UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TIMOTHY SKRYNNIKOV,
Plaintiff,
v. Civil Action No. 11-0609 (GK)
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Defendant.
MEMORANDUM OPINION
Plaintiff Timothy Skrynnikov ("Plaintiff" or "Skrynnikov")
brings this action against Defendant Federal National Mortgage
Association ("Defendant" or "Fannie Mae") alleging retaliation
under the Federal False Claims Act ("FCA"), 31 U.S.C. § 3729 et
seq., and interference with his rights under both the Federal
Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.,
and the related District of Columbia Family and Medical Leave
Act ("DCFMLA"), D.C. Code § 32-501 et seq.
This matter is before the Court on Defendant's Motion to
Dismiss and Its Motion to Compel Arbitration [Dkt. No. 2 6] .
Upon consideration of the Motion, Opposition [Dkt. No. 29], and
Reply [Dkt. No. 30], and the entire record herein, and for the
reasons set forth below, the motion to compel arbitration is
granted.
1
I . BACKGROUND
Fannie Mae is a government-sponsored corporation chartered
by Congress, with its headquarters in the District of Columbia.
SAC § 5. Skrynnikov was employed by Fannie Mae as a Senior
Financial Analyst from October 9, 2007 until November 13, 2009,
when his employment was terminated. SAC ~~ 6, 38. Skrynnikov
alleges that Fannie Mae eliminated his position in retaliation
for his investigation into and disclosure of purported
falsehoods in executive compensation data that Fannie Mae
reported to the United States Senate Committee on Finance in
March 2009. SAC ~~ 11-17, 38-42. Skrynnikov also alleges that
the elimination of his position interfered with his rights under
the FMLA and DCFMLA because it came at the conclusion of an
approved medical leave of absence. Id. ~~ 26-38, 43-50.
When Skrynnikov applied for his job in October 2007, he
signed an application form acknowledging that "as a condition of
employment, all Fannie Mae employees must agree to be bound by
Fannie Mae's Dispute Resolution Policy, which requires that
certain employment-related claims be submitted to arbitration
before a suit can be brought on them in court." De f . ' s Mem. P .
& A., Ex. 1 ("Employment Application") at 4 [Dkt. No. 26-1].
1
The facts set forth herein are taken from the Second Amended
Complaint ("SAC") [Dkt. No. 23] and the undisputed facts set
forth in the parties' briefs and exhibits.
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Similarly, when Skrynnikov signed and accepted Fannie Mae's
offer of employment, he did so subject to the understanding that
Fannie Mae's Dispute Resolution Policy required him "to submit
certain employment-related claims to the mandatory arbitration
process for final resolution prior to filing these claims in a
court of law. " Def.'s Mem. P. & A., Ex. 2 ("Offer Letter")
[Dkt . No. 2 6-2] .
The Dispute Resolution Policy, a copy of which accompanied
Fannie Mae's Offer Letter, provides that a Fannie Mae employee
is required to arbitrate "all claims . against Fannie Mae .
involving a legally-protected right, that directly or
indirectly relate to his or her employment or the termination of
that employment [.]" Def. 's Mem. P. & A., Ex. 3 ("Dispute
Resolution Policy" or "Policy") § 2 [Dkt. No. 26-3]. The Policy
elaborates that the claims to which it applies .may "involv [e]
rights protected by any federal, state, or other governmental
constitution [sic], statute, ordinance, regulation, or common
law." The Policy also states that "[t] he arbitrator will
resolve all disputes over the interpretation and applicability
of the Policy, and over the arbitrability of all matters
presented under it." Id. § 16.
On March 23, 2011, Skrynnikov filed this case against
Fannie Mae asserting a qui tam claim under the FCA on behalf of
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the United States, as well as various employment-related claims
on his own behalf. [Dkt . No. 1] . On March 27, 2012,
Skrynnikov's qui tam claim was dismissed on motion of the
Government pursuant to 31 U.S.C. § 3730 (c) (2) (A). [Dkt. Nos.
17, 18]. In his Second Amended Complaint [Dkt. No. 23],
Skrynnikov brings claims solely on his own behalf for
retaliation under the FCA, and for interference with his rights
under the FMLA and DCFMLA. SAC §§ 39-50. It is undisputed that
Skrynnikov did not submit these claims to arbitration before
commencing this action.
On November 6, 2012, Fannie Mae moved to dismiss the FMLA
and DCFMLA claims pursuant to Rule 12(b) (6) of the Federal Rules
of Civil Procedure, and to compel arbitration of the FCA claim.
