Olive et al v. Tennessee Valley Authority et al

Filing 28

MEMORANDUM OPINION re 13 Motion to Dismiss. Signed by Judge Abdul K Kallon on 8/7/2015. (YMB)

FILED
2015 Aug-07 AM 11:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
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Plaintiffs,
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v.
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TENNESSEE VALLEY AUTHORITY,|
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et al.,
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Defendants.
DANNY OLIVE, JR., et al.,
on behalf of themselves, and others
similarly situated,

Civil Action Number
5:15-cv-00350-AKK

MEMORDANDUM OPINION
Danny Olive, Jr., Leslie Hill, Marion Holden, Eric McMillen, and Nicholas
Parker (collectively “the plaintiffs”) bring this action against the Tennessee Valley
Authority and William Johnson (“the defendants” or “TVA”) for violation of the
Fair Labor Standards Act of 1938 (the “FLSA”), 29 U.S.C. §§ 206 et seq., as
modified by the Portal-to-Portal Act of 1947, 29 U.S.C. § 254 et seq. Doc. 4. In a
nutshell, the plaintiffs allege that TVA violated the minimum wage and overtime
pay requirements of the FLSA by not paying them for time spent traveling to an
exit and undergoing radiation screening. Id. The defendants move to dismiss the

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complaint, doc. 13, and the motion is fully briefed and ripe for review, docs. 14,
19, 22. For the reasons stated below, the motion is GRANTED.1
I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and conclusions”
or “a formulaic recitation of the elements of a cause of action” are insufficient.
Iqbal, 556 U.S. at 678 (internal citations and quotation marks omitted). “Nor does
a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citing Bell Atl. Corp., 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be granted. On a motion to
dismiss under Rule 12(b)(6) the court accepts all factual allegations as true. See,
e.g., Grossman v. Nations Bank, N.A., F. 3d 1228, 1231 (11th Cir. 2000). However,
legal conclusions unsupported by factual allegations are not entitled to that
Plaintiffs moved to strike two of the documents attached to the defendant’s brief in support of
dismissal. Doc. 18. Because the defendants concede “that the Court should not consider these
document in ruling” on the motion to dismiss, doc. 23 at 1, the court will disregard the
documents at issue.
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presumption of truth. Iqbal, 556 U.S. at 664. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal citations and
quotation marks omitted). A complaint states a facially plausible claim for relief
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(internal citations omitted). The complaint must establish “more than a sheer
possibility that a defendant has acted unlawfully.” Id.; see also Bell Atl. Corp., 550
U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the
speculative level.”). Ultimately, this inquiry is a “context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” Iqbal,
556 U.S. at 679.
II. FACTUAL BACKGROUND
The following is an account of the plaintiffs’ allegations, accepted as true,
that are pertinent to the resolution of the defendants’ motion. The plaintiffs are
current and former security guards at TVA’s Browns Ferry Nuclear Plant
(“Browns Ferry” or the “plant”) in Athens, Alabama. Doc. 1. After clocking out at
the end of their shift and turning in their firearms, the plaintiffs and all other
security officers are required to walk “approximately 150 yards” to the exit and
wait in line to undergo radiation screening before leaving the plant. Id. at 7. This
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normally entails a total of ten to fifteen minutes of waiting and screening, but may
take as long as an hour and a half during peak times and outages. Id. at 8. The
plaintiffs contend that they are due wages for this time, and, as a result, seek back
pay and other damages. Id. at 11, 13, 15.
The plaintiffs initially worked at Browns Ferry as subcontractors employed
by Pinkerton Corporate Risk Management (“Pinkerton”). Id. at 6. During their
employment with Pinkerton, the plaintiffs and other security officers successfully
filed a grievance against Pinkerton requesting payment for the time they spent
waiting for processing at the end of their shifts. Id. at 7. As a result of the
grievance, Pinkerton changed its compensation practices by allowing security
officers to revise the recorded time of their shift ending based on their own
estimate of their actual time of departure on the following day. Id. at 8. TVA
adapted this practice when it began employing the plaintiffs directly in June 2009.
Id. at 6, 8. However, on April 10, 2012, TVA notified the plaintiffs that it would no
longer allow them to make corrections to their exit time, and would not pay them
for time they spent at the plant after turning in their firearms and signing out of
their shift. Id. The plaintiffs challenged this policy by filing a grievance with TVA,
in accordance with the Collective Bargaining Agreement (“CBA”) between TVA

