                 United States Court of Appeals
                             For the Eighth Circuit
                          ___________________________

                             Nos. 15-1177/15-1428
                          ___________________________

                             Evelyn Garrison, et al.

                                 Appellants/Cross-Appellees

                                       v.

          ConAgra Foods Packaged Foods, LLC, d/b/a ConAgra Foods

                                  Appellee/Cross-Appellant
                                 ____________

                    Appeal from United States District Court
                      for the Eastern District of Arkansas
                                ____________

                           Submitted: April 12, 2016
                            Filed: August 15, 2016
                                ____________

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”), Ark. Code Ann. § 11-4-201, et seq., and the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, alleging misclassification as

      1
       The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
exempt employees and unpaid overtime. Plaintiff Garrison and nine of the opt-in
Plaintiffs appeal the district court’s 2 grant of summary judgment. One Plaintiff,
Ruben Garcia, was dismissed prior to the grant of summary judgment. ConAgra
cross-appeals the district court’s denial of costs. We conclude that ConAgra is
entitled to judgment as a matter of law on both the federal and state law claims and
affirm the district court’s grant of summary judgment. A prevailing FLSA defendant
is not precluded from recovering costs as a result of Federal Rule of Civil Procedure
54(d) and the silence in 29 U.S.C. § 216(b). Therefore, we vacate the district court’s
denial of ConAgra’s motion for costs. This case is remanded to the district court to
consider whether ConAgra’s costs should be awarded pursuant to Rule 54(d) and
whether costs should be assessed against Plaintiff Garrison and ten opt-in Plaintiffs
jointly and severally.

                                          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 court 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


      2
        The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
                                        -2-
the fourth prong, that Plaintiffs’ “suggestions and recommendations as to the hiring,
firing, advancement, promotion or any other change of status of other employees
[were] given particular weight.” 29 C.F.R. § 541.100(a)(4). The parties agree that
the standards for executive exemption are the same under both the FLSA and the
AMWA. See Helmert v. Butterball, LLC, 805 F. Supp. 2d 655, 663 n.8 (E.D. Ark.
2011).

       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 court 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 of 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 recover 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

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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 material fact and the moving party is
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d
538 (1986). Although we view the facts and inferences in the light most favorable
to Plaintiffs, the non-moving parties, they have the obligation to come forward with
specific facts showing that there is a genuine issue for trial. See Matsushita, 475 U.S.
at 586–87.

       Pursuant to 29 U.S.C. § 213(a)(1), the FLSA’s overtime pay requirements
“shall not apply with respect to … any employee employed in a bona fide executive,
administrative, or professional capacity[.]” The Court “determine[s] whether an
employee meets the executive exemption by applying Department of Labor
regulations.” Madden v. Lumber One Home Ctr., Inc., 745 F.3d 899, 903 (8th Cir.
2014) (citing Fife v. Bosley, 100 F.3d 87, 89 (8th Cir. 1996)). An executive
employee is defined by the Department of Labor as follows:



      (a) The term ‘employee employed in a bona fide executive capacity’ in section
          [2]13(a)(1) of the Act shall mean any employee:

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          (1) Compensated on a salary basis at a rate of not less than $455 per week
              (or $380 per week, if employed in American Samoa 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 other
              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.



29 C.F.R. § 541.100; see also Madden, 745 F.3d at 903. The parties do not dispute
that the first three factors were satisfied. At issue in this case is whether Plaintiff
Garrison and the nine opt-in Plaintiffs were employees “whose suggestions and
recommendations as to the hiring, firing, advancement, promotion or any other
change of status of other employees are given particular weight.” Id.

      The Department of Labor defines “particular weight”:



      To determine whether an employee’s suggestions and 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
      employee’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
      employee’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.

                                         -5-
29 C.F.R. § 541.105. In Madden, this Court found that “[a]fter looking at the
different factors [other] courts used to find the fourth element satisfied, including
the offering of personnel recommendations that were acted upon by managers,
involvement in screening applicants for interviews, and participation in interviews,
among others, it is apparent that many different employee duties and levels of
involvement can work to satisfy this fourth element.” 745 F.3d at 904.
Demonstrating that the purported executives’ input into personnel decisions were
given particular weight can be established by showing “that the purported
executives’ input had more influence than hourly employee’[s] input.” Id. at 906.

