MUSTICCHI v. CITY OF LITTLE ROCK, ARKANSAS (E.D.Ark. 8-24-2010)

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Docket Number

No. 4:08cv00419 SWW.

Motions

Motion for summary judgment : In Part Defendant

Motion for partial summary judgment : Denied

Attorney(S)

Clark W. Mason, Attorney at Law, Little Rock, AR, James J. Thompson, Jr., Nolan E, Awbrey, Hare, Wynn, Newell Newton, Birmingham, AL, John Paul Byrd, Hare, Wynn, Newell Newton, Little Rock, AR, for Plaintiff. Amy Beckman Fields, William C. Mann, III, Little Rock City Attorney's Office, Little Rock, AR, for Defendant.

Judges

BENTON, Circuit Judge.

Acts

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Thomas J. MUSTICCHI, Indi v. dually and on behalf of all other similarly situated Little Rock, Arkansas police officers, Plaintiff,

BENTON, Circuit Judge.

Carol L. Fuller, an African-American female, sued Fiber Glass Systems, L.P., (FGS) under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, claiming discrimination (non-selection), harassment (supervisor and co-worker), and retaliation. FGS moved for summary judgment, which was granted as to retaliation but denied as to the other claims. After a trial, the jury found for FGS on the non-selection claim, and for Fuller on the harassment claims. The jury awarded her a total of $65,000, but deadlocked on punitive damages. Fuller withdrew her claim for punitives, and sought attorney's fees, which the district court awarded in part. FGS appeals, arguing that the district court erred in denying its motions for judgment as a matter of law and for a new trial, and in calculating the amount of attorney's fees. Fuller cross-appeals, seeking an increase in attorney's fees. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

Fuller worked at FGS from October 2005 to May 2007, when she voluntarily quit. She initially worked as a proof tester, checking for leaks in fiberglass pipes, under the supervision of Dwight Marsenburg. In late August 2006, plant manager Ron Winfrey offered Fuller a temporary position in the corporate offices (a separate building at the same location) in the "Inside Sales Department" entering orders. Fuller accepted. She was the first African-American to work in the corporate offices since 1998.

Fuller's supervisor in the corporate offices was A. Dale Smith, a white male. Fuller worked alongside Patty L. Holmes and Yolanda Erasmus, both white females. Holmes was charged with training Fuller. Fuller testified that on her first day "[Holmes] informed me that she had attended a predominantly all-black school in Memphis and that she didn't like blacks, but she said that if I didn't cause her any stress or any tension, that she would try to tolerate me." Holmes also suggested that she had the power to determine if Fuller kept her position. Holmes maintained a hostile attitude toward Fuller, telling her "we really don't need you, you know," that the job was too hard for her, and that Fuller really didn't want it. Holmes asked Fuller many mornings, "Why did you come back?" Although a person in Fuller's position would normally answer the phone, Holmes told Fuller not to speak to customers on the phone because they were not used to hearing a "black voice or ethnic voice." At one point, Holmes and Smith attended a conference, leaving only Fuller and Erasmus in the office. Erasmus lost her voice, and had Fuller answer the phones. Fuller testified that Smith was "furious" when learning that she answered the phones, yelling and cursing Erasmus. Holmes also told Fuller to stay away from Erasmus because Erasmus is from South Africa and very racist. (While it is true that Erasmus is from South Africa, Fuller found her to be friendly and helpful.)

Fuller testified that, on a Friday, within a week of starting in the corporate offices, she told Smith some of the things that Holmes was saving. The following Monday, Holmes confronted Fuller, saving that Smith had contacted her at home and told her that Fuller was complaining, and if Fuller wanted to keep her job, she needed to accept what goes on in the office and keep her mouth shut.

According to Fuller, she was excluded from office functions, followed to the bathroom, and not invited out to lunch with the others. In early October, Smith stood behind Fuller as she worked, making "monkey or gorilla gestures" while Holmes laughed.

Shortly after this incident, Fuller complained to her former supervisor, Marsenburg, about how she was being treated. He told her to hang in there, ignore the abuse, and hopefully things would get better. (Fuller believes that Marsenburg wanted to see her succeed in the corporate office since no African-Americans had worked there in a long time.)

Fuller walked off the job on October 25, 2006. This news reached Winfrey, the plant manager, who requested, that she meet with him. At the meeting, Fuller disclosed what went on in the corporate office. Winfrey offered time off; she accepted. Fuller returned to her old proof-tester job on October 30. A week later, Winfrey came to Fuller's workstation, and asked her not to file a complaint, but rather to let him handle the matter by recommending training for Holmes and Smith. Fuller, however, did file a complaint. In November, FGS investigated Fuller's allegations, concluding that although they could not be corroborated, Holmes was fired because "she did not treat Ms. Fuller as we would want our employees treated."

FGS's policy on harassment and discrimination states:

Any employee who has been subject to harassment of this nature, or who witnesses such, is to take the following actions: Calmly, but directly tell the individual(s) engaged in the behavior, "Stop," "As an employee of Fiber Glass Systems, I do not have to tolerate such behavior." If this does not resolve the problem, go to the next step. Go to your immediate supervisor and report the incident. If your immediate supervisor is personally involved, or there is no resolution to the situation after a reasonable amount of time, go to the next step. Notify your local Human Resource Representative or other local Management employee with whom you feel comfortable discussing such a matter. If there is no resolution to the situation after a reasonable amount of time, go to the next step. Contact the Fiber Glass Systems Division Human Resource Manager, notifying them of the situation and what efforts have been attempted.

Fuller acknowledged receiving this policy when she was hired in October 2005. FGS issued an updated policy, containing a hot-line for reporting legal and ethical violations, in June 2006. Fuller signed a sheet indicating that she received the updated policy, but testified that she never actually received it.

