                                         PUBLISH

                        UNITED STATES COURT OF APPEALS
Filed 8/28/96
                                       TENTH CIRCUIT



STEPHEN H. BOHN,                                  )
                                                  )
                Plaintiff-Appellant,              )
                                                  )
      v.                                          )             No. 95-4086
                                                  )
PARK CITY GROUP, INC. and                         )
RANDY FIELDS,                                     )
                                                  )
                Defendants-Appellees.             )



                         Appeal from the United States District Court
                                   for the District of Utah
                                   (D.C. No. 94-CV-521)



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 profes-

sional 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 counter-

claim 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



       1
          Plaintiff also argues that the district court erred in denying his motion to strike an
affidavit of Linda Hack offered by defendant after the summary judgment briefs were
filed. We do not discuss this issue because its resolution makes no difference in our
disposition of the appeal.

                                               2
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 (1988). But “[t]he requirements of Rule 3

should be liberally construed. ‘[M]ere technicalities’ should not obstruct the consider-

ation 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 (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


                                                3
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

       2
          In supplemental authority defendants cite and rely on Long v. Union Pac. R.R.,
206 F.2d 829 (10th Cir. 1953). In Long, a notice of appeal from the district court’s ruling
excluding evidence, timely filed after the final judgment was entered, failed to “designate
the judgment or part thereof appealed from” (as then required by Fed. R. Civ. P. 73 (b)).
Because the notice of appeal made “no reference whatever to the final judgment,” Long
held there was no jurisdiction, declining to “read into the notice something that is not
there.” Id. at 830. This old case is inconsistent with the more generous approach of the
current Fed. R. Civ. P. 3, and our more recent cases. We consider our en banc opinion in
Lewis to have overruled Long even though it did not cite that case. See also Cooper v.
American Auto. Ins. Co, 978 F.2d 602, 608 (10th Cir. 1992) (order granting government
dismissal of claims was appealable although plaintiff’s notice of appeal failed to
reference it when plaintiff’s intent to appeal dismissal of those claims was clear and
government was not misled); Wright v. American Home Assurance Co, 488 F.2d 361,
363 (10th Cir. 1973) (notice purporting to appeal from an order denying a JNOV or new
trial was sufficient to confer jurisdiction of appeal on the merits; rejecting technical
application of the rule where appellant’s intent “to seek review of the judgment is
manifest”); cf. Averitt v. Southland Motor Inn of Oklahoma, 720 F.2d 1178, 1180 (10th
Cir. 1983) (when notice of appeal stated that defendants appealed only final judgment on
punitive damages issues, and parties agreed not to appeal other issues, defendants cannot
then appeal more). We have circulated this opinion among all judges of this court in
regular active service. All judges have expressed agreement with the conclusions herein
                                                                                 (continued...)

                                              4
                                               II

       Plaintiff was employed by Park City Group from October 26, 1992, to Decem-

ber 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, 116 S. Ct. 1045 (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 employ-

ers to pay overtime to employees who work more than forty hours per week and are not

       2
        (...continued)
respecting overruling Long.

                                               5
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 (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 (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 special-
       ized 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

                                              6
              (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 en-

deavor.” 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



                                              7
       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, or modification of computer systems or programs, including proto-
       types, based on and related to user or system design specifications;
              (3) The design, documentation, testing, creation, or modification of
       computer programs related to machine operating systems; or
              (4) a combination of the aforementioned duties, the performance of
       which requires the same level of skills.

29 C.F.R. § 541.303(b). We have found no case law interpreting the relatively new

“computer professional exemption.” 57 Fed. Reg. 46742 (setting Nov. 9, 1992 effective

date). Cf. Houk v. SEI Tech. Serv. Co., 657 F. Supp. 1014, 1016 (W.D.N.C. 1987)

(suggesting that practice in industry at that time was to treat a technical writing editor of

computer program manuals as exempt professional); Gorman v. Continental Can Co.,

1985 WL 5208 (N.D. Ill. 1985) (describing electronic data processing concepts, defini-

tions and required skill levels for different job descriptions), modified, 1986 WL 335

(1986).

       “The level of expertise and skill required to qualify for this exemption is generally

attained through combinations of education and experience in the field. While such

                                               8
employees commonly have a bachelor’s or higher degree, no particular academic degree

is required for this exemption.” 29 C.F.R. § 541.303(c). Plaintiff graduated in 1981 from

Southwest Missouri State University with a bachelor of science degree in elementary

education. In 1982-84 plaintiff earned at least thirteen semester hours toward an M.A. in

Educational Media and Technology at Brigham Young University. His resume lists

“skills and knowledge areas” in numerous “computer technologies.” Appellant’s App.

