Turnley v. Town of Vernon, No. 544-10-09 Wmcv (Wesley, J., Aug. 12, 2011) 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

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STATE OF VERMONT 

SUPERIOR COURT CIVIL DIVISION 

Windham Unit Docket No. 544-10-09 Wmcv 

Kevin Turnley 

 Plaintiff 

 v. 

Town of Vernon 

 Defendant 

Order Granting 

Defendant’s Motion for Summary Judgment 

Plaintiff, Kevin Turnley, has accused the Defendant, Town of Vernon, of violating state 

and federal employment law for failing to compensate him for overtime. See 29 U.S.C. § 

207(a)(1); 21 V.S.A. § 384(b). Defendant, Town of Vernon, seeks summary judgment on these 

claims as a matter of law on the grounds that: 1) Vermont’s wage and hours laws do not apply to 

town employees; and 2) Plaintiff qualifies as an employee who is “exempt” from overtime pay 

requirements under the Federal Fair Labor Standards Act (“FLSA”). Concluding that 

Defendant’s arguments are sound on the law when applied to the undisputed facts, the Court 

grants Defendant’s Motion for Summary Judgment.. 

Facts 

In 1994, the Town of Vernon hired Plaintiff as a police officer. After a brief hiatus, when 

Plaintiff returned in 2002, he was again employed as a police officer. In 2003, Plaintiff was 

promoted to the position of sergeant. On September 25, 2005, he was appointed Acting Chief of 

the Vernon Police, and on February 26, 2006, Plaintiff was appointed Chief of Police, the 

position he held at the commencement of this action.

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Plaintiff was compensated as Chief on a salary basis at a rate not less than $455 per week, 

and received a predetermined amount each week that constituted his salary whether or not he 

actually was engaged in duties on behalf of the Town, i.e. Plaintiff’s pay was not docked when 

he was on vacation or out sick. When he was hired as Chief, Plaintiff was not promised overtime 

pay. 

The job description for Chief of Police for the Town of Vernon lists a series of 

managerial duties and responsibilities. For example, the Chief would be responsible for, inter 

alia : 1) organizing, directing and controlling all resources of the department necessary for crime 

prevention and investigation; 2) designating a subordinate officer to serve as Commanding 

 

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 Plaintiff was subsequently terminated as Chief for reasons not directly germane to this action for overtime pay. The 

circumstances of the termination are the subject of a separate lawsuit in Doc. No. 13-1-10 Wmcv. 
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Officer in his absence; 3) planning, directing, coordinating, controlling and staffing all activities 

of the police department; 4) developing and supervising a training program for all members of 

the department through the development and implementation of a training committee; 5) 

executing patrol and investigative responsibilities largely through the direction of subordinate 

officers and police officers, but assuming charge as Chief of Police when important or difficult 

events or investigations were in progress; 6) planning and developing operating procedures and 

police functions; 7) prescribing and enforcing rules and regulations for the department; and 8) 

assigning personnel to regular shifts and reviewing these assignments periodically. 

As Chief of Police, Plaintiff performed the responsibilities that were part of the ‘job 

description’ for the position. Plaintiff, at one time or another, supervised between three and five 

subordinate employees. He hired personnel with the approval of the Town Selectboard. He 

made recommendations about eliminating positions within the department that were adopted by 

the Selectboard, though the Selectboard did not always agree with Plaintiff’s personnel 

decisions. Plaintiff prepared the department’s annual budget, which was subject to review and 

revision by the Selectboard. As Chief, Plaintiff assumed supervisory control for patrol 

assignments, and maintaining “law enforcement visibility” throughout the town, which included 

undertaking patrol assignments himself. 

Standard 

Summary judgment is appropriate when the moving party has demonstrated that there are 

no genuine issues of material fact that would preclude it from being entitled to judgment as a 

matter of law. State of Vermont v. G.S. Blodgett Co., 163 Vt. 175, 180 (1995); V.R.C.P. 56(c). 

