FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS HON. F. DENNIS SAYLOR IV, U.S. DISTRICT JUDGE.
K. Dowd, with whom Robert K. Dowd P.C. was on brief, for
Christopher A. Kenney, with whom Anthony L. DeProspo, Jr.,
and Kenney & Sams, P.C. were on brief, for appellee.
Torruella, Selya, and Lynch, Circuit Judges.
TORRUELLA, Circuit Judge.
case concerns a contract dispute between a solar energy
company and a former sales employee. Appellee Stephen
Ellicott ("Ellicott") filed suit against Appellants
American Capital Energy, Inc. ("ACE") and its two
principals, Thomas Hunton ("Hunton") and Arthur
Hennessey ("Hennessey") (collectively,
"Appellants"), claiming violations of the
Massachusetts Wage Act and breach of contract. A jury found
for Ellicott. The district court entered judgment and awarded
Ellicott $2, 876, 490 in damages, plus reasonable
attorney's fees and costs. Displeased with this result,
Appellants challenge a series of rulings by the district
court. Appellants question, among other things, whether
Ellicott's compensation constituted "wages"
under the Wage Act and whether the statute of limitations for
his Wage Act claim was properly tolled. We affirm after
facts, viewed, as they must be, "in the light most
favorable to the verdict," follow. Sinai
v. New England Tel. & Tel. Co., 3 F.3d
471, 472 (1st Cir. 1993).
Hunton and Hennessey are co-founders of ACE, a company that
procures, engineers, and installs large-scale solar energy
systems. Hunton is ACE's president and Hennessey its
chief financial officer. Hunton and Hennessey are principals
of the company.
2007, ACE hired Ellicott as Director of Business Development,
tasking him with the sale of large-scale solar installations
to commercial clients, primarily in California. Ellicott was
not a principal or joint-venturer of ACE, but rather a
full-time employee compensated on a commission-draw basis. On
April 23, 2008, ACE executed a written contract that
established Ellicott's compensation plan. Among other
provisions, the compensation plan stated that ACE would pay
Ellicott a sales commission of "40% of profit margin on
each sale and installation to be paid within [thirty] days
after the client pays ACE and installation is complete."
The compensation plan also stipulated that the sales
commissions "may be reasonably split with various sales
support personnel by mutual agreement," and that ACE
would pay Ellicott a monthly draw, equal to an annual rate of
$120, 000, credited against his commissions.
2007 to 2012, Ellicott sold nine solar installation projects.
For each of these projects, the parties stipulated at trial
the (1) contract date; (2) project completion date; (3) final
payment date; (4) project revenue; and (5) direct project
costs. The gross revenue of Ellicott's
solar installation projects exceeded $37 million, with eight
of the nine projects generating a profit. Seven of the eight
profitable installations were paid for in full more than
three years before Ellicott filed suit on April 2, 2014.
Below, the parties disputed whether Ellicott, in fact, made
the "sale" on each of the projects and how the
sales commission, if any was due, should be calculated.
During trial, Ellicott testified that although it continued
to pay him the monthly draw until October 2012, ACE did not
pay his earned commissions from any of the profitable
in 2010, and again in early 2011, Ellicott inquired about the
payment status of his commissions to both Hunton and
Hennessey. Ellicott had multiple conversations with Hunton,
who assured Ellicott that he would discuss the issue with
Hennessey and that the commission payments would be taken
October 2011, Ellicott had an in-person meeting with both
Hunton and Hennessey to follow up on the payment status of
his commissions. There, Hunton and Hennessey informed
Ellicott that: (1) he should share his commissions with
ACE's support staff; (2) ACE would deduct 5.6% from his
commissions for overhead and burden costs and 1% for
maintenance costs; (3) certain solar installment projects
were actually considered "house accounts" and
therefore not a "sale" by Ellicott for which he was
entitled to a commission; and (4) ACE would apply a 30%
commission rate rather than the 40% established in the 2008
compensation plan. Ellicott did not agree to any of these
additional compensation conditions, which were being
presented to him for the first time. The meeting ended
without resolution. Before concluding, Hennessey told
Ellicott that ACE "should be able to start getting [him]
some of [his] commissions in December," and that they
would provide him with an updated spreadsheet detailing his
earned commissions. Ellicott, however, never received the
the October 2011 meeting, Ellicott continued to work for ACE
and received his monthly draw until October 2012, when ACE
ceased making these payments. Ellicott nonetheless continued
working for ACE after October 2012. Then, in June 2013,
Ellicott's health insurance and cell phone coverage --
both provided by ACE -- were cancelled. Shortly thereafter,
Ellicott stopped working for ACE, but the company never
formally terminated his employment.
filed suit against Appellants in Massachusetts Superior Court
seeking compensation for the unpaid sales commissions on
April 2, 2014. His complaint alleged two claims:
violation of the Wage Act and (2) breach of contract. On May
16, 2014, Appellants removed the case to the United States