 


                                                     UNITED STATES DISTRICT COURT
                                                     FOR THE DISTRICT OF COLUMBIA


ALEXANDRIA JONES,

                             Plaintiff,

              v.
                                                                        Civil Action No. 08-00620 (CKK)
JANICE QUINTANA, and

DISTRICT OF COLUMBIA,

                             Defendants.


                                                 MEMORANDUM OPINION AND ORDER
                                                          (July 3, 2012)

              Plaintiff Alexandria Jones, an employee of the District of Columbia’s Office of Unified

Communications (the “OUC”), brings this action against the District of Columbia (the “District”)

and Janice Quintana (“Quintana”), the former Director of the OUC.1 Plaintiff alleges that she

was retaliated against for voicing concerns about the manner in which the OUC intended to

handle emergency “911” calls and non-emergency “311” calls and for filing a disability

discrimination complaint with the District’s Office of Human Rights (the “OHR”).

              Currently before the Court is Defendants’ [75] Motion for Summary Judgment.

Defendants contend that Plaintiff’s remaining claims are barred by the terms of a settlement

agreement (the “Settlement Agreement”) entered into in late April 2009, while this action was

pending, arising out of a grievance proceeding brought by the National Association of

Government Employees, Local R3-07 (the “Union”) on Plaintiff’s behalf. Upon careful



                                                            
1
    Quintana is now sued solely in her individual capacity.


 
 


consideration of the parties’ submissions, the relevant authorities, and the record as a whole,

Defendants’ Motion for Summary Judgment shall be DENIED WITHOUT PREJUDICE.

                                        I. BACKGROUND

       The Court assumes familiarity with its prior opinions in this action, which set forth in

detail the history of the case, and confines its discussion here to the background most germane to

the instant motion.

       A.      Plaintiff’s Factual Allegations

       In briefing the instant motion, the parties dedicate scant attention to the events underlying

Plaintiff’s claims, focusing instead on the factual circumstances relating to the grievance process

and the Settlement Agreement. See infra Part I.B. For background purposes, the Court begins

by summarizing Plaintiff’s version of the underlying events, relying on the allegations in the

Third Amended Complaint without making any assumptions as to their veracity.

                                               * * *

       Plaintiff began her employment with the District in August 1998. Third. Am. Compl.,

ECF No. [57], ¶ 2. Six months later, she was promoted to a dispatcher position in the OUC,

where her duties involved handling emergency 911 calls and transmitting information to the

necessary response teams. Id. ¶ 3.

       At some point prior to December 14, 2007, Plaintiff learned that Quintana, then the

Director of the OUC, was proposing to change the manner in which emergency 911 calls and

non-emergency 311 calls would be routed to dispatchers. Id. ¶ 5. When Plaintiff first started as

a dispatcher with the OUC, non-emergency 311 calls were handled by untrained and uncertified

operators, allowing trained and certified dispatchers like Plaintiff to focus their attention on

emergency 911 calls. Id. ¶ 4. Quintana’s proposed changes would adopt a new practice of



                                                  2 
 
 


routing non-emergency 311 calls to the emergency 911 line, something that Plaintiff believed

would have the effect of delaying emergency response times. Id. ¶¶ 5-6. According to Plaintiff,

the OUC did not employ a sufficient number of trained and certified dispatchers to cover the

universe of combined phone calls. Id. ¶ 6.

       Beginning in late 2007 and continuing into early 2008, Plaintiff attempted to raise her

concerns about the proposed changes with members of the District of Columbia Council (the

“Council”), then-Mayor Adrian Fenty (the “Mayor”), and the public at large. For example:

              December 14 and 17, 2007: Plaintiff wrote to Council members, contending that

               Quintana’s proposed changes would “jeopardize the safety of residents in the

               District of Columbia.” Id. ¶¶ 7-8.

              December 28, 2007 and January 1, 2008: Plaintiff wrote the Mayor, raising the

               same concerns and requesting a meeting. Id. ¶¶ 9-10.

              January 11, 2008: Plaintiff participated in an interview with a local television

               station, again voicing her concerns about Quintana’s proposed changes. Id. ¶ 14.

              January 24, 2008: Plaintiff testified before the Council, addressing what she

               believed was the “lowered safety level” that would result from Quintana’s

               proposed changes. Id.

