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finding to contrary but noting absence of "any Massachusetts cases which confront the issue of preclusion for the prevailing wage statute"
Summary of this case from Donis v. Am. Waste Servs., LLCOpinion
CIVIL ACTION NO. 07-cv-11928-DPW.
September 10, 2009
MEMORANDUM AND ORDER
Plaintiff Albert Tomei brings this diversity action on behalf of himself and others similarly situated, for non-payment of prevailing wages and overtime, against Defendants Corix Utilities (U.S.) Inc. ("Corix"), Brett Hodson and Michael Jordan. Tomei is a former Corix employee who contends he was paid below the minimum wage rates required under Mass. Gen. Laws ch. 149, § 27 and ch. 151, § 1A, for his employment on a public works project in Medford, Massachusetts. Tomei also asserts claims for retaliation, breach of contract, quantum meruit, and unjust enrichment. Defendants contend that Tomei was a salaried managerial employee who was not entitled to receive prevailing wages or overtime pay under Massachusetts law. Defendants have moved for summary judgment as to all claims. Tomei opposes Defendants' motion and has cross-moved for partial summary judgment as to Count I, his claim for non-payment of prevailing wages and overtime. For the reasons discussed below, I will deny summary judgment to both parties on Count I, and I will deny Defendants' summary judgment motion as to Count III (breach of contract). However, I will grant Defendants' summary judgment motion as to all other claims.
Tomei initially filed a motion under Fed.R.Civ.P. 56(f) for relief from responding to Defendants' summary judgment motion until certain discovery issues were resolved. Those issues have now been resolved and Tomei has filed his opposition brief, I will deny the Rule 56(f) motion as moot.
I. BACKGROUND
This factual discussion is drawn from the parties' statements of facts and accompanying exhibits, including the depositions of Plaintiff Albert Tomei (Dkt. No. 17, Ex. 4) and Corix Vice President Kevin Meagher (Dkt. No. 17, Ex. 6).
A. The Parties
Defendant Corix is a Delaware corporation with a principal place of business in Wisconsin and a regional office in Boston. Corix provides utilities services and consulting work for municipalities and privately-owned utilities companies across North America. Since its original predecessor business began in 1995, Corix has undergone several changes to its name, ownership, and corporate structure. For purposes of clarity and consistency, I will refer to the corporation as "Corix" throughout this Memorandum and Order, even when discussing events that occurred before it adopted that name.
The two individual Defendants, Brett Hodson and Michael Jordan, were Corix corporate officers at all times relevant to this case. Hodson, a British Columbia resident, was the Chief Executive Officer and President. Jordan, a Wisconsin resident, was the Vice President and General Manager. Tomei is a Rhode Island resident.
B. Tomei's Early Employment at Corix
Tomei began his employment with Corix in December 1996 as a site manager. By March 1997, he was promoted to the position of project manager. In both positions, Tomei received a regular salary and health benefits. At his deposition, Tomei contended that despite his formal title, "from what I was doing, I didn't see me doing management duties." According to Tomei, his job responsibilities primarily involved reading and replacing gas, electric, and water meters; he also did plumbing, re-piping and fitting work. Tomei found his lack of higher-level duties frustrating; he felt a project manager should have the power to hire and fire other personnel and "[t]o be able to run the project the way you think it should work."
C. The Medford Project Contract
On January 31, 2005, Corix and the City of Medford ("the City") entered a contract in which Corix agreed to replace and repair the City's water meters and related equipment ("the Medford Project"). Corix Vice President Kevin Meagher explained that for each meter:
An installer [would need to] go to a premise . . . shut the water off, remove the existing meter that is in the house, install a new meter, which has a transmitting device, an MTU attached to it, secure the MTU to either a rafter or a pipe or something that is within the meter set configuration, complete the information on his handheld, or in this case, most of it was done on paper . . . and then move on to the next job.
The project called for approximately 25,000 water meters to be replaced and installed in this manner. The agreement would terminate either one year from its effective date or at the completion of the work described in Corix's bid documents, whichever was earlier, unless the parties executed a written amendment "to renew or extend" the contract. According to Meagher, "the contract called for a 95 percent satisfaction [of the water meter installations], which deemed the contract as complete."
According to Meagher, each installation would take from twenty to ninety minutes, and an installer could complete anywhere from three to twelve installations per day, depending on access availability.
The bid documents referenced in the contract have not been provided in the record.
Article XIV of the contract was titled "Weekly Payroll Records Report." It provided that "[i]n accordance with Massachusetts General Law c. 149, s. 27B, a true and accurate record must be kept of all individuals employed on a public works project for which prevailing wage rates are applicable." The provision further indicated that "every contractor and subcontractor is required to submit, on a weekly basis, a copy of their weekly payroll records to the awarding authority." It is undisputed that the Massachusetts prevailing wage statute applied to the water meter installers employed by Corix for the project.
D. Tomei as Project Manager on the Medford Project
In March 2005, Tomei's supervisor Bob Hornak contacted him about the Medford Project. Hornak gave Tomei a choice as to whether he would "go there as manager or as an installer." The statutory prevailing wage rate for a water meter installer or plumber in March 2005 was $55.50 per hour. As a project manager, Tomei earned about $47,000 annually; therefore, with a work week of at least forty hours, he would earn no more than $23 per hour. Nevertheless, Tomei told Hornak he would prefer to keep his project manager position. Project managers at Corix had a "more enriched benefit plan" than water meter installers and had a better chance of continuing employment with the company at the conclusion of a project. At his deposition, however, Tomei explained that the risk of losing health insurance benefits was not a factor in his decision. Rather, he turned down the more physically demanding installer job because of his injured knee, which required ongoing orthopedic treatment.
According to Tomei, he could "go on state" and "get benefits either way." (Tomei Dep. 71:1-13.)
Tomei began his assignment on the Medford Project on April 4, 2005. He worked out of an office in Burlington, Massachusetts, which was also the base location for the project's water meter installers. The Corix project manager job description indicated that his duties would include "coordinat[ing] all phases of meter reading and/or meter installation projects." According to Kevin Meagher, Tomei was responsible specifically:
The exhibit identified by Tomei as the Corix project manager job description is in reality the Corix job description for a water meter installer. (Dkt. No. 23, Ex. G.) However, Defendants do not dispute that Tomei has accurately characterized the Corix project manager job description.
for coordinating the daily work activities for the field installers, for reviewing the exception reports that came from the technology vendor system, and responding to any of the anomalies or actions that would have indicated the technology was not transmitting data, ensuring that the project was on schedule based on the project schedule that was established originally with their contract . . . managing the office staff and inputting pay information for field installers, and general responsibility for the office and warehouse.
Meagher also indicated that Tomei could submit purchase orders for necessary tools or equipment (id. at 96:10-11) and was responsible for signing off on the service order forms for each water meter installation. Tomei disputes several aspects of Meagher's description of his job. Tomei contends that he had no responsibilities related to scheduling installers or making sure they went to the correct locations. He also contends that he had no work related to payroll. According to Tomei, his office duties were generally limited to double-checking the work of the office secretaries and performing undefined "warehouse work."
Tomei testified that the bulk of his actual daily responsibilities involved the same type of physical field work that was done by the water meter installers. Tomei personally installed water meters, conducted repairs on meters improperly installed by other Corix employees, and performed various types of plumbing work. According to Tomei, he "installed all day long" and only performed his office work "[a]t nighttime." Meagher acknowledged that the project manager was required to do some field work, because he was responsible for investigating and fixing any problems that developed with the meter installations. This included improper wiring, leaks, notifications that a meter's "tamper flag" had been tipped, or reports from a meter showing "zero consumption" (i.e., no water usage). To fulfill these responsibilities, a project manager was expected typically to work more than forty hours per week, even though he was not eligible for overtime pay.) According to Meagher, the long hours plus the combination of office work and field work was why being a project manager was "a tough job."
The parties also dispute the extent of Tomei's authority as project manager to hire and fire other personnel. According to Defendants, Tomei could submit requests for terminating any clerical staff employees or field installers. Meagher indicated that Tomei "had a hard time keeping a clerical staff," and had requested terminating staff members "four or five times" during the Medford Project; Tomei had also requested terminating "[t]wo or three" water meter installers for poor performance. Once the termination requests were approved by supervisor Bob Hornak and the HR department, Tomei would be permitted to fire the employee in question. Meagher further testified that Tomei "could hire whoever he wanted to" within the project's budget, so long as there were no obstacles regarding an applicant's qualifications or background check.
