United States Court of Appeals
          For the Eighth Circuit
      ___________________________

              No. 15-2042
      ___________________________

                Lucas Hernandez

      lllllllllllllllllllll Plaintiff - Appellee

                         v.

 Bridgestone Americas Tire Operations, LLC

    lllllllllllllllllllll Defendant - Appellant
       ___________________________

              No. 15-2428
      ___________________________

                Lucas Hernandez

     lllllllllllllllllllll Plaintiff - Appellant

                         v.

 Bridgestone Americas Tire Operations, LLC

     lllllllllllllllllllll Defendant - Appellee
                    ____________

  Appeals from United States District Court
for the Southern District of Iowa - Des Moines
                ____________
                           Submitted: February 10, 2016
                              Filed: August 4, 20161
                                   [Published]
                                  ____________

Before SHEPHERD, BEAM, and KELLY, Circuit Judges.2
                           ____________

PER CURIAM.

       Bridgestone Americas Tire Operations, LLC (BATO) appeals the district court's
grant of summary judgment in favor of Lucas Hernandez on his Family Medical
Leave Act (FMLA) interference claim. The district court held that absences for
overtime shifts should not have been deducted from Hernandez's FMLA entitlement
because the overtime shifts were voluntary and thus, not included in his FMLA
allotment. Hernandez cross-appeals the district court's ruling on attorneys' fees and
expenses. In response to Hernandez's motion seeking $113,586 in attorneys' fees and
expenses, the district court reduced the award to $76,318. For the reasons discussed
below, we remand for further consideration of the request for costs for computerized
legal research (CLR) and affirm in all other respects.

I.    BACKGROUND

       BATO designs, manufactures, and sells tires for a wide variety of applications
in a number of North American manufacturing facilities. BATO hired Hernandez in


      1
       This court filed its opinion on May 13, 2016, and a petition for rehearing was
filed on May 27, 2016. The petition for rehearing is granted and the opinion filed
May 13, 2016, is vacated and this opinion is substituted.
      2
       This opinion is being filed by Judge Shepherd and Judge Kelly pursuant to 8th
Cir. Rule 47E.

                                         -2-
2003 as an hourly production worker. In 2004, Hernandez became a tire builder; he
held this position until he was terminated in August 2012. BATO has an attendance
program for all hourly employees that was negotiated with the Union and incorporated
into the collective bargaining agreement (CBA). When an employee fails to report for
a shift, regular or overtime, it is considered an "incident of absence." When an
employee is unable to work, he or she must notify plant security, and the guard then
records the employee's reported reason for the absence on a call-off log. BATO's
attendance program follows a progressive discipline program. After five incidents of
absence in a nine-month period, the employee is required to attend counseling. If an
additional incident of absence occurs after counseling and within nine months of the
previous incident, the employee is issued a written warning (Step 1). If an additional
incident of absence occurs after the written warning and within nine months of the
previous incident, the employee receives a written reprimand (Step 2). If an additional
incident of absence occurs after the written reprimand and within nine months of the
previous incident, the employee receives a final written warning (Step 3). If an
additional incident of absence occurs after the final written warning and within nine
months of the previous incident, the employee is terminated (Step 4). At each step of
the discipline process the employee and Union may provide documents or information
to explain the absence. An absence will be excused for approved FMLA leave,
accident and sickness leave, jury duty, and bereavement.

       Work schedules for hourly production employees are published in October and
do not change throughout the year. Employees have the same schedule from
November 1 through October 31 of the following year. Because BATO requires
continuous manufacturing operations, overtime shifts are often necessary. Overtime
is based on the plant's staffing and production needs, and the overtime selection
process is controlled by the CBA. When overtime is needed, BATO posts an overtime
sign-up sheet in the department. Tire builders are then allowed to indicate their
interest and availability on the overtime sheet. BATO selects employees from the list
based on seniority and the number of overtime hours an employee has worked in that

                                         -3-
year. The list of selected tire builders is then posted in the department. Employees
are required to check the list and if selected, are required to be present and work the
twelve-hour shift unless allowed to leave early due to diminished production. If an
employee fails to report for an overtime shift, he is subject to discipline under the
attendance program unless the absence is excused. If the employee misses for an
FMLA-qualifying reason, the twelve-hour overtime shift is deducted from the
employee's FMLA entitlement.

