2012 VT 69


Turnley
v. Town of Vernon (2011-351)
 
2012 VT 69
 
[Filed 10-Aug-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
first class mail at: Vermont Supreme Court, 109 State Street, Montpelier,
Vermont 05609-0801, of any errors in order that corrections may be made before
this opinion goes to press.
 
 

2012 VT 69

 

No. 2011-351

 

Kevin Turnley


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Windham Unit,


 


Civil Division


 


 


Town of Vernon


February Term, 2012


 


 


 


 


John
  P. Wesley, J.


 

Sharon L. Annis
of McCarty & Buehler, P.C., Brattleboro, for Plaintiff-Appellant.
 
John T. Leddy and Kevin J. Coyle
of McNeil, Leddy & Sheahan,
P.C., Burlington, for
  Defendant-Appellee.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Burgess and Robinson, JJ.
 
 
¶ 1.            
BURGESS, J.   Plaintiff Kevin Turnley
appeals the Windham Civil Division’s grant of summary judgment in favor of
defendant Town of Vernon.  Plaintiff, formerly the Town’s Chief of Police,
claims that he is entitled to receive overtime pay under the Federal Fair Labor
Standards Act (FLSA), 29 U.S.C. § 207(a)(1), which entitles nonexempt employees
to overtime pay for time worked in excess of forty hours in a week.  The
trial court held that plaintiff was exempt from the FLSA’s overtime
requirements because he was an “executive” employee.  We affirm.  
¶ 2.            
Plaintiff became the Town’s Chief of Police in 2006.  His
employment was governed by a verbal agreement with the Selectboard
and a written job description outlining the chief’s duties.  Plaintiff’s
salary was calculated from an hourly rate of $20.58.[1]  The Town did not promise overtime
pay when it hired plaintiff as chief.  
¶ 3.            
According to the chief’s job description, plaintiff’s duties included: 
(1)
“organiz[ing], direct[ing], and control[ing] all
resources of the department to preserve the peace, protect persons and property
and enforce the law”; (2) “designat[ing] an officer to serve as Commanding Officer in his/her
absences”; (3) “plan[ning], direct[ing], coordinat[ing], control[ing] and staff[ing] all activities of the department”; (4) “develop[ing] and supervis[ing] a training program for all members of the department”;
(5) “execut[ing] patrol and
investigative responsibilities largely through the direction of subordinate
officers and police officers” and “assum[ing] charge when important or difficult events or
investigations are in progress”; (6) “plan[ning] and
develop[ing] operating procedures . . . and enforc[ing] rules and regulations
for the department”; and (7) “assign[ing] personnel
to regular shifts.”  
 