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and the plaintiffs’ union.2 Id. at 6. After unsuccessfully pursuing relief under the
CBA, the plaintiffs filed this lawsuit. Id. at 8–9, 15.
III. ANALYSIS
The defendants move to dismiss the complaint for failing to state a claim
that can be remedied under the FLSA. Docs. 13, 14. The defendants contend that
traveling to the exit and undergoing radiation monitoring is not work for the
purposes of the FLSA because they are not the principal activities which TVA
employs the plaintiffs to perform. Alternatively, they assert that neither of the
exceptions contained within the Portal-to-Portal Act apply to these activities. The
court will evaluate the defendants’ arguments with regards to principal activities
compensable under the FLSA, followed by the exceptions provided by the Portalto-Portal Act.
A. Principal Activities under the FLSA
The FLSA requires employers to pay employees a minimum wage for all
hours worked and overtime pay for hours over forty within a workweek, but does
not provide definitions of “work” or “workweek.” 29 U.S.C. §§ 206, 207. In shortlived opinions issued soon after the FLSA’s passage, the Supreme Court construed
these terms broadly, so as to encompass preliminary and postliminary activities,

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The CBA expired on May 24, 2013. Since that time, the plaintiffs have worked under a nonratified contract whose relevant provisions are identical to those of the original CBA. Doc. 1 at 7;
see doc 14-3 and 14-4.
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which unleashed a “flood of litigation” seeking pay for “various preshift and
postshift activities.” Integrity Staffing Solutions v. Busk, 135 S. Ct. 513, 516 (2014)
(citing Tenn. Coal, Iron, & R.R. Co. v. Muscoda Local 123, 321 U.S. 590 (1944)
(superseded by statute)); see also Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680 (1946) (superseded by statute). In the wake of Tennessee Coal and Anderson,
Congress found that the FLSA had “been interpreted judicially in disregard of
long-established customs, practices, and contracts between employers and
employees, thereby creating wholly unexpected liabilities, immense in amount and
retroactive in operation” that, left unchecked, would result in the “financial ruin of
many employers” and “windfall payments” to employees “for activities performed
by them without any expectation of reward beyond that included in their agreed
rate of pay.” Integrity Staffing Solutions, 135 S. Ct. at 516-17 (quoting 29 U.S.C.
§§ 251 (a-b)) (internal quotation marks omitted). Congress passed the Portal-toPortal Act in order to prevent this outcome by “exempt[ing] employers from
liability for future claims based on two categories of work-related activity as
follows”:
[N]o employer shall be subject to any liability or punishment under
the Fair Labor Standards Act . . . on account of the failure of such
employer to pay an employee minimum wages, or to pay an employee
overtime compensation, for or on account of any of the following
activities of such employees . . .