      During orientation, all employees are notified of their rights under the FMLA.
Human Resources makes all decisions regarding FMLA leave. When an employee
needs FMLA leave, he fills out a form to request leave and is notified of his rights
under the FMLA. In July 2010, Hernandez requested and was approved for
intermittent FMLA leave to care for his son who suffers from asthma. In November
2011, he requested additional intermittent FMLA leave. Human Resources based
Hernandez's FMLA leave on his fixed work schedule as a tire builder. He was
scheduled to work twelve-hour shifts and forty-two-hour workweeks.3 A forty-two-
hour workweek gave Hernandez 504 hours of FMLA leave beginning in November
2011.

       Between October 31, 2011, and July 15, 2012, Hernandez missed work fifty-
four times. Six of those absences were overtime shifts. Forty-two of the missed days
were excused under the attendance program as FMLA leave or accident and sickness
leave. Six absences were unexcused, which resulted in counseling under BATO's
attendance program. He had another non-FMLA, unexcused absence on January 13,
2012, for which he progressed to Step 1 of BATO's attendance program and received
a written warning. Hernandez exhausted his 504 hours of FMLA leave on July 10,
2012. He then missed two overtime shifts on July 11, 2012, and July 12, 2012, for

      3
       Hernandez was scheduled for three twelve-hour shifts one week (thirty-six
hours) and four twelve-hour shifts the next week (forty-eight hours). BATO pays
employees who work this schedule for forty-two hours of work each week.

                                         -4-
FMLA-qualifying reasons. However, because Hernandez had exhausted all of his
FMLA leave on July 10, 2012, the July 11 and July 12 absences counted as unexcused
absences under the attendance program. Hernandez contacted the Human Resources
Manager, Samantha Peterson, to notify her that he missed work to care for his son.
She informed him that he had exhausted his FMLA leave on July 10. Peterson
followed up with Hernandez regarding his FMLA leave in a formal letter dated July
17, 2012.

        Because of the July 11 and July 12 absences, Hernandez progressed to Step 2
and Step 3 of the attendance program, receiving both a written reprimand and a final
written warning. He chose not to file grievances over any of these absences or the
resulting discipline. Hernandez failed to report for his regular shifts on July 13
through July 15 and thus, advanced to the final step of BATO's attendance program,
termination. On August 2, 2012, Hernandez and a Union representative met with Jeff
Higgins, the plant's Labor Relations Manager. At the meeting, Hernandez submitted
a doctor's note from July 25 stating that he missed work on July 9 through 15 to care
for his son. In accordance with the CBA, Hernandez returned to work on August 6,
2012, after an Article 12 cooling-off period. BATO reviewed Hernandez's file and
Jim Funcheon, BATO's Division Human Resources Manager, terminated Hernandez
because he had progressed through all the steps of the attendance program.
Hernandez then filed a grievance challenging his termination but failed to pursue the
grievance to arbitration.

       Hernandez filed a petition in Iowa state court on May 8, 2013, claiming BATO
violated his rights under the FMLA. BATO removed the case to federal district court,
and both parties filed motions for summary judgment. The district court ruled in favor
of BATO on Hernandez's FMLA discrimination, retaliation, and harassment claims,
but ruled in favor of Hernandez on his FMLA interference claim. The court held that
absences for missed overtime shifts should not have been deducted from Hernandez's
FMLA entitlement because he initially volunteered for the sporadic overtime.

                                         -5-
Moreover, because BATO treated Hernandez's occasional overtime as voluntary for
purposes of calculating his FMLA-leave allotment, it must also treat the overtime
hours as voluntary for purposes of deducting hours from his FMLA entitlement. A
jury trial on damages for the FMLA interference claim resulted in an award of
$75,681. Hernandez also received liquidated damages and reinstatement. He then
filed a motion seeking $105,662 in attorneys' fees and expenses, and later filed a
motion for supplemental attorneys' fees and expenses requesting an additional $7,924,
for a total of $113,586 in attorneys' fees and expenses. The district court reduced the
fee award to $76,318. BATO now appeals the district court's decision to grant
Hernandez summary judgment on the FMLA interference claim. Hernandez cross-
appeals regarding attorneys' fees and expenses.

