Evеlyn GARRISON, et al., Appellants/Cross-Appellees v. CONAGRA FOODS PACKAGED FOODS, LLC, d/b/a ConAgra Foods, Appellee/Cross-Appellant.
Nos. 15-1177/15-1428
United States Court of Appeals, Eighth Circuit.
Submitted: April 12, 2016. Filed: August 15, 2016. Rehearing and Rehearing En Banc Denied September 15, 2016.
833 F.3d 881
The form includes four lines where the anesthesiologist reflects by initialing that he or she was: (1) “present at induction“; (2) “monitoring at frequent intervals“; (3) “immediately available“; and (4) “present for emergence.” In discovery, Relator sought production of Medical Direction reimbursement claims since July 1, 2002, and the carbonless copies of the Anesthesia Services Form for those claims, but nоt the original top pages from patient medical records. Out of approximately 13,000 Medical Direction reimbursement claims for general anesthesia services, 724 had an unsigned emergence line on the carbonless copy of the Anesthesia Services Form. Relator moved for partial summary judgment on the 724 сlaims and appeals the district court denial of that motion. Relator argues that this is conclusive evidence that AAKC failed to comply with Step Three and failed to comply with the record-keeping requirements of
As the district court recognized, the regulation required AAKC to document anesthesiologist presence at emergence “in the patient‘s medical record,” not in AAKC‘s billing records. When an anesthesiologist visited a patient in the PACU, after the CRNA had sent the carbonless copy of the form to the billing office, one would expect the anesthesiologist to initial the emergence line on the top copy of the form, which bеcame part of the patient‘s medical record. Therefore, Relator was not entitled to partial summary judgment on the 724 claims because it made no effort to obtain the top copies of the Anesthesia Services Forms from MMC patient records. AAKC reviewed fifty of those patient files and found that anesthеsiologists completed the emergence line in nineteen of them. The district court concluded that Relator at most produced evidence that AAKC “may have negligently submitted 31 of 13,000 Medical Direction claims, which is not an FCA violation.” We agree. “[T]he FCA does not encompass those instances of regulatory noncоmpliance that are irrelevant to the government‘s disbursement decisions.” Ketroser, 729 F.3d at 829 (quotation omitted).
The judgment of the district court is affirmed.
Counsel who presented argument on behalf of the appellee was Andrew J. Weissler, of St. Louis, Mo. The following attоrney(s) appeared on the appellee brief; Mark G. Arnold, of Saint Louis, MO., Josef S. Glynias, of Saint Louis, MO., Andrew J. Weissler, of Saint Louis, MO., Brittany M. Falkowski, of Saint Louis, MO.
Before COLLOTON, SHEPHERD, Circuit Judges, and BOUGH,1 District Judge.
BOUGH, District Judge.
Evelyn Garrison and ten opt-in Plaintiffs brought this suit against ConAgra Foods Packaged Foods, LLC, d/b/a ConAgra Foods, under the Arkansas Minimum Wage Act (“AMWA“),
I.
Evelyn Garrison brought this action against her former employer, ConAgra, seeking to recover unpaid overtime under the FLSA and the AMWA. Garrison asserted a collective action under the FLSA and a class action under the AMWA. The district сourt conditionally certified the collective action, and ten other employees—Elbie Cannon, Aidet Elias, Tracy Emery, Ruben Garcia, David B. George, Christopher Johnson, Kyle Moss, Tonia Orndorff, Lane A. Scott, and Chris A. Williams—opted in to the action. Plaintiff Garrison and the ten opt-in Plaintiffs alleged ConAgra failed to properly compensate them for work performed as a result of ConAgra‘s classification of them as exempt from the minimum wage and overtime provisions of the FLSA and the AMWA.
The parties concede that the first three prongs of the four-prong executive exemption were met. With respect to the fourth prong, the parties also concede Plaintiffs did not have authority to hire or fire employees. Thus, to qualify for an executive exemption, ConAgra must show, in accordance with the second clause of the fourth prong, that Plaintiffs’ “suggestions and
ConAgra sought summary judgment on its claim that Plaintiff Garrison and the nine opt-in Plaintiffs were employed in a bona fide executive capacity and not entitled to overtime compensation. The district court found Plaintiffs were each employed by ConAgra in a salaried position as a “Team Leader” and were tasked with monitoring the performance and behavior of the hourly employees, and identifying rules violations and poor work performance. The district сourt further found Plaintiffs had authority to reassign or recommend temporary reassignment of employees and to recommend discipline which, if agreed to by management, resulted in a change of status. The district court granted summary judgment in favor of ConAgra and found the executive exemption to the FLSA and the AMWA applied to Plaintiffs.