The non-moving party is entitled to the benefit of all reasonable doubts and inferences in 

determining whether genuine issues of material fact exist. Wilcox v. Village of Manchester 

Zoning Bd. Adj., 159 Vt. 23, 26 (1992); Hodgdon v. Mt. Mansfield Co., Inc., 160 Vt. 150, 158-

59 (1992). The nonmoving party may survive the motion if it responds with specific facts 

raising a triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving 

party fails to establish an essential element of its case on which it has the burden of proof at trial, 

the moving party is entitled to summary judgment as a matter of law. Id. Accordingly, a party 

opposing summary judgments may not rest on allegations unsupported by evidence. Morais v. 

Yee, 162 Vt. 366, 370 (1994). Allegations alone do not create issues of material fact. Lucas v. 

Hahn, 162 Vt. 456, 458 (1994). 

 An additional burden is placed on Defendant in this instance, since by raising a defense 

that Plaintiff qualifies as an employee exempt from FLSA’s provisions regarding overtime pay, 

Defendant bears the burden of proving the exemption’s applicability. Corning Glass Works v. 

Brennan, 417 U.S. 188, 196-97 (1974). 

 

Plaintiff’s State Wage and Hour Claims 

Vermont law obliges an employer to pay employees time-and-a-half for hours worked in 

excess of 40 hours during a workweek. 21 V.S.A. § 384. However, this requirement “shall not 

apply to . . . [t]hose employees of a political subdivision of this state.” Id. at § 384(b)(6). 

Defendant asserts that it is indisputable that Plaintiff is an employee of the Town of Vernon, and 
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that the Town is a political subdivision of the State. See Richards v. Town of Norwich, 169 Vt. 

44, 47 (1999)( “The Town of Norwich is a political subdivision of the state and the selectboard is 

a board thereof”); see also, Corcoran v. Department of Employment and Training, 2005 VT 52, ¶ 

4 (Town Clerk not liable for payment of unemployment taxes for his employees since the office 

is a political subdivision of the State); In re Reapportionment of Towns of Woodbury & 

Worcester , 2004 VT 92, ¶ 2 (recognizing the reference in the Vt. Constitution to towns as 

political subdivisions of the State). 

 In response, Plaintiff notes that the statute fails to define “political subdivision,” and that 

none of the cases Defendant has cited in its brief directly addresses the provisions of 21 V.S.A. 

§384. This argument borders on the frivolous. See, 17 V.S.A.§ 2103(24) (“’Political 

subdivision’ means any county, municipality (including cities, towns and villages), school 

district, fire district, water, sewer or utility district, ward and consolidation of the foregoing 

entities authorized under the laws of this state”).

 Where the Legislature's intent can be ascertained from the plain meaning of the statute, 

Vermont’s courts interpret the statute according to the words the Legislature used. Herald Ass'n, 

Inc. v. Dean, 174 Vt. 350, 354-55 (2002). Here, a plain reading of the statute leaves the Court 

with no choice but to conclude that the Town of Vernon is a “political subdivision of this state” 

as a matter of Constitutional and statutory definition, and that Plaintiff is an employee of the 

Town. Plaintiff’s claim for unpaid overtime pursuant to Vermont statute must therefore fail as a 

matter of law, and Defendant is granted summary judgment with respect to Plaintiff’s state law 

claims. 

Plaintiff’s Claims under FLSA 

Defendant next asserts that it is entitled to summary judgment on any federal claim raised 

by the complaint, because Plaintiff is an exempt executive/administrative employee under the 

Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207; 29 U.S.C. § 213(a)(1), and thus not 

entitled to overtime pay. Plaintiff disagrees and counters that: 1) a genuine issue of material fact 

exists regarding whether Plaintiff qualifies as an exempt employee under FLSA, and 2) 

Defendant has failed to carry its legal burden to prove that Plaintiff is exempt. 

FLSA’s provisions provide that unless otherwise exempted, no employer shall employ 

any of his employees for a workweek longer than forty hours unless such employee receives 

compensation for his employment in excess of the forty hours at a rate not less than one and onehalf times the regular rate at which he is employed. 29 U.S.C. § 207(a)(1). However, the 

overtime provision will not apply to any employee employed in a bona fide executive, 

administrative2

, or professional capacity. 29 U.S.C. §213(a)(1). 

