Kristin Baum, on behalf of herself and all others similarly situated v. ASTRAZENECA LP also known as AstraZeneca Pharmaceuticals, LP or Astra-Zeneca, Inc

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2150
KRISTIN BAUM, on behalf of herself and all others similarly situated,
Appellant
v.
ASTRAZENECA LP (also known as AstraZeneca Pharmaceuticals, LP or Astra-Zeneca,
Inc.)
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 3-07-cv-00090
District Judge: The Honorable Kim R. Gibson
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 14, 2010
Before: SCIRICA, Chief Judge, BARRY, and SMITH, Circuit Judges
(Filed: March 24, 2010)
OPINION
SMITH, Circuit Judge.
Kristin Baum appeals the District Court’s entry of summary judgment in favor of
AstraZeneca, her former employer. Baum sought relief under the Pennsylvania Minimum

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We have jurisdiction under 28 U.S.C. § 1291. The District Court exercised1
jurisdiction under 28 U.S.C. § 1332.
Because we write only for the parties, we will presume knowledge of the record2
and recount the facts only briefly.
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Wage Act (“PMWA”), 43 Pa. Cons. Stat. § 333.101 et seq., based on AstraZeneca’s
purported failure to pay her for overtime work. The District Court concluded that Baum
fell under the outside salesperson exemption of the PMWA, id. § 333.105(a)(5), and
entered summary judgment in favor of AstraZeneca. We will affirm on different1
grounds.
I.
Facts
Baum worked as a Pharmaceutical Sales Specialist (“PSS”) for AstraZeneca from
May 1, 2003, to November 1, 2006. As a PSS, Baum promoted AstraZeneca2
pharmaceuticals directly to physicians. She regularly visited approximately 150
physicians in her assigned territory, answering questions about AstraZeneca products,
building relationships with physicians and their staffs, and trying to get physicians to
commit to prescribing AstraZeneca products. Because company policy, federal
regulations, and federal laws controlled the scope and nature of Baum’s interactions with
physicians, AstraZeneca trained her on how to conduct a physician visit. Some of
Baum’s interactions with physicians were “canned speeches” she learned through
AstraZeneca’s in-house training.

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To gain access to physicians, Baum would, among other things, schedule “access
meals” where she would provide breakfast, lunch, or dinner to a physician, the
physician’s staff, or both. These meals provided Baum opportunities to promote
AstraZeneca products to physicians and their staffs. Baum also set up “prep” programs
where physicians, some of whom were selected by her, addressed other physicians on
medical topics. In the same vein, Baum arranged peer-to-peer meetings where physicians
selected by AstraZeneca would meet with other physicians.
Baum normally worked sixty to seventy hours per week. She called on eight or
nine physicians a day, amounting to ten to twelve hours a day in the field. On top of her
field work, Baum spent approximately an hour each day checking e-mails, filling out
expense reports, and working on spreadsheets. Baum’s base salary was $63,000.
Procedural History
Baum filed suit against AstraZeneca on March 27, 2007, in the Court of Common
Pleas of Westmoreland County, Pennsylvania. On April 20, 2007, AstraZeneca removed
the case to the United States District Court for the Western District of Pennsylvania.
AstraZeneca later moved for summary judgment, arguing that Baum fell under the outside
salesperson and administrative employee exemptions of the PMWA. The District Court
concluded that Baum fell under the former exemption and granted AstraZeneca’s motion
for summary judgment on March 31, 2009. Baum filed this timely appeal.

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II.
We exercise “plenary review over the District Court’s grant of summary
judgment[.]” Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d
Cir. 2005) (quoting Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 276 (3d
Cir. 2001)). A court should grant summary judgment “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c)(2). In applying that standard, “a court must view the facts in the light most
favorable to the nonmoving party and draw all inferences in that party’s favor.” Shuman,
422 F.3d at 146 (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)).
“We may affirm the District Court on any grounds supported by the record.” Nicini v.
Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en banc).
III.
Under the PMWA’s administrative employee exemption, anyone employed in a
“bona fide . . . administrative . . . capacity” is exempt from the PMWA’s overtime
protections. 43 Pa. Cons. Stat. § 333.105(a)(5). The exemption applies to employees
whose (1) salaried compensation is at least “$250 per week, exclusive of board, lodging
or other facilities,” 34 Pa. Code § 231.83(5), (2) “primary duty consists of the
performance of office or nonmanual work directly related to management policies or
general operation of his employer or the customers of the employer,” id. § 231.83(1), and

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The exemption also applies under other circumstances irrelevant to the instant3
case.
Pennsylvania courts have looked to federal law regarding the Fair Labor4
Standards Act (“FLSA”) for guidance in applying the PMWA. Commonwealth of
Pennsylvania Dept. of Labor and Indus., Bureau of Labor Law Compliance v. Stuber,
822 A.2d 870, 873 (Pa. Commw. Ct. 2003), aff’d, 859 A.2d 1253 (Pa. 2004) (applying
“federal case law” regarding the FLSA to a PMWA claim). According to the
Pennsylvania courts, “it is proper to give deference to federal interpretation of a federal
statute when the state statute substantially parallels it.” Id.
We need not reach the issue of whether Baum fell under the outside salesperson5
exemption of the PMWA, 43 Pa. Cons. Stat. § 333.105(a)(5). We may affirm the District
Court on any grounds supported by the record. Nicini, 212 F.3d at 805.
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(3) primary duty “requir[es] the exercise of discretion and independent judgment,” id. §
231.83(5). “In general, the exercise of discretion and independent judgment involves3
the comparison and the evaluation of possible courses of conduct, and acting or making a
decision after the various possibilities have been considered.” 29 C.F.R. § 541.202(a)
(explaining “discretion and independent judgment” for the purposes of the Fair Labor
Standards Act). Baum’s employment at AstraZeneca satisfied these requirements.4 5
The salary requirement of $250 per week was indisputably satisfied. Baum’s base
salary was $63,000, which amounts to approximately $1,211 per week. The second
requirement, performance of nonmanual work directly related to AstraZeneca’s general
operation, see 34 Pa. Code § 231.83(1), was satisfied by Baum’s marketing and
advertising of AstraZeneca’s products, see 29 C.F.R. § 541.201(b) (“Work directly
related to . . . general business operations includes . . . work in . . . advertising [and]
marketing[.]”). See Reich v. John Alden Life Ins. Co., 126 F.3d 1, 12 (1st Cir. 1997)