250, 253. Before his employment with Park City Group, plaintiff worked for a producer

of video special-effects equipment as a “project manager/training specialist,” where he

managed training materials and “[a]uthored several major volumes of installation,

operation, and service manuals.” Id. at 250. He also worked as a “training and documen-

tation manager” for a software company. Id. Before attending college, plaintiff was

trained in the Navy electronics and aviation technology program. Id. Overall, plaintiff’s

education and experience allow but do not compel a finding that he had the skill and

expertise required to meet the computer professional exemption. Further, “the determina-

tive factor is the job requirement and not the education in fact acquired by the employee.”

Dybach v. State of Fla. Dep’t of Corrections, 942 F.2d 1562, 1565 (11th Cir. 1991).

       Park City Group hired plaintiff as a “documenter at the documentation project

manager level” to work on a team of employees--including two testers and three develop-

ers (programmers). See Appellees’ Supp. App. 27-28, 66. The job description for a

documentation project leader at that time stated the following:


                                             9
       . Comfortable with several operating systems and hardware platforms
       . Produces innovative solutions for a variety of complex problems
       . Guides users in formulating requirements
       . Identifies omissions and errors in requirements
       . Arbitrator for conflicts between individuals
       . Reviews the work of lower employees
       . Reviews proposals, gathers facts, analyzes data, compares alternatives in
         terms of cost, time, resources and recommends a course of action
       . Increases knowledge of current advances in writing abilities, software
         products, and documentation techniques
       . Formulates decisions on broad policy and standards issues
       . Demonstrates ability to make effective marketing presentations on many
         subject-matter areas
       . Is a role model of the culture and provides leadership to others to
         understand and adapt to the culture
       . Demonstrates in-depth knowledge and understanding of software
         development business (Marketing, Sales, Human Resources, Finance and
         Accounting)

Id. at 94.

       Although Park City Group did not have a single job description for plaintiff’s

position, in response to interrogatories it produced a job description for a “Senior

Technical Writer/Editor” that stated the following:

       . Mastered the documentation tools and technical writing techniques
       . Familiar with several operating systems and hardware platforms and
         demonstrates the ability to document within those systems
       . Reviews programming code to determine program functionality
       . Performs support functions to CSRs and customers
       . Increases knowledge of current advances in training and documentation
         techniques and methods
       . Highly productive in developing products and achieving customer delight
       . Demonstrates ability to accurately define resource and time requirements
         for complex, multi-faceted projects and achieve successful project completion
       . Capable of editing, writing, and reviewing work from a variety of subject
         matter areas
       . Demonstrates an understanding of the basic economics of the software

                                             10
         business and optimizes the spending of company funds
       . Is a role model of the culture and provides leadership to others to
         understand and adapt to the culture

Id. at 93. Plaintiff asserts that he did not perform the type of work in these job descrip-

tions, and alternatively, he argues that even if he did perform those duties, they did not

meet the “computer professional” exemption.

       Plaintiff relies on his affidavit indicating that he expended the majority of his time

on clerical tasks such as basic word processing, photocopying, collating and talking with

other employees, and minimizing the amount of time he spent doing technical writing.

Defendants correctly point out, however, that plaintiff’s affidavit contradicts his deposi-

tion testimony in which he acknowledged performing many of the tasks set out in the job

descriptions above, and thus the affidavit should not be considered. See Mack v. United

States, 814 F.2d 120, 124-25 (2d Cir. 1987). In any event, the district court found that the

clerical and “gopher” type tasks that plaintiff listed in his affidavit were not duties and

responsibilities assigned to him even if he was actually performing those duties. In fact,

plaintiff’s counsel admitted during the hearing on the summary judgment motion that

plaintiff was never directed to do many of those duties.

       Plaintiff also asserts that, even if his primary duty was as a documenter/technical

writer, his work did not require the highly specialized computer skills described in the

regulations. Unfortunately, we cannot discern from the record whether plaintiff’s primary

duty required “theoretical and practical application of highly specialized knowledge in


                                              11
computer systems analysis, programming, and software engineering,” 29 C.F. R.

§ 541.303(c). The regulation defendants rely upon, 29 C.F.R. § 541.303(b)(2), refers to

“[t]he . . . documentation . . . of computer systems or programs, . . . based on or related to

user or system design specifications.”

