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Romano v. Site Acquisitions, LLC

United States District Court, D. New Hampshire

June 19, 2017

Christopher Romano, et al.
Site Acquisitions, LLC Opinion No. 2017 DNH 124

          Leslie H. Johnson, Esq. Peter G. Callaghan, Esq.



         Christopher Romano, Michael Petros, Shane Bruneau, Israel Carey, and Bradley Matthews (collectively the plaintiffs) bring this action against Site Acquisitions, LLC (“SAI”), alleging that SAI improperly withheld incentive bonuses that were due to the plaintiffs in 2013. SAI moves for summary judgment (doc. no. 38), and the plaintiffs object (doc. no. 41).[1] The court held a hearing on June 5, 2017. For the reasons that follow, SAI's motion is granted in part and denied in part.

         Summary Judgment Standard

         Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir. 2016). “An issue is ‘genuine' if it can be resolved in favor of either party, and a fact is ‘material' if it has the potential of affecting the outcome of the case.” Xiaoyan Tang, 821 F.3d at 215 (internal quotation marks and citations omitted). At the summary judgment stage, the court “view[s] the facts in the light most favorable to the non-moving party” and “draw[s] all reasonable inferences in the nonmovant's favor . . . .” Garmon v. Nat'l R.R. Passenger Corp., 844 F.3d 307, 312 (1st Cir. 2016) (citation and quotation marks omitted). The court will not, however, credit “conclusory allegations, improbable inferences, and unsupported speculation.” Fanning v. Fed. Trade Comm'n, 821 F.3d 164, 170 (1st Cir. 2016) (citation and quotation marks omitted) cert. denied, 137 S.Ct. 627 (2017).

         “A party moving for summary judgment must identify for the district court the portions of the record that show the absence of any genuine issue of material fact.” Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016). Once the moving party makes the required showing, “‘the burden shifts to the nonmoving party, who must, with respect to each issue on which [it] would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in [its] favor.'” Id. (citation omitted). “This demonstration must be accomplished by reference to materials of evidentiary quality, and that evidence must be more than ‘merely colorable.'” Id. (citations omitted). The nonmoving party's failure to make the requisite showing “entitles the moving party to summary judgment.” Id.


         SAI, a Massachusetts corporation, provides “turf vendor” services to telecommunications companies. Doc. no. 38-5 at 3; Affidavit of Israel Carey (doc. no. 38-2) at 50.[2] In this capacity, SAI is responsible for the “siting, modification, and installation of wireless communications facilities . . . on certain cell towers or structures.” Declaration of Shawn Hancock (doc. no. 39) ¶ 5. During all periods relevant to this case, SAI served as a turf vendor for AT&T Mobility LLC (“AT&T”). See Hancock Dec. ¶ 6-7. This relationship was memorialized in a “Turf Program Agreement, ” which the parties entered into on December 16, 2011. Id.; see also doc. no. 38-5; doc. no. 41-13.

         The Turf Program Agreement was in effect in 2013, the year most relevant to the present case. Hancock Dec. ¶ 6. During that year, SAI was responsible for modifying and installing AT&T facilities, including cell towers. Id. ¶ 8. To accomplish this work, SAI employed several of its own “tower crews, ” id., whose responsibilities included working on the ground and up on the towers at the tower sites, see, e.g., Deposition of Israel Carey (doc. no. 38-2) at 52. SAI also had dozens of additional tower crews at its disposal through subcontracts with tower companies. Hancock Dec. ¶ 8.

         In March of 2013, AT&T informed its turf vendors, including SAI, that it was initiating an incentive program (“incentive program” or “incentive bonus program”). Id. ¶ 10; see also doc. no. 38-6. This program was designed to help turf vendors “obtain[] tower crew resources.” Hancock Dec. ¶ 6; see also doc. no. 41-4, at 1. In early April, AT&T provided SAI with two policies - VCC Policy 130325 (the “325 policy”) and VCC Policy 130327 (the “327 policy”) - detailing the incentive program. Doc. no. 41-3; doc no. 41-4. At some point thereafter, AT&T provided SAI with two Power Point presentations related to the incentive program. Doc. no. 41-5; doc. no. 41-6.