Fuller sued FGS under 42 U.S.C. § 1981 and Title VII, alleging claims of discrimination (non-selection), harassment (supervisor and co-worker), and retaliation. After the district court granted summary judgment on the retaliation claim, a jury trial began in April 2009. At trial, FGS objected to Marsenburg's testimony on the ground that Fuller's counsel contacted him ex parte. It also objected to the testimony of another former FGS employee, on the basis of relevancy and prejudice. The district court allowed the challenged testimony

At the close of Fuller's case, and again at the close of all proof, FGS moved (unsuccessfully) for judgment as a matter of law. FGS objected to several jury instructions, but was overruled. On April 21, jury deliberations began at 2:35 p.m. At 4:44 p.m., the district judge excused himself from the bench, stating: "I believe I'm going to turn it over to [Magistrate] Judge Deere. Maybe I can get back by 5:30, but maybe not. . . ." Neither party consented to trial before the magistrate. At 5:14, the jury returned a verdict for FGS on the non-selection claim, and for Fuller on the harassment claims, awarding her $65,000. The magistrate judge accepted the jury's verdict, presided over the presentation of additional evidence on punitives, allowed additional argument from the parties, and instructed the jury on punitive damages. The jury deadlocked on punitives, and the district judge declared a mistrial as to punitive damages only. The district court then granted Fuller's motion to withdraw her claim for punitive damages. FGS timely moved for a new trial and judgment as a matter of law, which the district court denied.

FGS appeals, arguing in 09-2732 that (1) the district court erred in denying FGS's motion for judgment as a matter of law because (a) there was insufficient evidence to support the jury verdict as to the harassment claims, (b) the Ellerth-Faragher affirmative defense precluded liability, and (c) insufficient evidence supported the compensatory damages award; (2) the district court erred in failing to grant a new trial due to (a) the fact that the compensatory damages were clearly excessive and resulted from the consideration of improper factors, (b) error in admitting the testimony of Marsenburg and another FGS employee, (c) error in jury instructions, (d) allowing the magistrate to preside without consent of the parties. In 09-3481, FGS argues the district court's award of attorney fees should be set aside if it prevails on appeal, or should be reduced to half the amount requested even if FGS does not. In 09-3482, Fuller cross-appeals, seeking all the requested fees.

II. A.

FGS argues that the district court erred in denying its motion for judgment as a matter of law. In considering this issue, "we review the district court's ruling de novo, viewing the evidence in the light most favorable to the party who prevailed before the jury." Wilson v. Brinker Int'l Inc., 382 F.3d 765, 769 (8th Cir. 2004) (internal quotation marks omitted). "More-over, we review the district court's decision to grant or deny judgment as a matter of law with great deference to the jury's verdict. This Court will not set aside a jury verdict unless there is a complete absence of probative facts to support the verdict." Id. (internal citation and quotation marks omitted).

"Title VII . . . prohibits an employer from subjecting its employees to a hostile work environment `because of such individual's race, color, religion, sex, or national origin.'" Al-Zubaidy v. TEK Indies., Inc., 406 F.3d 1030, 1038 (8th Cir. 2005) (quoting 42 U.S.C. § 2000e-2(a)(1); citing, e.g., Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 n. 10, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (racial harassment)). "To establish a hostile work environment claim, [the plaintiff] must show (1)[s]he is a member of a protected class, (2)[s]he was subjected to unwelcome harassment, (3) the harassment was based on a protected characteristic under Title VII, (4) the harassment affected a term, condition or privilege of employment, and (5) employer liability." Al-Zubaidy, 406 F.3d at 1038. "There can be no doubt federal harassment standards are demanding. Indeed, the Supreme Court has `made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment.'" Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). "The Supreme Court also has made it abundantly clear that the `standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a general civility code.'" Id. (quoting Faragher, 524 U.S. at 788, 118 S.Ct. 2275). "We can determine whether an environment is `hostile' or `abusive' . . . only by looking at all the circumstances[, which] may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id., (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)) (alterations in original).

FGS claims that, compared to other cases, the harassment that Fuller endured was neither frequent nor severe enough to meet to meet this demanding standard. First, FGS cites a case where an African-American was called "boy" and "black boy" "on a few occasions over a period of years," and his manager once made a remark about African-Americans having big penises. Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 653 (8th Cir. 2003). This court affirmed judgment as a matter of law for the defendant in that case. Id. Next, FGS emphasizes a case where an African-American heard second-hand information that co-workers and managers referred to him and others with a racial slur. Singletary v. Missouri Dep't of Corr., 423 F.3d 886, 893 (8th Cir. 2005). This court held that this was insufficiently severe or pervasive conduct. Id. In Singletary this court placed substantial weight on the fact that the plaintiff didn't hear any racial slurs himself, and that the incidents occurred over a period of years. Id., Third, FGS cites Gordon v. Shafer Contracting Co., Inc., 469 F.3d 1191 (8th Cir. 2006), claiming that the court there found that three or four racially offensive comments were insufficient to create a hostile work environment. However,. FGS misreads Gordon; the plaintiff there appealed a grant of summary judgment for the defendants, so the court assumed that the harassment was sufficiently severe, but it affirmed summary judgment based on the Ellerth-Faragher affirmative defense. Id. at 1193.

Here, the evidence sufficiently established that Fuller's work environment was hostile. On her first day at the corporate office, her co-worker/trainer told her she didn't like black people. That same co-worker asked her many days why she came back to work, telling her numerous times that the job was too hard for her and she didn't really want it. Fuller was told to stay off the phones because customers weren't used to hearing a black voice, and when she answered the phones, she was castigated by both her manager and the co-worker. Her manager made "monkey or gorilla gestures" behind her for the amusement of her co-worker. All of this took place within about two months. This harassment is both more severe and more frequent than that in Elmahdi, Singletary, or Gordon. Whether conduct rises to the level of harassment is usually a factual determination for the jury. See Moving v. Arkansas Dep't of Corr., 243 F.3d 452, 456 (8th Cir. 2001). The evidence here is enough to permit a reasonable juror to find that Fuller's work environment was permeated with discriminatory intimidation, ridicule, and insult.