Whether employees’ “particular activities excluded them from the overtime benefits of 

the FLSA is a question of law.” Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986). 

The burden of proving that an employee is exempt rests on the employer. See Idaho Sheet Metal 

Works, Inc. v. Wirtz, 383 U.S. 190, 209 (1966). 

 

2

 Because the Court finds that Plaintiff qualifies as an exempt executive employee for purposes of FLSA’s overtime 

provisions, the Court will not decide whether Plaintiff may also be classified as an exempt administrator. 
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A job title, description, or resume alone is insufficient to establish the exempt status of an 

employee, but rather, the exempt or nonexempt status of any particular employee must be 

determined on the basis of whether the employee's salary and duties meet the requirements of the 

regulations. 29 C.F.R. § 541.2. The term “employee employed in a bona fide executive 

capacity” shall mean any employee: 

(1) Compensated on a salary basis at a rate of not less than $455 per week; 

(2) Whose primary duty is management of the enterprise in which the employee is 

employed or of a customarily recognized department or subdivision thereof; 

(3) Who customarily and regularly directs the work of two or more other 

employees; and 

(4) Who has the authority to hire or fire other employees or whose suggestions 

and recommendations as to the hiring, firing, advancement, promotion or any 

other change of status of other employees are given particular weight. 

29 C.F.R. § 541.100. 

To begin, it is undisputed that Plaintiff’s salary was not less than $455 a week. It is also 

undisputed that Plaintiff customarily and regularly directed the work of at least two employees. 

Further, an exempt executive is not required to possess full authority to make the ultimate 

decision regarding another employee’s employment status; i.e. when a higher level manager or a 

personnel board makes the final hiring, promotion, or termination decision. 69 Fed. Reg. at 

22,131. Rather, the exemption can apply if the executive employee in question makes 

recommendations for changes in employment status that carry “particular weight.” 29. C.F.R. § 

541.100(a) (4). So long as superior officers play an influential rule in interviewing candidates, 

evaluating potential promotions and meting out discipline, they can still qualify for the executive 

exemption. See Murphy v. Town of Natick, 516 F.Supp. 2d 153 (D.Mass. 2007). In this case,

although personnel decisions were often ultimately left to the Town Selectboard, it is undisputed 

that Plaintiff was in a position to influence such personnel decisions, thus satisfying this prong of 

the regulation. 

Based on this analysis, the Court’s only remaining consideration in determining whether 

Plaintiff qualifies as an exempt executive is whether his “primary duty” was management. The 

term “primary duty” means the principal, main, major or most important duty that the employee 

performs. 29 C.F.R. § 541.700(a). Determination of an employee's primary duty must be based 

on all the facts in a particular case, with the major emphasis on the character of the employee's 

job as a whole. Factors to consider when determining the primary duty of an employee include, 

but are not limited to, the relative importance of the exempt duties as compared with other types 

of duties; the amount of time spent performing exempt work; the employee's relative freedom 

from direct supervision; and the relationship between the employee's salary and the wages paid 

to other employees for the kind of nonexempt work performed by the employee. Id. 

Further, the term “management” includes, but is not limited to, activities such as 

interviewing, selecting, and training of employees; setting and adjusting their rates of pay and 

hours of work; directing the work of employees; appraising employees' productivity and 
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efficiency for the purpose of recommending promotions or other changes in status; handling 

employee complaints and grievances; disciplining employees; planning the work; determining 

the techniques to be used; apportioning the work among the employees; planning and controlling 

the budget; and monitoring or implementing legal compliance measures. 29 C.F.R. § 541.102. 

Additionally, concurrent performance of exempt and nonexempt work does not 

necessarily disqualify an employee from the executive exemption. Id. Generally, exempt 

executives make the decision regarding when to perform nonexempt duties, and remain 

responsible for the success or failure of business operations under their management while 

performing the nonexempt work. 29 C.F.R. § 541.106. In contrast, the nonexempt employee 

generally is directed by a supervisor to perform the exempt work, or performs the exempt work 

for defined time periods. Id. 

