Docket Nº:0115474
Case Date:May 17, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit





REX L. BOTHELL, Plaintiff-Appellant, v. PHASE METRICS, INC., Defendant-Appellee.

No. 01-15474; D.C. No. CV-99-01279-CW


Appeal from the United States District Court for the Northern District of California

Claudia Wilken, United States District Judge, Presiding

Argued and Submitted

May 17, 2002—San Francisco, California

Filed August 13, 2002

Before: Procter Hug, Jr. and Marsha S. Berzon, Circuit Judges, and Robert S. Lasnik,* District Judge.

Opinion by Judge Lasnik

*Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation.


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

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


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 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

1The evidence offered by Phase Metrics, if left uncontradicted, could support findings that Bothell independently managed robotics-related customer services for Phase Metrics, was in constant communication with Max Media’s management and production employees, would identify problems in the Max Media facility and recommended changes in practice or equipment, determined (sometimes after negotiation with Max Media) whether equipment was under warranty and whether the customer would be billed for repairs/replacements, "set policy with respect to Max Media as to what Phase Metrics would or would not bill when it came to repair work," spent a majority of his time in meetings with Max Media personnel, performing site inspections, or conducting other nonmanual activities, exercised discretion and independent judgment in his efforts to keep Max

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 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

Media happy, had authority to schedule "down time" on Max Media’s equipment, arranged staffing for and supervised product installations, worked independently with very little direct supervision from his manager, set his own working schedule based on Max Media’s needs, and had responsibilities which "often mirrored those of the Max Media manager."

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...

To continue reading