                                                                           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                            NOT FOR PUBLICATION                             JUL 23 2012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




                                          2
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).

                                           3
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


                                           5
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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