FGS argues that some of the evidence of racial harassment had nothing to do with race, such as: (1) the fact Fuller did not get a fax machine code like every other employee in the corporate offices, (2) she was excluded from social functions, (3) she was yelled at by her supervisor, (4) she was told that the job was too hard for her, and (5) she was followed to the restroom. First, even ignoring these facts, there is sufficient evidence to convince a reasonable juror that Fuller's work environment was sufficiently hostile to support a harassment claim. Second, based on the many instances of overt racial harassment, a reasonable juror could find that one or more of the above facts occurred because of Fuller's race, even if the conduct was not inherently racial. See Hall v. Gus Constr. Co., Inc., 842 F.2d 1010, 1014 (8th Cir. 1988) (holding that harassment based on sex need not be conduct of an inherently sexual nature); Green v. Franklin Nat'l Bank of Minneapolis, 459 F.3d 903, 912 (8th Cir. 2006) (finding non-racial but intimidating comments "noteworthy" in a racial harassment claim).

FGS contends that it is entitled to judgment as a matter of law because it established the Ellerth-Faragher affirmative defense. "The Ellerth-Faragher affirmative defense consists of two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior[] and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." Weger v. City of Ladue, 500 F.3d 710, 718 (8th Cir. 2007). The district court correctly ruled that FGS met the first prong of this defense by giving Fuller a copy of the harassment and discrimination policy, establishing a hotline for employees, conducting the investigation, and terminating Holmes and counseling Smith.

FGS argues that no reasonable juror could have found that FGS did not meet the second element; that is, that no reasonable juror could have found that Fuller took advantage of the preventative or corrective measures provided by FGS. FGS claims that Fuller unreasonably delayed filing her discrimination complaint. FGS's policy entails telling your supervisor about harassment, and if that doesn't resolve the problem, talking to another management employee with whom you feel comfortable. Fuller testified that within the first week, she complained to Smith, her supervisor, about how Holmes treated her, but Smith took no remedial action, and in fact told Holmes about her complaint. Fuller testified that she then went, more than once, to her old boss, Marsenburg, and told him about the racial harassment, but he told her to "hang in there." Finally, she met with the plant manager and filed a formal complaint about two months after starting in the corporate offices. Based on this evidence, a reasonable juror could find that Fuller did not unreasonably fail to take advantage of preventative/corrective opportunities offered by FGS, and thus FGS is not entitled to judgment as a matter of law on the Ellerth-Faragher affirmative defense.

FGS asserts that it is entitled to judgment as a matter of law on compensatory damages because Fuller did not demonstrate a sufficiently severe injury. "This court reviews the district court's compensatory damage award for clear error, giving due regard to credibility determinations of the district court." Ledbetter v. Alltel Corporate Servs., Inc., 437 F.3d 717, 725 (8th Cir. 2006). "An award of damages for emotional distress must be supported by competent evidence of `genuine injury.'" Forshee v. Waterloo Indus., Inc., 178 F.3d 527, 531 (8th Cir. 1999) (quoting Carey v. Piphus, 435 U.S. 247, 264 n. 20, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)). A compensatory damages award may be based solely on the plaintiffs own testimony. Id.; see also Ledbetter, 437 F.3d at 725 ("a plaintiffs own testimony, coupled with the circumstances of the case, can sustain the burden of establishing emotional suffering"). Fuller testified that as a result of the emotional distress, she could not sleep, could not eat, and was so stressed that she felt sick to her stomach. She testified that she went to her doctor and was prescribed Wellbutrin, facts confirmed by her medical records. Also, plant manager Winfrey testified that Fuller had tears in her eyes when they met, and he gave her time off because of her emotional distress. This testimony was sufficient to allow a reasonable juror to award Fuller $65,000 in compensatory damages.

FGS argues that the district court should have granted a new trial because the award of $65,000 is clearly excessive. "We review a district court's denial of a motion for new trial with great deference, reversing only if the district court clearly abused its discretion." Wilson v. City of Des Moines, 442 F.3d 637, 640 (8th Cir. 2006). FGS notes that the award was based largely on Fuller's own testimony. However, the award of $65,000 is in line with other cases of employment discrimination. See Delph v. Dr. Pepper Bottling Co., Inc., 130 F.3d 349, 358 (8th Cir. 1997) (allowing damages for emotional distress of $50,000, even where "the emotional and physical complaints are vague and ill-defined, and are not characterized as especially intense"); Kim v. Nash Finch Co., 123 F.3d 1046, 1067 (8th Cir. 1997) ("After carefully reviewing the evidence, we conclude that, although an award of $1.75 million for emotional distress is grossly excessive, an award of $100,000 is not."); Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 570 (8th Cir. 1997) ($35,000); Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1054 (8th Cir. 1993) ($150,000). The district court did not abuse its discretion in refusing to grant a new trial on this issue.

FGS next contends that the compensatory damage award is the result of passion or prejudice, noting that juror eleven, the foreperson, said at the start of the punitive phase of the trial, "I think we took that into consideration when we put those amounts on the [compensatory damage/verdict] forms we just turned in to you." First, the jury had not yet been instructed on punitive damages, so it is unlikely the juror knew the legal bases for punitive damages. Second, rather than demonstrating improper considerations, this comment likely reflects frustration at having to hear additional evidence on other damages. The trial had already lasted a week, the compensatory damages award was returned at the end of the day (after 5 p.m.), and the magistrate judge had to take a poll whether the jury wanted to remain and finish, or return the next day. Moreover, FGS cites no cases where a similar comment warranted a new trial. It was not a clear abuse of the district court's discretion to deny FGS a new trial based on juror eleven's remark.

FGS asserts that before trial, Fuller's counsel contacted Marsenburg ex parte, in violation of Rule 4.2 of the Arkansas Rules of Professional Conduct, because FGS was represented by counsel at the time and Marsenburg's act or omission of not forwarding Fuller's complaints of harassment was to be imputed to FGS for the purpose of civil liability. FGS also argues that the testimony of another FGS employee that he was racially harassed a year later was irrelevant and prejudicial to FGS. "When a motion for new trial is based on rulings regarding the admissibility of evidence, the district court will not be reversed absent a clear and prejudicial abuse of discretion." Wilson, 442 F.3d at 640-41. Even if the district court abused its discretion in admitting the testimony of these two, there was no prejudice. Marsenburg's failure to relay Fuller's complaints could have been imputed to FGS, but this was relevant only to the first prong of the Ellerth-Faragher affirmative defense, "that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior." The district court held that FGS established this prong; Fuller defeated the affirmative defense by showing that she took advantage of the remedial scheme set up by FGS. Because exclusion of Marsenburg's testimony would not have affected the outcome, there was not prejudice in denying FGS's motion for a new trial on this issue.