Tomei, on the other hand, insists that he made no personnel decisions and was merely a "middleman" between Bob Hornak and the rest of the staff. Tomei acknowledged, however, that he did play a role in several terminations. According to Tomei, after he frequently complained to Hornak about two office secretaries, "[e]ventually [Hornak] told me to get rid of them." Tomei also acknowledged that he personally terminated three water meter installers whose poor work performance was "making me and the installers to go out and do a lot of extra work . . . [such as] [g]o out and reinstall an install that's already been done." For one of these installers, Tomei filed several disciplinary reports, the last of which expressly recommended that the installer be fired. Tomei contends that he prepared all of these disciplinary reports and termination notices at the direct behest of Hornak, and he merely wrote "[w]hatever I was told to write in [the] write-up." Tomei also testified that he asked Hornak to hire additional installers after the terminations, but his request was refused.
Tomei's wife was thereafter hired for secretarial duties, although she was unpaid for her first few months at the office.
E. Tomei's Work Records
There is no official record of the hours Tomei worked during the first stage of the Medford Project, from April 4, 2005 through March 30, 2006. Tomei contends that when he first arrived in Medford in April 2005, Bob Hornak expressly instructed him not to keep any time sheets to track his working hours. Tomei further contends that Hornak told him to record any of his field work for the project, such as water meters installations or plumbing activities, under the names of other employees.
Tomei claims that he independently kept track of his working hours in a personal notebook, which he started at the beginning of his assignment in Medford. Tomei had never used a notebook during previous projects, but he decided to "start[] keeping track of everything" after employees at the water department questioned why he was performing water meter installations if he was not being paid prevailing wages. Tomei did not record any specific information about his work in the notebook, but merely noted the total number of hours he worked each day. (Id. at 112:16-18.) At his deposition, Tomei explained that he was unable to produce the notebook for this litigation because he had stored it in his basement after the Medford Project, and he had thrown it out when he discovered it was "wrecked in mold."
At his deposition, Tomei initially stated that he began keeping the notebook after a conversation at city hall with the Medford mayor in the fall of 2005. Tomei later indicated that he began the notebook much earlier, after his conversations with water department employees.
Individual service reports were required to be filed for every meter installation during the Medford Project. No such reports, however, have been provided for the record in this case. According to Defendants, only one installation service order out of the 12,800 in Corix's files identified Tomei as the person who had performed the meter installation. During discovery, Tomei produced twelve additional service orders for installations he performed from April 4, 2005 through March 30, 2006.
Tomei also submitted twenty documents titled "Medford Large Meter Blank Survey Form" as exhibits to his summary judgment brief. Each document lists "Albert Tomei" under the headings "Inspected by" and "Name of Installer." There is no signature on any of the forms, and Tomei has provided no evidence, or even any explanation, as to what the forms represent and what information they contain. Furthermore, the forms are all dated in March 2005, before Tomei began work on the Medford Project. Accordingly, I find that these documents irrelevant for purposes of summary judgment.
F. The March 2006 "Change Order"
In March 2006, the City submitted to Corix a "Change Order Request" in connection with the Medford Project. The request acknowledged that Corix had "met the contract requirements" of completing installations for 95% of the City's water meters. The City noted, however, that "[w]e still have 650 meters that need to be changed. The last of these accounts will be slow and difficult. We need the addition [sic] time to complete this project." Corix consented to the Change Order, which set forth a description of the parties' new arrangement:
It is unclear from the record why the initial stage of the Medford Project had continued beyond January 31, 2006, which was one year after the effective date of the original contract. Given that the March 2006 Change Order request is labeled "Change Order No. 2," it is possible that an earlier Change Order extended the time for completion of the project.
As per our contract of twelve months and having satisfied the 95% 'substantial completion' clause in Section 4.43, [Corix] will be terminating regular project operations effective March 31, 2006. As discussed, for a period of 30 days, the [Corix] Project Manager will remain on site to provide additional installations and perform other duties as assigned. This period may be extended as agreed upon by both parties.
Defendants in their briefing refer to the Change Order agreement as a "punch list assignment." A "punch list" is "a list of usually minor tasks to be completed at the end of a project." Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/punch list (last visited Aug. 11, 2009).
The Change Order also listed additional costs for the City going forward, including $85 per hour for the ongoing services of Corix's project manager. In the earlier stage of the Medford Project, Corix had charged the City on a per-unit basis for each water meter installation.
After the Change Order became effective, Tomei retained his position as Corix's project manager in Medford. Unlike the first stage of the Medford Project, when Corix employed a team of seven to nine water meter installers, Tomei was now the only Corix employee responsible for installation work required by the City. Kevin Meagher acknowledged that Tomei's duties during this stage included "[w]hatever the City of Medford directed him to do. At that point in time, we no longer were controlling the work flow." Although Meagher was aware that Tomei would be performing water meter installations, he believed it was unnecessary for Corix to pay him prevailing wages. According to Meagher, this was because "[i]t wasn't his primary responsibility, he wasn't just an installer." Meagher also explained that he didn't investigate the applicability of prevailing wages because "[t]he City of Medford didn't require it of me as they did the first time around."
Tomei ultimately continued performing his project manager duties in Medford for about five more months, until August 18, 2006. Throughout this time, Tomei continued to receive his regular salary and benefits from Corix. He submitted his working hours to the Corix data management system, and Corix would in turn bill the City for his services. Neither Tomei nor Corix recorded any distinction for different types of work that Tomei performed. Tomei's payroll report from this period shows a total of 720 hours, never exceeding forty hours in a single week.
G. After the Medford Project
Tomei worked for Corix for approximately seven months after he concluded his assignment in Medford. He next worked as a project manager in Virginia and was later assigned to be a meter reader in New Hampshire. In both locations, Tomei received his regular project manager salary and benefits.
Tomei indicated that at some time in January 2007, Bruce Teal, the Corix Director of Sales and Operations, called him to discuss a potential new project in Medford. Tomei responded by telling Teal that he had not received prevailing wages for his previous Medford assignment, and he wanted to receive them for the new project. According to Tomei, Teal became angry and threatened to cut Tomei's pay and to have Corix stop covering his travel costs. Teal also suggested that Tomei should seek a job directly from the City of Medford, which had offered him a position in the past. After this conversation, Tomei's salary and benefits with Corix appear to have remained the same, and Teal later informed Tomei that Medford had cancelled the new project.
On January 16, 2007, Tomei filed a complaint with the Massachusetts Attorney General's office, alleging that he had been improperly denied prevailing wages for his work on the Medford Project. In a letter attached to the "Prevailing Wage Rate Complaint Form," Tomei characterized his experience on the Medford Project as follows:
I was supposed to start as just the project manager. They were supposed to have a guy for plumbing repairs to follow around after the guys. The [sic] never got a plumbing guy and when I asked they said they under bided [sic] the project so I would have to do all the plumbing repairs myself. Throughout the days I spent out in the field doing repairs, plumbing repairs and checking other guys [sic] work. . . . At nighttime is when I did my management work. . . . Later on they did a service contract and I was told that I would be doing all the installs and all the repairs. . . .
Tomei listed his hours worked as 2,088 hours under the Job Title: "Hired on to do Project Manager did other jobs that went in my management position [sic]." He also listed 713.5 hours under the Job Title: "They redid the contract had me doing straight installs. My wife was the office person taking care of the office end."
At his deposition, Tomei explained that he derived this number of hours from the records in his personal notebook, which he subsequently threw out. (Tomei Dep. 112:16-23.)
On January 31, 2007, an investigator from the Massachusetts Attorney General's Office sent an email to Donald Ouellette, a Medford city official who had been involved with the Medford Project. The investigator requested "all certified payroll records submitted to the City by [Corix], as well as a prevailing wage rate sheet, and any contracts the City ha[d] entered into with [Corix] during the last two years." The City thereafter sent a letter to Corix on February 7, 2007, asking for copies of the Medford Project payroll records. Bruce Teal replied on behalf of Corix, with a February 20, 2007 letter which read: "Please be assured that the appropriate prevailing wages were paid by Corix on this project. Unfortunately it appears that we did not document this in the manner required, nor did the City make any requests for those records during the term of the project." Teal further indicated that Corix could provide adequate records at a later date. According to Defendants, these documents were submitted to the City the following month and no further inquiries were made.