       An especially significant disclosure occurred on January 7, 2008, when Plaintiff

attempted to have an in-person conversation with the Mayor while he was visiting the OUC. Id.

¶ 11. The encounter did not go well. Although Plaintiff maintains that she was neither rude nor

disrespectful, she claims that the Mayor raised his voice at her and “screamed” that she should

“do whatever Ms. Quintana wanted her to do.” Id.




                                                3 
 
 


       On January 10, 2008, three days after Plaintiff’s encounter with the Mayor, Quintana

placed Plaintiff on administrative leave without pay. Id. ¶ 12. By that point in time, Quintana

was aware of Plaintiff’s efforts to “speak out” about the proposed changes to the routing of

emergency and non-emergency calls in the OUC, but Quintana justified the decision to place

Plaintiff on administrative leave by stating that the Mayor was “not pleased” with Plaintiff and

by characterizing Plaintiff as a “disgruntled and disrespectful employee.” Id.

       On January 18, 2008, Quintana proposed that Plaintiff be suspended for a period of thirty

days. Id. ¶ 18. While it is never made clear, it appears that the contemporaneous justification for

the proposed suspension coincided with Quintana’s stated reasons for placing Plaintiff on

administrative leave one week earlier—namely, that the Mayor was “not pleased” with Plaintiff

and that Plaintiff was a “disgruntled and disrespectful employee.” Id. ¶ 12. However, on

February 11, 2008, for reasons that are left unstated, Plaintiff’s proposed thirty-day suspension

was overruled and the “charges” against her were “dismissed without prejudice.” Id. ¶ 23.

       During this same time period, Plaintiff began receiving medical treatment in connection

with what she claims was job-related anxiety. Id. ¶¶ 13, 16, 24, 31, 35, 38, 41. On January 24,

2008, Plaintiff was “diagnosed with an impairment/disability because of anxiety” and, on this

basis, requested an accommodation to work eight-hour shifts instead of her usual ten-hour shifts.

Id. ¶¶ 21, 38. It appears that Plaintiff then took leave from work for an unspecified period of

time in connection with her condition. Id. ¶¶ 36, 39. On July 22, 2008, Plaintiff filed a formal

disability discrimination complaint with the OHR. Id. ¶ 40.

       B.      Plaintiff’s Termination, the Grievance Process, and the Settlement Agreement

       On August 14, 2008, the OUC notified Plaintiff that it proposed to terminate her

employment for alleged insubordination and absences without official leave. Defs.’ Stmt. of



                                                 4 
 
 


Material Facts as to Which There Is No Genuine Dispute (“Defs.’ Stmt.”), ECF No. [75], ¶ 1; Pl.

Jones [sic] Stmt. of Facts Which Dispute Defs.’ Affirmative Defense (“Pl.’s Resp. Stmt.”), ECF

No. [79-1], pt. I, ¶ 1. On September 24, 2008, after Plaintiff submitted a written response, the

OUC notified Plaintiff of its final decision to terminate her employment effective September 26,

2008. Defs.’ Stmt. ¶ 2; Pl.’s Resp. Stmt. pt. I, ¶ 2. Plaintiff was informed that she had the right

to file an appeal with the Office of Employee Appeals or to file a grievance under the Union’s

Collective Bargaining Agreement (the “CBA”). Defs.’ Stmt. ¶ 3; Pl.’s Resp. Stmt. pt. I, ¶ 3.

        By letter dated October 1, 2008, Plaintiff elected to file a grievance through her Union.

Defs.’ Stmt. ¶ 4; Pl.’s Resp. Stmt. pt. I, ¶ 4. In the grievance letter, which is signed by both

Plaintiff and her Union representative, Plaintiff alleged that the OUC (i) failed to provide a

reasonable accommodation for her alleged disability, (ii) retaliated against her for requesting a

reasonable accommodation, (iii) terminated her employment without sufficient cause, and (iv)

adopted a penalty disproportionate to the alleged misconduct. See Defs.’ Stmt. Ex. C (Ltr. from

Sarah E. Suszczyk to J. Quintana dated Oct. 1, 2008) at 2-3. Contemporaneously, Plaintiff

executed a statement expressly designating the Union’s Assistant Regional Counsel “to act as

[her] representative with regard to a grievance and possible arbitration related to [her] removal.”

