Bohn v. Park City Group, Inc., 95-4086

• Citation: 94 F.3d 1457
• Decision Date: 28 August 1996
• Docket Number: No. 95-4086,95-4086
• Parties: 132 Lab.Cas. P 33,442, 3 Wage & Hour Cas.2d (BNA) 780 Stephen H. BOHN, Plaintiff-Appellant, v. PARK CITY GROUP, INC. and Randy Fields, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1457

94 F.3d 1457

132 Lab.Cas. P 33,442, 3 Wage & Hour Cas.2d

(BNA) 780

Stephen H. BOHN, Plaintiff-Appellant, v. PARK CITY GROUP, INC. and Randy Fields, Defendants-Appellees.

No. 95-4086.

United States Court of Appeals Tenth Circuit.

Aug. 28, 1996.

Rehearing Denied Sept. 26, 1996.

Robert H. Wilde (Suchada P. Bazzelle with him on a brief), Midvale, Utah, for Plaintiff-Appellant.

Deno G. Himonas (Randall N. Skanchy, also of Jones, Waldo, Holbrook & McDonough, with him on the briefs), Salt Lake City, Utah, for Defendants-Appellees.

Before BALDOCK, LOGAN and BRISCOE, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff Stephen H. Bohn sued defendants Park City Group, Inc. and Randy Fields, claiming he performed overtime work for which he was improperly denied time and a half pay required by the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 207 and 213. On cross-motions for summary judgment the district court granted judgment for defendants, finding that plaintiff was exempt from the FLSA because he was a professional employee. Plaintiff appeals, asserting that because genuine issues of material fact remained the district court should not have granted summary judgment. ¹ Defendants assert we have no jurisdiction because plaintiff's notice of appeal, filed after the final judgment, purported to appeal only an earlier partial summary judgment, a nonfinal order.

I

We first address the threshold issue whether we have jurisdiction over this appeal. On May 8, the district court entered its order dismissing plaintiff's complaint. That order was not a final appealable order because it did not dispose of Park City Group's counterclaim that plaintiff had failed to repay a promissory note he executed when he borrowed $500 from Park City Group under the Employee Computer Purchase Plan. See Atiya v. Salt Lake County, 988 F.2d 1013, 1016 (10th Cir.1993) (holding that order adjudicating fewer than all claims and liabilities of all parties is not a final appealable order unless certified under Fed.R.Civ.P. 54(b)). The district court's order granting Park City Group's summary judgment on the counterclaim, entered on May 15, 1995, disposed of all claims and thus was a final judgment.

Plaintiff's notice of appeal, filed within thirty days after the final judgment as required by Fed.R.App.P. 4(a)(1), sought review of "the order dismissing his complaint herein entered in this action on the 8th day of May, 1995." Appellant's App. 277. Defendants argue that plaintiff's notice of appeal did not designate a final order, and thus did not meet the Fed.R.App.P. 3(c) requirement that the "notice of appeal ... must designate the judgment, order, or part thereof appealed from."

We recognize that Fed.R.App.P. 3 requirements are jurisdictional. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 314, 108 S.Ct. 2405, 2407, 101 L.Ed.2d 285 (1988). But "[t]he requirements of Rule 3 should be liberally construed. '[M]ere technicalities' should not obstruct the consideration of a case on its merits." Nolan v. United States Dep't of Justice, 973 F.2d 843, 846 (10th Cir.1992) (quoting Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (alteration in original) (other citations omitted)).

In this case plaintiff's notice of appeal, filed after the district court entered a final judgment, specified the only order--and issue--that plaintiff intended to appeal. In Lewis v. B.F. Goodrich Co, 850 F.2d 641, 645 (10th Cir.1988) (en banc), we held that a premature notice of appeal from a nonfinal order ripened when other claims were dismissed after the notice of appeal was filed. In Lewis not only did the notice of appeal name an order that was not a final order (as in this case); the notice was filed before the final judgment in the case was entered. Thus, we accepted the notice which specified appeal of a nonfinal order as sufficient under the Rule 3(c) requirement to name the judgment or order appealed from. See also Vargas v. McNamara, 608 F.2d 15, 21 (1st Cir.1979) (plaintiff's notices of appeal were worded to appeal from directed verdicts rather than judgment; technical error should not defeat consideration on merits where "there was never any doubt as to the subject matter of the appeal").