This letter has not been provided for the record.
In February or March 2007, Tomei left his meter reading position in New Hampshire to recover from an attack of kidney stones. While at home, he continued to receive his regular salary and benefits from Corix. On March 6, 2007, Tomei spoke with his supervisor in New Hampshire to indicate that he was once again feeling well enough to work. According to Tomei, the supervisor responded by telling him to "just stay home" and asking him, "Did you get fired yet?" Tomei testified that he received additional suggestions from Corix personnel to seek a new job from the City of Medford. Tomei concluded that "Corix was pushing [him] out the door." On March 28, 2007, Tomei sent an email to Bruce Teal, indicating that he was leaving the company.
H. Litigation History
On April 10, 2007, Tomei received a letter from the Fair Labor and Business Practices Division of the Massachusetts Attorney General's Office. The letter informed Tomei that the office would not take further action in connection with his prevailing wage complaint, but it authorized him to pursue resolution of the matter through a private civil lawsuit. On August 14, 2007, Tomei filed an action against Defendants in Massachusetts Superior Court. On October 11, 2007, Defendants filed a timely notice of removal to this court.
Under Mass. Gen. Laws ch. 149, § 27, an aggrieved employee can bring a civil suit for non-payment of prevailing wages "90 days after the filing of a complaint with the attorney general, or sooner if the attorney general assents in writing. . . ."
II. SUMMARY JUDGMENT STANDARD
"[S]ummary judgment's role is to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992). A court must grant summary judgment when it concludes based on the "the pleadings, the discovery and disclosure materials on file, and any affidavits . . . 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). A "genuine" issue is one that could be resolved in favor of either party, and a "material fact" is one that has the potential of affecting the outcome of the case. See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004).In making its summary judgment inquiry, the court "must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). The party moving for summary judgment bears the initial burden of demonstrating the absence of an issue of material fact. Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 328 (1st Cir. 2008). "If the moving party successfully carries this burden, the party opposing the motion must present affirmative evidence 'sufficient to deflect brevis disposition.'" Id. (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)). Neither party may rely on "conclusory allegations or unsubstantiated denials," but must identify "specific facts" that demonstrate the existence or absence of an issue of fact. Id. (internal quotations omitted). Where, as here, both parties have moved for summary judgment, "[t]he presence of cross-motions for summary judgment neither dilutes nor distorts this standard of review." Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 205 (1st Cir. 2006).
III. DISCUSSION
Tomei has asserted six claims against Defendants. In Count I, Tomei alleges that Defendants violated Massachusetts statutes governing the payment of prevailing wages for public works projects, Mass. Gen. Laws ch. 149, § 27, and the payment of overtime wages, Mass. Gen. Laws ch. 151, § 1A. Both parties have moved for summary judgment as to that count.
In Count II, Tomei alleges non-payment of prevailing wages and overtime pay on behalf of "others similarly situated." In Count VII, Tomei alleges that Defendants retaliated against him for making a prevailing wage complaint to the Massachusetts Attorney General's Office. Finally, Tomei asserts three additional common law causes of action: breach of contract (Count III), quantum meruit (Count V), and unjust enrichment (Count VI). Defendants have moved for summary judgment as to all of those claims.
Tomei's six claims are numbered Count I to Count VII in the Complaint; none are identified as "Count IV." (Dkt. No. 1.)
A. Prevailing Wages and Overtime Pay (Count I)
1. Statutory Schemes
a. The Massachusetts Prevailing Wage Statute
The Massachusetts prevailing wage statute, Mass. Gen. Laws, ch. 149, § 27, "govern[s] the setting and payment of wages on public works projects constructed by the State, by municipalities, or by public authorities." McCarty's Case, 837 N.E.2d 669, 677 (Mass. 2005). The statute requires the director of the Massachusetts Department of Labor to establish the hourly rate of wages for "mechanics and apprentices, teamsters, chauffeurs and laborers" who are employed on such projects. Teamsters Joint Council No. 10 v. Dir. of the Dep't of Labor and Workforce Dev., 849 N.E.2d 810, 813 (Mass. 2006) (quoting Mass. Gen. Laws ch. 149, § 26). The Massachusetts statute is similar to the federal Davis-Bacon Act, 40 U.S.C. §§ 3141-44, which requires contractors working on federally-funded public works projects to pay laborers according to prevailing wage rates set by the Secretary of Labor. See Am. Steel Erectors, Inc. v. Local Union No. 7, Int'l Ass'n of Bridge, Structural, Ornamental Reinforcing Iron Workers, 536 F.3d 68, 74 n. 5 (1st Cir. 2008).Under the Massachusetts statute, "[t]he director prepares a list of the jobs usually performed on public works projects and, when requested, assigns to each job the minimum wage that must be paid to persons performing that job." Teamsters Joint Council No. 10, 849 N.E.2d at 813. In establishing the prevailing wage rates, the director's goal "is to make those wage rates comparable to what is being earned by employees performing similar jobs in other parts of the construction industry," so that there is parity with private construction projects. McCarty's Case, 837 N.E.2d at 677. Although in practice the director may rely on the same sources for determining wage rates for different projects, the statute requires him to set a wage rate schedule for each public works project that a public official or public agency plans to award. Construction Indus. v. Comm'r of Labor and Indus., 546 N.E.2d 367, 372 (Mass. 1989). The schedule must be included as part of any advertisements and solicitations for bids on the project. McCarty's Case, 837 N.E.2d at 677. The schedule also "shall be made a part of the contract" that is ultimately awarded, and its terms will remain in effect for the duration of the project. Mass. Gen. Laws ch. 149, § 27. An employee claiming to be aggrieved by a violation of the statute may, after notifying the Attorney General, "institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief, for any damages incurred, and for any lost wages and other benefits." Id. An employee who prevails in such an action may be awarded treble damages for lost wages and other benefits. See id.
This is a significant difference from the federal Davis-Bacon Act, which has been held not to provide a private right of action for aggrieved employees. See Univs. Research Ass'n v. Coutu, 450 U.S. 754 (1981).
b. The Massachusetts Overtime Statute
Under the Massachusetts overtime statute, Mass. Gen. Laws ch. 151, § 1A:
[N]o employer in the commonwealth shall employ any of his employees in any occupation . . . for a week longer than forty hours, unless such employee receives compensation for his employment in excess of forty hours at a rate not less than one and one half times the regular rate at which he is employed.
The statute expressly identifies twenty categories of employees who are exempted from the entitlement to overtime pay, including anyone who is employed "as a bona fide executive, or administrative or professional person or qualified trainee for such position earning more than eighty dollars per week." Mass. Gen. Laws ch. 151, § 1A(3); see also Quazi v. Barnstable County, 877 N.E.2d 273, 277 (Mass. App. Ct. 2007). The Supreme Judicial Court of Massachusetts ("SJC") has noted that this exemption is "nearly identical" to a similar overtime pay exemption in the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 213(a)(1), an analogous federal statute. Goodrow v. Lane Bryant, Inc., 732 N.E.2d 289, 294 (Mass. 2000).
The Massachusetts overtime statute applies both to non-exempt employees who are paid an hourly wage rate and to those who are paid on a salary basis. See id. at 296-97. The "hourly wage rate" for a salaried employee must be calculated by dividing the total number of hours worked during the week into the employee's total earnings for that week. See id. at 296. To satisfy the overtime pay requirement for a salaried employee, an employer must only provide an additional fifty percent of the "hourly wage rate" for each overtime hour worked. See id. at 297. "This is so because the employee's salary is considered to include 'straight time' for all hours worked, including the overtime hours." Id. As with the prevailing wage statute, an employee claiming to be aggrieved under the overtime statute may institute a civil action on behalf of himself and others similarly situated. See Mass. Gen. Laws ch. 151, § 1B.
