the fourth prong exemption that deals with whether or not particular weight is given to recommendations of people that are categorized by them as as management and the plaintiffs regard as it should be hourly the plaintiff's brief appellant's brief is divided into four portions and that pretty much tracked the trial court's decision from the eastern district of arkansas so i'm going to deal with them in the order which they're presented the first one deals with the discharge or retention of a probationary employees  are thirteen pages of the brief committed to this in in that i've highlighted seventeen different occasions where there is an open question as to whether or not the fact is totally disposed of other words of material fact and there's evidence on both sides of the question the court the trial court should have recognized that and referred this matter for trial and not given the relief she did i think where the trial court might have been misled is in the application of mad because mad and it's the peers on the surface to stand for the notion that just one recommendation on one employee is enough to trigger  classification as as as management and but madden is really quite irrelevant here it was a decision after the trial level upon a trial in which it said that when a jury makes that decision the jury's evidence is satisfactory and we will take it at face value but we're not after a trial we're here to determine if there are facts before trial and so it's applicability it's just there is no for for this occasion and bacon and another case would be the factual issue if there were a personnel decision in which the manager gave particular w to the well suggestion or recommendation of your client what would be the factual issue in dispute well whether or not that's the only one that was identified and that's one of the problems here there's one perhaps two no suppose there were only wine as there was then i think it's a new morass and case as apparently there was in the madden case the one what would be the factual issue then  jury well whether or not that was a part of whether or not the numerosity is there it can't be occasional according to the bacon case suggestions even if they're taken are not enough there there has to be that has to be a routine part of the employer's response to this suggestions that are made by the class members of that were true how could the evidence have been sufficient and mad because it's a jury trial now but you still have to have  evidence in you i thought you were just saying it has to be routine in one is not enough of no argument if the jury decides that it's a part of the way that the structure of baking recommendations was in place for that employer  the plaintiff group then they need i don't have any way did that without knowing more about the facts of bacon and know whether or not that was an appropriate thing for them to do but it certainly isn't guidance here because we're trying to determine if there are facts to be four areas that you break out in your brief it's sufficient if the employer shows that in one of the four the your client was providing recommendations or even particularly that would be sufficient to meet the exception no i would say would be insufficient because that happens even if there has to be a it has to be done more that locational mean bacon stands for the proposition that occasional suggestions are not eno so but that's a fact question as to whether or not what's occasional that's a fact question seems like those areas that are broken out the discharge and retention of nation are employees except those of the four years we're talking about those are coming from the department of labor that's correct mandation those are not coming from bacon and they're not coming from matt those seem to be how the parties have decided to argue the facts in this case i would agree with that analysis and so i guess my argues that the management's position was that in this period of retention of probation if a group later did not a plaintiff did not speak up then that silence was to be construed as a recommendation to keep that a ploy and i think that's just a totally absurd understanding of what a recommendation is a recommendation had a wise and absurd if they had if everybody had the understanding that silence well in the fact i guess if you're right in the factual background of which i see this operating it's absurd because there were no instructions to that effect not in the record in its defendant's burden of proof to show that there were but it makes it makes the word meaningless in a recommendation anywhere you look it up can contains a suggestion for a change and a some kind of moral imperative like you should do this or you ought to do that or you better not do that those those elements are absent in what the plaintiffs testified was their duty in dealing with discipline or in this case in dealing with the discharge or retention of probationary employees they just gave facts they gave john was absent for the seventeenth time this quarter that's a fact to read that as a as a recommendation without his just called and said some warning ahead of time that your failure to speak up is going to be deemed a recommendation i think is just a positive as well didn't several of the clients suspend hourly workers as part of a disciplinary process well the disciplinary process might of but fault only suspended when their superiors from h r directed them to do that that's their testimony and the judge but that is a year old ryan did your clients initiate the inquiries by reporting well they would report that there was sure sure that's their duty there that they're the people on the floor they're the ones you have contact with the facts but to conflate facts and recommendation fact reporting and recommendation is just isn't the way it was done here that's the plaintiff's view distance and you're talking about probation yeah that's right that's right and so these are people who've already been retained theoretically the company wants to see them