        In this case, according to Plaintiff George’s deposition testimony, Plaintiffs’
recommendations regarding whether to discharge or retain a probationary employee
were given particular weight because Plaintiffs were told to appraise performance
and report good or poor performance from a probationary employee to a manager.
The evidence showed that Plaintiffs Garrison and Moss recommended the discharge
of probationary employee, Robert French, and French was not retained. Regarding
promotions and demotions, Plaintiff Elias testified that Team Leaders would
evaluate employees and give feedback as to whether they could do their job, and if
not, they would be demoted to their former positions. Plaintiffs Cannon and Moss
testified similarly. Specifically, as noted by the district court, Plaintiffs Elias, Moss,
and Orndorff each disqualified employees that were subsequently demoted as a
result. Plaintiff George testified that Team Leaders were able to fill temporary
vacancies by moving someone from one classification to another and by managing
the scheduling of hourly employees within their areas. Lastly, each Plaintiff testified
that she/he recommended discipline, and management followed those
recommendations. Each of the Plaintiffs testified that management followed the
recommendations most, if not all, of the time.

      We conclude that the undisputed facts regarding Plaintiff Garrison’s and the
nine opt-in Plaintiffs’ involvement “in at least one personnel decision,” if not more,

                                          -6-
show that these employees were working in an executive capacity and are 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,3 that Plaintiffs
were employed in a bona fide executive capacity and are exempt 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. 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 Rule 54(d)(1) and 28 U.S.C. § 1920. ConAgra asserts that the district
court erred in its conclusion that costs are not available to prevailing FLSA
defendants and in its denial of ConAgra’s motion for costs. “We review the district
court’s decision [whether] to award costs for abuse of discretion.” Martin v.
DaimlerChrysler Corp., 251 F.3d 691, 695 (8th Cir. 2001) (citing Greaser v. Mo.
Dep’t of Corr., 145 F.3d 979, 985 (8th Cir. 1998), cert. denied, 525 U.S. 1056, 119
S. Ct. 620, 142 L.Ed.2d 559 (1998)). “As this case presents an issue of statutory
interpretation, our review is de novo.” In re Raynor, 617 F.3d 1065, 1069 (8th Cir.
2010) (citing U.S. v. Templeton, 378 F.3d 845, 849 (8th Cir. 2004)).


      3
          The district court notes Plaintiffs provided declarations that were
contradictory to earlier deposition testimony. Specifically, Plaintiff George’s
declaration testimony regarding the ability to identify the need for employees to
work overtime and to schedule hourly employees for an increase or decrease in
hours, Plaintiff George’s testimony concerning which employee handled the
scheduling for the sanitation department, and testimony from several other Plaintiffs
regarding probationary employees were found to be contradictory evidence. The
district court, citing Lykken v. Brady, held that “a party cannot defeat summary
judgment by submitting an affidavit or declaration contradicting his or her earlier
deposition testimony[.]” 622 F.3d 925, 933 (8th Cir. 2010). We agree with the
district court’s conclusion and will not consider any testimony presented in an effort
to contradict earlier testimony.
                                        -7-
      We recently held in Lochridge v. Lindsey Mgmt. Co., Inc., that a prevailing
FLSA defendant is not precluded from recovering costs under Rule 54(d) because §
216(b) is silent on the issue of prevailing FLSA defendants. 14-3799, 2016 WL
3094020, at *2 (8th Cir. June 2, 2016). We find the Lochridge holding applies
equally to this matter. “Because § 216(b) addresses only an award of costs to a
prevailing plaintiff and neither § 216(b) nor any other provision of the FLSA
precludes an award of costs to a prevailing defendant,” we conclude ConAgra is not
precluded from collecting its costs incurred. Id.

                                         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 Rule 54(d)(1) against Plaintiff Garrison and the ten opt-in
Plaintiffs jointly and severally.
                          ______________________________




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