2. Waiver and Forfeiture
Defendants' primary argument with respect to Count I is that Tomei never affirmatively requested prevailing wages or overtime pay and "purposely rejected the opportunity to work as an hourly employee." Defendants accurately note that there is no evidence Tomei ever asked his supervisor, Bob Hornak, or any other Corix official, whether he could be paid prevailing wages or overtime for his work on the Medford Project. It is also undisputed that before Tomei joined the project, Hornak offered him the option of working either as a water meter installer receiving hourly wages or as a project manager paid by salary, and Tomei elected the latter.
Kevin Meagher testified that he also had personally offered Tomei an installer position on the Medford Project. According to Meagher: "When we were first awarded [the Medford Project], Albert was working at a different location, I said we have a project in Medford, I am offering you the opportunity to be an installer, because unfortunately, you are going to end up making more money that way, and vehemently he yelled at me and said, I am a project manager and I want to be a project manager and I don't want to change, and I said, okay, that's fine." (Meagher Dep. 132:11-18.)
Defendants are effectively contending that Tomei waived or forfeited his rights to prevailing wages and overtime pay. However, neither the Massachusetts prevailing wage statute nor the Massachusetts overtime statute provides a defense of waiver or forfeiture. In fact, the overtime statute expressly precludes such a defense. See Mass. Gen. Laws ch. 151, § 1B ("An agreement between the person and the employer to work for less than the overtime rate of compensation shall not be a defense to such action.") (emphasis added). The prevailing wage statute does not address the issue so directly, but it provides no apparent exception to its rule that "[w]hoever shall pay less than [the prevailing] rate or rates of wages . . . to any person performing work within classifications as determined by the commissioner . . . shall have violated this section. . . ." Mass. Gen. Laws, ch. 149, § 27. In International Brotherhood of Electrical Workers, Local 357 v. Brock, 68 F.3d 1194 (9th Cir. 1995), the Ninth Circuit rejected a waiver defense with respect to the analogous federal Davis-Bacon Act, explaining that
[o]n its face, the statutory prohibition on paying less than the prevailing wage includes voluntary contracts between employers and employees. In enacting the Davis-Bacon Act, Congress fashioned a scheme that reflected the policy determination that an enforced minimum wage on government projects was in the best interest of employees and contractors. There is no indication that the protections the Act affords are waivable; nor should they be interpreted to be so.Id. at 1202 (internal citation omitted). I find that the Massachusetts prevailing wage statute should be interpreted to preclude a waiver defense for similar reasons. See Griffin v. Insituform of New England, Inc., No. CV-91-606, 1994 Me. Super. LEXIS 432, at *18 (Dec. 9, 1994) (holding that "the Massachusetts prevailing wage statutes set out a mandate which is non-waivable.").
Accordingly, I find Defendants' waiver and forfeiture arguments to be unavailing. If Tomei was in fact entitled under Massachusetts law to prevailing wages and overtime pay, and Defendants failed to provide those wages, the fact that Tomei affirmatively agreed to his salary structure will not absolve Defendants from liability.
3. Claim for Prevailing Wages
Tomei's claim for prevailing wages hinges primarily on whether his employment on the Medford Project fell within the scope of Mass. Gen. Laws ch. 149, § 27. In analyzing this question, different considerations apply to the first stage of the Medford Project, from April 2005 through March 2006, and to second the stage, which followed the March 2006 Change Order. To the extent that Tomei was eligible for prevailing wages during either time period, there is also a question as to whether Defendants paid him a sufficient salary to satisfy their statutory duty.
a. Pre-Change Order: April 2005 — March 2006
There is no dispute that the first stage of the Medford Project was a public works project subject to § 27. Under the prevailing wage rate schedule in March 2005, when Tomei agreed to join the project, a water meter installer or plumber was entitled to $55.50 per hour. Tomei contends he should have received this pay rate for the time he spent installing and repairing water meters and conducting various plumbing duties. Defendants contend that because Tomei's responsibilites were primarily managerial, he was not eligible for prevailing wages.
The Massachusetts prevailing wage statute applies to "mechanics and apprentices, teamsters, chauffeurs and laborers." Mass. Gen. Laws ch. 149, § 27. The mere fact that Tomei's job title was "project manager" does not by itself bring him outside the coverage of the statute. See Goodrow, 732 N.E.2d at 296 ("A manager in name does not a manager make."). The determinative issue is whether Tomei's actual duties and responsibilities involving manual labor qualified him as a "laborer" for purposes of the statute.
Because Tomei does not contend he was a mechanic, apprentice, teamster, or chauffeur, he must have been a "laborer" for the prevailing wage statute to apply.
The term "laborer" is not defined in § 27 or elsewhere in Mass. Gen. Laws ch. 149. In Newton v. Commissioner of the Department of Youth Services, 816 N.E.2d 993 (Mass. App. Ct. 2004), a Massachusetts court applying the weekly payment of wages statute, Mass. Gen. Laws ch. 149, § 148, looked to judicial interpretations of the term "laborer" in other Massachusetts legislation. The court noted that early cases applying the Massachusetts workers' compensation statutes characterized a "laborer" as "a person without particular training who is employed at manual labor." Id. at 997 (quoting Devney's Case, 111 N.E. 788, 789 (Mass. 1916)). This definition does not provide much guidance in the instant case, because both parties acknowledge that Tomei performed at least some manual labor and some office-related duties.
The SJC has explained that where a term in a Massachusetts statute is undefined, a court "may look to interpretations of analogous Federal statutes for guidance." Goodrow, 732 N.E.2d at 294. The federal Davis-Bacon Act uses language similar to § 27 by limiting its coverage to "mechanics or laborers" employed on public works projects. 40 U.S.C. § 3142. Labor regulations interpreting the Davis-Bacon Act have defined the term "laborer or mechanic" as:
includ[ing] at least those workers whose duties are manual or physical in nature (including those workers who use tools or who are performing the work of a trade), as distinguished from mental or managerial . . . The term does not apply to workers whose duties are primarily administrative, executive, or clerical, rather than manual. Persons employed in a bona fide executive, administrative, or professional capacity as defined in part 541 of this title are not deemed to be laborers or mechanics. . . .29 C.F.R. § 5.2(m). Relying on this definition as a guideline for interpreting the Massachusetts statute, I find there are genuine issues of material fact as to whether: (1) Tomei's duties were "primarily" administrative, executive, or clerical, rather than manual, and (2) whether Tomei was employed in a "bona fide executive" or "administrative" capacity.
By contrast, I find there is no genuine dispute that Tomei was not employed in a "professional capacity." See 29 C.F.R. § 541.300(a)(2) (defining a "professional capacity" as: "(I) Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction, or (ii) Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.").
First, there is conflicting testimony as to what Tomei's duties as project manager "primarily" involved. The SJC has explained that "[a]s a rule of thumb, for tasks to constitute an employee's primary duty, the employee must devote more than fifty percent of [his] time to these duties." Goodrow, 732 N.E.2d at 295 (internal quotations omitted). According to Tomei, he spent most of each working day conducting manual tasks such as installations, repairs, and plumbing work. Tomei acknowledged that he sometimes performed office clerical work but insisted that he only had time for those duties at night. According to Kevin Meagher, Tomei's primary duties during the first stage of the Medford Project involved coordinating other installers and managing the office. Meagher acknowledged that Tomei sometimes needed to engage in manual labor but contended that it was not his principal responsibility.
The federal labor regulations set out several additional considerations for identifying an employee's "primary duty." These include, inter alia, "the relative importance of the exempt duties as compared with other types of duties" and "the employee's relative freedom from direct supervision." 29 C.F.R. § 541.700(a).
Second, there is a genuine dispute as to whether Tomei was employed by Corix in a "bona fide executive" or "administrative" capacity. In Goodrow, the court interpreted those terms as they appeared in the Massachusetts overtime statute — see Section III.A.1.b, supra — by looking to both their common meaning and their definitions in the federal labor regulations. See id. at 294. Webster's defines an "executive" as "one who holds a position of administrative or managerial responsibility in a business or other organization." Id. at 295 (quoting Webster's Third New Int'l Dictionary 794 (1993)). The federal labor regulations define a "bona fide executive" as an employee:
Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;
Who customarily and regularly directs the work of two or more other employees; and
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)(2)-(4). Webster's defines "administrative" as pertaining to "the principles, practices, and rationalized techniques employed in achieving the objectives or aims of an organization." Id. at 295 (quoting Webster's Third New Int'l Dictionary 28 (1993)). The federal labor regulations define a "bona fide administrator" as an employee:
Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and
Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.29 C.F.R. § 541.200(2)-(3). I find that a reasonable factfinder could conclude from the evidence in the record that Tomei's work on the Medford Project qualified him as a bona fide executive, a bona fide administrator, or neither of these categories. Among the significant disputed issues affecting this determination is the extent of Tomei's authority to terminate, or recommend the termination of, office clerical staff and water meter installers. Another important factor is the extent to which Tomei actually coordinated or supervised other employees. There is conflicting evidence as to both of those issues.