Similarly, the testimony of the other employee was introduced to establish that FGS did not exercise reasonable care to prevent and promptly correct any harassing behavior, as he claimed he was subject to racial harassment and his complaints fell on deaf ears. FGS complains that this evidence is irrelevant as this employee was harassed after Fuller's harassment ended and did not share the same supervisor. However, as noted above, the district court ruled that FGS established that it exercised reasonable care to prevent and promptly correct any harassing behavior. Therefore, it was not prejudicial to deny FGS's motion for a new trial on this issue.

FGS argues it is entitled to a new trial because in jury instructions numbers 7 and 8, the judge did not define the word "hostile." "We review the jury instructions given by a district court for an abuse of discretion." Warren v. Prejean, 301 F.3d 893, 900 (8th Cir. 2002). "Our review is limited to whether the jury instructions, taken as a whole, fairly and adequately represent the evidence and applicable law in light of the issues presented to the jury in a particular case." Id. (internal quotation marks omitted). "Moreover, even where a jury instruction is erroneously given to the jury, reversal is warranted only where the error affects the substantial rights of the parties." Id. "In other words, the error must be prejudicial." Id.

Jury instructions numbers 7 and 8, as given by the district court, tracked 8th Cir. Civil Jury Instr. §§ 5.42, 5.43 (2008). The comment notes that it "may be appropriate" to include factors useful in determining whether a work environment is hostile, but this language is not mandatory. Id. at 5.42 note 6, 5.43 note 6. These instructions fairly and adequately represent the applicable law in this circuit. See, e.g., Al-Zubaidy, 406 F.3d at 1038.

FGS also objects to jury instruction number 10, on the first element of the Ellerth-Faragher affirmative defense. This instruction said that the jury should consider whether the defendant's harassment policy identified officials to whom harassment could be reported and required those notified of harassing conduct to forward the information to their superiors in determining whether the defendant exercised reasonable care in preventing and promptly correcting harassing behavior. First, this instruction fairly and adequately represents the applicable law in this circuit. See, e.g., Weger, 500 F.3d at 719-20. Moreover, because the district court later ruled that FGS established the first element of the Ellerth-Faragher affirmative defense as a matter of law, any error in this instruction was not prejudicial. The district court did not abuse its discretion as to the jury instructions.

FGS asserts that verdict form number 2 on the supervisor-harassment claim was misleading because it referred only to the instruction outlining the elements of the claim, and not also to the instruction outlining the elements of the Ellerth-Faragher affirmative defense. This argument is without merit. Instruction number 9 clearly stated that the "verdict must be for the Defendant on the Plaintiffs claims of harassment" if the Ellerth-Faragher affirmative defense was proved by the greater weight of the evidence. The verdict form and jury instructions, taken as a whole, adequately represent the applicable law in this circuit, and the district court did not abuse its discretion.

FGS contends that the district court abused its discretion in denying its motion for a new trial because the magistrate judge improperly presided over the trial. The Federal Magistrate Judges Act provides that a magistrate judge may pre-side over civil litigation matters either (1) when both parties consent, or (2) when the district court judge assigns certain "additional duties" to the magistrate judge, so long as the additional duties are not inconsistent with the laws and Constitution of the United States. See 28 U.S.C. § 636(c)(1) (consent), (b)(3) (additional duties). "[W]e have consistently held that section 636(c) requires a clear and unambiguous statement in the record of the affected parties' consent to the magistrate judge's jurisdiction." Harris v. Folk Constr. Co., 138 F.3d 365, 369 (8th Cir. 1998) (internal quotation marks and alterations omitted). Here, the parties did not consent. FGS argues that accepting the jury's verdict, instructing the jury on punitive damages, accepting evidence on punitive damages, and presiding over the trial on punitive damages, are not "additional duties" under the Federal Magistrate Judges Act.

"The ministerial tasks of supervising a jury and receiving its verdict on behalf of an Article III judge are among those additional duties delegable under § 636(b)(3)." Id. "If a non-Article III judge may constitutionally make preliminary findings of fact and credibility in pretrial motions, see [United States v.] Raddatz, 447 U.S. [667] at 683-84, or preside over habeas corpus proceedings, see Swain v. Pressley, 430 U.S. 372, 383, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977), then it seems clear that a magistrate judge may simply relay a district judge's instructions, to the jury or to the parties." United States v. Demarrias, 876 F.2d 674, 677 (8th Cir. 1989).

Here, the magistrate judge accepted the jury's verdict, relayed the district judge's instructions regarding punitive damages (given to the magistrate judge over the phone by the district judge after a conference call with the parties discussing instructions), gave the punitive damages instruction, and specifically avoided making any findings of fact or conclusions of law (e.g., refusing to rule on FGS's renewed Rule 50 motion). Any issue with the magistrate judge presiding over the punitive damages portion of the trial is moot, as the district court declared a mistrial on punitive damages and Fuller withdrew her claim for them.

Fuller sought $94,712.50 in attorney fees for 378.85 hours at $250 an hour. The district court awarded her 75% of the hours (284.14) at a rate of $225 an hour, for a total award of $63,930.94 — two-thirds of the amount requested.

FGS argues that the district court's attorney's fees award was too large, and Fuller argues that it was not large enough. "We review de novo the legal issues related to the award of attorney's fees and costs and review for abuse of discretion the actual award of attorney's fees and costs." Thompson v. Wal-Mart Stores, Inc., 472 F.3d 515, 516 (8th Cir. 2006).

