FILED
NOT FOR PUBLICATION JUL 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GINA D’ESTE, on behalf of herself and No. 07-56577
others similarly situated,
D.C. No. CV-07-03206-JFW-PLA
Plaintiff - Appellant,
v. MEMORANDUM *
BAYER CORPORATION and JOHN
DOES, 1-50,
Defendants - Appellees.
WILLIAM BARNICK, on behalf of No. 07-56684
himself and others similarly situated,
D.C. No. CV-07-03859-SVW
Plaintiff - Appellant,
v.
WYETH,
Defendant - Appellee.
ROXANA MENES, on behalf of herself No. 08-55286
and all others similarly situated,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiff - Appellant, D.C. No. CV-07-01444-ER
v.
ROCHE LABORATORIES, Inc., a
Delaware corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Stephen V. Wilson, District Judge, Presiding
Edward Rafeedie, Senior District Judge, Presiding
Argued February 11, 2009
Resubmitted July 20, 2012
Before: KLEINFELD, SILVERMAN, and IKUTA, Circuit Judges.
In these three consolidated cases, pharmaceutical sales representatives Gina
D’Este, William Barnick, and Roxana Menes (“Plaintiffs”) appeal the district
courts’ decisions granting summary judgment to Defendants Bayer Corporation,
Wyeth Pharmaceuticals, and Roche Laboratories, Inc., with respect to Plaintiffs’
claims for unpaid overtime wages under California Labor Code § 510. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm on the ground that
Plaintiffs fall under the “administrative” exemption to California’s overtime wage
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requirements. See Cal. Labor Code § 515(a); Cal. Code Regs. tit. 8,
§ 11040(1)(A)(2).1
First, Plaintiffs’ duties involved “[t]he performance of . . . non-manual work
directly related to management policies or general business operations” of their
employers. Cal. Code Regs. tit. 8, § 11040(1)(A)(2)(a)(I) (2001); see also 29
C.F.R. § 541.205 (2001).2 Their work was “qualitatively” administrative because
they were involved in representing their respective companies and promoting sales
of prescription drugs within their assigned territories, activities which are
characterized as exempt under the incorporated federal regulation 29 C.F.R.
§ 541.205(b) (2001). See Harris v. Superior Court, 266 P.3d 953, 958–60, 963–64
(Cal. 2011). Plaintiffs were not on the production side of the
“administrative/production worker dichotomy” because they were not involved in
developing or manufacturing pharmaceutical products—the core day-to-day
1
We may affirm the district court’s grant of summary judgment on any
ground supported by the record. Degelmann v. Advanced Med. Optics, Inc., 659
F.3d 835, 842 (9th Cir. 2011). Because the record is sufficiently developed for us
to affirm on the ground that Plaintiffs fall under California’s administrative
exemption, we need not reach the question whether they are also exempt as
“outside salespersons.” See Cal. Code Regs. tit. 8, § 11040(1)(C), (2)(M).
2
The applicable 2001 wage order provides that we are to construe the
administrative exemption in light of certain federal regulations under the Fair
Labor Standards Act in effect at the time. Harris v. Superior Court, 266 P.3d 953,
958 (Cal. 2011); Cal. Code Regs. tit. 8, § 11040(2)(f).
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business of their employers. See Harris, 266 P.3d at 960–61; Eicher v. Advanced
Bus. Integrators, Inc., 61 Cal. Rptr. 3d 114, 119–21 (Ct. App. 2007); 29 C.F.R.
§ 541.205(a) (2001).
Plaintiffs’ work was “quantitatively” administrative because it was of
“substantial importance to the management or operations of the business.” Harris,
266 P.3d at 959–60 (discussing § 541.205(a) and (c)). They performed more than
“routine clerical duties,” § 504.205(c)(2), and their work “affect[ed] business
operations to a substantial degree,” § 504.205(c), because each Plaintiff was
responsible for disseminating his or her employer’s message to the market,
improving market share, and generating a large amount of business for the
company. Contrary to Plaintiffs’ assertion, it is not determinative that they did not
participate in the formulation of their employers’ sales and promotional policies at
the company level, see § 501.205(c), or that Defendants employed a number of
other pharmaceutical sales representatives to perform the same work as Plaintiffs
within their own respective territories, see § 501.205(c)(6).3
Second, Plaintiffs “customarily and regularly” exercised “discretion and
independent judgment” as part of their job. Cal. Code Regs. tit. 8,
3
Plaintiffs’ reliance on a 1997 opinion letter by the Department of Labor is
misplaced because that letter is not one of the federal sources specifically cited in
the 2001 wage order applicable here. See Harris, 266 P.3d at 965.
4
§ 11040(1)(A)(2)(b); see also 29 C.F.R. § 541.207 (2001). Although they were
assigned particular doctors to target and products to promote, they exercised
discretion in applying the training they received, tailoring their message based on
their knowledge of individual doctors, and distinguishing their employers’
products from those of competitors. Plaintiffs performed more than “rote,
mechanical work,” and the procedures they were required to follow in delivering
their message to doctors and hospitals merely channeled their discretion, rather
than eliminating it or making it inconsequential. In re UPS Wage & Hour Cases,
118 Cal. Rptr. 3d 834, 853 (Ct. App. 2010); see also see also Combs v. Skyriver
Commc’ns, Inc., 72 Cal. Rptr. 3d 171, 190–91 (Ct. App. 2008).
Third, Plaintiffs “perform[ed] under only general supervision work along
specialized or technical lines requiring special training, experience, or knowledge.”
Cal. Code Regs. tit. 8, § 11040(1)(A)(2)(d). They do not dispute that they received
specialized sales training, nor that they controlled how they spent their days and
very rarely operated under direct supervision.
Fourth, Plaintiffs were “primarily engaged in duties that meet the test of the
exemption.” Cal. Code Regs. tit. 8, § 11040(1)(A)(2)(f); see also Eicher, 61 Cal.
Rptr. 3d at 118. Plaintiffs agree that they spent the vast majority of their time
calling on doctors and hospitals in an effort to promote their employers’ products
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and improve market share, and, as discussed above, this activity meets the test of
the exemption.
Finally, Plaintiffs do not dispute that they earned more than twice the state
minimum wage. See Cal. Code Regs. tit. 8, § 11040(1)(A)(2)(g).
AFFIRMED.
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