For these reasons, I find there is a genuine issue of fact as to whether Tomei was a "laborer" for purposes of § 27 during the first stage of the Medford Project.
b. Post-Change Order: March 2006 — August 2006
With respect to the second stage of the Medford Project, a threshold issue is whether the prevailing wage statute is even applicable. For public works projects subject to § 27, the public body awarding the contract is required to submit a list of jobs to the Massachusetts Department of Labor ("DOL"), and the DOL is required to furnish a schedule of prevailing wages to the public body. See McGrath v. ACT, Inc., No. 08-ADMS-40018, 2008 WL 5115057, at *2 (Mass. App. Div. Nov. 25, 2008). When a rate schedule is furnished, the public body "shall incorporate said schedule in the advertisement or call for bids" and "[s]aid schedule shall be made a part of the contract for said works and shall continue to be the minimum rate or rates of wages for said employees during the life of the contract." Mass. Gen. Laws ch. 149, § 27. However, where a municipality fails ever to request a prevailing wage rate schedule from the DOL, or the DOL fails to furnish such a schedule, there is no duty on a private employer to solicit or otherwise establish prevailing wage rates on its own. See McGrath, 2008 WL 5115057, at *2 (emphasizing that "[t]he onus is on the public bodies and the Department of Labor").
According to Defendants, the March 2006 Change Order should properly be viewed as an entirely new and independent services contract from the original Medford Project contract. Defendants further argue that because the City did not request a new schedule of wages in connection with the Change Order, Corix was not obligated to pay Tomei prevailing wages for that portion of the project. Because I find that the Change Order was not a new and independent contract, I find this argument to be unavailing.
Defendants characterize this argument oddly, contending that the prevailing wage statute did not apply to the second stage of the Medford Project because the Change Order: (1) was not put out for competitive bidding, and (2) did not expressly cite or incorporate Mass. Gen. Laws ch. 149, § 27. Although another Massachusetts statute, Mass. Gen. Laws ch. 149, § 44, requires competitive bidding for certain public works projects, § 27 does not itself appear to require bidding as a prerequisite for the application of prevailing wages. The prevailing wage statute also does not appear to require an express citation to § 27. I will interpret Defendants' argument as an awkward manner of emphasizing that because the City never sought a new wage schedule in connection with the Change Order, it also: (1) never advertised such a wage schedule during competitive bidding, and (2) never expressly referenced such a schedule, or § 27, in the Change Order.
Under Massachusetts law, "[c]hanges that merely modify 'modes of performance' but do not 'rewrite a contact,' establish a substitute performance rather than a substitute contract." Citizens Bank of Mass. v. Milligan, No. 050104, 2006 WL 416963, at *4 (Mass. Super. Feb. 1, 2006) (quoting McKinley Investment v. Middleborough Land, 818 N.E.2d 627, 629 (Mass. App. Ct. 2004)). In this case, it is clear from the evidence in the record that the parties intended the Change Order as a substitute performance, rather than as a new and independent contract. The most obvious indication is that the document itself is identified on its face as a "Change Order Request." See Societe Generale de Surveillance, S.A. v. Raytheon European Mgmt. Sys. Co., 643 F.2d 863, 868 (1st Cir. 1981) (holding that two change orders were not new and independent contracts based, in part, on "the obvious fact that both . . . were referred to as 'change' orders." (emphasis in original)).
The language and content of the Change Order Request also demonstrates that it was not intended as a new and independent contract. Unlike the original Medford Project contract, the Change Order Request is very brief, and it omits key elements, such as any description of the "installations" that Corix agreed to perform. See id. (noting that "several critical matters" addressed in the original contract were omitted from the change orders). Furthermore, the Change Order Request indicates: "This is a change to extend the contract and to adjust the installation cost." (emphasis added). It also identifies the added cost from the additional work as a "Change in Contract Price." ( Id.) (emphasis added). Even Kevin Meagher testified at his deposition: "I don't believe there was a new contract, it was just a change of scope to the existing contract." These are all strong indications that the Change Order was merely an extension and modification of the original Medford Project contract. See Sawyer v. FKI Logistex Integration, Inc., CA 04-1186, 2007 Mass. Super. LEXIS 625 at *10 (July 25, 2007) ("What was changed by the change order was the performance schedule, the workers and shifts required, and the added acceleration price. . . . Based on the parties' words and conduct, their intent was not to create a new contract. Their intent was to modify the terms of their existing subcontract agreement.").
Defendants' only argument to the contrary is that the original Medford Project contract indicated it would terminate either one year after its execution date, or when 95% of the water meter installations were completed, whichever occurred first. At the time the parties consented to the Change Order Request, on March 21, 2006, both of these conditions had been met. The Change Order Request indicates, however, that Corix's "regular project operations" were still ongoing at that time and would not formally terminate until ten days later, on March 31, 2006. It is not clear from the record whether the parties had earlier agreed to an extension of the project's duration, or whether such an extension had simply occurred through mutual continued performance — i.e., Corix continued to replace the water meters and the City continued to pay the installations, according to the terms of the original agreement. In either case, it is clear that when the Change Order was executed, the Medford Project was not complete, and the parties were still conducting business according to the terms of their original contract. Accordingly, I find as a matter of law that the Change Order was not a new and independent contract, but rather a mere extension and modification of the terms of performance from the original Medford Project contract.
Under § 27, a prevailing wage schedule, once established, remains in effect for the entire duration of a contract. The prevailing wage rates issued in connection with the original Medford Project contract therefore continued to apply until the completion of the project in August 2006. In other words, if Tomei's work during the second stage of the project qualified him as a "laborer" under § 27, he was entitled to be paid prevailing wages according to the original wage rate schedule. Defendants concede that from April 2006 through August 2006, Tomei performed "many" water meter installations. The stated purpose of the Change Order was, after all, for Corix to complete the City's final 650 water meter installations, and there is no dispute that Tomei was the only Corix employee responsible for that work. On the other hand, the Change Order also indicated that Tomei would be responsible for "other duties," and there is no direct evidence as to what proportion of Tomei's time was actually spent on installations versus clerical or administrative work. On this basis, I find that there is a genuine issue of material fact as to whether Tomei's duties and responsibilities during the second stage of the Medford Project entitled him to prevailing wages.
c. Whether Tomei Received Prevailing Wages
Finally, Defendants have argued that even if Tomei were entitled to prevailing wages for his installation, repair, and plumbing work during the Medford Project, he was adequately compensated for that work. This contention is primarily directed to the first stage of the Medford Project. Defendants note that Tomei has produced only thirteen service order forms from April 2005 through March 2006 which indicate that he personally performed the installation. Defendants contend that even granting all reasonable inferences in favor of Tomei, the prevailing wages he would have earned for those thirteen installations would have amounted to less than he actually received from his weekly salary.
However, Defendants overlook the fact that Tomei claims to have conducted far more than thirteen installations during the first stage of the Medford Project. According to Tomei, he was expressly instructed by his supervisor, Bob Hornak, to record his own installation work under the names of other Corix employees. If this allegation is true, Corix would have committed a violation of its duty under Mass. Gen. Laws ch. 149, § 27B, to keep and retain accurate records of all prevailing wages work conducted by their employees. Furthermore, the number of service order forms which list Tomei's name as the installer would not be an accurate measure of his work. Although Tomei has not identified a specific number of installations he performed, nor a specific number of hours he devoted to manual labor each week, he contends that installation and plumbing work constituted his primary responsibility. A reasonable factfinder could conclude that Tomei's entitlement to prevailing wages exceeded his weekly salary for at least some weeks during the Medford Project. The potential difficulty of proving Tomei's working hours with precision does not absolve Defendants from liability, especially given that the absence of any work records is alleged to be a result of Defendants' own misconduct. Cf. Reich v. Southern New England Telecommunications Corp., 121 F.3d 58, 69 (2d Cir. 1997) (holding in the context of the FLSA that "[i]t is well-settled that when an employer fails to keep adequate records of its employees' compensable work periods . . . employees seeking recovery for overdue wages will not be penalized due to their employer's record-keeping default.").