II.   DISCUSSION

      We review the district court's grant of summary judgment de novo, viewing the
evidence in the light most favorable to the nonmoving party. Pulczinski v. Trinity
Structural Towers, Inc., 

, 1001 (8th Cir. 2012). A grant of summary
judgment is only proper if "there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." 

R. Civ. P. 56(a)).
We also review federal statutes, like the FMLA, de novo. Breneisen v. Motorola, Inc.,

, 704 (7th Cir. 2011). The abuse-of-discretion standard, however, is used
when reviewing a district court's award of attorneys' fees and expenses. Marez v.
Saint-Gobain Containers, Inc., 

, 965 (8th Cir. 2012).

       Under the FMLA, which Congress adopted "to balance the demands of the
workplace with the needs of families," 29 U.S.C. § 2601(b)(1),"an eligible employee
shall be entitled to a total of 12 workweeks of leave during any 12-month period" for
certain reasons, such as the need to care for a child. 

FMLA leave
to care for a child "may be taken intermittently or on a reduced leave schedule when
medically necessary." 

It is "unlawful for any employer to interfere

                                          -6-
with, restrain, or deny the exercise of or the attempt to exercise, any right provided
under [the statute]." 

(emphasis added). To succeed on an FMLA
interference claim, Hernandez must prove the following: "(1) [Hernandez] was an
eligible employee; (2) [BATO] was an employer as defined by the FMLA; (3)
[Hernandez] was entitled to FMLA leave; (4) [Hernandez] gave [BATO] notice of his
intent to take FMLA leave; and (5) [BATO] denied [Hernandez] FMLA benefits to
which he was entitled." Beatty v. Custom-Pak, Inc., 

, 1052 (S.D.
Iowa 2009). Only the last element of the claim is disputed.

      A.     Voluntary Versus Mandatory Overtime

      To determine whether BATO denied Hernandez FMLA benefits by deducting
missed overtime hours from his FMLA entitlement, we must first decide whether the
overtime was voluntary or mandatory. BATO argues that the district court erred in
holding that Hernandez's overtime was voluntary, claiming specifically that the district
court misapplied 29 C.F.R. § 825.205(c). We agree.

        Under the federal regulations "[v]oluntary overtime hours that an employee
does not work due to an FMLA-qualifying reason may not be counted against the
employee's FMLA leave entitlement." 29 C.F.R. § 825.205(c) (emphasis added).
Conversely, "[i]f an employee would normally be required to work overtime, but is
unable to do so because of a FMLA-qualifying reason that limits the employee's
ability to work overtime, the hours which the employee would have been required to
work may be counted against the employee's FMLA leave entitlement." 

crux of the issue is the definition of "voluntary." BATO argues that its overtime
selection process makes overtime shifts, which begin as voluntary, mandatory after
BATO selects employees for the shifts. BATO posts a sign-up sheet, and employees
indicate their interest in, and availability to be selected for, overtime. BATO then
selects employees to work. After the selection is made, employees are required to be
present and work the shift. Failing to report for an overtime shift, just like a regular

                                          -7-
shift, counts as an incident of absence under BATO's attendance policy. Hernandez
argues that the overtime shifts are voluntary because (1) employees volunteer for the
shifts, implying that the shifts are not mandatory for employment, and (2) the shifts
are not part of the employee's normal workweek.

       Case law suggests that the particular overtime selection process used by the
employer can make originally voluntary overtime shifts mandatory. Mann v. Frank,

(8th Cir. 1993), involved a Seventh Day Adventist who could not work
on Fridays or Saturdays because of her religion. To be assigned overtime, the
employees signed up on an "Overtime Desired List." 

When overtime
work was needed, the employer picked a person from the list based on the skills
required for the position. 

her name on the list, and when an overtime
shift was needed she was selected from the list as the only employee on the list with
the necessary skills. 

However, the shift fell on a Friday and Saturday.

She did not show up for the shift and was suspended for seven days
without pay for being "absent without leave." 

dismissed her
discrimination claim, implying that once selected from an overtime list on which an
employee voluntarily places her name, the employee must work or be subject to
discipline. 

The sign-up process made the originally voluntary overtime
shifts mandatory.