[Dkt. Nos. 26, 27-1] . Fannie Mae also requested that if the
Court did not dismiss the FMLA and DCFMLA claims, it compel
arbitration as :to those claims as well. On January 7, 2013,
Skrynnikov filed his Opposition to Fannie Mae's Motion [Dkt. No.
29], and on January 14, 2013, Fannie Mae filed its Reply [Dkt.
No. 30] .
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II. STANDARD OF REVIEW 2
A motion to compel arbitration is effectively "a request
for summary disposition of the issue of whether or not there
ha [s] been a meeting of the minds on the agreement to
arbitrate [,] 11
and therefore such a motion is properly reviewed
under the summary judgment standard of Rule 56(c) of the Federal
Rules of Civil Procedure. Aliron Int'l, Inc. v. Cherokee Nation
Indus., Inc., 531 F. 3d 863, 865 (D.C. Cir. 2008) (citations and
quotation marks omitted) .
"Under this standard, the party seeking to compel
arbitration must firs·t present 'evidence sufficient to
demonstrate an enforceable agreement to arbitrate. ' 11
Fox v.
Computer World Servs. Corp., No. 12-0374 (ABJ), 2013 WL 385610,
at *3 (D.D.C. Feb. 1, 2013) (quoting Hill v. Wackenhut Servs.
Int'l., 865 F. Supp. 2d 84, 89 (D.D.C. June 7, 2012)). The
burden then shifts to the opposing party "to show that there is
a genuine issue of material fact as to the making of the
agreement [] 11
so as to preclude the court from deciding the
motion to compel as a matter of law. Haire v. Smith, Currie &
Hancock LLP, No. 12-749 (JDB), 2013 WL 751035, at *2 (D.D.C.
Feb. 28, 2013) (citing Hill, 865 F. Supp. 2d at 89). To sustain
2
The Court does not reach Fannie Mae's, arguments for dismissal
under Fed. R. Civ. P. 12 (b) (6), and, therefore, does not set
forth that standard of review.
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its burden, the nonmoving party must "'go beyond the pleadings
and by [its] own affidavits, or by depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial.'"
Amirmotazedi v. Viacom, Inc., 768 F. Supp. 2d 256, 260 (D.D.C.
2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir.
1987)).
III. ANALYSIS
A. Legal Standard Under the Federal Arbitration Act
The Federal Arbitration Act ("FAA") , 9 U.S. C. § 1 et seq.,
governs the enforcement of an arbitration agreement such as the
one at issue in this case. 3 The FAA provides, in relevant part,
that "[a] written provision in any . contract evidencing a
transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract . . shall
be valid, irrevocable, and enforceable, save upon such grounds
as exist at law or in equity for the revocation of any
contract." 9 U.S.C. § 2.
Although "arbitration is a matter of contract and a party
cannot be required to submit to arbitration any dispute which he
3
The Dispute Resolution Policy states that it "is an agreement
to arbitrate pursuant to the FAA" and must "be interpreted,
enforced, and governed under the FAA." Policy § 16.
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has not agreed to so submit[,]" United Steelworkers of Am. v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960), the FAA
"establishes a liberal federal policy favoring arbitration
agreements." CompuCredit Corp. v. Greenwood, -- U.S. --, 132 S.
Ct. 665, 669 (2012) (citation and quotation marks omitted) .
Therefore, as our Court of Appeals has emphasized, "any doubts
concerning the scope of arbitrable issues should be resolved in
favor of arbitration [.]" Wolff v. Westwood Mgmt., LLC, 558 F. 3d
517, 520 (D.C. Cir. 2009) (citing Moses H. Cone Mem'l Hosp. v.
Mercury Constr. Corp., 460 u.s. 1, 24-25 (1983)). This
principle applies "even when the claims at issue are federal
statutory claims, unless the FAA's mandate has been 'overridden
by a contrary congressional command. '" CompuCredi t Corp. , 132
S. Ct. at 669 (quoting Shearson/Am. Express Inc. v. McMahon, 482
u.s. 220, 226 (1987)).
Although the Supreme Court has long recognized and enforced
a "liberal federal policy favoring arbitration agreements,"
Moses H. Cone Memorial Hosp., 460 U.S. at 24, it has also made
clear that there is an exception to this policy: the question
whether the parties have submitted a particular dispute to
arbitration, i.e., the "question of arbitrability" is "an issue
for judicial determination [u]nless the parties clearly and
unmistakably provide otherwise [.] " AT & T Technologies, Inc. v.