As chief, plaintiff also had
several reporting responsibilities, which required regular updates to the Selectboard, various state authorities, and federal
agencies.  Plaintiff characterized the chief position as a “working
chief,” with policing duties as well as administrative and supervisory
functions.  
¶ 4.            
In October 2009, plaintiff sued the Town under the FLSA, seeking
compensation for allegedly unpaid overtime hours.[2]  Plaintiff asserted that the Selectboard interfered with his management of the police
department and prevented him from hiring the additional personnel needed to
meet operational demands.  As a result, plaintiff claimed, the department
was short-staffed, and he was at times forced to work more than ninety hours
per week, and was owed for as many as 1335 overtime hours. 
¶ 5.            
The Town moved for summary judgment, arguing that plaintiff was not
covered by the FLSA’s overtime requirement because the police chief was a
non-covered “executive” employee as defined by the statute.  Plaintiff
responded that he was not an executive because his primary duty was not managerial and that he was actually a “first responder,” an
executive officer still primarily responsible for ordinary police work,
entitled to overtime under the statute.  The trial court granted the
Town’s motion, agreeing that plaintiff was an executive.  
¶ 6.            
The court’s findings can be summarized as follows.  The court found
undisputed that plaintiff’s salary met the FLSA’s requirement for an executive
employee and, also meeting the statute’s criterion, that
he regularly supervised between three and five employees.  The court
further found, based on the Town’s statement of undisputed facts and
plaintiff’s deposition, that plaintiff performed the managerial duties listed
in the chief’s job description.  The court noted that plaintiff’s
responsibility for maintaining “law enforcement visibility” throughout the Town
sometimes required that he undertake patrol assignments, but concluded that it
was “unsurprising that the Chief of Police in a small, rural town would
sometimes take on certain of the tasks of the line officer.”  Finally, it
found that plaintiff hired personnel with the approval of the Selectboard, even if the board did not always agree with
his recommendations. 
¶ 7.            
The lone issue on appeal is whether the court erred in concluding that
plaintiff was an executive under the FLSA.  We apply the same
standard as the trial court when reviewing a motion for summary judgment. 
Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 158, 624 A.2d 1122, 1127
(1992).  Summary judgment is due when the party “shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”  V.R.C.P.
56(a).  “A defendant who moves for summary judgment satisfies his
legal burden when he presents, ‘at least one legally sufficient defense that
would bar plaintiff’s claim.’ ”  Gore
v. Green Mountain Lakes, 140 Vt. 262, 266, 438 A.2d 373, 375 (1981)
(quoting 10 C. Wright & A. Miller, Federal Practice and Procedure § 2734,
at 647 (1973)).  Moreover, in the face of a properly supported motion for
summary judgment, the party opposing the motion “must set forth specific facts
showing that there is a genuine issue for trial.”  V.R.C.P.
56(e) (2012).[3]
¶ 8.            
Plaintiff argues the Town did not meet its burden of proving he was not
covered by from the FLSA’s overtime requirement.  He specifically disputes
that his “primary duty” as chief was management, claiming instead that because
he spent so much time doing patrol work, he was a covered first responder under
the FLSA.  Plaintiff also maintains that, contrary to Vermont’s broad
statutory powers of police chiefs to hire and fire, his decisions were treated
as no more than suggestions accorded no particular weight by the Selectboard, so that he neither enjoyed nor exercised true
executive authority in this area.  We disagree with plaintiff’s arguments
and affirm the trial court’s conclusion that, on the undisputed facts,
plaintiff was an executive under the FLSA.
¶ 9.            
The FLSA provides that a nonexempt employee who works more than forty
hours in a week must “receive[] compensation for his employment . . . at a rate
not less than one and one-half times the regular rate at which he is
employed.”  29 U.S.C. § 207(a)(1).  Exempt
from the FLSA overtime mandate, however, are workers employed in a “bona fide
executive, administrative, or professional capacity.”  29 U.S.C. § 213(a)(1).  Federal regulations define an “executive” as 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(a).  An employer has the burden of showing that an employee
is an executive.  See Corning Glass Works v. Brennan, 417 U.S. 188,
196-97 (1974).  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” outlined in the regulations, and “[a] job title alone is
insufficient.”  Id. § 541.2.  Only
the second and fourth prongs are at issue on appeal, and we address each in
turn.[4] 

¶ 10.         “[A]n
[executive] employee’s ‘primary duty’ must be the performance of exempt work,”
that is, management.  Id. § 541.700(a). 
Relevant to management in the law-enforcement setting, the regulations explain
that:
Generally, “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 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; determining the type of materials, supplies, machinery, equipment or
tools to be used . . . ; controlling the flow and distribution of materials or
merchandise and supplies; providing for the safety and security of the
employees or the property; planning and controlling the budget; and monitoring
or implementing legal compliance measures. 
 
Id. §
541.102.  Determination of an employee’s primary duty depends on
“all the facts in a particular case, with the major emphasis on the character
of the employee’s job as a whole.”  Id. §
541.700(a).  Factors pertinent here that bear on an employee’s
primary duty include: “the relative importance of the exempt duties as compared
with other types of duties; the amount of time spent performing exempt work;
[and] the employee’s relative freedom from direct supervision.”  Id. 
Concurrent performance of both executive and non-executive functions “does not
disqualify an employee from the executive exemption if the requirements of [the
executive exemption] are otherwise met.”  Id. §
541.106(a).  If, moreover, an employee spends more than half of his
or her time performing exempt work, it will “generally satisfy the primary duty
requirement.”  Id.  
¶ 11.         In
the law enforcement context, the definition of primary duty is qualified by the
so-called “first responder” rule.  Id. § 541.3(b)(1);
see also Mullins v. City of New York, 653 F.3d 104, 110 (2d Cir. 2011)
(explaining that “first responder” rule “addresses the second element of the
executive exemption”).  Under the first responder rule, the executive
exemption does not apply to:
police
officers, detectives, deputy sheriffs, state troopers, highway patrol officers,
investigators . . . 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
the law; performing surveillance; pursuing, restraining and apprehending
suspects; detaining or supervising suspected and convicted criminals, including
those on probation or parole; interviewing witnesses; interrogating and
fingerprinting suspects; preparing investigative reports; or other similar
work.
 