First, FGS argues that Fuller is no longer entitled to fees as the prevailing party if this court reverses the substantive judgment in her favor. This argument is now moot.

Second, FGS argues that Fuller's fee award should be reduced because she experienced only partial success, citing, among other cases, Warnock v. Archer, 397 F.3d 1024, 1026 (8th Cir. 2005) ("the degree of his success is the most critical factor in determining a reasonable fee award"). FGS contends that because Fuller lost on her retaliation claim at summary judgment and on her non-selection claim at trial, she prevailed on only one of her three claims. Conceding that there were some common issues between the claims (meaning the work done on the claims that were lost may not have been completely wasted), FGS asserts that 50% of the original amount requested, or $47,356.25, would be an appropriate fee award, and the district court abused its discretion by awarding $63,930.94.

Fuller cross-appeals, arguing that the district court abused its discretion by reducing the fee award at all. She contends that the district court abused its discretion by lowering the hourly rate sua sponte. She claims that although she did not prevail on every claim, she obtained an important vindication of civil rights, benefitting both society and herself personally. She emphasizes that her goal — to obtain a substantial judgment — was completely successful. Further, she argues that the claims revolved around a common core of facts, meaning that work done on unsuccessful claims was not wasted. She cites, among other cases, Wal-Mart Stores, Inc. v. Barton, 223 F.3d 770, 773 (8th Cir. 2000).

In Barton, the plaintiff was successful on her sexual harassment claim, and the court held that even though she did not prevail on all of her claims, she won a substantial judgment, vindicated important personal rights, and furthered the public's interests, and this court affirmed the district court's fee award, which reduced the requested amount by 20%.

Here, like Barton, Fuller did not prevail on all her claims, but won a substantial judgment, vindicated personal rights, and served the public interest. However, Fuller lost on some claims, and some billing was overstated. Therefore, the district court did not abuse its discretion by awarding Fuller 75% of her billable hours at $225.00 an hour.

III.

The judgment of the district court is affirmed.

he Eleventh Circuit in Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209, 215 (4 ^th Cir. 2009), holding that the term clothing in § 203(o) includes protective equipment. Finally, the Fifth Circuit has also concluded that safety equipment is encompassed in the definition of clothing as used in 203(o). Bejil v. Ethicon, Inc., 269 F.3d 477, 480 n. 3 (5 ^th Cir. 2001).

Plaintiffs heavily rely on this minority opinion when arguing that safety gear should not be considered clothing.

The DOL, which administers the FLSA, has issued advisory opinions that clothes as stated in § 203(o) "include[s] items worn on the body for covering, protection or sanitation." Fair Labor Standards Act, U.S. Dep't of Labor, Wage Hour Div. Advisory Op. Ltr. No. FLSA2002-2 (June 6, 2002). The DOL asserted this opinion again after Alvarez, concluding that its opinion as to the meaning of clothing had not changed. Fair Labor Standards Act, U.S. Dep't of Labor, Wage Hour Div., Advisory Op. Ltr. No. FLSA 2007-10 (May 14, 2007). While opinions from 1997 and 2001 do not include protective gear as clothing, the recent opinions are entitled to deference to the extent that they have the power to persuade.

The Court agrees with the interpretation of clothing as set forth by the DOL and the Fifth, Eleventh and Fourth Circuits and finds that clothes as used in § 203(o) includes safety equipment. While Congress does not define the term clothing in § 203(o), words in a statute should be interpreted by taking "their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42 (1979). Therefore, the Court must look at the ordinary meaning of clothing when deciding whether protective gear falls under the term. Webster's Third International Dictionary defines "clothes" as "clothing" which in turn is defined as a "covering for the human body or garments in general: all the garments and accessories worn by a person at any one time." Webster's Third International Dictionary 428 (unabridged 1986). The Court believes that this definition of clothing is compatible with the ordinary and common meaning of the word. All items worn by officers of the LRPD fit into this definition because they can be characterized either as a garment or an accessory. Therefore, the Court holds that both the uniform and safety equipment fall within the meaning of clothes as used in § 203(o). 2. Custom or Practice Under a Bona Fide Collective Bargaining Agreement ("CBA")

The majority of district courts addressing this issue have reached similar conclusions. See, e.g., Arnold v. Schreiber Foods, Inc. 690 F. Supp. 2d 672 (M. D. Tenn. 2010) (holding that hard hats, safety glasses, earplugs and hair and beard nets constitute clothing); Andrako v. U.S. Steel Corp., 632 F. Supp. 2d 398 (W.D. Pa. 2009) (holding that protective gear worn by factory employees constituted clothes); Johnson v. Koch Foods, Inc., 670 F. Supp. 2d 657 (E.D. Tenn. 2009) (holding that the term clothes encompasses safety equipment); Sandifer v. U.S. Steel Corp., 2009 WL 34302222, (N.D. Ind. 2009) (stating that protective gear worn by employees falls within the plain meaning of the term clothes); Hudson v. Butterball, LLC., 2009 WL 3486780 (W.D. Mo., 2009) (holding that clothes includes all apparel including those that are accessories); Sisk v. Sara Lee Corp., 590 F. Supp. 2d 1001 (W.D. Tenn. 2008) (holding that personal protective equipment constituted clothing); Gatewood v. Koch Foods of Miss, LLC., 569 F. Supp. 2d 687 (S.D. Miss. 2008) (holding that "sanitary and safety items fit comfortably within the definition of clothes").

Other federal courts deciding this issue have relied on this definition of clothing. See e.g., Anderson, 488 F.3d at 955, Bejil 269 F. 3d at 480, Andrako, 632 F. Supp. 2d 398 at 409, Johnson, 670 F. Supp. 2d at 666.

For the past 32 years the City has not compensated officers for donning and doffing their uniform and equipment. Defendant argues that regardless whether this issue has been raised during negotiations a custom or practice of not compensating officers for changing has been established.