Id. at 4.

        The parties to the grievance proceedings moved towards arbitration before the Federal

Mediation and Conciliation Service, but ultimately resolved their dispute through the Settlement

Agreement. See Defs.’ Stmt. Ex. D (Settlement Agreement). The Settlement Agreement,

executed by various parties in late April 2009, is hardly the model of artful drafting. The first

paragraph defines “[t]he Parties” as the Union and the OUC and provides that “[t]he Parties . . .

hereby voluntarily agree to resolve and conclude the . . . arbitration case filed . . . .” Id. ¶ 1.



                                                   5 
 
 


Plaintiff, who signed the Settlement Agreement, is identified only as “the Grievant” in this

introductory paragraph and is not included within the definition of “[t]he Parties.” Id. On the

signature page, Plaintiff is likewise identified only as the “grievant” and is allocated a signature

block separate from the one for the Union. Id. at 4.

           For purposes of the instant motion, the operative provision of the Settlement Agreement

is the release of claims, which provides:

                  The Union shall waive, release, forever discharge from liability the
                  [OUC] and the government of the District of Columbia, as well as
                  its officers, agents, employees and representatives for claims,
                  demands, grievances, or causes of action arising out of and in
                  connection with the removal of [Plaintiff] for alleged
                  insubordination and absence without leave on September 26, 2008.
                  The Union will indemnify the [OUC] and the government of the
                  District of Columbia, as well as its officers, agents, and employees
                  and representatives for any claim brought by the Union alleging a
                  violation of the Collective Bargaining Agreement between the
                  Union and the [OUC] in relation to the removal of [Plaintiff] on
                  September 26, 2008.

Id. ¶ 2(b). In exchange for this release of claims, the OUC agreed to, among other things, (i)

reinstate Plaintiff to her former position, (ii) return Plaintiff to the grade and step she would have

been had she never been removed, (iii) restore all leave and benefits Plaintiff would have earned

had she never been removed, and (iv) pay Plaintiff a lump sum of $10,000. Id. ¶ 3. Following

this exchange of promises, the Settlement Agreement sets forth the following “acknowledgment”

clause:

                  The Union and [the OUC] acknowledge that this Settlement
                  Agreement resolves the above-captioned matter only and does not
                  affect any other claim [Plaintiff] may have pending or in the future
                  against the Agency for any reason other than the fact that it
                  establishes [Plaintiff] will return to work on April 28, 2009. The
                  parties understand that any claims involving [Plaintiff’s] return to
                  work shall be null and void.

Id. ¶ 4.


                                                   6 
 
 


       C.         Procedural History

       When Plaintiff first brought this action on April 10, 2008, prior to the termination of her

employment and the execution of the Settlement Agreement, she asserted three overarching

claims: retaliation in violation of the District of Columbia Whistleblower Protection Act (the

“DC-WPA”), D.C. CODE §§ 1-615.51 et seq.; retaliation in violation of the District of

Columbia’s Workers’ Compensation Statute (the “DC-WCS”), D.C. CODE §§ 31-1501 et seq.;

and deprivation of rights under the First Amendment to the United States Constitution in

violation of 42 U.S.C. § 1983 (“Section 1983”). See Compl., ECF No. [1], ¶¶ 49-67. On

January 2, 2009, Plaintiff filed an Amended Complaint, asserting two additional claims based on

events allegedly transpiring after the filing of the Complaint: failure to provide a reasonable

accommodation in violation of the Americans with Disabilities Act of 1990 (the “ADA”), 42

U.S.C. §§ 12101 et seq.; and retaliation in violation of the ADA. See Am. Compl., ECF No.

[19], ¶¶ 72-77.

       Subsequently, Defendants moved to dismiss Plaintiff’s Amended Complaint. On

September 30, 2009, the Court granted the motion in part and denied it in part. See Jones v.

