United States District Court, D. New Hampshire
Christopher Romano, et al.
Site Acquisitions, LLC Opinion No. 2017 DNH 124
H. Johnson, Esq. Peter G. Callaghan, Esq.
MEMORANDUM AND ORDER
K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE
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). 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.
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
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.
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. 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.
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.
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.
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.
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
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.
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.
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.
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. 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.
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.
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.
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
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.
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
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”) ...