In the instant case defendants had clear notice of the issue being appealed and will not be prejudiced. We hold that we have jurisdiction. ²

II

Plaintiff was employed by Park City Group from October 26, 1992, to December 31, 1993, in the software and training departments as a technical writer or documenter. He received a $47,000 annual salary plus bonuses. After Park City Group terminated plaintiff's employment for inadequately performing his duties, he filed this suit, asserting that he was entitled to overtime pay under the FLSA. After a hearing, the district court granted summary judgment for defendants, finding that plaintiff was exempt from the FLSA overtime provisions because his primary duty was as either a computer professional or an artistic professional. Plaintiff challenges that ruling.

We review de novo the district court's grant of summary judgment applying the same standard used by the district court. Panis v. Mission Hills Bank, 60 F.3d 1486, 1489-90 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1045, 134 L.Ed.2d 192 (1996). We must view the factual record and make reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Deepwater Investments, Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). We will uphold summary judgment only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

We first review the legal framework for our analysis. The FLSA requires employers to pay overtime to employees who work more than forty hours per week and are not specifically exempted. 29 U.S.C. § 207(a)(1). Employees performing in a "bona fide executive, administrative, or professional capacity" are exempt. Id. § 213(a)(1). It is the employer's burden to prove that a plaintiff falls within the professional exemption, Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974), and the exemption is construed narrowly against the employer who seeks to assert it. See Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960). "[T]he inquiry into exempt status under [ § 213(a)(1) ] remains intensely fact bound and case specific." Dalheim v. KDFW-TV, 918 F.2d 1220, 1226 (5th Cir.1990).

The regulations implementing the FLSA define the requirements for exemptions, and include a "long test" and a "short test." 29 C.F.R. § 541.3. It is uncontested in the instant case that plaintiff's annual salary subjected him to the "short test," because he met the minimum salary requirement of $250 per week. Id. § 541.3(e). The short test for the professional exemption also requires a showing that the employee has as his "primary duty" "work that requir[es] the consistent exercise of discretion and judgment" and which consists of the following:

(1) Work requiring knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or

....

(3) Teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in the school system or educational establishment or institution by which he is employed, or

(4) Work that requires theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering, and who is employed and engaged in these activities as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer software field, as provided in § 541.303.

29 C.F.R. § 541.3. An employee also meets the short test if his primary duty consists of "work requiring invention, imagination, or talent in a recognized field of artistic endeavor." See id. The district court apparently found that based on undisputed facts plaintiff's primary duty involved work either as a professional in an artistic endeavor or as a computer professional.

The regulations state that although determining the "primary duty" of an employee depends on "all the facts in a particular case," "a good rule of thumb [is] that primary duty means the major part, or over 50 percent, of the employee's time." Id. § 541.103. The regulation goes on to caution, however, that time itself is not dispositive. "At least under the short tests, the employee's primary duty will usually be what [he] does that is of principal value to the employer, not the collateral tasks that [he] may also perform, even if they consume more than half [his] time." Dalheim, 918 F.2d at 1227. Plaintiff asserts that the district court erred in granting summary judgment because questions of material fact remained concerning his actual duties that precluded a determination that his primary duty fell into either the computer professional or artistic professional category.

III

We first address if genuine issues of material fact existed whether plaintiff's primary duty included the performance of work described in 29 C.F.R. §§ 541.3(a)(4) and 541.303 as a "similarly skilled worker in the computer software field." In order to qualify for this exemption an employee's primary duty must consist of one or more of the following:

(1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;

(2) The design, development, documentation, analysis, creation, testing,...