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Douglas Bassett, On Behalf of Himself and All v. Tennessee Valley Authority

February 22, 2013



This matter is before the Court on the Defendant's renewed motion for summary judgment. (Def.'s Mot. Summ. J., Docket Number ("DN") 116.) The Plaintiff has responded. (Pl.'s Resp., DN 122.) The Defendant has replied. (Def.'s Reply, DN 124.) Fully briefed, this matter is now ripe for adjudication. For the following reasons, the Defendant's motion is GRANTED IN PART and DENIED IN PART.


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 case 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 and from 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 for 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 collective FLSA action, see Bassett v. TVA, No. 5:09-CV-39, 2010 WL 716094, at *5-7 (W.D. Ky. Feb. 22, 2010), and he currently represents fourteen opt-in plaintiffs who maintain similar claims.*fn2

TVA now renews its motion for summary judgment and seeks to dispose of this action on three grounds: 1) Bassett's claims fail as a matter of law because his travel time on nonworkdays was not "work" as that term is used in the FLSA; 2) his travel time to and from Paducah on non-workdays was voluntary; and 3) the Court lacks jurisdiction to hear this case because Bassett failed to exhaust the grievance procedures set forth in the collective-bargaining agreement between his union and TVA.


Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

"[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere scintilla of evidence in support of his position; the plaintiff must present evidence on which the trier of fact could reasonably find for the plaintiff. See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). The plaintiff may accomplish this by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence . . . of a genuine dispute . . . ." Fed. R. Civ. P. 56(c)(1). Mere speculation will not suffice to defeat a motion for summary judgment; "the mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Moinette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012).


Before considering the merits of TVA's motion, the Court pauses to address the interaction between the FLSA, its implementing regulations, and the collective-bargaining agreement at issue in this case.

As a general rule, an employer is not required to pay wages or overtime compensation for time an employee expends "walking, riding, or traveling to and from the actual place of the principle activity or activities which such employee is employed to perform." 29 U.S.C. § 254(a)(1). Such "ordinary home to work" travel time is not a compensable incident of employment. See 29 C.F.R. § 785.35 ("Normal travel from home to work is not worktime."). This rule is subject to two relevant exceptions, however.


The first exception is found in 29 U.S.C. § 254(b)(1). Under that statute, an employer is obligated to compensate an employee for his travel time to and from work where the employer has agreed to do so by "an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer." 29 U.S.C. § 254(b)(1). In other words, "travel time at the commencement or cessation of the workday which was originally considered as working time under the [FLSA] need not be counted as working time unless it is compensable by contract . . . ." 29 C.F.R. § 785.34. Bassett alleges that such a contract exists in this case.

Bassett was a member of the International Unit of Operating Engineers and was therefore covered by the General Agreement and Supplementary Schedules Between Tennessee Valley Authority and the Trades and Labor Council for Annual Employees of the Tennessee Valley Authority ("General Agreement"). Regarding travel time, the General Agreement states as follows:

B-X. Pay for Time Spent in Travel

A. Time spent in travel by an employee when required to travel between his/her official station and a field assignment is paid for as follows:

1. An employee required to travel during regular bulletined hours is paid at the rate he/she would have received if he/she had worked those hours.

2. An employee required to travel outside of regular bulletined hours of work and on scheduled rest days is paid for time spent in travel at the applicable overtime rate, except that when Pullman sleeping accommodations are provided, payment is not made for more than eight hours' travel time in a calendar day nor between the hours of 7 p.m. and 8 a.m....

3. The travel time paid for is limited to the time reasonably required to make the trip from one work location to the next work location by the most direct route by the means provided by TVA. For travel by automobile outside of regular bulletined hours, the maximum travel time paid for is computed by allowing time on the basis of a half hour for each 20 miles of travel or major fraction thereof.