Quintana, 658 F. Supp. 2d 183 (D.D.C. 2009). Specifically, Plaintiff’s retaliation claim under

the DC-WPA was dismissed against Quintana but survived against the District; Plaintiff’s

retaliation claim under the DC-WCS was dismissed in its entirety; Plaintiff’s Section 1983 claim

was dismissed against the District and Quintana insofar as Quintana was sued in her official

capacity; Plaintiff’s failure-to-accommodate claim was dismissed in its entirety; and Plaintiff’s

retaliation claim under the ADA survived in its entirety. See id. at 204. As a result, only two of

Plaintiff’s claims clearly survived Defendants’ motion to dismiss: Plaintiff’s retaliation claim

against the District under the DC-WPA; and Plaintiff’s retaliation claim under the ADA. See id.



                                                 7 
 
 


As for Plaintiff’s Section 1983 claim, the Court observed that Plaintiff’s Amended Complaint did

not clearly indicate which factual allegations she was relying on in bringing suit against Quintana

in her individual capacity. See id. at 196. Concluding that it would be unfair to require Quintana

to advance a defense of qualified immunity without fair notice of the precise factual allegations

asserted against her in her individual capacity, the Court directed Plaintiff to amend her

Complaint a second time to identify those factual allegations. See id. at 196, 204.

       Responding to the Court’s directive, Plaintiff’s counsel, Jerome E. Clair, Esq., filed a

Second Amended Complaint. See Second Am. Compl., ECF No. [32]. However, this iteration

of the Complaint inexplicably included a single count—Plaintiff’s Section 1983 claim—and

made no reference to Plaintiff’s surviving retaliation claims against the District under the DC-

WPA and the ADA. See id. ¶¶ 1, 15. In an effort to clarify whether Plaintiff intended to

abandon these latter two claims, the Court warned Plaintiff that she would be required to file an

amended pleading setting forth all of her legal claims in a single document. See Min. Order

(Oct. 5, 2009). Despite this warning, Plaintiff’s counsel failed to file a timely amended pleading

in accordance with the Court’s instructions.

       Nonetheless, because Plaintiff’s Section 1983 claim still remained in the Second

Amended Complaint, the Court granted Defendants leave to file a second motion to dismiss

addressing that claim. See id. Defendants did so, confining their arguments to Plaintiff’s Section

1983 claim and assuming that Plaintiff had abandoned her remaining claims. Upon reviewing

Defendants’ second motion to dismiss, the Court again alerted Plaintiff of her failure to include

claims in her Second Amended Complaint and cautioned her that, absent an appropriate amended

pleading, the Court would assume that she intended to abandon any unidentified claims. See

Min. Order (Oct. 23, 2009). Plaintiff’s counsel responded by filing a status report with the



                                                 8 
 
 


Court, stating without further explanation that Plaintiff “did not intend to relitigate any issue that

was decided by the court” in resolving the first motion to dismiss and did “not intend to file any

response to defendants’ motion to dismiss plaintiff’s second amended complaint.” Pl.’s Status

Report, ECF No. [35], at 1.

       Based on this response, the Court concluded that Plaintiff had abandoned any claims

apart from her Section 1983 claim and that she had, further, conceded the merits of the second

motion to dismiss by failing to file a timely opposition. See Jones v. Quintana, 665 F. Supp. 2d

1, 4-5 (D.D.C. 2009). With no claims left extant, the Court dismissed the action. See id. at 5.

       Shortly thereafter, Plaintiff’s counsel filed a one-page document styled as a “motion for

clarification,” first asserting that “[i]n less than 90 days after his inauguration President Obama

had restructured the American automobile industry” and then proceeding to ask when the Court

would refer this case to a magistrate judge for a settlement conference. Pl.’s Mot. for

Clarification, ECF No. [38], at 1. The Court responded by referring Plaintiff’s counsel to its

prior decision dismissing the action. See Min. Order (Oct. 30, 2009).

       This prompted Plaintiff’s counsel to file a notice of appeal. See Pl.’s Notice of Appeal,

ECF No. [39]. After Plaintiff learned of the appeal and secured new counsel, the United States

Court of Appeals for the District of Columbia Circuit held the appeal in abeyance in order to

afford Plaintiff an opportunity to seek relief from this Court. Plaintiff, represented by new

counsel, then filed a motion for reconsideration with this Court, submitting a sworn declaration

outlining her interactions with her former counsel and submitting a proposed Third Amended

Complaint speaking to the concerns previously identified by the Court. The Court granted the

motion for reconsideration and directed Plaintiff to file her Third Amended Complaint. See




                                                  9 
 
 


Mem. Op., Order, & Indicative Ruling (Mar. 27, 2011), ECF No. [49]; Am. Order (May 8,

2011), ECF No. [52].