       The district court relied on Mays v. American Electric Power, No. 2:08-cv-
1124, 

(S.D. Ohio 2010), belaboring the point that Mays, unlike
Hernandez, was required to work a certain amount of overtime, which made it
acceptable to deduct missed hours from Mays's FMLA entitlement. 

*10.
However, Mays also stands for the proposition that certain overtime hours were only
mandatory once the employee was selected. As part of Mays's job he had to work
overtime and respond to calls after hours if he was selected. 

The court held
that the employer "correctly charged missed overtime hours to Plaintiff's FMLA
leave" because without an FMLA-qualifying reason for the absence, he would have

                                         -8-
been expected to work. 

For Mays, overtime was a regular part of his job
when and if he was selected; thus, the court considered Mays's overtime mandatory.
Although the overtime selection process in Mays differed from that at BATO, in both
situations selection for overtime was a prerequisite to the employee being required to
work the shift. Thus, both Mann and Mays suggest that even if overtime is not
consistent or included in the employment contract, mandatory overtime can be implied
by custom or procedure.

        In finding that Hernandez's overtime was voluntary, the district court also relied
heavily on a 1999 opinion letter from the Department of Labor (DOL). The letter
states:

      If overtime hours are on an "as needed basis" and are not part of the
      employee's usual or normal workweek, or is voluntary, such hours would
      neither be counted to calculate the amount of the employee's FMLA
      leave entitlement nor charged to the employee's FMLA leave
      entitlement. Where overtime hours are not part of the employee's usual
      or normal workweek, disciplinary action may not be taken against an
      employee for being unable to work overtime as a result of limitations
      contained in a medical certification obtained for FMLA purposes.

Opinion Letter Family Medical Leave Act, FMLA-107, 

, at *1
(July 19, 1999) [hereinafter Opinion Letter]. This opinion stresses that voluntary is
a synonym for "not part of the employee's usual or normal workweek." This is an
agency's interpretation of its own regulation and thus informs our analysis. We defer
to the agency's opinion contained in any agency document, even something with as
little precedential value as a DOL legal brief. Talk America, Inc. v. Mich. Bell Tel.
Co., 

, 2261 (2011). Like the district court, we agree with the opinion's
definition of voluntary. However, we depart from the district court in applying the
definition to the facts of this case. Here, it is clear that BATO did not require
Hernandez to work a specified amount of overtime. He had the option to choose
overtime shifts if he so desired. Thus, overtime was not part of his regular workweek.

                                           -9-
However, if Hernandez signed up and was selected for overtime, he was then required
to work unless he had an excuse. The selected overtime shift became mandatory and
was treated as a part of Hernandez's "usual or normal workweek."

       Finally, the DOL's Final Rule, published before the adoption of 29 C.F.R. §
825.205(c), provides further insight into the meaning of "voluntary." The Final Rule
states, "The Department agrees that the appropriate focus is whether the employee
would have been required to work the overtime hours but for the taking of FMLA
leave . . . ." The Family Medical Leave Act of 1993, 73 Fed. Reg. 67934-01, 67979
(Nov. 17, 2008) [hereinafter Final Rule] (emphasis added). If the employee would
have been required to work, the overtime is mandatory. 

not taken
FMLA leave, he would have either been required to work the overtime hours he
signed up for or been disciplined. The fact that BATO disciplines employees for
missed overtime shifts, just like missed regular shifts, further illustrates that once the
employee is selected for the shift, he is required to work. At BATO, failing to work
an assigned shift is considered an incident of absence, which is recorded on the
employee's record. Thus, according to the Final Rule, Hernandez's overtime was
mandatory.

       Based on BATO's overtime procedure, case law, and the statutory language,
legislative history, and implementing regulations of the FMLA, we conclude that
Hernandez's overtime hours were mandatory. Therefore, hours missed for FMLA-
qualifying reasons were correctly deducted from Hernandez's FMLA leave
entitlement.




                                          -10-
      B.    FMLA Entitlement

       BATO was correct to treat overtime as part of Hernandez's usual or normal
workweek and deduct missed shifts from his FMLA leave. However, because the
overtime was mandatory, Hernandez's overtime hours should have also been included
when calculating his total FMLA-leave allotment. Opinion Letter, 

,
at *1. BATO's failure to do so "denied [Hernandez] FMLA benefits to which he was
entitled." 