While the Eighth Circuit has not directly addressed the issue whether the parties must raise a matter in negotiations in order to establish a custom, it has acknowledged that:

it is impossible for the written collective-bargaining agreement to describe every possible permutation of working conditions which might arise, it is not unusual for the parties to a labor agreement to develop working relationships, customs, and practices which are understood to be the norm, but which are nowhere reduced to a formal contract term. When long-standing practice ripens into an established and recognized custom between the parties, it ought to be protected against sudden and unilateral change as though it were a part of the collective-bargaining agreement itself. Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington, 802 F. 2d 1016 (8th Cir. 1986).

Several other circuits are in agreement that a custom or practice can be established through acquiescence. In Turner v. City of Philadelphia, 262 F. 3d 222 (3rd Cir. 2001), the Third Circuit found that even though correctional officers had not raised the issue of compensation for donning and doffing, a custom had nevertheless been established through "a prolonged period of acquiescence," as the Department of Correction had a 30-year-old policy of non-compensability. The Eleventh Circuit came to a similar conclusion in Anderson, supra, holding that a ten-year practice of not compensating employees for changing clothes "satisfies the custom or practice requirement." Anderson, 488 F. 3d at 959. Finally, the Fifth Circuit in Allen v. McWane, Inc. 593. F.3d 449 (5^th Cir. 2010), held that regardless of whether the parties had negotiated over-payment for changing clothes, acquiescence for non-payment can occur over a long period of time.

The Court finds that such acquiescence has occurred in this case. It is undisputed that since at least 1978 Statements of Agreement have been in place between the City and the FOP and that these agreements govern wages, benefits, grievance procedures and other conditions of employment. In addition, it is undisputed that since 1978, a period of over 32 years, the City has not compensated police officers for donning and doffing police uniforms and safety equipment. Furthermore it is clear that during negotiations for the past three Statements of Agreement, a period of ten years, the FOP has never requested compensation for donning and doffing the uniform and safety gear. Absence of negotiation over compensation for donning and doffing does not equate to ignorance of the policy and instead suggests that officers have acquiesced to the practice. See Anderson, 488 F. 3d at 959. Plaintiff also argues that there has not been acquiescence by LRPD officers because officers sued over similar issues in Treece v. City of Little Rock, 923 F. Supp. 1122 (E.D. Ark. 1996). However, Plaintiff misconstrues the issues in that case, as the officers in Treece did not sue over donning and doffing of uniforms and safety equipment. Therefore, the Court finds that a period of 32 years of non-compensability for changing into and out the uniform is sufficient to establish a custom or practice.

Since uniforms and protective gear constitute clothes and because there is a custom of non-payment for changing into and out of uniforms under a bona fide collective bargaining agreement, Defendant is entitled to summary judgment pursuant to § 203(o).

C. Time spent polishing shoes, boots and duty belts, cleaning radios and traffic vests and oiling handcuffs are preliminary and postliminary activities and not compensable under the Portal-to-Portal Act

The Supreme Court has long recognized that employees are not entitled to compensation for activities that are preliminary and postliminary. The Supreme Court has held that an activity is not preliminary or postliminary if it is "an integral and indispensable part of the principal

activities." Steiner, 350 U.S. at 256. In addition, the Supreme Court has stated that "the fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are integral and indispensable to a principal activity under Steiner." Alvarez, 546 U.S. at 39. (internal quotations omitted).

The Second Circuit has recognized that "indispensable is not synonymous with integral. Indispensable means necessary. . . . Integral means, inter alia, essential to completeness; organically joined or linked composed of constituents parts making a whole." Gorman v. Consolidated Edison Corp. 488 F.3d 586, 592 (2d Cir. 2007) (internal quotations and citations omitted). The court added that "[s]harpening the knife is integral to carving a carcass, Mitchell v. King Packing Co., 350 U.S. 260, 263 (1956); powering up and testing an x-ray machine is integral to taking x-rays, Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 717-18 (2d Cir. 2001); and feeding, training and walking the dog is integral to the work of a K-9 officer, Reich v. N.Y. City Transit Auth., 45 F.3d 646 (2d Cir. 1995)." Id. Relying on Gorman, the Ninth Circuit in Bamonte stated that if "an activity is indispensable [it] does not necessarily mean that the activity is integral to the work performed." Bamonte, 598 F.3d at 1232. Thus, if an activity is not essential to complete the employee's principal task the employee is not entitled to compensation for the activity pursuant to the Portal-to-Portal Act.

Officers of the LRPD are required to keep their uniform and equipment in good repair but are given the discretion of how often and how to maintain their equipment. While polishing and cleaning may be a necessary or an indispensable component of being a LRPD officer, unlike a butcher sharpening a knife or an x-ray technician powering and testing an x-ray machine, LRPD officers can successfully perform their jobs without polishing and cleaning their uniform and equipment. Therefore, these activities are not integral or "essential to completeness" and are instead preliminary or postliminary activities. The officers demonstrate that polishing and cleaning is not an "integral" activity in order to adequately perform their job, since the time and frequency they spent doing so dramatically varies.

Officer Musticchi testified that he polished and cleaned his duty belt a couple times a month. (Musticchi Dep. 30:25-31:5). He stated that he cleaned his vest "not very often" when mud was splashed on it. (Musticchi Dep. 36:10-22.) He also stated that he cleaned his radio "not very often. (Musticchi Dep. 36:20-2). He testified that it would take him eight minutes to polish his shoes, (four minutes a shoe). (Musticchi Dep. 91:7-20). Officer Ready testified that she would polish a new pair of shows twice a year for "three to four hours" and polish her shoes once or twice a week for twenty five to thirty five minutes after that. (Ready Dep. 20:1-19). She also stated that she cleaned her belt for two hours once a month. (Ready Dep. 26:12-16). Officers Winfrey stated that he polishes his gun belt "as needed." which amounts to twice a year, for about fifteen minutes. (Winfrey Dep. 14:15-25-15:1-15). He testified that when he was working for Community Oriented Policing he polished his shoes once a week but now that he works at the airport he polishes his shoes once a month and that the process takes approximately fifteen minutes. (Winfrey Dep 15:16-25-16:1-5).