       Today, the operative iteration of the Complaint is Plaintiff’s Third Amended Complaint.

Therein, Plaintiff asserts three “live” claims: retaliation under the DC-WPA against the District

(Count I); deprivation of rights under the First Amendment in violation of Section 1983 against

Quintana in her personal capacity (Count III); and retaliation under the ADA against the District

(Count V). See Third Am. Compl. ¶¶ 45-58.

       Upon the filing of the Third Amended Complaint, Quintana moved to dismiss Plaintiff’s

Section 1983 claim (Count III), claiming that she is entitled to qualified immunity. On

December 11, 2011, the Court denied Quintana’s motion, concluding that “the question of

whether Quintana is entitled to qualified immunity must await further development of the factual

record.” Jones v. Quintana, 831 F. Supp. 2d 75, 88 (D.D.C. 2011).

       On January 27, 2012, the parties appeared before the Court for a scheduling conference.

In anticipation of the scheduling conference, Defendants filed a report in which they argued—for

the very first time—that Plaintiff’s remaining claims in this case are barred by the terms of the

Settlement Agreement. See Joint Rule 16.3 Stmt., ECF No. [66], at 2. By the time Defendants

raised this argument, approximately two years and nine months had passed since the Settlement

Agreement had been signed. In that period, the parties had briefed, and the Court had resolved,

multiple dispositive and non-dispositive motions and the case had gone up on appeal and

returned to this Court for further proceedings. Due to the belated nature of Defendants’

argument, the Court declined to stay discovery while Defendants moved for summary judgment

based on the Settlement Agreement. Nonetheless, the Court exercised its discretion to permit




                                                10 
 
 


Defendants to file a motion for summary judgment prior to the conclusion of discovery. See

Scheduling & Procedures Order, ECF No. [67], at 5-6.

       Defendants first attempted to file the instant motion on February 10, 2012, but the Court

struck Defendants’ original submissions as non-compliant with its prior instructions. See Order

(Feb. 14, 2012), ECF No. [73]. Defendants re-filed on February 21, 2012. See Defs.’ Mem. of

P. & A. in Supp. of Mot. for Summ. J. (“Defs.’ Mem.”), ECF No. [75]. Plaintiff, in turn, first

attempted to file her opposition on March 6, 2012, but the Court struck Plaintiff’s original

opposition as non-compliant with the Local Rules and this Court’s Scheduling and Procedures

Order. See Min. Order (Mar. 7, 2012). Plaintiff re-filed her opposition on March 9, 2012. See

Pl. Alexandria Jones’ Opp’n to Defs.’ Mot. for Summ. J., ECF No. [79]. Defendants filed their

reply on March 23, 2012. See The District of Columbia and Janice Quintana’s Reply to Pl.’s

Opp’n to Defs.’ Mot. for Summ. J. (“Defs.’ Reply”), ECF No. [80]. The motion is now fully

briefed and ripe for a decision. In an exercise of its discretion, the Court finds that holding oral

argument would not be of assistance in rendering a decision. See LCvR 7(f).

                                     II. LEGAL STANDARDS

       A.      Motions for Summary Judgment

       Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and [that it] . . . is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar

summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). Nor may summary judgment be avoided based on just any disagreement as to



                                                  11 
 
 


the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient

admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

       In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record—including deposition testimony, documentary evidence, affidavits or

declarations, or other competent evidence—in support of her position, or (b) demonstrate that the

materials relied upon by the opposing party do not actually establish the absence or presence of a

genuine dispute. FED. R. CIV. P. 56(c)(1). Conclusory assertions offered without any factual

basis in the record cannot create a genuine dispute sufficient to survive summary judgment.

Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C.

Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to

properly address another party’s assertion of fact,” the district court may “consider the fact

undisputed for purposes of the motion.” FED. R. CIV. P. 56(e).

       When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the

light most favorable to the non-movant, with all justifiable inferences drawn in her favor.