.

      The DOL intended for hours missed for FMLA-qualifying reasons to be
deducted from the employee's FMLA-leave entitlement only if those hours were
included in the employee's leave allotment. See Final Rule, 73 Fed. Reg. at 67979.
The Final Rule before § 825.205(c) was promulgated expresses this desire, stating:

      The Department points out that overtime is factored into the FMLA
      entitlement because both the entitlement and the leave usage rate are
      based on the employee's required (i.e., scheduled) hours of work. The
      Department believes it is fair, therefore, that overtime not worked be
      counted against the FMLA entitlement when the employee would have
      been required to work the overtime hours but for the use of FMLA leave.

or overtime that is a part of the employee's normal
workweek, is to be included in the calculation of FMLA leave "even where the
employer may not know in advance of the workweek when overtime will be scheduled
or how much overtime will be worked that week." Opinion Letter, 

, at *1.

      Because the district court decided that Hernandez's overtime was voluntary, it
did not discuss the consequences that would have resulted if it had concluded, as we
now conclude, that the overtime was mandatory. The district court did, however, note
the inconsistency between the allegedly mandatory overtime and the amount of


                                       -11-
overtime hours Hernandez received. The district court correctly stated, "After treating
plaintiff's occasional overtime shifts as 'voluntary' for purposes of calculating the
allotment, however, BATO cannot then choose to treat them as [anything] other than
'voluntary' under § 825.205(c)." The converse of that statement is also true. We hold
that BATO's overtime selection process made the overtime mandatory. Thus, instead
of holding that "BATO inappropriately deducted from plaintiff's annual allotment for
scheduled overtime shifts plaintiff missed due to an FMLA-qualifying purpose," as
the district court held, we now hold that BATO interfered with Hernandez's rights
under the FMLA by improperly calculating his FMLA-leave entitlement.

       In regards to the FMLA-leave calculation, the district court incorrectly opined
that "[b]ecause defendant could not have contemplated plaintiff's overtime hours with
any degree of certainty, it correctly declined to account for those hours in plaintiff's
annual FMLA allotment." Even when an employee's schedule is inconsistent, the
FMLA provides a method for calculating the correct amount of FMLA leave so that
deducting missed overtime hours from the employee's FMLA leave entitlement is fair
to both the employee and the employer. 29 C.F.R. § 825.205(b)(3). The FMLA
calculates leave for employees with varying schedules as follows:

      If an employee's schedule varies from week to week to such an extent
      that an employer is unable to determine with any certainty how many
      hours the employee would otherwise have worked (but for the taking of
      FMLA leave), a weekly average of the hours scheduled over the 12
      months prior to the beginning of the leave period (including any hours
      for which the employee took leave of any type) would be used for
      calculating the employee's leave entitlement.

Hernandez's overtime hours varied from week to week, BATO should
have calculated Hernandez's FMLA leave in accordance with § 825.205(b)(3).
Instead, Hernandez's overtime hours were not considered at all. By scheduling
mandatory overtime hours that were not included in Hernandez's FMLA-leave


                                         -12-
allotment and yet were deducted from his FMLA entitlement when he missed an
overtime shift, "[BATO] denied [Hernandez] FMLA benefits to which he was
entitled." 

.

      C.      Attorneys' Fees and Expenses

                                            1.

       Hernandez cross-appeals arguing that the district court erred in reducing
attorneys' fees and expenses. First, Hernandez claims that the district court erred
when it reduced Hernandez's recoverable fees for lack of success on some of his
claims. We disagree. "When a plaintiff has prevailed on some claims but not on
others, the plaintiff may be compensated for time spent on unsuccessful claims that
were related to his successful claims, but not for time spent on unsuccessful claims
that were 'distinct in all respects from his successful claims.'" Emery v. Hunt, 

, 1046 (8th Cir. 2001) (quoting Hensley v. Eckerhart, 

, 440
(1983)). The district court held that Hernandez brought three separate claims but
found that the three claims shared core facts. Thus, the court decreased Hernandez's
attorneys' fees by only 20% instead of the 50% BATO requested. The standard for
reviewing an award of attorneys' fees is "abuse of discretion," 

,
and thus, the court "necessarily has discretion" to "reduce the award to account for the
limited success." DeGidio v. Pung, 

, 533 (8th Cir. 1990) (quoting

). Accordingly, the district court did not abuse its
discretion in reducing Hernandez's fee request by 20%.4



      4
      The district court's order states that it "decrease[d] Plaintiff's attorneys' fees by
20%." However, the district court first reduced Hernandez's requested fee of
$113,586 by $4,560 due to excessive expenses, leaving $109,026. It then directed
judgment for attorneys' fees and expenses in the amount of $76,318, which is a 30%,
not 20%, reduction reflecting Hernandez's limited success.