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Our focus on promotion, advertising, and marketing should not be construed to6
have any bearing on the issue of whether a PSS makes sales for the purposes of the
PMWA. That issue is not addressed in this decision.
6
(applying FLSA administrative employee exemption to insurance marketing
representatives); see also Reich v. Avoca Motel Corp., 82 F.3d 238, 240 n.5 (8th Cir.
1996) (stating that “engaging in ‘public relations’ work to gain repeat customers” was an
administrative task under the FLSA). Baum visited physicians and organized events,
such as access meals, prep programs, and peer-to-peer meetings. These activities6
“disseminat[ed] information to the marketplace [and increased] understanding [of]
customers and competitors” and thus were “directly related to [AstraZeneca’s general]
operations[.]” John Alden Life Ins. Co., 126 F.3d at 12.
The third requirement was also satisfied. Baum’s “work requir[ed] the exercise of
discretion and independent judgment.” 34 Pa. Code § 231.83(5). Baum had significant
discretion in how she would approach physicians, whether it be through access meals,
peer-to-peer meetings, or other means. In other words, she had to “compar[e] and . . .
evaluat[e] . . . possible courses of conduct, and . . . mak[e] a decision after the various
possibilities ha[d] been considered.” 29 C.F.R. § 541.202(a). According to her resume,
Baum “used innovative themes to gain access in offices where the physicians were
difficult to see[.]” At her deposition she stated that, depending on the physician, she
would change her promotion strategy:
Q: How would you change your promotion around

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Baum argues that she was subject to extensive oversight by her manager7
because she had to check her voice mail and e-mail three times a day. Mere oversight by
a manager, however, cannot overwhelm the autonomy with which Baum operated on a
daily basis while she was out in the field. See 29 C.F.R. § 541.202(c) (“[E]mployees can
exercise discretion and independent judgment even if their decisions or recommendations
are reviewed at a higher level.”).
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depending on [the needs of the practice]?
A: If [the physician was not] writing, then we would just
ask more questions. Get more data from the doctor.
And do what we could to get them to write more. Given
the tools we had by the company. I mean, if it meant
bringing in a national speaker. I mean, whatever
approved resources that I had there approved by the
company, that is what I would use.
In addition, Baum spent the majority of her time in the field, unsupervised, calling
on physicians. See 29 C.F.R. § 541.202(c) (stating that an employee exercises discretion
and independent judgment where she “has authority to make an independent choice, free
from immediate direction or supervision”). Each day, Baum met with other PSSs and7
they collectively determined which physicians each PSS would visit that day. Baum
decided how much time she would spend with a given physician depending on whether
the physician was interested in her product. She also decided whether she would use a
detail aid in her visit. Every visit was somewhat unique because each physician had
different preferences, interests, and availability. After each visit, Baum would make
post-call notes to record the details of the conversation. On future visits, she would
avoid repeating a message the physician had recently heard. Overall, Baum’s day-to-day

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activities involved making numerous independent judgments on how best to promote
AstraZeneca’s products.
Moreover, Baum’s duties were very similar to the plaintiff’s duties in Smith v.
Johnson & Johnson, 593 F.3d 280 (3d Cir. 2010), where we held that a pharmaceutical
sales representative fell under the administrative employee exemption of the FLSA. Id.
at 285. In Smith, the plaintiff, Patty Lee Smith, was tasked with visiting an average of
ten physicians per day to extol the benefits of Johnson & Johnson’s pharmaceuticals. Id.
at 282. Baum had a similar workload. She visited eight or nine physicians per day.
Smith, in an effort to cultivate relationships with physicians, would bring food and coffee
to physicians’ offices. Id. Baum similarly organized access meals. On physician visits,
Smith “worked off of a prepared ‘message’” provided by her employer, id., just like
Baum. Numerous other similarities exist. For example, both individuals could use only
certain approved visual aids in their presentations to physicians, id., both were trained on
how to conduct a physician visit by their employer, id., and both prepared post-call notes
after physician visits, id. at 283. Thus, our conclusion that Baum exercised discretion
and independent judgment in her day-to-day activities is further supported by the
numerous similarities between Baum and Smith’s roles. See id. at 282-83.
IV.
To summarize, Baum’s salary of $1,211 per week exceeded the minimum salary
requirement of $250 per week. Her promotional activities directly related to the general

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operation of AstraZeneca because she was involved in advertising and marketing
AstraZeneca’s products. Baum’s day-to-day interactions with physicians required her to
exercise a significant amount of discretion and independent judgment. Baum chose how
she would promote AstraZeneca products to each physician in her territory. Her
approach would change depending on the physician she was visiting. Based on these
determinations, we conclude that Baum satisfied all the requirements of the PMWA’s
administrative employee exemption, and she cannot avail herself of the PMWA’s
overtime protections. Thus, we will affirm the District Court’s judgment.

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