29 C.F.R. § 541.3(b)(1).  Certain law enforcement personnel, therefore,
such as police sergeants or lieutenants, whose primary duty is to investigate
crimes, catch suspects, and perform other field police work, are still entitled
to overtime pay under the FLSA even though in the course of performing those
tasks they direct the work of other police officers.  Id. §
541.3(b)(2); see also Mullins, 653 F.3d at 115 (explaining that under
first responder rule police officers directing operations in the field are not
exempt from FLSA’s overtime requirements).  First responders are not
exempt executives “because their primary duty is not management of the
enterprise in which the employee is employed.”  29 C.F.R. § 541.3(b)(2) (emphasis added).  
¶ 12.         Citing
these principles, plaintiff claims that the Town did not meet its burden of
proving that he was an executive.  He argues that he was a first responder
because he was forced to take on extra patrol work that would normally be left
to a regular police officer.  Plaintiff contends alternatively that there
are disputed facts showing that, despite his nominal responsibilities, the Selectboard’s interference with his running of the police
department prevented him from serving as a manager in fact.  Plaintiff
complains, among other things, that he did not have sole discretion over such
matters as whom to hire and fire, where to service the department’s vehicles,
what hours to patrol and where to set speed traps, and how to enforce the
Town’s dog ordinance.  
¶ 13.         The
Town satisfied its burden of showing that plaintiff’s primary duty was
management.  As the trial court noted, plaintiff raised only minor
objections to the Town’s statement of undisputed material facts, which
established that he performed many of the managerial duties stated in his job
description.  Most significantly, plaintiff generally disputed the Town’s
characterization of his duties as managerial and argued that whether, and to
what extent, he had the opportunity to carry out these duties was a contested
material fact.  Plaintiff’s own deposition testimony, however, confirmed
rather than disputed that he carried out these duties, and plaintiff provided
no additional facts, as opposed to a differing viewpoint, creating a genuine
dispute about his managerial status. See V.R.C.P. 56(e) (providing that summary
judgment is appropriate where opposing party fails to present specific facts
showing a genuine issue for trial); Clayton v. Unsworth,
2010 VT 84, ¶ 30, 188 Vt. 432, 8 A.2d 1066 (affirming summary judgment where
plaintiffs failed to “identify any disputed material facts”); Progressive
Ins. Co. v. Wasoka, 2005 VT 76, ¶ 25, 178 Vt.
337, 885 A.2d 1166 (reiterating “basic principle of summary judgment” that
opponent of summary judgment may not rely on unsupported allegations). 
Drawing from his job description and deposition, plaintiff’s duties fit
squarely within the regulation’s conception of “management”  including:
(1) directing and controlling department resources and activities, including
patrol and investigation; (2) developing and supervising the training of
department personnel; (3) developing department operating procedures and
regulations; (4) making and reviewing personnel assignments; (5) preparing the
department’s budget; and (6) providing updates to local, state, and federal
authorities.  As reflected by his duties, plaintiff was a “manager” under
the FLSA.
¶ 14.         The
first responder rule does not alter this conclusion.  The first responder
rule clarifies that a law enforcement officer, primarily charged with field
operations, is not a manager simply because he or she directs the field
operations of other police officers.  It does not turn a chief of police,
whose primary duty was management, into a non-manager simply because he
functioned as a “working chief,” who, in some weeks, was forced to
perform patrol work for long hours.  See Rooney v. Town of Groton,
577 F. Supp. 2d 513, 529 (D. Mass. 2008) (stating that “an employee does not
have to spend all of his or her time—or even 50 percent of his or her time—on
their primary duty to be considered a manager”).  In his complaint,
plaintiff claims that between February 2006 and December 2008, he worked 825
“hours of overtime,” and from January 1 to September 28, 2009, he worked 510
“hours of uncompensated overtime.”  Plaintiff fails to specify the type of
work he performed during his “overtime hours.”  But, even assuming that
his figures are correct, and that all of this time was spent on non-managerial
duties, such as patrol, plaintiff does not point to specific facts showing
that, considering his regular work hours along with his “overtime hours,” his
primary duty was not management. 
¶ 15.         Moreover,
even if, to use plaintiff’s characterization, the Selectboard
did “micromanage” the department and meddle in areas more wisely left to the
chief’s discretion, it does not follow that he was under “direct supervision”
as meant by the regulations.  Rather, the regulations have in mind an
employee’s freedom from supervision by another employee, not, as here,
the relationship between a town employee and the town’s governing body. 
See Murphy v. Town of Natick, 516 F. Supp. 2d 153, 159 (D. Mass. 2007)
(explaining that police sergeants “work[ed]
relatively free from supervision and exercise[d] their judgment and discretion
without direct oversight by their commanding lieutenants” (emphasis
added)).  As chief, plaintiff had no superiors within the department and
therefore no one inside the department exercised direct supervision over his
performance.  Put differently, under plaintiff’s view, neither he, nor
any department employee, but rather the Selectboard,
was in the charge of the Vernon Police Department during his tenure as
chief.  The FLSA, on the other hand, assumes that some department employee
must have been a manager, and the evidence supports that plaintiff was the
person in charge.
¶ 16.         We
turn, finally, to the fourth prong of the executive exemption, under which the
putative manager must have “the authority to hire or fire other
employees” or the ability to make “suggestions and recommendations as to the
hiring, firing, advancement, promotion or any other change of status of other
employees” that are “given particular weight.”  29 C.F.R. § 541.100(a)(4).  Factors to consider include “whether it is part
of the employee’s job duties to make such suggestions and recommendations; the
frequency with which such suggestions and recommendations are made or
requested; and the frequency with which the employee’s suggestions and
recommendations are relied upon.”  Id. § 541.105. 
The regulations further clarify that “particular weight” is not to be confused
with absolute power, explaining that “[a]n employee’s suggestions and
recommendations may . . . have
‘particular weight’ . . . even if the employee does not have authority to make
the ultimate decision as to the employee’s change in status.”  Id. 