       Our understanding of “documentation” in this context is that it would deal with the

internal documentation process involved in programming and/or systems analysis,

requiring knowledge of the system architecture, programming logic and language

necessary to manipulate the internal operation of the computer itself. Our review of the

record and further research into computer terminology indicates, however, that the term

“documentation” is also used to refer to the writing of manuals for end-users, which

would not necessarily involve the same type of highly developed computer skills.

       In Park City Group’s answers to plaintiff’s first discovery it specified plaintiff’s

duties as follows:

       Plaintiff was essentially a documenter. As a consequence, he was responsi-
       ble for documenting software application and the technical features that
       make up the application. This documentation process, among other things,
       involves writing, reviewing and editing the documentation; using computers
       to describe the application; running and authoring (customizing) the appli-
       cation; communicating with developers and other team members; participat-
       ing in team and documenter meetings; participating in the design process
       including of screens that the user sees; testing the application to make sure
       that it performs properly (i.e., testing the user guides against the code to
       ensure the application performs as it is [sic] should and identifying bugs)
       and supporting the application internally and externally.

Appellant’s App. 226.


                                              12
       Plaintiff’s resume, which he prepared after his discharge, claims that while an

employee at the Park City Group he “[d]esigned and developed new team--and corporate

--marketing literature . . . [d]esigned and produced many new graphics . . . [l]ed documen-

tation redesign efforts . . . [d]efined bug and enhancement tracking system . . . [e]dited,

expanded, and improved the company’s orientation and policies manual . . . [and] [w]rote

and illustrated several large volumes of software documentation.” Id. at 152. On their

face plaintiff’s duties and accomplishments appear to reflect high level skills, but without

more we cannot determine whether they involve the depth of knowledge the law requires

for the professional exemption.

       We are persuaded after reading the entire record that the district court erred in

finding that as a matter of law plaintiff’s job as a technical writer/documenter met the

requirements of the highly skilled computer professional. Defendants failed to provide

the kind of detailed information about the primary duties and processes assigned to

plaintiff, and the computer skill required in this area of “high tech” work to enable us to

decide that it satisfies the exemption for a computer professional. This is an area in

which the courts must rely on litigants to provide such evidence and to explain the

common understanding of the technical terms used in the regulation.

       We believe that under the regulations a computer professional could certainly

include some kinds of documentation or technical writing work. Defendants provided

evidence that documenters at Park City Group worked without close supervision and that


                                             13
their work involves consistent exercise of discretion and judgment. But based on the

record before us we cannot agree that defendants met their burden to show that no issues

of material fact remained on this question. The district court may have relied too much

upon plaintiff’s relatively large salary in finding his work was professional. See Appel-

lant’s App. 328-30 (court specifically noted the large size of plaintiff’s salary, and the

“creative nature” of his work in finding that he was a professional.)

                                             IV

       Finally, we do not believe defendants met their burden of showing that plaintiff

satisfied the requirements for the artistic professional exemption. To meet this exemp-

tion, defendants must show that plaintiff’s primary duty consisted of the performance of

“work requiring invention, imagination, or talent in a recognized field of artistic en-

deavor.” 29 C.F.R. § 541.3. Recognized fields of artistic endeavor include “music,

writing, the theater, and the plastic and graphic arts.” Id. § 541.302(b). “In the field of

writing the distinction is . . . difficult to draw. Obviously the requirement is met by

essayists or novelists or scenario writers who choose their own subjects . . . . The

requirement would also by met, generally speaking, by persons holding the more respon-

sible writing positions in advertising agencies.” Id. § 541.302(c)(2).

       Given these regulations we doubt plaintiff’s duties as a technical writer/docu-

menter could qualify for an artistic professional exemption. Cf. Reich v. Gateway Press,

Inc., 13 F.3d 685, 700 (3d Cir. 1994) (holding that task of rewriting press releases, etc.


                                              14
did not meet artistic professional exemption in part because it did not “require any special

imagination or skill at making a complicated thing seem simple”); Dalheim, 918 F.2d

1220, 1229 (5th Cir. 1990) (television producers who “perform their work within a well-

defined framework of management policies and editorial convention” not exempt artistic

professionals). We do not foreclose defendants, on remand, from showing that plaintiff’s

work required the level of artistic invention, imagination or talent to satisfy this exemp-

tion. What we do hold is that on the record presented the district court erred in granting

summary judgment for defendants.

       REVERSED and REMANDED for further proceedings in accordance with this

opinion.




                                             15