The amount of time spent performing exempt work can be a useful guide in determining 

whether exempt work is the primary duty of an employee. Id. at (b). Thus, employees who 

spend more than 50 percent of their time performing exempt work will generally satisfy the 

primary duty requirement. Time alone, however, is not the sole test, and employees who do not 

spend more than 50 percent of their time performing exempt duties may nonetheless meet the 

primary duty requirement if the other factors support such a conclusion. Id. 

FLSA’s exemptions specifically do not apply to police officers, detectives, deputy 

sheriffs, state troopers, and similar employees, regardless of rank or pay level, who perform work 

such as: preventing or detecting crimes; conducting investigations or inspections for violations of 

law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or 

supervising suspected and convicted criminals, interviewing witnesses; interrogating and 

fingerprinting suspects; preparing investigative reports; or other similar work. 29 C.F.R. § 541.3 

Such so-called “first responders” do not qualify as exempt executive employees because their 

primary duty is not management of the enterprise in which the employee is employed. Id. Thus, 

for example, a police officer or fire fighter whose primary duty is to investigate crimes or fight 

fires is not exempt under the Act merely because the police officer or fire fighter also directs the 

work of other employees in the conduct of an investigation or fighting a fire. Id. 

Defendant insists that as Chief of Police, Plaintiff was hired to be the executive officer of 

the Department, with explicit managerial responsibility for the functioning of the agency, 

including the supervision of all other officers involved in protecting and serving the public. 

Defendant further maintains that no construction of the undisputed facts counters the conclusion 

that Plaintiff’s duties were primarily managerial in nature. Plaintiff claims, however, that in 

reality, he was forced into being a de facto police officer, notwithstanding his job title and 

whatever responsibilities and duties appear within the ‘Job Description’ for Chief of Police 

published by the Town. He attributes this status to Defendant Selectboard’s supervening control 

over the Vernon Police Department, and it’s refusal to adequately staff the force, resulting in 

Plaintiff’s claims of having no choice but to work approximately 825 hours of what he 

characterizes as overtime labor. By his description, Plaintiff actually assumed duties akin to a 

“working chief’s” position, and that as a result of his managerial authority being countermanded 

by the Selectboard, he was forced to work hundreds of overtime hours doing the job of a patrol 

officer. Thus, he maintains that a material issue of fact persists as to whether he actually 
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exercised primary managerial responsibility consistent with an executive position exempt for the 

FLSA. 

As to the state of the summary judgment record, Plaintiff argues that Defendant has not 

demonstrated the nature or extent of Plaintiff’s non-exempt duties, the extent of Plaintiff’s 

exempt duties, nor any facts to evince Plaintiff’s actual daily duties as Police Chief. Plaintiff 

urges the Court to not simply rely on the supposition that Plaintiff had the “opportunity” to 

engage in exempt-duties, but that it must have “evidence regarding the actual day to day 

activities of the employee rather than more general job descriptions contained in resumes, 

position descriptions, and performance evaluations.” Schaefer v. Ind. Mich. Power. Co., 358 

F.3d 394, 400 (6th Cir. 2004). In this vein, Plaintiff claims that whether the nature and extent of 

the duties Plaintiff engaged in were primarily managerial in nature or primarily non-exempt 

duties is a genuine material fact still in dispute, precluding the award of summary judgment to 

Defendant. Nevertheless, the Court does not agree and concludes that there can be no reasonable 

dispute that Plaintiff’s primary duty was managerial by its nature and as he carried it out. 

It is unsurprising that the Chief of Police in a small, rural town would sometimes take on 

certain of the tasks of a line officer – including patrol, investigation, report writing, etc. - within 

a police department employing no more than five or six employees at one time. Indeed, any 

claim that Plaintiff qualifies under the so-called “first responders” exception to the exemption 

from FLSA for executive employees is undermined as a matter of fact by Plaintiff’s failure to 

illicit any evidence, including his own sworn testimony, that he substantially functioned as a 

first-responder. Compare, Jackson v City of Antonio, 2006 WL 2548545 (W.D. Tex. 2006) 

(relying on plaintiff’s affidavit that he regularly performed the duties denoted by the first 

responder exception). 