I further note that Defendants' interpretation of how to calculate the prevailing wages owed to Tomei is questionable. According to Tomei, each week he performed some work which was entitled to prevailing wages and some work which was not. Some difficulty arises in determining how much Tomei was owed by Corix on a weekly basis because his compensation for the non-prevailing wage work was salaried, whereas the minimum compensation for prevailing wage work is calculated as an hourly rate. According to Defendants' method of measurement, Tomei would be adequately compensated under § 27 if his weekly salary exactly equaled the wages he was owed for prevailing wage work, even if he had also performed many hours of non-prevailing wage work in the same week. This appears to undermine one of the primary objectives of § 27, as it would effectively allow a contractor to pay an employee less than prevailing wages for prevailing wage work. Cf. Mullally v. Waste Mgmt. of Mass., Inc., 895 N.E.2d 1277, 1281 (Mass. 2008) (holding that the defendant's payroll formula "subverted the purpose of [the prevailing wage statute] by enabling [the defendant] to offer its services for less than what is customarily charged by its competitors for nonpublic works contracts.").
d. Conclusion
For the reasons described above, I find there are genuine issue of material fact as to the whether Tomei was entitled to prevailing wages during the first or second stages of the Medford Project, and whether Tomei's compensation adequately accounted for the prevailing wages he should have earned. I will therefore deny summary judgment to both parties on Tomei's prevailing wage claim under § 27.
4. Claim for Overtime Pay
Tomei also claims he is entitled to overtime wages under Mass. Gen. Laws ch. 151, § 1A(3) for his work during the first stage of the Medford Project. There is no dispute that during this time period, Tomei was expected as the project manager to work more than forty hours per week, and he did so routinely. Tomei's eligibility for overtime pay therefore hinges on whether or not his job fell within the statutory exemption for any person employed as "as a bona fide executive, or administrative or professional person." Mass. Gen. Laws ch. 151, § 1A(3). Based on the same considerations discussed above in connection with Tomei's prevailing wages claim, I find that there is a genuine issue of material fact as to whether Tomei's duties and responsibilities rendered him a "bona fide executive" or "administrator" for purposes of the overtime statute.
Tomei does not claim to have worked more than 40 hours per week after the March 2006 Change Order. (Compl. ¶ 11.)
Defendants have contended, however, that Tomei's claim for overtime pay must nonetheless fail as a matter of law because there are no contemporaneous records of Tomei's weekly working hours during this time period. It is true that Tomei's only purported contemporaneous record — a personal notebook in which he claims to have logged his working hours — no longer exists, because Tomei apparently threw it away when he discovered it had been damaged by mold. Under Massachusetts law, however, it is the duty of an employer to ensure that accurate records are kept and maintained for each employee as to "the hours worked each day and each week by each employee." Mass. Gen. Laws ch. 151, § 15. It would undermine the purpose of the overtime statute to penalize an employee for an employer's failure to adhere to its record-keeping duties. See Reich, 121 F.3d at 69. Furthermore, federal courts interpreting analogous provisions of the FLSA have consistently held that an employee may recover unpaid overtime wages even where the only evidence of the hours worked is the employee's personal recollection. See, e.g., Pforr v. Food Lion, Inc., 851 F.2d 106, 108 (4th Cir. 1988) (holding that the FLSA "does not mandate that a plaintiff prove each hour of overtime work with unerring accuracy or certainty"); Hilton v. Executive Self Storage Assocs., Inc., No. H-06-2744, 2009 WL 1750121, at *6 (S.D. Tex. June 18, 2009) ("The fact that the plaintiffs' time estimates were not based on contemporaneous records is not a basis for judgment as a matter of law."); Boyke v. Superior Credit Corp., No. 01-CV-0290, 2006 WL 3833544, at *5 (N.D.N.Y. Dec. 28, 2006) ("It has been repeatedly held that, unless the employer can provide accurate estimates of hours worked, it is the duty of the trier of fact to draw whatever reasonable inferences can be drawn from the employee's evidence. Furthermore, it is well established that the employee may testify from his or her present memory and recollection alone.") (internal citation omitted). For these reasons, I will deny summary judgment to both parties on Tomei's claim for overtime pay under Mass. Gen. Laws ch. 151, § 1A.
5. Individual Liability
As a general rule, a corporate officer does not incur personal liability for activities of the corporation "merely by virtue of the office which he holds in the corporation." Refrigeration Discount Corp. v. Catino, 112 N.E.2d 790, 794 (Mass. 1953). Such liability may, however, be imposed by statute. Under Mass. Gen. Laws ch. 151, § 1B, personal liability attaches to "the officer or agent of [the] corporation who pays or agrees to pay to any employee less than the overtime rate of compensation required." (emphasis added). The prevailing wages statute is even broader, providing that personal liability for failure to pay prevailing wages attaches to "[t]he president and treasurer of a corporation and any officers or agents having the management of such corporation." Mass. Gen. Laws ch. 149, § 27. Defendants contend that Michael Jordan, as former Vice President and General Manager of Corix, cannot be held personally liable under either statute.
Brett Hodson, as CEO and President of Corix, clearly falls within at least the scope of the prevailing wage statute.
In Wiedmann v. The Bradford Group, Inc., 831 N.E.2d 304 (Mass. 2005), the SJC addressed the question of whether a particular corporate officer "ha[d] the management" of a corporation. The Wiedmann court was applying the Massachusetts weekly payment of wages statute, Mass. Gen. Laws ch. 149, § 148, which uses language identical to § 27 by attaching personal liability to "[t]he president and treasurer of a corporation and any officers or agents having the management of such corporation." 831 N.E.2d at 313. The SJC held that an officer qualifies as a "manager" for purposes of the statute when he "controls, directs, and participates to a substantial degree in formulating and determining policy of a corporation." Id. at 314.
Although it is apparent that Jordan held a high-ranking position at Corix, there is no evidence as to what role, if any, he played in formulating corporate policies that affected payment of prevailing wages or overtime. Kevin Meagher testified that Jordan generally was responsible for "the overall business operations in North America," but he offered no further details as to Jordan's actual duties and responsibilities. According to Jordan himself, he never served as president or treasurer of Corix, he was not responsible for the supervision of Tomei, and he was never involved in any decisions related to Tomei's eligibility for prevailing wages or overtime.
Accordingly, I find there is insufficient evidence regarding Jordan's duties and responsibilities for a reasonable factfinder to conclude that he "ha[d] the management" of Corix for purposes of the prevailing wage statute. Cf. Bisson v. Ptech, Inc., No. 02-2117, 2004 WL 2434638, at *2 (Mass. Super. Oct. 19, 2004) ("If any officer or agent who actively participated in a corporation's management were to fall within this definition, then every corporate vice-president and untold other officers and employees would be personally liable for their corporation's [violation of Mass. Gen. Laws ch. 149, § 148]. This Court does not believe that the Legislature intended by this language to impose personal liability on so many corporate employees."). Because Jordan similarly cannot be held personally liable under the overtime statute, which would require evidence that he paid or agreed to pay Tomei less than adequate overtime wages, I will dismiss Jordan as a Defendant in this case.
B. Others Similarly Situated (Count II)
In Count II, Tomei asserts that Defendants have improperly failed to pay prevailing wages and overtime to "others similarly situated." He brings Count II pursuant to provisions in the Massachusetts prevailing wage statute and overtime statute which permit an aggrieved employee to bring a lawsuit "on his own behalf, or for himself and for others similarly situated." Mass. Gen. Laws ch. 149, § 27; ch. 151, § 1B. See e.g., Sweet v. Superior Steel Precast Erectors, No. 001649, 2001 WL 34048064, at *19 (Mass. Super. Mar. 28, 2001) (issuing a protective order to permit ex parte communications between the plaintiff's counsel and the defendant's employees because "[t]his case presents a unique situation in that the relevant statute, G.L.c. 149, § 27, supports the grouping together of similarly situated plaintiffs — plaintiffs who may not come forward at all if not allowed to speak with plaintiff's counsel ex parte.") (emphasis added).