ConAgra timely filed its motion for costs totaling $15,684.35 to be assessed against Plaintiff Garrison and all ten opt-in Plaintiffs jointly and severally. Plaintiffs argued the FLSA does not authorize an award of costs to a prevailing defendant, and even if it did, the FLSA‘s broad remedial purpose justified a district court‘s exercise of discretion to deny an award оf costs. The district court reasoned that due to the uncertainty within the federal district courts in Arkansas as to awards of costs to prevailing FLSA defendants, ConAgra‘s motion for costs should be denied. The district court explained, “ConAgra has not cited any binding authority on the question of whether a prevailing defendant can recovеr costs under the FLSA and the parties’ joint proposed notice that was approved by the Court did not include language informing potential opt-in plaintiffs that they may be liable for costs should ConAgra prevail.” The district court concluded, “Given these circumstances, the Court will not assess costs against the plaintiffs.” Alternatively, the district court held that if the Eighth Circuit determined ConAgra was entitled to an award of costs, the amount of $15,684.35 sought by ConAgra was necessarily incurred and should be assessed against Plaintiff Garrison and ten opt-in Plaintiffs jointly and severally.
II.
Plaintiff Garrison and nine of the opt-in Plaintiffs challenge the district court‘s grant of summary judgment on appeal, arguing a genuine issue of material fact existed regarding the applicability of the fourth prong of the executive exemption to the FLSA and the AMWA. “We review a district court‘s grant of summary judgment de novo.” Beauford v. ActionLink, LLC, 781 F.3d 396, 401 (8th Cir. 2015) (citing Copeland v. ABB, Inc., 521 F.3d 1010, 1012 (8th Cir. 2008)). Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of matеrial fact and the moving party is entitled to judgment as a matter of law. See
(a) The term ‘employee employed in a bona fide executive capacity’ in section [2]13(a)(1) of the Act shall mean any employee:
(1) Compensated on a salary basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoа by employers other than the Federal Government), exclusive of board, lodging or other facilities;
(2) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;
(3) Who customarily and regularly directs the work of two or more оther employees; and
(4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.
The Department of Labor defines “particular weight“:
To determine whether an employee‘s suggestions аnd recommendations are given “particular weight,” factors to be considered include, but are not limited to, whether it is part of the employee‘s job duties to make such suggestions and recommendations; the frequency with which such suggestions and recommendations are made or requested; and the frequency with which the emрloyee‘s suggestions and recommendations are relied upon. Generally, an executive‘s suggestions and recommendations must pertain to employees whom the executive customarily and regularly directs. It does not include an occasional suggestion with regard to the change in status of a co-worker. An emрloyee‘s suggestions and recommendations may still be deemed to have “particular weight” even if a higher level manager‘s recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employee‘s change in status.
We conclude that the undisputed facts regarding Plaintiff Garrison‘s and the nine opt-in Plaintiffs’ involvement “in at least3 one personnel decision,” if not more, show that these employees were working in an executive capacity and аre exempt from the FLSA overtime pay requirements. See Madden, 745 F.3d at 908. The Court agrees with the district court‘s conclusion, based on the evidence presented and without consideration of contradictory declarations or affidavits, that Plaintiffs were employed in a bona fide executive capacity and are exеmpt from the FLSA and the AMWA overtime pay requirements. Plaintiffs failed to satisfy their obligation to create a genuine issue of material fact for a jury. See Matsushita, 475 U.S. at 586-87, 106 S.Ct. 1348. Accordingly, the district court‘s grant of summary judgment is affirmed.
III.
ConAgra challenges the district court‘s order denying its motion for costs pursuant to
We recently held in Lochridge v. Lindsey Mgmt. Co., Inc., 824 F.3d 780, 782 (8th Cir. 2016), that a prevailing FLSA defendant is not precluded from rеcovering costs under
IV.
For the foregoing reasons, the district court‘s grant of summary judgment is affirmed, and the district court‘s order denying ConAgra‘s motion for costs is vacated. This case is remanded to the district court for consideration of whether costs should be awarded under