Liberty Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are

susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477

U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is

some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not



                                                 12 
 
 


sufficiently probative, summary judgment may be granted,” Liberty Lobby, 477 U.S. at 249-50

(internal citations omitted).

              B.             Contract Interpretation under District of Columbia Law

              Under District of Columbia law,2 the party claiming that an enforceable contract exists

bears the burden of showing that there has been a “meeting of the minds,” or mutual assent, as to

all material terms. Ekedahl v. COREStaff, Inc., 183 F.3d 855, 858 (D.C. Cir. 1999) (per curiam).

Mutual assent “may be found either in the written agreement or, if the agreement is ambiguous,

in the parties’ actions at the time of contract formation.” Id. “Where an ambiguity is present, the

intent and understanding of the parties is of critical importance,” which entails “a probing

inquiry into the understanding of each party to the alleged contract regarding its meaning and

effect.” Howard Univ. v. Lacy, 828 A.2d 733, 737 (D.C. 2003). Often, this requires resort to

evidence concerning the circumstances surrounding the making of the contract, including

preliminary negotiations and discussions, customary practices of which either party knows or has

reason to know, and the course of conduct of the parties under the contract. In re Bailey, 883

A.2d 106, 118 (D.C. 2005).

                                                               III. DISCUSSION

              Settlement agreements are creatures of contract and, as such, are entitled to enforcement

under general principles of contract law. Carroll v. Fremont Inv. & Loan, 636 F. Supp. 2d 41,

49 (D.D.C. 2009) (citing Brown v. Brown, 343 A.2d 59, 61 (D.C. 1975) (per curiam)). Through

the instant motion, Defendants argue that Plaintiff’s remaining claims in this action are barred by
                                                            
2
  So far as the Court can tell, the parties are in agreement that the Settlement Agreement is
governed by District of Columbia law. The Court need not, and does not, question this
assumption. See Patton Boggs LLP v. Chevron Corp., __ F.3d __, 2012 WL 2362593, at *5
(D.C. Cir. June 22, 2012). In any event, resolution of the instant motion turns on ordinary and
non-controversial principles of agency and contract law that are hardly unique to the District of
Columbia.

                                                                     13 
 
 


the terms of the Settlement Agreement. Despite the parties’ frolic into a litany of collateral and

irrelevant matters, the instant motion actually presents two relatively straightforward questions:

is Plaintiff a party to the Settlement Agreement (or otherwise bound by its terms)? and, if so,

does the release operate to preclude Plaintiff from pursuing this action?

        A.      Is Plaintiff Bound by the Settlement Agreement?

        The answer to the first question—whether Plaintiff is a party to or otherwise bound by

the Settlement Agreement—is not free from doubt.

        In this regard, the single, most notable feature of the Settlement Agreement—the one

Defendants repeatedly attempt to evade—is that Plaintiff is clearly not identified as one of “[t]he

Parties,” a designation that is reserved for the Union and the OUC alone. Defs.’ Stmt. Ex. C

(Settlement Agreement) ¶ 1. Instead, Plaintiff is consistently identified in the agreement by

name or as “the [g]rievant.” Id. ¶ 1 & at 4.

        True, Plaintiff signed the Settlement Agreement. See id. at 4. But while Defendants

seem to believe that this shows Plaintiff’s agreement to be bound, the fact that Plaintiff signed in

a separate signature block identifying her only as “the grievant”—which, to reiterate, does not

bring her within the contractual definition of the term “[t]he Parties”—could just as easily be

read as undercutting that conclusion. See Berliner Corcoran & Rowe LLP v. Orian, 563 F. Supp.

2d 250, 254 (D.D.C. 2008) (“[A] signature block is unquestionably probative of the capacity in

which a person is acting when he or she signs an agreement . . . .”). Simply put, the drafters of

the Settlement Agreement proved themselves capable of defining the parties to the agreement,

but they conspicuously left Plaintiff off the list.

        There is an obvious conclusion to be drawn from Plaintiff’s omission from the

contractual definition of “[t]he Parties” in the Settlement Agreement—namely, that Plaintiff is



                                                      14 
 
 


not a party to the agreement. Defendants attempt to avoid this obvious conclusion, but they

never articulate with any meaningful measure of clarity under what theory they seek to do so. In

their opening memorandum, Defendants do little more than conflate the Plaintiff and the Union.