Tomei does not invoke the Federal Rules of Civil Procedure governing class actions in connection with this claim. Compare McLaughlin v. Harbor Cruises LLC, No. 06-11299, 2009 WL 890099 (D.Mass Mar. 31, 2009) (granting plaintiffs' motion for class certification for claims under Mass. Gen. Laws ch. 151, §§ 1A, 1B where the prerequisites to a class action under Rule 23(a) are satisfied), with O'Donnell v. Robert Half Int'l, Inc., 250 F.R.D. 77 (D.Mass 2008) (denying plaintiffs' motion to certify a class of Massachusetts employees based on employer's alleged violation of Mass. Gen. Laws ch. 151, §§ 1A, 1B because "plaintiffs have not demonstrated that common questions of fact or law predominate or that a class action is the most efficient way to adjudicate this controversy.").
At his deposition, Tomei described two specific Corix employees he believed had been wrongfully deprived of prevailing wages or overtime pay: first, an unidentified water meter installer who told Tomei he was not receiving overtime wages, and second, Stephen Clemens, a salaried employee who Tomei contends worked on the project as a water meter installer. Tomei has provided no further evidence as to the first unidentified employee. As to Clemens, Defendants have provided an affidavit from Clemens himself, which indicates that he worked only three days on the Medford Project, during which time he merely surveyed and inspected water meters. According to the affidavit, Clemens performed no water meter installations or repairs.
Given the absence of any admissible evidence which would demonstrate that Clemens, or any other Corix employee, was improperly denied prevailing wages or overtime pay, I will grant Defendants' summary judgment motion with respect to Count II.
I note that Tomei's claim on behalf of "others similarly situated" would fail even if he had moved to certify a class of employees. Fed.R.Civ.P 23(a) requires that a class meet several criteria including "numerosity," i.e. "the class is so numerous that joinder of all members is impracticable." See O'Donnell v. Robert Half Int'l, Inc., 250 F.R.D. 77, 80 (D.Mass 2008). In contrast, Tomei alleges that only two other individuals were similarly wronged.
C. Retaliation (Count VII)
In Tomei's claim for retaliation, he alleges that the complaint letter he filed with the Massachusetts Attorney General's Office was "a determinative factor in Defendants' decision to terminate" him. Mass. Gen. Laws ch. 149, § 148A, provides that "[a]ny employer who discharges or in any other manner discriminates against any employee because such employee has made a complaint to the attorney general or any other person, or assists the attorney general in any investigation under this chapter . . . shall have violated this section. . . ." An employee claiming to be aggrieved by this type of retaliation may file a civil suit against his former employer for injunctive relief, damages, and lost wages. See Mass. Gen. Laws ch. 149, § 150; see also Smith v. Winter Place LLC, 851 N.E.2d 417, 421 n. 12 (Mass. 2006).
Tomei does not contend that he was formally terminated from his position at Corix, but rather that he felt Corix was "pushing [him] out the door," thereby causing him to leave the company. Under Massachusetts law, an employee will be legally regarded as having been fired for purposes of a retaliation claim if he can show that he was "constructively discharged." See GTE Products Corp. v. Stewart, 653 N.E.2d 161, 168 (Mass. 1995). The SJC has held that a constructive discharge occurs "when the employer's conduct effectively forces an employee to resign. Although the employee may say, 'I quit,' the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will." Id. (internal quotation omitted). In order to demonstrate a constructive discharge, an employee must show "that the new working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Id. at 169 (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977)). "[M]ere dissatisfaction with the nature of assignments, criticism of an employee's performance, and dissatisfaction with compensation have been held insufficient to establish a triable question of fact on the issue of constructive discharge." Id.
According to Tomei, there were several factors which led him to feel "pushed out the door" at Corix. First, he had a contentious conversation in January 2007 with Bruce Teal, the Corix Director of Sales and Operations. When Tomei requested prevailing wages on a potential future job assignment in Medford, Teal reacted angrily and threatened to cut Tomei's pay and travel expenses. However, the project in question never occurred and there is no evidence that Tomei's salary and benefits were ever altered in any way. Second, in March 2007, after Tomei had taken several weeks off from work to recover from a kidney stones attack, he asked his supervisor in New Hampshire if he could return to work. The supervisor told him to "just stay home," and then asked Tomei, "Did you get fired yet?" Third, Tomei claims that Teal and several other unidentified Corix personnel suggested at different times that he should seek a job from the City of Medford.
I find that Tomei has failed as a matter of law to demonstrate that he was constructively discharged from Corix. The events described above, even taken together, did not constitute working conditions so difficult or unpleasant that a reasonable person in Tomei's shoes would have felt compelled to resign. There is no evidence that Tomei's conversation with Teal had any lasting negative consequences on his employment, nor is there any evidence the suggestions that Tomei seek a job with the City of Medford were ever framed as threats or ultimatums. In fact, there is not even any evidence the suggestions involved ill will toward Tomei, given that Tomei had performed substantial work for the City during the latter portion of the Medford Project, the City had offered him a job in the past, and he was — by his own account — generally unsatisfied with his project manager position at Corix. Tomei's somewhat ambiguous interaction with his New Hampshire supervisor was also insufficient to rise to the level of constructive discharge, especially given that Tomei continued to receive his full salary and benefits after the exchange, and there is no evidence that Tomei made any other efforts to return to work. See id. ("A single, isolated act of an employer (or an agent of the employer) usually will not be enough to support a constructive discharge claim.").
Additionally, Tomei has not presented any evidence that these events had any causal connection to the complaint letter he sent to the Attorney General's Office. See Mole v. Univ. of Mass., 814 N.E.2d 329, 338-39 (Mass. 2004) (holding that a prima facie case of retaliation generally requires a plaintiff to show: (1) that he engaged in protected conduct, (2) that he suffered some adverse action, and (3) that a causal connection existed between the two). On February 7, 2007, Corix received a letter from the City of Medford asking for copies of the Medford Project payroll records, but there is no evidence that Corix was aware the Attorney General's Office was investigating a prevailing wages complaint, let alone that the complaint had been submitted by Tomei. Even after Corix received the letter, Tomei continued working in New Hampshire until he returned home following his kidney stones attack. At the time Tomei's New Hampshire supervisor asked him if he had "been fired yet," Tomei had been absent from work, albeit with permission, for several weeks, while continuing to receive his full regular salary. In this context, I cannot find that a reasonable factfinder could conclude that Tomei's mistreatment, to the extent he experienced any, was caused by his complaint letter.
As noted above, this letter has not been provided for the record. See Note 13, infra.
For these reasons, I will grant summary judgment to Defendants on Tomei's claim for retaliation.
I note that because Tomei failed to present sufficient evidence of causation, his retaliation claim would fail even if he had alleged under Mass. Gen. Laws ch. 149, § 148A that he was merely "discriminated against" for filing the complaint letter, rather than contending that he was constructively discharged.
D. Common Law Claims
1. Breach of Contract (Count III)
The basis for Tomei's breach of contract claim is not entirely clear. In the Complaint, Tomei alleges that "Defendants entered into an unambiguous and enforceable contract that requires the Defendants to pay Albert Tomei in the form of prevailing rate wages and overtime wages." (Compl. ¶ 30.) The Complaint does not, however, identify the contract to which this allegation refers. In briefing, Tomei has indicated that the breach of contract claim is "based on the premise that the Defendants entered into an oral employment contract with Mr. Tomei wherein they agreed to pay him wages in exchange for his services." The only evidence in the record pertaining to Tomei's employment contract with Corix indicates that Tomei affirmatively agreed to the salary and benefits which he actually received. There is no evidence that Corix ever promised Tomei he would be paid prevailing wages and overtime for his work on the Medford Project. Therefore, regardless of whether Tomei's compensation satisfied Mass. Gen. Laws ch. 149, § 27 and ch. 151, § 1A, there is no basis for a breach of contract claim grounded in his employment contract.