         Under the incentive program, AT&T would award a series of bonuses so long as certain conditions were met. Doc. no. 41-4 at 2. The conditions, known as “drivers, ” related generally to the quality and speed of work on the towers sites. Id. Bonuses ranged from $500 to $8, 000 per driver per site, id., with a total bonus amount of $13, 000 available per site.[3]

         There is no dispute in the record that Shawn Hancock, SAI's director of construction, met with SAI's tower crews in May of 2013 to discuss the incentive bonus program (“May 2013 meeting”). Nor is there any dispute that Bruneau, Petros, Matthews, and Carey were present at that meeting. These facts are attested throughout the record, including in Bruneau, Petros, Matthews, and Carey's deposition testimony and affidavits, and Hancock's declaration.[4]

         The parties do, however, dispute what specifically was said at the May 2013 meeting, with Hancock's recollection differing considerably from the recollections of Bruneau, Petros, Matthews, and Carey. As Bruneau, Petros, Matthews, and Carey are nonmoving parties, the court must credit their accounts for the purposes of the present discussion. See Garmon, 844 F.3d at 312.[5]

         The May 2013 meeting immediately followed a regularly-scheduled safety meeting. Hancock entered at the end of the safety meeting and, according to two of the plaintiffs, waited for the electricians leave. Carey Dep. at 69, 72; Matthews Dep. at 62. Jason Rossi, an SAI construction manager who had presided over the safety meeting, remained in the room and was present at the May 2013 meeting.

         Hancock informed the tower crews that AT&T had initiated an incentive bonus program. This was the first time any of the plaintiffs had heard about this program. Hancock indicated that AT&T would pay up to $13, 000.00 in bonuses per tower site. He indicated that the full amount of any given bonus would be generally determined by the speed and quality of the work done on that site. According to two of the plaintiffs, Hancock and/or Rossi stated that the bonuses would be “huge” or “significant.” See Carey Dep. at 79; Bruneau Dep. at 55.

         Hancock indicated that the bonuses would go directly to the tower crews and that the bonuses would be paid out at the end of the year.[6] Three plaintiffs recall Hancock or Rossi stating that that Carey, a salaried employee, would also be entitled to the bonuses because he worked on the towers. Carey Dep. at 69; Bruneau Dep. at 126; Petros Dep. at 45. Two plaintiffs specifically recall Hancock instructing the tower crews not to tell other SAI employees, including electricians, about the bonuses, as those employees were not part of the incentive bonus program. See, e.g., Bruneau Dep. at 53, 70; Petros Dep. at 37. Three plaintiffs testified during their depositions that they were “excited” by the news of the incentive program due to the amount of bonus money they believed they were going to receive. See Carey Dep. at 99; Petros Dep. at 30-40; Matthews Dep. at 70.

         Romano was not present at the May 2013 meeting, as he had not yet been hired by SAI. See Deposition of Christopher Romano (doc. no. 38-13) at 73-75; Affidavit of Christopher Romano (doc. no. 41-8) ¶ 6. His understanding of the incentive bonus program developed over several months based on four separate events. See Romano Dep. at 125-29. Romano was initially informed that an incentive program existed in late May of 2013, during his interview with Rossi. Romano Aff. ¶ 3. Rossi indicated that vendors appreciated the work that tower crew members do and that he knew of a vendor that was offering incentive rewards to tower crews, but did not indicate which vendor it was or provide any additional details. Romano Dep. at 39-40; Romano Aff. ¶ 3, 5. Romano later asked Hancock about the incentive program, but was not provided any additional information. Romano Dep. at 126-27. After that conversation - on or around July 4, 2013 - Carey informed Romano that AT&T was the vendor. Id. at 127-28; Romano Aff. ¶ 7. Carey later indicated that the bonus money would be evenly distributed between the tower crew members. Romano Dep. at 127-28. Romano did not learn of the total amount AT&T might pay for each tower site until after his employment with SAI ended. Romano Aff. ¶ 10.