See Defs.’ Mem. at 7-9. In their reply, meanwhile, Defendants posit that the Union entered into

the Settlement Agreement on Plaintiff’s behalf and assert that Plaintiff is therefore bound under

basic principles of agency. See Defs.’ Reply at 2-4. Though Defendants’ argument on this point

is disjointed and often difficult to follow, there is some support for their position.3 It is a non-

controversial principle of agency law that “[w]hen an agent acting with actual or apparent

authority makes a contract on behalf of a disclosed principal, . . . the principal and the third party

are parties to the contract.” RESTATEMENT (THIRD) OF AGENCY § 6.01 (2003). “Whether an

agency relationship exists is a question of fact for which the person asserting it carries the burden

of proof.” Plesha v. Ferguson, 760 F. Supp. 2d 90, 93 (D.D.C. 2011) (citing Railan v. Katyal,

766 A.2d 998, 1010 (D.C. 2001)). In this case, Plaintiff, who had the option to pursue her

grievance without Union representation, expressly authorized the Union to act as her

representative. Compare D.C. CODE § 1-617.06 (“[A]n individual employee may present a

grievance at any time to his or her employer without the intervention of a labor organization . . .

.”), with Defs.’ Stmt. Ex. C (Ltr. from Sarah E. Suszczyk to J. Quintana dated Oct. 1, 2008) at 4

(designating the Union’s Assistant Regional Counsel “to act as [Plaintiff’s] representative with

regard to a grievance and possible arbitration related to [her] removal . . . .”).

                                                            
3
  Defendants also appear to make the separate argument that Plaintiff is an intended beneficiary
of the Settlement Agreement. See Defs.’ Reply at 4-7. The argument is, quite frankly,
perplexing. Even assuming Defendants are correct that Plaintiff is an intended beneficiary, her
status as such would only entitle Plaintiff to enforce the agreement against Defendants, not vice
versa. Cf. RESTATEMENT (SECOND) OF CONTRACTS §§ 304, 309 (1981). It is a fundamental and
unobjectionable principle that a contract cannot bind a non-party—i.e., someone who has not
assented to be bound to its terms. EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002).

                                                               15 
 
 


              But the mere fact that the Union may have had the authority to act as Plaintiff’s agent

during the grievance and arbitration process does not ineluctably lead to the conclusion that the

parties intended to, and in fact did, bind Plaintiff to the Settlement Agreement. Ultimately, the

drafters’ decision to circumscribe the universe of “[t]he Parties” to exclude Plaintiff, coupled

with the fact that the Settlement Agreement on its face imposes no direct obligations on

Plaintiff,4 creates a genuine dispute of material fact precluding summary judgment in

Defendants’ favor. Accordingly, Defendants’ [75] Motion for Summary Judgment shall be

DENIED on this basis.

              B.             Does the release preclude Plaintiff from pursuing this action?

              The second question—whether the release precludes Plaintiff from pursuing this action—

subdivides into several components. The Court need only address two at this stage.

                             1.             Does the Release Cover Plaintiff?

              The first component presents a question similar to, but analytically distinct from, the

question of whether Plaintiff is somehow bound by the Settlement Agreement: as a matter of

contract interpretation, does the release impose any obligations on Plaintiff?

              In this regard, Defendants seem to be laboring under the misapprehension that, if they can

prove that the Union was acting as Plaintiff’s agent in negotiating the Settlement Agreement,

then that would somehow magically transform all the references to the Union in the agreement to

references to Plaintiff. But even assuming, arguendo, that the Union was acting as Plaintiff’s

agent, the Union nonetheless could have been an independent actor in the negotiation process,

and the parties very well could have intended some promises to run from the Union, others to run

                                                            
4
   Defendants contend that the Settlement Agreement required Plaintiff to return to work, see
Defs.’ Reply at 5-6, but this is a specious reading of the agreement, which at best made
Plaintiff’s return to work a condition precedent to certain aspects of the OUC’s performance.