It is doubtful that the City ever contemplated paying officers for activities such as shining their shoes and polishing their duty belts and allowing Plaintiff to recover for such activities would only encourage litigation. It goes without saying that every employee spends a certain amount of time preparing for work and if the Court allows Plaintiff to recover in this action employees would feel free to sue for every action that they perform preparing for work. In addition, compensating the officers for such activities would interfere with the collective bargaining agreement between the City and the FOP and could result in the officers receiving a windfall of payments for activities previously performed. See 29 U.S.C. § 251.

Since polishing and cleaning are preliminary and postliminary activities and because compensating Plaintiff for such activity would be contrary to Congress' intent pursuant to the Portal-to-Portal Act Defendant is entitled to summary judgment.

D. Time spent maintaining ballistic vests, cleaning radios, cleaning safety vest, guns and oiling handcuffs is de minimis.

The Supreme Court first recognized the de minimis doctrine in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946). In Anderson, pottery factory workers argued inter alia that they were not paid for the time spent walking around the premises. In deciding whether the workers could be paid for the time they spent walking the Supreme Court outlined the de minimis doctrine stating:

when the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the FLSA. It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.

The Supreme Court added that when deciding whether the walking time was de minimis that "compensable working time was limited to the minimum time necessarily spent in walking at an ordinary rate along the most direct route . . ." Id. (emphasis added). Thus, when deciding whether an activity should be considered de minimis the court must look at the minimum time it takes to complete the task.

Most federal courts after Anderson have found a time period of ten minutes or less per day to be de minimis. See e.g., E.I. du Pont De Nemours Co. v. Harrup, 227 F.2d 133, 135-36; Green v. Planters Nut Chocolate Co., 177 F.2d 187, 188 (4th Cir. 1949) (ten minutes employees spent before work at the their work station de minimis); Carter v. Panama Canal Co., 314 F. Supp. 386, 392 (D.D.C. 1970), aff'd 463 F.2d 1289 (D.C. Cir. 1972) (holding that the 2 to 15 minutes required to place a check mark by name and walk to duty de minimis).

The DOL has also recognized the de minimis doctrine and has provided guidelines as to when the doctrine should apply:

In recording working time under the Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such trifles are de minimis. This rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee's fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.

29 C.F.R. § 785.47 (internal citations omitted).

Clearly cleaning radios, wiping safety vests and oiling handcuffs are de minimis activities because they take less than ten minutes, in fact they take less than a minute, and the officers themselves acknowledge that they do not perform these activities on a regular basis. Finding that these activities are de minimis is consistent with the standard outlined in Anderson and the DOL guidelines as it would be extremely difficult to record these activities for payroll purposes since they occur sporadically. Even considered in the aggregate the time spent on these activities is minimal and no reasonable jury could find that these activities amount to a substantial amount of time. Defendant is entitled to summary judgment because the time spent cleaning radios, wiping safety vests and oiling handcuff is de minimis.

Officer Musticchi testified that he cleaned his safety vest only when it got mud on it which is not very often and it would take him less than a minute to clean it. He also stated that he would clean his radio not very often, only when he got in a fight, and that this also took him less than a minute. (Musticchi Dep. 36:13-25-37:1-24). Officer Winfrey stated that he would check his handcuffs periodically and that it would take him a few seconds to inspect them and put oil on them. (Winfrey Dep. 24:3-21).

Plaintiff also seeks compensation for maintaining ballistic vests. The officers disagree about the time it takes to maintain the ballistic vest. The vest is compromised of three pieces of Kevlar ballistic material and a piece of nylon fabric which is called the "carrier." The carrier portion is machine washable-however, the Kevlar material is not machine-washable and must be wiped with a damp cloth. The carrier is made up of two main compartments one in the front and one in back. A piece of Kevlar ("front panel" and "rear panel") can be inserted into each of the compartments which are zipped and unzipped for insertion and removal. The ballistic front panel and rear panel each have two pieces of Velcro attached at the shoulder area. The front panel and rear panel are secured inside the carrier by attaching the Velcro on the ballistic material to pieces of Velcro at the shoulder area that are attached to the interior compartments of the carrier. The third piece of Kevlar is inserted in the inner compartment ("strike plate").

Officer Musticchi testified that it can take 15 to 20 minutes to disassemble and assemble the vest. (Musticchi Dep. 24:4-5). Officer Ready testified it takes approximately 20 minutes. (Ready Dep. 21:16-18). Officer Winfrey testified the process takes between ten and fifteen minutes. (Winfrey Dep. 12: 2-10).

When officers disassemble the vest in order to wash it, they remove the strike plate from the inner compartment, unzip the compartment in the front and the back, pull the pieces of Velcro on the front compartment from the two pieces of Velcro on the front main compartment of the carrier and then remove the front panel from the carrier's front compartment. Officers repeat virtually the same process with the rear panel where they pull the two pieces of Velcro on the rear and separate them from the two piece of Velcro in the rear main compartment of the carrier and then remove the rear panel from the carrier's rear compartment. After washing the carrier portion and wiping the Kevlar portion, officers reassemble the vest by placing the strike plate in the inner compartment placing the front panel inside the front main compartment of the carrier and attaching the Velcro strips at each shoulder and placing the rear panel inside the rear compartment of the carrier and attaching the Velcro strips at each shoulder.

In deciding a motion for summary judgment the court must view the facts in the light most favorable to the nonmoving party. However, the Supreme Court has held that:

[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, (1986). When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Scott v. Harris, 550 U.S. 372, 380 (2007). In holding that there was no genuine issue of material fact the Supreme Court heavily relied on the fact that there was a videotape capturing the events in question which clearly contradicted the story told by the respondent. The Supreme Court concluded that "[r]espondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him." Scott, 550 U.S. at 380.

While the officers in this case disagree about the time it takes to assemble and disassemble the vest, Defendant has presented videotape evidence showing two different officers assembling and disassembling the vest in less than two minutes. The Court finds this videotape to be persuasive and believes that this videotape so discredits the Plaintiff's testimony as to the time it takes to assemble and disassemble the vest that no reasonable jury could believe that it takes more than ten minutes to assemble and disassemble the vest. Id. Since the officers' testimony is blatantly contradicted by the record the Court will not adopt this version of the facts for purposes of ruling on the motion for summary judgment.