Further, as demonstrated by the cases on which Defendant relies, “the first responder 

regulation does not preclude any analysis of whether an employee qualifies as an exempt 

executive or administrative employee.” Maestas v. Day & Zimmerman, LLC, 2010 WL 5625914 

(D.N.M. 2010) (rejecting plaintiffs’ characterization of themselves as first responders, since, 

despite the duty to respond to an emergency in their immediate vicinity, “their primary purpose 

is to manage the response”). Following the adoption of the “first responder” exemption, highranking police officers remain exempt from overtime pay when their primary duty is 

management. See Wage & Hour Opinion Letter, FLSA 2005-40 (Oct. 14, 2005) (available at 

2005 WL 3308611). As the court held in Rooney v. Town of Groton, 577 F.Supp. 3d 513 (D. 

Mass. 2008): 

There may be times when Rooney participates in crime prevention activities and, 

of course, the overall purpose of the Police Department is to prevent crime. 

However, the plaintiff's primary duty is none of those listed in the first responder 

regulation. 

Id.at 536. Similarly, in another case with facts closely related to those at issue here, the court 

rejected the claim of a chief of a small police department who sued his municipal employer after 

a falling out with his political superiors: 
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The Court finds Bennett fails to raise a material issue of fact as to the City's 

entitlement to the defense that Bennett was exempt as an executive employee. 

Bennett testified that he “supposedly” managed the Department, and the list of 

duties he admits he performed shows that he acted primarily as manager of the 

Department. While these duties may not have taken up a great percentage of his 

time, there is no evidence to dispute that his managerial duties were more 

significant than the time he spent performing those duties. 

Bennett v. City of Gould, 2007 WL 1288612, (E.D.Ark. 2007). 

As Defendant maintains, Plaintiff offers no dispute as to all but three of Defendant’s 

Statement of Undisputed Facts, which set out the wide array of management responsibilities for 

which Plaintiff was responsible, and performed, as Vernon’s police chief. The claim of dispute 

with the remainder of Defendant’s statements justifies its labeling them a “quibble”. Plaintiff 

purports to dispute Defendant’s proffer of the job description published at the time he was hired, 

but he offers no alternative and does not raise a material dispute as to the authenticity of the 

document he reviewed at his deposition. Furthermore, the descriptions of Plaintiff’s 

responsibilities as chief of police, which Plaintiff does not dispute, can lead to no other 

conclusion but that his primary responsibilities were managerial. See Anderson v. City of 

Cleveland, Tenn, 90 F.Supp. 2d 906, 913, 920 (E.D.Tenn. 2001); Nickell v. City of Lawrence, 

Kan., 352 F.Supp. 2d 1147, 1160 (D.Kan. 2004). 

 

Finally, Plaintiff’s opposition to summary judgment is unaided by the claim that the 

Selectboard exercised “over controlling supervision of his work,” which allegedly resulted in his 

“inability to exercise control and discretion over budget, resources and staffing.” This resembles 

the argument rejected in Bennett that the police chief only “supposedly” managed the

department after ongoing dissension with his political superiors assuredly undermined his 

authority. Plaintiff offers no authority for the proposition that FSLA’s exemption for executive 

and administrative employees may be forfeited by an executive’s claim that his authority was 

improperly infringed by his employer. 

Consequently, the Court finds that Defendant has met its burden of demonstrating that it 

is entitled to summary judgment as to Plaintiff’s claims under FLSA’s overtime provisions. 

ORDER 

WHEREFORE it is hereby ORDERED: Plaintiff’s Motion for Summary Judgment is

GRANTED. 

Dated at Newfane, Vermont this 12th day of August, 2011. 

 _____________________________ 

 John P. Wesley 

 Presiding Judge