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(1) walking, riding, or traveling to and from the actual place of
performance of the principle activity or activities which such
employee is employed to perform, and
(2) activities which are preliminary or postliminary to said principle
activity
Id. at 517 (citing 29 U.S.C. § 254(a)). The Supreme Court has consistently
interpreted principal activities to “embrace all activities which are an integral and
indispensable part of the principal activities.” Id. (citing IBP, Inc. v. Alvarez, 546
U.S. 21, 29-30 (2005)) (internal quotation marks omitted). Something is integral
and indispensable to principal activities if “it is an intrinsic element of those
activities and one with which the employee cannot dispense if he is to perform his
principal activities.” Id.
The defendants contend that the activities at issue here are covered under the
Portal-to-Portal Act, as time spent walking to the exit plainly falls under the
§ 254(a)(1) list of noncompensable activities, while the radiation scans and time
spent waiting for them are postliminary activities that are not a part of plaintiffs’
principal activities, and thus fall under § 254(a)(2). Doc. 14 at 7. The plaintiffs
disagree, and, based on the radioactive nature of their work environment, contend
that the radiation scans are integral to their positions. Doc. 19 at 12–17. While it is
undisputed that passing through the radiation scans, a safety regulation imposed by
the Nuclear Regulatory Commission, doc. 22, cannot be dispensed with, the
plaintiffs overlook that “indispensable is not synonymous with integral.” Gorman
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v. Consol. Edison Corp., 488 F.3d 586, 592 (2d Cir. 2007) (citing IBP, 546 U.S. at
21) (internal quotation marks omitted). Indeed, “consistent with this approach,” the
Department of Labor’s regulations provide that “when performed under the
conditions normally present,” activities including “checking in and out and waiting
in line to do so, changing clothes, washing up or showering” are not integral to the
employee’s principle activity, but are instead preliminary or postliminary activities.
Integrity Staffing Solutions, 135 S. Ct. at 518 (internal quotation marks omitted)
(citing 29 C.F.R § 790.7(g)). In that respect, it is evident from the complaint that
plaintiffs are employed to provide security, not to wait in line and undergo
radiation scanning. Moreover, the complaint contains no facts that distinguish the
processing the plaintiffs undergo from other preliminary and postliminary activities
covered by the Portal-to-Portal Act. In fact, as pleaded, their position is
indistinguishable from that of the warehouse employees in Integrity Staffing
Solutions, whom the Court held were employed to “retrieve products from
warehouse shelves and package those products,” not to “undergo security
screenings,” making those screenings non-integral. Id. at 518. The fact that the
Browns Ferry scans are conducted for the purposes of safety, unlike the theft
prevention screening in Integrity Staffing Solutions, has no significance on the
determination, because the Department of Labor has “dr[awn] no distinction