Tomei also has indirectly suggested that he was a third-party beneficiary to the contract between the City of Medford and Corix. In Massachusetts, in order to sue for enforcement of a contract as a third-party beneficiary, the plaintiff must show that the contracting parties "intended to give [him] the benefit of the promised performance." Anderson v. Fox Hill Village Homeowners Corp., 676 N.E.2d 821, 822 (Mass. 1997). Under Mass. Gen. Laws, ch. 149, § 27, every public works contract "shall include" the prevailing wage rate schedule issued by the DOL in connection with the project. On this basis, Tomei contends that he and other Corix employees were among the intended beneficiaries of Corix's contractual obligation to the City to pay prevailing wage rates for eligible work during the Medford Project.
There is no language in Mass. Gen. Laws ch. 149, § 27 that would preclude Tomei from bringing a separate third-party beneficiary contract claim for Corix's failure to pay prevailing wages. The mere fact that the statute provides for enforcement by the Attorney General and establishes a private cause of action for aggrieved employees does not indicate that the Massachusetts legislature intended it to have a preclusive effect on common law claims. Neither party has cited, and I have not found, any Massachusetts cases which confront the issue of preclusion for the prevailing wage statute. In the similar context of overtime wages, however, at least one Massachusetts court has held that Mass. Gen. Laws ch. 151, § 1A does not preclude a plaintiff from bringing common law claims for failure to pay overtime. See Spears v. Miller, No. 1683, 2006 WL 2808145, at *2 (Mass. App. Div. Sept. 16, 2006) ("[W]hen our legislature intends to make a statutory remedy exclusive, it has done so by explicit language. Such language is conspicuously absent from G.L. c. 151, §§ 1A and 1B."). Furthermore, several courts in other jurisdictions have held that their own analogous prevailing wage statutes do not preclude a plaintiff from bringing a separate third-party beneficiary claim for breach of contract. See, e.g., Tippett v. Terich, 37 Cal. App. 4th 1517, 1533 (1995) (Hollenhorst, J.) ("We find it fairly self-evident that the prevailing wage law was enacted to benefit employees as a class by requiring the payment of prevailing wages on public works. Since employees working on the public works projects are the intended beneficiaries of this provision, they are third party beneficiaries of the contract between the public agency and the contractor." (citations omitted)), overruled on other grounds by Cortez v. Purolator Air Filtration Prods. Co., 23 Cal. 4th 163 (2000). On this basis, I find there is no statutory obstacle to Tomei's breach of contract claim on a third party beneficiary theory.
See also State ex. rel. Evans v. Brown Builders Elec. Co., 254 S.W.3d 31, 37 (Mo. 2008) (en banc) ("Plaintiffs are third-party beneficiaries of this contract, because the contract expresses the intent to benefit them as workers who fall under the prevailing wage law."); Connell v. Wayne Builders Corp., No. 95APE07-897, 1996 WL 39646, at *4 (Ohio App. 10 Dist. Jan. 30, 1996).
I note that Tomei's damages on this cause of action, if any, would be limited to the damages recoverable under the Medford Project contact itself (i.e., the prevailing wage rate schedule), and would not include the additional remedies available under Mass. Gen. Laws ch. 149, § 27, such as injunctive relief or treble damages. Nonetheless, for the reasons discussed above, I will deny Defendants' summary judgment motion on Tomei's breach of contract claim.
2. Quantum Meruit and Unjust Enrichment (Counts V-VI)
Tomei also brings common law claims under the interrelated theories of quantum meruit and unjust enrichment. Quantum meruit is "an obligation that arises under quasi contract theory in which an obligation is created by law for reasons of justice, without any expression of assent and sometimes even against a clear expression of dissent." Liss v. Studeny, 879 N.E.2d 676, 682 (Mass. 2008) (internal quotations and citation omitted). "To prevail on a claim in quantum meruit, a plaintiff must show that (1) he conferred a measurable benefit upon the defendant; (2) a reasonable person in the defendant's position would have expected to compensate the plaintiff upon accepting his services; and (3) the plaintiff provided the services with the reasonable expectation of receiving compensation." New England Insulation Co. v. Liberty Mutual Ins. Co., No. 08-P-1587, 2009 WL 817812, at *2 (Mass. App. Ct. Mar. 31, 2009) (citing Home Carpet Cleaning Co. v. Baker, 307 N.E.2d 346, 347 (Mass. App. Ct. 1974)). The underlying basis for awarding quantum meruit damages is "unjust enrichment of one party and unjust detriment to the other party." Liss, 879 N.E.2d at 682 (quoting Salamon v. Terra, 477 N.E.2d 1029, 1031 (Mass. 1985)). Under Massachusetts law, "[u]njust enrichment is defined as retention of money or property of another against the fundamental principles of justice or equity and good conscience." Santagate v. Tower, 833 N.E.2d 171, 176 (Mass. App. Ct. 2005) (internal quotation omitted).
There is some case law in Massachusetts suggesting that quantum meruit and unjust enrichment should not be treated as separate causes of action. See New England Insulation Co. v. Liberty Mutual Ins. Co., No. 08-P-1587, 2009 WL 817812, at *2 n. 5 (Mass. App. Ct. Mar. 31, 2009) ("While [the plaintiff] has enumerated two separate counts, unjust enrichment is not a separate cause of action from quantum meruit. . . ."); but see David v. Town of Webster, No. 060351D, 2008 WL 2745265, at *4-6 (Mass. Super. June 23, 2008) (addressing quantum meruit and unjust enrichment as separate, though related, causes of action).
In other jurisdictions, the two theories are more clearly established as independent causes of action, although both "resid[e] in the domain of contract law under the heading of quasi-contract." Lindquist Ford, Inc. v. Middleton Motors, Inc., 557 F.3d 469, 476 (7th Cir. 2009). In Lindquist Ford, decided under Wisconsin law, the Seventh Circuit explained that "[t]he measure of damages under unjust enrichment is limited to the value of the benefit conferred on the defendant," whereas "[u]nder quantum meruit, damages are measured by the reasonable value of the plaintiff's services." Id. at 477 (internal quotations omitted). To the extent such a distinction is recognized in Massachusetts, I find it is not pertinent for purposes of the summary judgment motion before me, because both theories implicate the same set of general concerns.
A key factor in the application of the theories of quantum meruit and unjust enrichment is the reasonable expectations of the parties. See Liss, 879 N.E.2d at 682 ("The injustice of the enrichment or detriment equates with the defeat of a person's reasonable expectations."); see also Community Builders, Inc. v. Indian Motorcycle Assocs., 692 N.E.2d 964, 979 (Mass. App. Ct. 1998). I find that in this case, Tomei had no reasonable expectation of receiving prevailing wages or overtime pay for his work on the Medford Project. The evidence clearly shows that Tomei affirmatively assented to his salary structure and benefits prior to beginning work on the project, and that he in fact received the salary and benefits that he was promised. Whatever statutory violations Defendants are alleged to have committed with respect to prevailing wages and overtime pay, there is no basis to claim that their actions undermined Tomei's reasonable expectations regarding his compensation.
Furthermore, as a general rule, "[r]ecovery in quantum meruit presupposes that no valid contract covers the subject matter of a dispute. Where such a contract exists, the law need not create a quantum meruit right to receive compensation for services rendered." Boswell v. Zephyr Lines, Inc., 606 N.E.2d 1336, 1342 (Mass. 1993). In the instant case, two contractual agreements are implicated by Tomei's allegations, as discussed in Section III.D.1, supra. First, Tomei claims to have had an oral employment contract with Corix, and second, Tomei claims to be a third-party beneficiary of the contract between Corix and the City of Medford. As discussed above, I have found that Tomei has a triable breach of contract claim under the latter of these contracts, obviating the need for a claim in quantum meruit or unjust enrichment. Cf. Santagate v. Tower, 833 N.E.2d 171, 176 (Mass. App. Ct. 2005) ("An equitable remedy for unjust enrichment is not available to a party with an adequate remedy at law.").
On this basis, I will grant Defendants' summary judgment motion with respect to Tomei's claims for quantum meruit and unjust enrichment.
IV. CONCLUSION
For the reasons set forth more fully above:
I DENY summary judgment as to all parties, with the exception of defendant Jordan, on Count I (Tomei's claim for prevailing wages and overtime pay); and DENY Defendants' motion for summary judgment on Count III (breach of contract); I GRANT Defendants' summary judgment motion with respect to Count II (prevailing wages and overtime pay for others similarly situated), Count VII (retaliation), Count V (quantum meruit), and Count VI (unjust enrichment).
I note that the complaint contains no Count IV.