                                                                    16 
 
 


from Plaintiff, and still others to run from both the Union and Plaintiff. And yet Defendants

offer no support—legal or factual—for their apparent assumption that all of the obligations

described in the Settlement Agreement can be imputed to Plaintiff.

              To the contrary, the release provides that “[t]he Union [agreed to] . . . waive, release,

forever discharge from liability the [OUC] and the government of the District of Columbia . . . .”

Defs.’ Stmt. Ex. C (Settlement Agreement) ¶ 2(b) (emphasis added). To the extent Defendants

intend to suggest that this language reflects an intention that the release cover Plaintiff, the

agreement is, at best, ambiguous.5 In that case, even if Defendants’ interpretation is not facially

implausible, the problem is that there is virtually no evidence in the record as to what the parties’

understandings actually were at the time of contracting and whether those understandings were

reasonable. These gaps in the record are fatal to Defendants’ motion because the question of

whether there has been a “meeting of the minds” must be approached with an eye towards how a

reasonable person in the contracting parties’ position would have understood the agreement.

Akassy v. William Penn Apartments Ltd. P’Ship, 891 A.2d 291, 299 (D.C. 2006). Here,

Defendants have utterly failed to supply the sort of evidence—such the circumstances

surrounding the making of the contract and customary practices of which either party knows or

has reason to know—that would permit the Court to engage in the “probing inquiry into the

understanding of each party” that is required in this context. Howard Univ., 828 A.2d at 737.

              On this record, the Court can only conclude that Defendants have failed to establish their

entitlement to judgment as a matter of law. Accordingly, their [75] Motion for Summary

Judgment shall be DENIED on this separate, independent basis.



                                                            
5
    At this point, the Court assumes, without deciding, that the language is ambiguous.

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               2.      Does the Release Cover Plaintiff’s Claims?

       The second component likewise presents a question of contract interpretation: does the

scope of the release cover the claims asserted by Plaintiff in this case?

       The release extends to any claims “arising out of and in connection with the removal of

[Plaintiff] for alleged insubordination and absence without leave on September 26, 2008.” Defs.’

Stmt. Ex. C (Settlement Agreement) ¶ 2(b). Even assuming that this language is clear enough on

its own, it is rendered ambiguous by the agreement’s “acknowledgment” clause, which provides:

               The Union and [the OUC] acknowledge that this Settlement
               Agreement resolves the above-captioned matter only and does not
               affect any other claim [Plaintiff] may have pending or in the future
               against the Agency for any reason other than the fact that it
               establishes [Plaintiff] will return to work on April 28, 2009. The
               parties understand that any claims involving [Plaintiff’s] return to
               work shall be null and void.

Id. ¶ 4. This action was “pending” at the time the Settlement Agreement was drafted. Therefore,

the first sentence of the acknowledgment clause would suggest that the only effect of the

agreement on this action is to establish that Plaintiff “will return to work.” But the following

sentence provides that claims involving Plaintiff’s return to work “shall be null and void.” The

uncertain relationship between these two sentences, and their uncertain relationship to the

release’s reference to claims relating to Plaintiff’s “removal,” render the agreement ambiguous.

       Because the agreement is ambiguous in this regard, the Court must engage in “a probing

inquiry into the understanding of each party to the alleged contract regarding its meaning and

effect.” Howard Univ., 828 A.2d at 737. As before, see supra Part III.B.1, Defendants have

failed to supply the sort of evidence that would allow the Court to conduct this inquiry. As a

result, the Court can only conclude that that Defendants have failed to establish their entitlement

to judgment as a matter of law. Accordingly, their [75] Motion for Summary Judgment shall be

DENIED on this separate, independent basis.
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                                        IV. CONCLUSION

       The remaining arguments tendered by the parties are either without merit or need not be

reached in light of the basis for the Court’s decision. Therefore, and for the reasons set forth

above, it is, this 3rd day of July, 2012, hereby

       ORDERED that Defendants’ [75] Motion for Summary Judgment is DENIED

WITHOUT PREJUDICE. Defendants are free to re-raise their arguments concerning the

Settlement Agreement in their post-discovery motion for summary judgment, upon further

development of the factual record.

       SO ORDERED.
                                                         _____/s/______________________
                                                         COLLEEN KOLLAR-KOTELLY
                                                         United States District Judge




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