299 F.3d 1120 (9th Cir. 2002), 01-15474, Bothell v. Phase Metrics, Inc.

Docket Nº:01-15474.
Citation:299 F.3d 1120
Party Name:Rex L. BOTHELL, Plaintiff-Appellant, v. PHASE METRICS, INC., Defendant-Appellee.
Case Date:August 13, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1120

299 F.3d 1120 (9th Cir. 2002)

Rex L. BOTHELL, Plaintiff-Appellant,


PHASE METRICS, INC., Defendant-Appellee.

No. 01-15474.

United States Court of Appeals, Ninth Circuit

August 13, 2002

Argued and Submitted May 17, 2002.

Page 1121

[Copyrighted Material Omitted]

Page 1122

Michael M. Herrick, Herrick Law Offices, San Francisco, CA, for the plaintiff-appellant.

Melinda S. Reichert, Stephen M. Kociol, and M. Emily Osborne, Brobeck, Phleger & Harrison, Palo Alto, CA, for the defendant-appellee.

Appeal from the United States District Court for the Northern District of California; Claudia Wilken, United States District Judge, Presiding. D.C. No. CV-99-01279-CW.

Before: HUG and BERZON, Circuit Judges, and LASNIK,[*] District Judge.


LASNIK, District Judge. Rex Bothell seeks overtime compensation for hours worked in excess of forty per week and other damages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and California state law. Appellee Phase Metrics, Inc., argues that Bothell is an exempt "administrative" employee under both federal and state law and is therefore not entitled to overtime payments.

Just before trial, the district court ordered the parties to submit additional briefing in support of their respective positions. After reviewing the submissions, the Court found that Bothell's "primary duty consisted of the performance of non-manual work, directly related to the management policies or general business operations of his employer and his employer's customers" and which "required the exercise of discretion and independent judgment." The district court concluded that (a) Bothell was an administrative employee who was not entitled to overtime wages or liquidated damages, (b) similarities between federal and state law precluded a finding that Phase Metrics' failure to pay wages was "willful" under state law, and (c) Bothell's state law claim for overtime wages was governed by the analysis set forth in the regulations implementing the FLSA. Summary judgment was granted in favor of Phase Metrics on all claims.

Bothell filed a timely notice of appeal on March 12, 2001. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.


Phase Metrics, Inc., designs, manufactures, and sells robotic test and inspection equipment for the data storage industry. Bothell began installing, troubleshooting, and maintaining Phase Metrics' products as an hourly, non-exempt, contract employee hired through a third party. On or about November 11, 1997, Phase Metrics

Page 1123

offered Bothell a position as a field service engineer working directly for Phase Metrics. Although Bothell's work activities remained the same, the position with Phase Metrics was salaried and he was considered exempt from the overtime wage provisions. Bothell was employed by Phase Metrics for approximately one year from November 1997 to November 1998.

Phase Metrics assigned Bothell as a field service engineer for one of its largest clients, Max Media, Inc., a manufacturer of disk drives. In that capacity, Bothell spent the majority of his time at the Max Media facility, coming to the Phase Metrics office two or three times a week to do paperwork, meet with his supervisors, review new products, and/or pick up supplies. Although the parties agree that Bothell was Phase Metrics' main contact with Max Media, they fundamentally disagree regarding the nature of Bothell's daily activities.

Phase Metrics argues that Bothell was the company representative to Max Media and independently managed the Max Media customer account. In support, Phase Metrics has offered a job description for the field service engineer position, the declarations of various Phase Metrics employees, the declaration of a former Max Media employee, and a selection of Bothell's activity records and time cards. These sources, although not entirely consistent with each other, generally portray Bothell as an "account manager" who performed his job independently, made or recommended "decisions critical to both Phase Metrics and Max Media," and supervised the manual tasks of installation, repair, and maintenance.1

Bothell's testimony regarding his daily work activities creates an entirely different impression. During his deposition, Bothell was asked to review and comment on the job description for the field service engineer position, which reads:

BS, BA, ME, EE, preferred but not required. 3-5 years experience in installing, maintaining, and troubleshooting complex electromechanical and computer controlled systems. Requires the ability to independently manage a customer account, appropriately manage and staff for installations, upgrades, improvements, and supply appropriate reports and statistical data to home office on the performance level of both machines and personnel.

Requires strong communication and writing skills, must provide technical supervision of 2-6 people. Must independently manage the customer support services for at least one customer.

Must be responsible for billing and collecting of all purchase orders and making all warranty decisions. Must be

Page 1124

able to teach operations and maintenance classes to customers' staff engineers, technicians, and operators. Must have a formal regularly scheduled meeting with customer and provide issues list status.

Bothell testified that his job was to install, troubleshoot, and maintain Phase Metrics' products at Max Media's facility and that the other portions of the above job description did not accurately reflect the day-to-day reality of the work he performed. Specifically, Bothell testified that, although he had "3-5 years experience" and was Phase Metrics' main point of contact with Max Media, he did not independently manage a customer account, compile or produce statistical data, evaluate the performance of machines or people, supervise other employees, have authority to make repair or warranty determinations of any significance, participate in billing, teach classes, control his own schedule, or have regularly scheduled meetings with Max Media representatives.

According to Bothell, his primary duties were to keep Phase Metrics' equipment in good working order and to act as a conduit for information between his employer and its customer. Bothell testified that, over a fifty-two week period, he worked with crews to install ten machines, each of which took approximately two weeks: installations, including the paperwork and customer contacts directly associated with those installations, took up approximately 40% of his time. In addition, Bothell spent additional time troubleshooting and maintaining the existing machines. The remainder of his time was spent responding to customer calls, learning about systems and procedures, and completing the paperwork required by Phase Metrics. Any authority a field service engineer might have had in theory was severely curtailed in practice because the supervisor expected to be kept informed of all but the most trivial happenings, Bothell was never given final decision-making authority for any specific dollar limit, and all parts were stored at the home office and could be obtained only through the supervisor.


Whether Bothell's activities as a field service engineer excluded him from the overtime benefits of the FLSA is a question of law and the court reviews the district court's decision de novo. Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986). How Bothell spent his working time is a question of fact reviewed under the clearly erroneous standard. Bratt v. County of Los Angeles, 912 F.2d 1066, 1068 (9th Cir. 1990), cert. denied, 498 U.S. 1086, 111 S.Ct. 962, 112 L.Ed.2d 1049 (1991); O'Dell v. Alyeska Pipeline Serv. Co., 856 F.2d 1452, 1453 (9th Cir. 1988). Because Bothell is appealing a summary judgment against him, we view the evidence under the same standard used by the...

To continue reading