DOUGLAS BASSETT, on behalf of himself and all others
THOMAS B. RUSSELL, District Judge.
On March 11, 2013, the parties attempted, unsuccessfully, to settle this action. Despite two previous rounds of summary judgment motions, the parties represent that the settlement conference was unsuccessful because of outstanding issues of law. As a result, the Court ordered simultaneous briefing on the remaining legal issues. The Plaintiffs submitted their brief and a response. (Pls.' Br., Docket Number ("DN") 148; Pls.' Resp., DN 150.) Likewise, the Defendant also filed a brief and response. (Def.'s Br., DN 147; Def.'s Resp., DN 150.) The remaining legal issues are now ripe for adjudication. The Court rules on each issue below.
In Bassett v. TVA, No. 5:09-CV-00039, 2010 WL 716094 (W.D. Ky. Feb. 22, 2010), and Bassett v. TVA, No. 5:09-CV-00039, 2013 WL 665087 (W.D. Ky. Feb. 22, 2013), the Court set out the facts underlying this action. At this point, knowledge of the facts is presumed. Suffice it to say that this is a collective action arising under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), in which Douglas Bassett ("Bassett") and the remaining opt-in Plaintiffs allege that Defendant Tennessee Valley Authority ("TVA") failed to pay overtime wages for time the Plaintiffs spent traveling to and from certain remote projects that they were assigned to by TVA.
Through simultaneous briefings, the parties identified four unresolved issues of law. In the order addressed by the Court, these issues are:
1. Whether the FLSA statute of limitations, 29 U.S.C. § 255, is applicable to the Plaintiffs' claims or whether it should be equitably tolled so as to extend the limitations period.
2. Whether the travel regulation found at 29 C.F.R. § 785.39 limits the Plaintiffs' potential recovery to travel time occurring during regular working hours on working days and corresponding hours on nonworking days or whether the Plaintiffs may recover for travel occurring outside of those periods.
3. Whether the Plaintiffs can recover "gap time" under the FLSA.
4. Whether TVA can offset any wage it may owe against any "premium" wage it paid the Plaintiffs in excess of the FLSA's requirements.
Each issue is addressed below. Resolution of these issues does not dispose of the entire action, however. As a result, the parties will proceed to trial or, at their request, to further settlement discussions.
The first issue before the Court is whether the FLSA's statute of limitations is applicable to the Plaintiffs' claims or whether it should be equitably tolled. The FLSA contains a two-year statute of limitations. See 29 U.S.C. § 255(a). The limitations period expands to a total of three years if the FLSA violation was willful. Id. The Court makes no finding as to whether the two- or three-year limitations period applies. The "willfulness" of any FLSA violation by TVA is a factual determination to be made at trial. In order to analyze the full scope of the Plaintiffs' potential claims, the Court assumes, but does not expressly find, that that the three-year period applies for the purposes of this opinion.
In a FLSA action proceeding collectively, like the case sub judice, each plaintiff's action commences - for the purposes of the statute of limitations - on the date on which he or she files a written consent to opt into the action. Id. § 256; Frye v. Baptist Mem'l Hosp., 495 F.Appx. 669, 675-76 (6th Cir. 2012) (finding the language of 29 U.S.C. § 256 to be "unambiguous"). Bassett, as lead plaintiff, filed his notice to opt-in on April 29, 2009. ( See Bassett Notice, DN 4.) If the three-year statute of limitations applies, he can recover for any FLSA violation occurring after April 29, 2006. By contrast, other Plaintiffs did not opt into the action until sometime after Bassett. For example, a number of Plaintiffs opted-in on October 14, 2011 (the "October 2011 Plaintiffs"). ( See Opt-in Notices, DN 83.) Should the three-year limitations period apply, these Plaintiffs can only recover for FLSA violations occurring between October 14, 2008, and October 14, 2011. This proves problematic for the October 2011 Plaintiffs, however, because enforcement of the statute of limitations would eliminate a portion of their claims. By the time they opted-in, many of the October 2011 Plaintiffs had been retired from TVA for a number of years or the alleged FLSA violations occurred prior to October 14, 2008. In an attempt to remedy this potential bar, the Plaintiffs advance two arguments. First, they claim that TVA has waived any defense arising under the statute of limitations by failing to assert it in either of the two prior motions for summary judgment. Second, even if not waived, they argue that the statute of limitations should be equitably tolled so that each opt-in Plaintiff takes Bassett's opt-in date, April 29, 2009, as the date on which his action commenced.
The Plaintiffs argue that TVA waived the statute of limitations defense by failing to assert it in a timely manner. The Court finds that TVA has not waived the applicable statute of limitations. The statute of limitations was pleaded as an affirmative defense in TVA's initial answer (Answer, DN 6, p. 5) and in the amended answer (Am. Answer, DN 103, p. 5). Accordingly, the Plaintiffs were on ...