retain them in the management or in your case the plaintiff would say no that's not a good well i know how that process worked well it was supposed to i think in theory they would speak up but a lot of them as i said had no idea that they were even being looked to in fact one quoted h r as saying we'll talk with the employees but  there's at least two instances on the probationary where they would give negative ratings well one was one was hotly contested mr emery said i didn't give any recommendations at all so you're really down to one so i think you have a problem with the numerosity side of it is there any is there a place in the factual record where a team leaders where it's clear that the team leader made a recommendation and it was well yes mind but there were two people in particular or and off and garrison i believe that said that they made recommendations and they were ignored but that day they were ignored nothing happened as a result of that they well now you've said that your people were making record all this is this is not in promotion a demotion this is in discipline in a disciplinary thing which i obviously don't have time to get to where you have all that you have but if you want to get to it now when you talk about  on the purely legal question of whether or not costs are available to prevailing defended my plan to focus and with the court's permission will stick to the arguments related to the the underlying summary judgment grant i believe that the marks case addresses fairly fairly simply the issue of whether costs are available to prevailing defendants but of course i'm happy to answer any questions that you might have i think what what we heard during the argument here and what was elicited by the questions from your honour's is a simple fact that plaintiffs are attempting to run away from the facts of their case the facts that were developed through the depositions of those plaintiffs and their testimony and the way that they're trying to do that is by coming up with a call it a novel label for what they were doing as mere fact reporters were mere observers of of behaviors without providing any sort of recommendation and judge called and you made the excellent point that towards the end of plaintiff's argument there was a clear moment where they started to say when some recommendations are made but not followed and the record is is full of sort of that categories that the court used below the four that have come up in the briefing any one of those four categories is sufficient to satisfy the fourth pronk of this exemption of the department of labor directs us there are certainly no requirement otherwise and this court's decision in madden dictates that as well in that case there was only evidence of involvement in hiring no other changes of status were involved and there's only evidence of hiring in one change of status one hiring decision and that was so efficient on this fact reporters recommender  s you agree that it's conceivable that a ploy could be a fact reporter without being there for it conceivable in another case perhaps not of the employer said we need you to give us facts about such and such every so often that will decide what to do it so that those facts exist exist here so we have in this in this environment what are called line leads these are hourly employees who work for the team leaders and there are situations where those employees would raise issues concerns about behavior etc in the team leaders themselves would investigate corroborate and then elevate if they needed to and it's that second part that's really important here because these were not neutral reporters of facts who had a list of rules and as soon as somebody violated it they raise their hand and said this person just violated the rules these employees knew how or had the responsibility to coach their employees train them try to improve their performance their non disciplinary steps and then they only elevated conduct up to the to the management h r level when they the team leaders determine that it was something that deserved discipline you know if i agree that in a situation where they said here are five things if you do if anyone does these five things tell us but it was more broad than that and they had much more discretion in fact tony order who's the plaintiff that they rely on the most had a situation in her deposition where she described an employee kerry healey somebody who she ultimately disqualified from her position and they were discussing progressive discipline for miss haley and the discipline form that they were looking at was a second step discipline in the progressive discipline or policy a written warning and then there were listed three violations and the question was asked is this final written warning for these three different things in this order of the answer poor kerry yes because she would have received a lot more question it sounds like kerry had a lot of issues answer while i was having a lot of issues with her but she had problems and i wanted to give her the opportunity to try to find something else question did you coach or first mr anderson answer yes question then and you can correct me if i'm wrong but i think what you're saying is that each of these incidents individually could have been part of the progressive disciplinary process answer yes question you could have given her an oral warning final warning and a suspension and fired her yes question but you you decided that you'd rather give her some time to either improve her performance or find another job because this one wasn't working out answer correct shows up in appendix fourteen twenty nine miss or endorse testimony here makes it clear that she understood understood her role to not just report violations but instead to manage discipline for her employees a situation where if she wanted to she could have represented or issued three different steps to discipline and later her testimony she acknowledged that her manager agreed with this plan and this haley was only refused the final written warning