Supp. 2d 979, 994 (W.D. Tenn. 2011) (quoting O'Brien, 575 F.3d at 584). Rather, when "considering decertification, '[t]he question is simply whether the differences among the plaintiffs outweigh the similarities of the practices to which they were allegedly subjected.'" Id. (quoting Frye v. Baptist Mem'l Hosp., No. CIV 07-2708-Ma, 2010 WL 3862591, at *3 (W.D. Tenn. Sept. 27, 2010)). The named plaintiff bears the burden of demonstrating that the opt-in plaintiffs are similarly situated to him. O'Brien, 575 F.3d at 584 (citing 7B Wright, supra, § 1807).

Finally, where a subset of the opt-in plaintiffs is not similarly situated, partial decertification is possible. Id. at 586. A collective action need not be "totally decertified if some members are not similarly situated to the others." Id. Instead, "plaintiffs who are not similarly situated . . . [can] be dismissed while keeping intact the partial class." Id. Allowing those opt-in plaintiffs who are similarly situated to the lead plaintiff to proceed as members of a partially certified class preserves the remedial nature of the FLSA and such plaintiffs "should not be barred from the opportunity to be part of a FLSA collective action[.]" Id. "[I]f final certification is granted, the action proceeds to trial on a representative basis." 7B Wright, supra, § 1807.

III.

The Court must determine whether the opt-in plaintiffs are "similarly situated" to Bassett. To do so, the Court considers the three factors discussed above: 1) the factual and employment settings of the individual plaintiffs, 2) the different defenses to which the plaintiffs may be subject on an individual basis, and 3) the degree of fairness and procedural impact of certifying the action as a collective action. O'Brien, 575 F.3d at 584 (citing 7B Wright, supra, § 1807).

A.

TVA first argues that the opt-in plaintiffs are not "similarly situated" to Bassett because their factual and employment setting are not similar to his own. The Court briefly examines the facts as they relate to the fourteen opt-in plaintiffs. For those plaintiffs who do not share factual and employment similarities with Bassett, the Court dismisses them as discussed below.

1.James Bagwell

James Bagwell ("Bagwell") was an annual TVA employee who served as a heavy equipment operator for a number of years. (Bagwell Dep., DN 111-13, pp. 17:20-21:4.) The job required Bagwell to travel away from home overnight. (Id. at p. 22:16-23.) His normal work hours were 7:00 a.m. to 3:30 p.m., five days a week. (Id. at p. 60:11-22.) He also frequently worked four ten-hour shifts, Tuesday through Friday. (Id. at pp. 67:24-69:23.) Bagwell typically left his home between 1:00 p.m. and 2:00 p.m. on the day before he was to begin work at a remote project. (Id. at p. 69:10-23.) He remained at the project throughout the workweek and immediately drove home after completing his last shift on Friday. (Id. at pp. 61:20-62:6.)

Bagwell's deposition testimony shows that he had access to TVA's travel policy, even if he did not know the policy provided per diems on non-workdays. For example, Sonya Jones, a TVA administrative assistant, trained him on how to fill out the correct travel reimbursement forms and could answer other questions about travel reimbursement. (Id. at pp. 24:18-25:15, 40:7-15.) Bagwell also had access to TVA's policies through his supervisors, Larry Radford and Kenny Lowery. (Id. at pp. 40:16-41:1.) Finally, Bagwell can recall using a TVA-issued laptop to look up various work policies. (Id. at pp. 41:2-43:15.) He never requested a per diem for nonworkdays. (Id. at pp. 116:24-117:4.) That said, he clearly testified that TVA's policy of providing per diems on non-workdays was never related to him and he was not aware of that option. (Id. at pp. 126:13-127:6).

Larry Radford was Bagwell's supervisor during the time periods relevant to this action.

(Id. at pp. 16:1-17:13.) When he first began working for TVA, Bagwell sought compensation for his time spent in travel on non-workdays, but Radford refused to pay it. (Id. at p. 28:8-25.) Radford informed him that his work group only received travel time for trips at the beginning and end of a remote project, not on the interim non-workdays. (Id. at p. 29.) Neither Radford nor the other supervisors ever offered Bagwell per diems for non-working days at a remote project. (Id. at p. 113:1-22.) Bagwell only received per diems on the days he was actually working. (Id. at pp. 31-33.)

2.Wesley Baird

Wesley Baird ("Baird") was employed by TVA as a construction foreman from 2001 to 2009. (Baird Dep., DN 111-11, p. 13.) Baird's position required travel away from home overnight. Once on site, he worked 7:00 a.m. to 5:00 p.m., Monday through Thursday. (Id. at p. 19:10-17). His usual practice was to leave his home between 5:30 and 5:45 p.m. on Sunday and drive to the remote project. (Id. at p. 18:22-25.) When he finished his shift on Thursday, he would travel home. (Id. at pp. 18:19-21, 19:14-17.) Larry Radford was also Baird's supervisor. TVA's ...


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