         Following the May 2013 meeting, the incentive bonuses were a popular topic of conversation among the tower crew members. Carey Dep. at 109; Bruneau Dep. at 67-70; Matthews Dep. at 77- 78. At some point in the late spring or early summer of 2013, the plaintiffs learned that incentive bonuses were being included in the regular paychecks of tower crews working on AT&T tower sites for SAI subcontractors. Bruneau Dep. at 67; Petros Dep. at 83. As a result, tower crew members started asking about the incentive bonuses during regular Monday safety meetings with SAI officials. Bruneau Dep. at 67-71; see also Matthews Dep. at 77-79. When asked about the bonuses, SAI officials responded with statements such as, “it's coming and you're going to get what you get, ” Bruneau Dep. at 72, and “we're working on something, ” Romano Dep. at 128.

         At their depositions, Carey, Bruneau, Petros, and Matthews each testified that they worked harder after learning of the incentive bonus program. For instance, Carey stated that the tower crews “worked longer hours to get more sites done during the week” and “tried [their] hardest to get the most out of the sites that [they] could.” Carey Dep. at 100. Bruneau similarly testified that “with the incentive, there was a lot more effort . . . . [T]here was that carrot . . . dangling in front of you. So everybody's going to run a lot faster and a lot harder to try to get that carrot.” Bruneau Dep. at 45. Petros stated that he believed Hancock “was giving [the tower crews] some kind of incentive to work longer hours and weekends” and that he worked long hours and weekends at least in part because of the incentive program. Petros Dep. at 88, 90. Matthews testified that he believed the tower crews “hustled” a little more as a result of the program. Matthews Dep. at 53. Additionally, Bruneau stated that he continued to work at SAI at least in part due what Hancock said during the May 2013 meeting. Bruneau Dep. at 132.

         Each of the plaintiffs received bonuses from SAI in December of 2013. Bruneau received a bonus of $4, 400. Bruneau Dep. at 72. Carey, Petros, and Matthews each received bonuses of $4, 100. Carey Dep. at 110-11; Petros Dep. at 48; Matthews Dep. at 47. Romano received a bonus of $3, 000. Romano Dep. at 115. SAI typically paid its employees discretionary “Christmas” bonuses at the end of each year. Though the bonuses the plaintiffs received in 2013 were larger than the “Christmas” bonuses they were awarded in other years, they were less than what the plaintiffs believed they would receive in light of the incentive bonus program. Carey Dep. at 111; Bruneau Dep. at 73; Petros Dep. at 50; Matthews Aff. ¶ 7; Romano Dep. at 115-16. Several plaintiffs believe that their 2013 bonuses were their regular “Christmas” bonuses and that they never received any of the incentive bonus money paid by AT&T. See Carey Aff. ¶ 9; Bruneau Aff. ¶ 9; Matthews Aff. ¶ 7; Romano Aff. ¶ 9.

         There is no dispute that SAI received payments from AT&T under the incentive bonus program. Hancock Dec. ¶ 20. Some of that money was passed through to the tower companies with which it subcontracted. Id. SAI allocated a portion of the payments it retained to its “discretionary annual bonus program, ” which provided bonuses to tower crew members (including the plaintiffs), construction managers, and other construction department employees. Id. ¶ 21. SAI also used some of the incentive bonus payments to purchase equipment and to pay taxes and other expenses incurred as a result of the incentive bonus program. Id.


         The plaintiffs allege that SAI unlawfully retained some or all of the incentive bonus money paid by AT&T for the work they performed on AT&T towers during 2013. Their third amended complaint is comprised of five counts. All five plaintiffs bring counts of breach of contract under a third-party beneficiary theory (“Count I”); breach of contract under a promissory estoppel theory (“Count II”); and unjust enrichment (“Count III”). All of the plaintiffs other than Carey also bring counts for failure to pay overtime wages in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(a)(3)(c) (“Count IV”) ...

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