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between . . . searches conducted for the safety of the employees” and identical
processing procedures implemented for theft or other purposes. Id. at 519.
Focusing on the safety aspect of the scans, the plaintiffs contend that they
are similar to the plaintiffs in Steiner v. Mitchell, in which the Supreme Court held
that changing clothes before shifts and showering at their end were integral to
working in a battery manufacturing plant permeated with “dangerous and caustic
chemicals.” Doc. 19 at 15–16; see Steiner v. Mitchell, 350 U.S. 247 (1956). In
Steiner, the plaintiffs were battery plant workers who were exposed to a “very
great” risk of lead poisoning and “severe burns” from sulfuric acid in an
environment where the harmful chemicals were “almost impossible to keep within
absolutely safe limits.” Steiner, 350 U.S. at 249–50. The Court observed that “it
would be difficult to conjure up an instance where changing clothes and showering
are more clearly an integral and indispensable part of the principal activity of
employment than in the case of these employees.” Id. at 256 (internal quotation
marks omitted). The reliance on Steiner is misplaced because, as plaintiffs
concede, “working at a nuclear power plant is not as caustic as working at a battery
manufacturing plant . . . .” Doc. 19 at 16. While the plaintiffs are correct that they
“are exposed to radiation on a daily basis . . . [and] that radiation can be very
harmful to humans,” id., there is nothing in the Amended Complaint to suggest that
their potential exposure differs from what the average citizen experiences, or that
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their level of purported exposure makes their daily environment akin to that in
Steiner. The alleged facts here are virtually identical to those in Gorman v.
Consolidated Edison Corporation, in which the Second Circuit persuasively
distinguished the facts of Steiner from those of plant workers at the Indian Hills
nuclear power station who filed a claim seeking wages for time spent, among other
things, “waiting in line and passing through a radiation detector” for a period of
“ten to thirty minutes” at the beginning and end of shifts. 488 F.3d at 592. The
Gorman court read Steiner narrowly to “support[ ] the view that when work is
done in a lethal environment, the measures that allow entry and immersion into the
dangerous element may be integral to the work done.” Id. at 593. It does not apply
to such activities when they are performed under “normal conditions,” i.e. in the
absence of a lethal environment. Id. at 590 (citing Steiner, 350 U.S at 256). The
court found that the radiation screenings at the Indian Hills plant were not
necessary for survival in any lethal environment or integral to the principal activity
of working in a nuclear plant, but were instead “modern paradigms of preliminary
and postliminary actions described in the Portal-to-Portal Act” which serve
“essential purposes of security.” Id. at 593. The Gorman court deemed the
comparison between the nuclear plant and the Steiner battery manufacturing plant
to be “unsustainable,” noting that “[w]ithout the taking of the measures required,
the battery plant could not sustain life,” as opposed to the nuclear plant, which
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presented no comparable imminent danger. Id. The court finds the reasoning of
Gorman persuasive.
Nothing in the amended complaint distinguishes the plaintiffs’ claims from
Gorman. More specifically, the plaintiffs fail to allege that Browns Ferry is a
potentially lethal environment and that the processing measures are necessary for
them to safely perform their principal activity. While the plaintiffs ask the court to
take judicial notice of the general dangers of radiation exposure, doc. 19 at 16,
these risks do not rise to the level of a lethal environment incapable of sustaining
life. Consequently, the exit and scanning procedures that the plaintiffs seek
payment for cannot be considered integral to the principal activity of their
employment, and are thus covered by the Portal-to-Portal Act, making relief
unavailable under the FLSA. 29 U.S.C. § 254(a)(2).
B. Exceptions for Claims Compensable by Contract
The Portal-to-Portal Act provides two exceptions to § 254(a) that allow
preliminary, postliminary, or otherwise non-principle activities to constitute work.
The exceptions are:
(1) [A]n 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; or
(2) a custom or practice in effect, at the time of such activity, at the
establishment or other place where such employee is employed,
covering such activity, not inconsistent with a written or nonwritten
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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). As to the first exception, the amended complaint does not
allege the existence of any written or nonwritten contract stipulating payment for
the activities in question, and both the original CBA between the plaintiffs’ union
and TVA as well as the unratified CBA that came into effect in May 2013 are
silent on the issue. See docs. 14-3, 14-4, 19 at 9. In fact, both versions of the CBA
directly address the plaintiffs’ hours of work and pay provisions, with no reference
to work occurring after a shift has ended.3 Docs. 14-3 at 6, 14-4 at 6. Perhaps, as a
way to sidestep this fact, the plaintiffs contend that “[t]he facts alleged in the . . .
complaint . . . could certainly support the existence of a ‘nonwritten contract’ for
the compensability of the activities claimed.” Doc. 19 at 10. This argument is a
non-starter because, under Alabama law, an express contract such as the CBA
precludes the existence of unwritten contracts regarding the same subject matter.
Miles v. Tenn. River Pulp & Paper Co., 862 F.2d 1525, 1529 (11th Cir. 1989);
Kennedy v. Polar-BEK & Baker Wildwood P’ship, 682 So. 2d 443, 447 (Ala.
1996). Moreover, both versions of the CBA contain language expressly precluding
the formation of a nonwritten contract:

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The amended complaint refers to both versions of the CBA, which is both central to their claim
as well as undisputed by the defendants. As such, the court may review these documents without
converting the motion to dismiss to a motion for summary judgment. Day v. Taylor, 400 F.3d
1272, 1276 (11th Cir. 2005)
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The parties acknowledge that during the negotiations which resulted
in this Agreement, each had the unlimited right and opportunity to
make demands and proposals with respect to any subject matter or
matter not removed by law from the area of collective bargaining, and
that understanding and agreements arrived at by the parties after the
exercise of that right and opportunity are set forth in this Agreement.
Therefore, TVA and the Union, for the life of this Agreement, each
voluntarily and unqualifiedly waives the right, and each agrees that
the other shall not be obligated to bargain collectively with respect to
any subject or matter not specially referred to or covered in this
Agreement, even though such subjects or matters may not have been
within the knowledge or contemplation of either or both of the parties
at the time they negotiated or signed this Agreement.
Docs. 14-3 at 26, 14-4 at 26. Therefore, because the contract exception of the
Portal-to-Portal Act requires that there be “an express provision of a . . . contract in
effect, at the time of such activity,” 29 U.S.C. § 254(b)(1), and neither party
disputes that the relevant CBA explicitly precludes the formation of unwritten
contracts “for the life of this Agreement,” docs. 14-3 at 26, 14-4 at 26, no contract
providing payment for the activities in question, written or unwritten, could have
existed during the time of those activities.
C. Exceptions for Claims Compensable by Custom or Practice
The plaintiffs alternatively argue that their post-shift activities are
compensable under the § 254(b) exception because of TVA’s custom of
compensating them for those activities. Neither party disputes that TVA had a
practice or custom of paying the plaintiffs for time spent walking to the exit,
waiting in line, and going through radiation scans between June 2009 and April
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2012, prior to the occurrence of the activities plaintiffs seek payment for in this
lawsuit. Docs. 1 at 9, 14 at 8-9. Instead, the plaintiffs take issue with the
termination of the custom, contending that the unilateral action by the TVA
“abruptly ended an agreed upon practice that existed for years, and [that] if [TVA]
were almost any other federal agency . . . [it] would have committed an Unfair
Labor Practice.” Doc. 18 at 11 (citing 5 U.S.C. § 7116). This argument is beyond
the scope of relief this court can grant under the FLSA, which concerns only the
payment of minimum and overtime wages. Sec’y of Labor v. Labbe, 319 F. App’x
761, 763 (11th Cir. 2008); see also Landers v. Quality Commc’ns, Inc., 771 F.3d
638, 643 (9th Cir. 2014), as amended (Jan. 26, 2015) cert. denied; Davis v.
Abington Memorial Hosp., 765 F.3d 236, 244 (3d Cir. 2014); Lundy v. Catholic
Health Sys. of Long Island Inc., 711 F.3d 106, 116 (2d Cir. 2013).
Additionally, Department of Labor regulations interpreting the statutory
exemption provide that it “would also seem to permit recognition of changes in
customs, practices, and agreements which reflect changes in labor-management
relations or policies.” 29 C.F.R. § 790.11. The defendants cite multiple cases in
which courts have interpreted the statute to allow such changes. Doc. 14 at 9
(citing Chambers v. Sears Roebuck & Co., 428 F. App’x 400, 421 (5th Cir. 2011)
(holding that past custom of compensating technicians for commute did not
obligate employer to pay after ceasing that practice); Little v. Tech. Specialty
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Prods., LLC, 940 F. Supp. 2d 460, 473-74 (E.D. Tex. 2013) (finding that employer
changing their custom of paying oil rig technicians overtime for commute ended
obligation to pay); Lee v. City of Ark., No. 4-09-CV-00243, 2010 WL 2491425, at
*3 (E.D. Ark. June 17, 2010) (finding that city changed previous custom of
reimbursing police officers for travel time and policy no longer applied); Johnson
v. RGIS Inventory Specialists, 554 F. Supp. 2d 693, 707–08 (E.D. Tex. 2007)
(holding that employer had discretion to exclude hours spent commuting from
overtime pay as a limitation of its custom)). The plaintiffs have not cited to any
cases that stand for the proposition that ending a custom of payment unilaterally
does not end an employer’s obligation to make payments under the FLSA, nor has
the court’s independent research revealed any. As it is undisputed that the custom
was no longer in effect at the time of the activities for which the plaintiffs seek
compensation, it cannot serve as a basis for stating a claim for compensation under
the FLSA.
IV. CONCLUSION
For the reasons explained above, namely that the plaintiffs seek payment for
activities specifically exempted from payment under 29 U.S.C. § 254(a) and
postliminary activities exempted by § 254(b) without the benefit of an applicable
exception based on contract or custom, the motion to dismiss is GRANTED.

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DONE the 7th day of August, 2015.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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