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Lee v. Tennessee Valley Authority

February 9, 2007

TERRY LEE, ET AL., PLAINTIFFS,
v.
TENNESSEE VALLEY AUTHORITY, DEFENDANT.



The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge

(Guyton)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This is an action for unpaid overtime compensation brought by 75 plaintiffs who are all current or former employees of the defendant Tennessee Valley Authority ("TVA" or "TVA Nuclear"). The plaintiffs claim that TVA's June 1996 elimination of overtime pay for its management employees in TVA Nuclear, including the plaintiffs, violates Section 7 of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 207. The parties agree that 68 of these plaintiffs ("overlapping plaintiffs") have positions that overlap with positions at issue in Beene v. TVA, 3:99-cv-350 (E.D. Tenn.). The Beene decision was issued by this Court on June 3, 2004 and affirmed by the Sixth Circuit on October 11, 2005. The parties are in agreement that Beene will serve as the framework for disposing of the claims of these overlapping plaintiffs.

The subject matter of the Court is not in dispute. The parties have consented to magistrate judge jurisdiction for all proceedings in this case, including entry of judgment in accordance with 28 U.S.C. § 636(c). [Doc. 46].

I. PROCEDURAL HISTORY

This case proceeded to a bench trial on the issue of liability with respect to the seven non-overlapping plaintiffs on December 12, 2005. The trial lasted three days. On March 24, 2006, the parties submitted their proposed findings of fact and conclusions of law. On June 1, 2006, the Court issued its Findings of Fact and Conclusions of Law, finding that the seven non-overlapping plaintiffs were not exempt from the FLSA's overtime requirements. The Court instructed the parties to file proposed findings of fact and conclusions of law with regard to the issues of damages and attorney's fees within 45 days. [Doc. 95].

The Court held a status conference on June 6, 2006. On the subject of liquidated damages, the parties announced that this issue was no longer an issue of dispute. The Court directed the defendant to review the plaintiffs' legal fee documentation by June 28, 2006, and another status conference was set for August 4, 2006 to hear a report from the parties regarding an agreed form of judgment in this matter. [Doc. 96].

At the status conference on August 4, 2006, the parties announced that they had reached an agreement as to the award of attorney's fees and that the award would be paid in the next few weeks. The parties further advised the Court that they were still in the process of gathering records reflecting the overtime hours worked by the plaintiffs. Accordingly, the Court ordered the parties to produce to each other all of the records in their possession regarding the number of overtime hours worked by the plaintiffs and set another status conference for November, 2006. [Doc. 99].

On November 13, 2006, the Court held another status conference. The parties advised that they were still in the process of comparing records reflecting the overtime hours worked by the plaintiffs. TVA was ordered to advise the plaintiffs by November 21, 2006 of TVA's position on these issues, and the plaintiffs were ordered to advise TVA by December 6, 2006 whether the parties had reached a final agreement or whether a mediation would be required. The parties were ordered to contact the Court by December 6, 2006 and advise the Court of the status of the case. [Doc. 101].

On December 5, 2006, the Court again held a status conference with the parties, who advised that they were unable to agree upon the number of overtime hours worked by the plaintiffs. Accordingly, the Court set this matter for trial on the issue of damages. The Court further ordered the parties to confer and to stipulate all issues which were not in dispute. [Doc. 103].

Prior to the bench trial on damages, the parties submitted a Joint Stipulation [Doc. 112], containing 229 stipulations regarding the issue of the plaintiffs' damages. In addition, the plaintiffs submitted Proposed Issues, Findings of Fact and Conclusions of Law [Doc. 114], and TVA submitted a Calculation of Portal-to-Portal Time for Plaintiffs [Doc. 115] and a Trial Brief Regarding the Amended Department of Labor Regulations [Doc. 117].*fn1

This case proceeded to a bench trial on damages on January 4, 2007. At the trial, TVA's counsel announced that he had reviewed plaintiff Roussel's documents the previous night and had no objection to their inclusion in the record. With regard to plaintiff Ulysses White, TVA's counsel stated that if plaintiffs' counsel could make a proffer that White had not taken any comp time since April 2004, that would no longer be an issue for TVA. Finally, with respect to plaintiffs Frye and Lee and the applicability of the Portal-to-Portal Act to their overtime claims, TVA's counsel stipulated that TVA would not seek any Portal-to-Portal time for these plaintiffs. At trial, the plaintiffs presented one witness, Ulysses White, who testified that he had not taken any comp time since April 2004. He was not cross-examined. Thereafter, the plaintiffs rested. TVA introduced the time records of plaintiffs Roche, Haney, Frye, Crowell, Totten, and Lee into evidence and rested. The Court then took this matter under advisement.

II. FINDINGS AND CONCLUSIONS

The following are the findings of fact and conclusions of law by the Court on the issue of damages:

1. Each of the plaintiffs in this action worked overtime hours for which they did not receive overtime compensation.

2. TVA did not maintain accurate records of the total number of hours worked each workweek by the plaintiffs.

3. The plaintiffs performed duties either primarily "inside the gate" or "outside the gate."

4. Work performed "inside the gate" can largely be documented by the gate access records, which records when a security badge is swiped to enter or exit a building. However, the gate access records are not a complete and accurate record of hours worked even for those plaintiffs who primarily worked "inside the gate," inasmuch as they also performed work "outside the gate," including training, taking trips, benchmarking, working on materials and projects, and attending pre-outage and post-outage meetings. In addition, the gate access records for the Watts Bar plant have missing data from August 2000 through February 2003. Accordingly, the Court finds that the gate access records are not conclusive of the hours worked by the plaintiffs.

5. It is incumbent upon the employer to maintain records of hours worked each workday and the overtime compensation due to non-exempt employees. 29 C.F.R. § 516.2(7), (9). Those plaintiffs who did not maintain records of their actual hours worked estimated their hours of overtime by determining the outage periods occurring since August 27, 1999; they also ascertained the periods of "limited conditions of operation" which resulted in overtime work; they estimated that they worked overtime hours from one to three weeks prior to a scheduled outage; they did not include all of the overtime hours worked, inasmuch as there were daily shift turnover meetings not included; and they also consulted work logs of emergent work which occurred during this period. The plaintiffs' estimates are conservative, as opposed to exaggerated.

6. TVA does not have records to refute the estimates of overtime worked by the plaintiffs.*fn2

7. TVA asserts that the hours of Ulysses White should be discounted because he did not deduct "comp time" from his estimated hours. At the damages phase of the trial, White testified that TVA is incorrect, and that he did not take comp time during the relevant period. TVA offered no records to refute White's testimony.

8. TVA asserts that Rudy Jake Roussel should be precluded from presenting evidence as to his overtime hours worked as he failed to produce supporting records. TVA filed a motion in limine [Doc. 110], seeking to preclude Roussel from submitting supporting records in support of his claim. However, at the trial on January 4, 2007, TVA's counsel stated that he had reviewed Roussel's records and that TVA had no objection to them. Accordingly, the Court will consider Roussel's supporting records.

9. Inasmuch as TVA did not comply with its obligations to maintain accurate records of the hours worked by the plaintiffs, and the estimates of time made by the plaintiffs are reasonable, the Court adopts the plaintiffs' estimates, as set forth in the parties' ...


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