it's also important remember all these disciplinary decisions are occurring in a very controlled environment with a collective bargaining agreement that dictates the progress of disciplinary steps you know so the suggestion that they are neutral reporters of fact who don't make recommendations for discipline is really to say that they're neutral reporters of fact who are unable to know at any moment what level of discipline any individual is on there's no difference in this situation than raising your hand and saying that person should be disciplined and i recommend the next step then there is to just say that person needs to be disciplined and again the testimony in the evidence is generally clear every one of those people testified that that they knew they would only issue discipline or raise discipline when i went up and in their depositions they made it clear that that recommendation that is a point issued all of the time of the time as you asked is there any example in the record of a specific recommendation that wasn't followed there isn't there not not anywhere in the record is there a name where they said i wanted to discipline somebody and somebody told me now getting back to the probationary employee question says but the f t c p a also has a provision that says that a defendant is entitled to both attorneys fees and costs if they can show that it was litigated in bad faith so the silence there was on the narrow issue of whether or not a prevailing defendant who could not show bad faith would be entitled to costs here the silence is entirely your covers everything that would happen with a prevailing defendant does not say anything about that so the silence that marx was focusing on that left open the possibility that that rule fifty four days to follow would come into play is actually broader in the four as explanation that unless a statute expressly is contrary to rule fifty four then rule fifty forced of all presumption of an entitlement to cos exists in fact we actually see the congress after time and we laid this out in the brief and acted other laws and other versions of this law that explicitly said kos won't be available in certain circumstances and under marks that's what's required some limit on the court's discretion toward cost to prevailing defendant there's nothing in the a f l say that does that other than silence the implication from that in mark's rejects the idea that silen she and the plane just didn't raise any alternative arguments to that she didn't address any of them and so she was deciding it based purely on that question of law basically kicked it up here and said you know if the circuit says that this is what it is then here's the amount that they should order be awarded to defend now you want to go back to probationary employees i did speak to this question whether silence is a recommendation so i think that the short answer is it's not just silence it's silence with an obligation to speak up if there's a problem and if silence with an obligation speak up  with the problem within a certain period of time where does the obligation come from the obligation comes from their admitted understanding of their job duties the unrebutted testimony of the upper level managers in h r who said that we understood that they were the only person to do it to use their testimony you know this is this is plaintiff emery testifying in his deposition question was it your understanding that if you were going to recommend that someone not be retained after their probationary period then you would have to go to your manager or someone else to let them know that that person wasn't performing answer correct and that's at appendix seven thirty nine to seven forty eight of george testified at length about his understanding the question if you had an issue with a probationary employee as a team leader would it have been sort of your duty to go to your manager r and say this person is probationary and their terrible answer yes that's at appendix ten fourteen to ten fifteen and the other important thing with these parisian employees understand that it wasn't always silence they tried to cast argument is that it surely was understood that with the obligation to say something before the probationary period ended silence was a recommendation actually that's not entirely true silence was a final decision there was nobody back stopping these people nobody else was coming to the line to evaluate their performance nobody else was making a decision other than the team leaders how about where emery says once i became convinced that making a recommendation was a waste of time i quit making recommendations so the issue there is that that came up in his declaration which was submitted in support or other opposition to summary judgment motion and during his deposition he was asked the very explicit question of whether or not you went to the manager and he came up with the answer i might have but i don't remember and then in his declaration after his testimony now he's coming up with these specific examples and no explanation for why they hadn't come to him or why he had remembered that during his deposition when he was previously under oath no no the part i was quoting was from a you don't that's from his deposition while i the so the part from out from his deposition that i that i'm familiar with is when he was asked after the quote that i gave you earlier that about whether he ever went to his manager and told them i think this person is not performing the answer was there may have been one or two but i really can't recall the aspects of that and then the question was so it's possibly recommended someone after your teen but you just don't recall the specifics as the answer is it's possible and then the record evidence demonstrates this not only possible but that happened with the plaintiff or with an employee of maria's elise i believe the testimony and i apologize if i'm wrong but i believe the testimony that you were citing to was actually from his his declaration this idea that there was a period