¶ 17.         Plaintiff
posits that the regulation on this point is further defined by applicable state
law.  He argues that 24 V.S.A. § 1931(b), which provides that “[t]he
direction and control of the entire police force . . . shall be vested in the
chief of police,” augments the FLSA’s requirement, such that the FLSA as
applied to Vermont police chiefs mandates that chiefs have sole discretion over
hiring and firing.  Applying this construct, plaintiff argues that because
he made only suggestions to the Selectboard in this
area, which were only sometimes approved, he did not have the requisite
authority as of an executive under the FLSA.  
¶ 18.         Assuming
that state law is relevant to the FLSA inquiry on this point, plaintiff
nevertheless misreads § 1931(b) as giving Vermont police chiefs the power to
hire and fire personnel free from the supervision of town government. 
Under 24 V.S.A. § 1931(a), a town’s “legislative body”—in Vernon, the Selectboard—or the town manager, “may establish a police
department and appoint police officers and a chief of police who shall be a
police officer.”  Section 1931(a) further provides that, “[s]uch legislative body or town manager may temporarily
appoint qualified persons as additional police officers when necessary, or
appoint qualified persons as temporary police officers in the event no police
department is established, shall specify the term and duties of such officers
and may fix their compensation, which may be paid by the municipality.”  Id. 
Under § 1931(a), therefore, town government is empowered to establish and
generally oversee a police department.  See Martin v. Town of
Springfield, 141 Vt. 554, 560, 450 A.2d 1135, 1139 (1982) (explaining that
Chapter 55 of Title 24 contains “general laws relative to the government of
towns” that are merely the “source of [a town’s] authority to hire police
officers” (quotation omitted)).  Read together, § 1931(a) and (b) envision
a police department created by town government, the operations of which are
directed by a chief, but which is concurrently and ultimately subject to the
authority of town government.  By itself, §  1931(b)—which,
incidentally, undercuts plaintiff’s primary-duty argument—means simply that the
chief of police is in charge of the other people who work at the police
department.  It adds nothing to the fourth FLSA requirement.
¶ 19.         As
defined by the regulations, plaintiff had the requisite hiring and firing power
of an executive.  Plaintiff testified at his deposition that he hired
personnel with “permission” of the Selectboard, and
that he made recommendations to the Board regarding hiring decisions, “some” of
which were followed.  Plaintiff also did not dispute the Town’s statement
of undisputed facts, which stated that “[h]e hired personnel with the approval
of the Town Selectboard” and that “[h]e made
recommendations about eliminating positions within his department that were
adopted by the Selectboard.”  As the trial court
concluded, this record supports that, while the Selectboard
had final say on hiring and firing decisions, plaintiff’s recommendations
influenced the Board’s decisions and, therefore, under the FLSA, plaintiff’s
suggestions carried “particular weight.” 
Affirmed. 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
Although plaintiff’s wages were calculated from an hourly rate, he received an
established weekly salary based on full-time employment that was not docked for
vacation or sick leave.  
 


[2] 
Plaintiff also sought overtime pay under 21 V.S.A. § 384, which, like the FLSA,
requires employers to pay certain employees time-and-a-half for time worked in
excess of forty hours a week.  This claim was denied below, and plaintiff
did not appeal that denial.


[3] 
For the purpose of this decision, we refer to the version of Rule 56 in effect
at the time plaintiff filed his suit.  Rule 56 has since been
amended—effective January 2012—but, under the amended rule, the party opposing
summary judgment must still point to specific facts in the record that support
the assertion that there is a genuine issue of material fact.  See V.R.C.P.
56(c)(1)(A) (stating that “[a] party asserting that a
fact . . . is genuinely disputed must support the assertion . . . with specific
citations to particular parts of materials in the record”). 


[4] 
It is undisputed that plaintiff earned a salary greater than $455 per
week.  Plaintiff stated in a deposition that he managed between three and
five employees.  