Officer Musticchi and Officer Ready both testified that it would take twenty minutes to assemble and disassemble the vest. (Musticchi Dep. 22:8-21); (Ready Dep. 21:17-25), whereas officer Winfrey testified that it takes ten to fifteen minutes to assemble and disassemble the verst (Winfrey Dep. 12:2-10).

While the Court believes that there is no genuine issue of material fact as to the time it takes to assemble and disassemble the vest even if these specific officers do take more than ten minutes to assemble and disassemble the vest, pursuant to the standard outlined in Anderson, the Court must look at the minimum time it takes to assemble and disassemble the vest. Anderson, 328 U.S. at 692. Compensating officers who take longer to complete the task would reward workers who are less efficient and encourage workers to work slower in the future. Instead, because officers can assemble and disassemble the vest in less than two minutes the activity must be considered de minimis.

Finding that maintaining the ballistic vest is de minimis is consistent with the standards outlined by the Supreme Court in Anderson and the DOL. There is no regularity as to the time the officers spent cleaning their vests and it would be practically impossible for the City to calculate this time for payroll purposes. Thus, for all the reasons previously stated Defendants are entitled to summary judgment for maintaining the ballistic vest.

Officer Winfrey testified he only cleans his vest twice a year (Winfrey 21:7-8), whereas Officer Ready claimed she cleans her vest three to four times per week (Ready Dep. 33:15-18), and Officer Musticchi testified he cleans his vest twice a week during the winter months and three to four times to every day in the summer months (Musticchi Dep. 24:6-25).

Finally, Plaintiff alleges that the class is entitled to overtime for maintaining their weapons. Again, the officers disagree as to the time and frequency they maintain their weapons. Officer Winfrey testified that he removes the bullets of his magazine once a year and that the process takes ten to fifteen minutes. Def's. Mot. Summ J., Ex. H (Winfrey Dep.) at 25:8-22. Officer Ready testified that this process takes fifteen to twenty minutes and she does this process once a week. Id. Ex. G (Ready Dep.) at 21:2-11. In addition she claimed she cleaned her weapon once a week and that took her twenty to thirty minutes. Id. at 21:11-15). Officer Musticchi testified that he cleaned and reloaded his weapon once a week and that the process took him five to ten minutes. Id. Ex. F (Musticchi Dep.) at 39:24-25-40:1-5. However, pursuant to the standard outlined in Anderson the Court will again look at the minimum time it takes to clean the weapon and remove the bullets from the magazine. It is clear according to testimony that cleaning the weapon is de minimis since the process can be accomplished in ten minutes or less. In addition, the process of removing the bullets out of the magazine is also de minimis since the process takes around ten minutes. The Court will not reward those employees who take more than the time required to complete the task nor will it penalize those employees who can complete the process efficiently. Thus, the Court finds that no reasonable jury could find that these activities are not de minimis. In addition the Court finds this ruling to be consistent with the standards outlined in Anderson and by the DOL since even if an officer takes longer than ten minutes to a weapon it would be extremely difficult to record these activities for payroll purposes since the officers themselves demonstrate that the time and frequency that officers of the LRPD performs these activities dramatically varies. Therefore, Defendant is entitled to summary judgment for maintaining and cleaning weapons.

E. Missed Meal Breaks and Travel Time

Plaintiff moves for voluntary dismissal without prejudice of his claims for compensation for time spent commuting to work at any time a LRPD officer is within the Little Rock city limits and during an officer's lunch break, or lack thereof. Plaintiff says he wishes to dismiss these claims in order to "narrow certain issues." Defendant objects to dismissal without prejudice.

Under Fed.R.Civ.P. 41(a)(2), a plaintiff who wishes to dismiss an action after an answer has been filed must obtain an order of the district court unless all the parties stipulate to the dismissal. Dismissal is within the discretion of the trial court, and the court may impose terms and conditions on the dismissal. In determining whether to grant a plaintiff's motion for voluntary dismissal, a district court should consider the following factors: (1) whether the plaintiff has presented a proper explanation for the desire to dismiss; (2) whether the defendant has expended considerable effort and expense in preparing for trial; (3) whether the plaintiff exhibited "excessive delay and lack of diligence" in prosecuting the case; and (4) whether the defendant has filed a motion for summary judgment. Paulucci v. City of Duluth, 826 F.2d 780, 782 (8^th Cir. 1987). The Court also considers whether the dismissal would "result in a waste of judicial time and effort." Hamm v. Rhone-Poulenc Rorer Pharm., Inc., 187 F.3d 941, 950 (8^th Cir. 1999).

Defendant has expended considerable effort and expenses in preparing for trial, including the hiring of an expert, and filed a motion for summary judgment. Plaintiff fails to present a proper explanation for his desire to dismiss the claims. In light of the Court's findings on Plaintiff's other claims, it is doubtful he would be successful on the claims he seeks to voluntarily dismiss. However, Plaintiff did not brief his response to the City's motion for summary judgment on the travel time and meal break claims, apparently because the motion for voluntary dismissal was pending. The Court directs Plaintiff to file a response to the City's motion for summary judgment on these two claims within seven (7) days from the date of entry of this Order. Failure to do so will result in the dismissal with prejudice of the travel and lunch break claims.

See Pl's. Resp. to Def's. Mot. Summ. J. [doc. # 83] at n. 1.

IV. Conclusion

For the reasons set forth above Defendant's motion for summary judgment [docket entry 64] is granted in part at this time. Plaintiff's motion for voluntary dismissal [docket entry 68] and motion for partial summary judgment [docket entry 71] are denied.

Defendant's motion for decertification of the class [doc. # 69] is moot.

SO ORDERED.

Thomas J. MUSTICCHI, Indi v. dually and on behalf of all other similarly situated Little Rock, Arkansas police officers, Plaintiff,

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