                                           -13-
                                          2.

       Second, Hernandez argues that the district court erred when it reduced his
recoverable expenses by 20%. We disagree. The district court found that scanning
costs were noncompensable, administrative costs should have been included in the
firm's overhead, and the law firm charged excessive law clerk fees. The district court
gave a well-articulated reason for its reduction in expenses. Thus, there was no abuse
of discretion.

                                          3.

      Third, Hernandez argues that the district court erred when it excluded costs for
CLR. The district court relied on Leftwich v. Harris-Stowe State College, 

, 695 (8th Cir. 1983), where we held “that computer-aided research, like any other
form of legal research, is a component of attorneys’ fees and cannot be independently
taxed as an item of cost in addition to the attorneys’ fee award.” More recently,
however, we recognized that Leftwich was “decided when CLR was in its infancy.”
Ludlow v. BNSF Ry. Co., 

, 804 (8th Cir. 2015). Quoting Missouri v.
Jenkins, 

(1989), a United States Supreme Court case handed down after
Leftwich was decided, we noted that “an award of reasonable attorney’s fees may
include litigation expenses if it is ‘the prevailing practice in a given community’ for
lawyers to bill those expenses separately.” 

–05 (quoting

).5 We then affirmed the district court’s decision to allow




      5
       In Jenkins, the Supreme Court allowed litigation expenses—in that case,
paralegal and law clerk time—to be separately billed and charged to the losing party
under a fee-shifting statute because it had become the “increasingly widespread
custom of separately billing for [such] services.” 

(quoting Ramos v. Lamm,

, 558 (10th Cir. 1983)).

                                         -14-
recovery of reasonable CLR costs, which was “consistent with prevailing practice in
the [relevant legal community].” 

       CLR is now a common litigation expense, and it may be reimbursable. See In
re UnitedHealth Group Inc. S’holder Derivative Litig., 

, 918–19 (8th Cir.
2011) (noting “[t]he prevailing view among other circuits is to permit awards to
reimburse counsel for the reasonable costs of online legal research”); see also Sturgill
v. United Parcel Serv., Inc., 

, 1036 (8th Cir. 2008) (concluding district
court had discretion to award attorney travel and private process server costs to
prevailing party in Title VII case where such costs were incurred by attorney and
normally would be charged to a fee-paying client). When billing such fees separately
becomes “the increasingly widespread custom” in the relevant marketplace, district
courts have the discretion to award them to the prevailing party under a fee-shifting
statute. 

(internal quotation marks and quotation omitted).
More particularly, if the prevailing party demonstrates that separately billing for CLR
is the “prevailing practice in a given community” and that such fees are reasonable,
the district court may award those costs. 

Because the district court in this
case was of the view it lacked discretion to award costs for CLR at all, we remand for
a determination of whether the expenses Hernandez incurred for CLR should be
shifted to BATO.



      6
       To the extent the conclusion in Leftwich that CLR costs are not reimbursible
was based simply on the fact that the prevailing practice at the time it was decided was
not to bill such costs separately, Ludlow explains that the prevailing practice has
changed. 

. To the extent Leftwich imposed a categorical rule
that CLR costs are not reimbursible, its reasoning is called into doubt following the
Supreme Court’s decision in Jenkins. See United States v. Anderson, 

,
1066–67 (8th Cir. 2014) (observing that we are not bound by a prior panel’s ruling
“when the earlier panel decision is cast into doubt by an intervening Supreme Court
decision”). Either way, it is no longer an automatic abuse of discretion to shift CLR
costs.

                                         -15-
III.   CONCLUSION

       We remand for further consideration of the request for costs for CLR and affirm
the judgment of the district court in all other respects.
                       ______________________________




                                        -16-