of time where they did it and then they stopped during the legal significance of we're talking about the promotion as the manager would tell these plaintiffs to take personal action that they didn't agree with the only significance there is that it falls into the the general factors that you should consider how often suggestions are being made and how often they're followed and whether it was their job duty and i think here that the plaintiffs were being told what to do hire them managers i would say they were being told what to do after they had raised the issues themselves and after they had initiated the process about what to do and the testimony that i think you're describing is as plaintiff harrison who during her deposition when talking about qualification and disqualification said there were a handful of times where she would have an employee in front of her where she thought they needed a little more time and her manager would say you know we need to go ahead and disqualify so if there was a disagreement there it was certainly a slight one and during her testimony when asked whether or not you know the stack of discipline in his qualifications they've gone through her recommendations chick knowledge most of them were and when asked whether or not you know they were followed or when she came to somebody with an issue like this a point whether it struck her answer was most of the time do you think we need to look at each of these plaintiffs individually they certainly are bringing individual claims yeah so when you cite a couple examples for different employee had a different understanding we couldn't treat them all the same we have to look at each one separately well i think there's several things that will simplify the process for everyone and the first one is that at the district court level i'm in the eastern district arkansas there's a local rule that requires us to provide a statement of undisputed facts and it requires the plaintiffs to respond so to the extent that we are going to look at these plaintiffs individually they were they also were at least expected to muster some sort of evidence individually to respond to those facts and the vast majority of them did not i mean that is detailed in our reply to that statement of facts which was filed in the district court and appears in the record of the pending two thousand and fifty six i apologize for its length but obviously there's a lot of plaintiffs and a lot of facts that were that were raised  very few facts that were disputed the other thing that's important is that there are several of these employment decisions that were disputed by none factually know plaintiff raised any significant concern or or rather any factual dispute about their role in evaluating qualifying employees and their role in scheduling employees in assigning overtime and assigning temporary assignments positions that increased compensation you know those are facts that every plaintiff agreed to the only attempt to dispute scheduling came from plaintiff george and point of george's affidavit just said that while there was one central scheduler and also one hourly employee may have done some scheduling but when you compare that to his deposition testimony it's flatly contradictory and therefore there is no dispute as to what plaintiff's role was when it came to scheduling assigning overtime temporary assignments and it's important to know that there are and as were detailed in our principle brief specific examples of involvement in significant decisions for each of the plaintiffs so if we are going to look at them not as a group but on an individual basis there is evidence that each one of them was involved in decisions that render them exempt if there are no further questions very well thank you thank you for your argument mr sanford will hear from you in rebuttal yeah  the time i didn't to allow me to develop the rest of the cell parts of the brief but in the discipline process it's i would ask you to look carefully at the brief because it estab that although there were recommendations made sometimes sometimes they were followed sometimes they were they were extremely rare but only one clear cut example is there actually a change of status as that term  by the title seven phrase tangible employment action that someone actually had different responsibilities and got a reduction in benefits or reduction in pay it was virtually never the case on on any thing that the other team members might have initiated and i just wanted to go over the council not the question that i asked was answered a moment ago and and  counsel said that there are no examples factually in the record where recommendation was not followed well just aside from the team members testimony like i said that's what i'm asking you well can you provide you with their can you identify by name or by factual situation that we could go to the record in and verify a situation in which a recommendation of the of the team leader was not followed no sir not from memory i sure can't it there are six reasons why a jury could differ from the court's decision some gave information that could support disqualification as we just talked about nothing happened there was tremendously insignificant number of disqualifications the only identified one and i think that that was fifteen years earlier than when the deposition was being taken they had no mention in their job description of this responsibility at all not at all they were asked to coach evaluate but not to do this kind of thing the plaintiffs were not evaluated at all on their involvement in the skill even when they had sit down sessions with their supervisor about whether or not this is actually about whether or not they were meeting the terms of their employment agreement and the expectations of them and then the the judge in some cases ignores some cases minimises sometimes creates the difference and then says well with that difference we can't regard their testimony i just don't think that's the role of the judge to to reach those kind of conclusion