4. An employee whose place of abode is closer to a field assignment than is his/her official station and who travels daily from his/her place of abode to a field assignment is not entitled to pay for time spent in travel. (General Agreement, DN 122-2, p. 11.) Relying on this section, Bassett argues that he is owed overtime wages for travel time on non-workdays because TVA contractually agreed to pay it.

Two other General Agreement provisions are worthy of note. First, Section XIV -- "Procedure for Revising Contract Language" -- provides that "[r]ates of pay, hours of work, other working conditions, and other negotiated understandings established under this Agreement shall be in the form of supplementary schedules attached hereto." (Id. at p. 2.) Bassett claims that this is a legally binding "zipper clause" that prohibits oral modification of the General Agreement. Claiming that the General Agreement is silent as to the availability of per diems, Bassett argues that TVA's assertion that per diems were orally made available to him on non-workdays by certain supervisors is without merit and not in accord with the agreement's terms.

In apparent anticipation of this argument, TVA, in its opening brief, points to the second noteworthy provision, Section B-XVI -- "Nonnegotiated Items Established by Federal Laws and Regulations." That section states, "Annual employees are granted benefits in accordance with applicable federal laws and regulations on the following subjects . . . 5. Official travel . . . ." (General Agreement, DN 116-8, p. 4.) Relying on this section, TVA argues that there was no oral modification of the agreement because the federal regulations concerning the provision of travel allowances and per diems found in 41 C.F.R. Chapter 301 of the Federal Travel Regulation Systems*fn3 are incorporated by reference into the General Agreement, making perdiems available to Bassett on non-workdays.*fn4 Because the regulations providing per diems were incorporated by reference into the General Agreement, TVA argues that Bassett must be charged with actual or constructive knowledge of the regulations. Since, according to TVA, Bassett had knowledge that per diems were available, TVA asserts that his trips home on non-workdays were voluntary and not compensable under the FLSA.


The second relevant travel-time exception applies to travel requiring an employee to be away from home overnight. The regulation found at 29 C.F.R. § 785.39 provides:

Travel time that keeps an employee away from home overnight is travel time away from home. Travel away from home is clearly worktime when it cuts across the employee's workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on non-working days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days.

This regulation establishes that travel time away from home is compensable under the FLSA when it occurs during a workday's regular work hours and during those corresponding hours on non-workdays. Travel away from home as provided for in 29 C.F.R. § 785.39 is not "ordinary home to work" travel time. As discussed below, however, that travel time is not compensable if it is "voluntary." See Bassett, 2010 WL 716094, at *3-5 (discussing how the travel time described in 29 C.F.R. § 785.39 is not compensable if voluntary).

With this understanding of the applicable law, contracts, and exceptions in place, the 9101(3)(N). Accordingly, because it is not a "mixed-ownership" government corporation, TVA is an "agency" within the definition of that term found in 41 C.F.R. § 301-1.1.

Court now turns to the merits of TVA's motion, beginning with TVA's jurisdictional argument.


In its reply brief in support of summary judgment, TVA, for the first time, argues that the Court lacks jurisdiction to hear this case because Bassett did not exhaust the grievance procedure contained in the General Agreement.*fn5 The Court notes that it will often decline to consider arguments raised for the first time in a reply brief. See Shaheen v. Yonts, 5:06-CV-00173-TBR, 2009 WL 87458, at *11 (W.D. Ky. Jan. 13, 2009) (Russell, C.J.); Keys v. Dart Container Corp. of Ky., No. 1:08-CV-00138-JHM, 2012 WL 2681461, at *6-7 (W.D. Ky. July 6, 2012) (collecting cases holding that a court need not consider arguments raised for the first time in a reply brief). But, because "a litigant may raise a court's lack of subject-matter jurisdiction at any time in the same civil action," the Court finds it necessary to consider TVA's argument, even at this late stage. Kontrick v. Ryan, 540 U.S. 443, 455 (2003) (citing Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)); see Fed. R. Civ. P. 12(h)(3) ...

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