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Communications Workers of America, 475 U.S. 643, 649, 106 S. Ct.
1415, 89 Lawyers Ed. 648 (1986) (emphasis added). As the court
will discuss infra at III.B.1., in this case, the actual
language in the Policy is clear and unmistakable.
B. The Dispute Resolution Policy Requires Each of the
Pending Disputes to Be Submitted to Arbitration
When a party invokes the FAA to compel arbitration, the
Court first must determine whether there is a valid agreement to
arbitrate. See, e.g., Johns v. Newsmax Media, Inc., 887 F.
Supp. 2d 90, 97 (D.D.C. 2012) (citing Nelson v. Insignia/Esg,
Inc., 215 F. Supp. 2d 143, 150 (D.D.C. 2002)). The Court then
must assess whether the specific dispute falls within its scope.
Id. In answering these questions, ordinary state-law contract
principles apply. First Options of Chicago, Inc. v. Kaplan, 514
u.s. 938, 944 (1995) . 4
1. There Is a Valid Agreement to Arbitrate
In support of its Motion to Compel, Fannie Mae has
submitted copies of Skrynnikov's Employment Application, Fannie
Mae's Offer Letter, and its Dispute Resolution Policy.
Skrynnikov' s signature on the Employment Application and Offer
Letter evidences his acceptance of the Dispute Resolution
4
Skrynnikov's opposition papers assume that District of
Columbia law applies to the arbitration agreement. Pl.'s Opp'n
at 7-8. Since Fannie Mae does not dispute this assumption, the
Court will apply District of Columbia law.
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Policy, particularly because these documents emphasize the
Policy's requirement that he submit "certain employment-related
claims to the mandatory arbitration process for final resolution
prior to filing [such] claims in a court of law." Offer Letter
at 1; see also Employment Application at 4 ("I acknowledge that,
as a condition of employment, all Fannie Mae employees must
agree to be bound by Fannie Mae's Dispute Resolution Policy,
which requires that certain employment-related claims be
submitted to arbitration before a suit can be brought on them in
court.").
Under District of Columbia law, "'one who signs a contract
has a duty to read it and is obligated according to its terms.'"
Curtis v. Gordon, 980 A.2d 1238, 1244 (D.C. 2009) (quoting Pers
Travel, Inc. v. Canal Square Assocs., 804 A.2d 1108, 1110-11
(D.C. 2002); see also Hughes v. CACI, Inc.-Commercial, 384 F.
Supp. 2d 89, 96 (D.D.C. 2005) ("[A] signature on a contract
indicates 'mutuality of assent' and a party is bound by the
contract unless he or she can show special circumstances
relieving him or her of such an obligation.") (ci·tation and
quotation marks omitted) .
Skrynnikov does not deny that he signed Fannie Mae's
Dispute Resolution Policy, and does not suggest that any special
circumstances exist which would relieve him of his obligations
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under the Policy. Instead, he cites several cases addressing
arbitration provisions in collective bargaining agreements for
the proposition that the arbitration agreement in this case is
unenforceable because it is not "clear and unmistakable" and
contains only "sweeping broad statements." Pl.'s Opp' n at 10
(citing, inter alia, Carson v. Giant Food, Inc., 175 F.3d 325,
331-32 (4th Cir. 1999)).
However, Skrynnikov did not accept the Dispute Resolution
Policy as part of a collective bargaining agreement, and
therefore, the stricter standard applicable in collective
bargaining cases is not applicable in this case. See, e.g.,
Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 80-81
(1998) (distinguishing "union's waiver of the rights of
represented employees" from "individual's waiver of his own
rights," and noting that "clear and unmistakable" standard did
not apply to latter); Carson, 175 F.3d at 331 ("collective
bargaining agreements to arbitrate [,] unlike contracts
executed by indi victuals, must be 'clear and unmistakable. '")
(emphasis added) (citing Wright, 525 U.S. at 79-80).
Therefore, the Dispute Resolution Policy is not
unenforceable simply because it uses broad and inclusive
language. See Brown v. ITT Consumer Financial Corp., 211 F.3d
1217, 1221 (11th Cir. 2000) ("A party cannot avoid arbitration .
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because the arbitration clause uses general, inclusive
language, rather than listing every possible specific claim.").
Finally, the actual language in the Policy is, in fact,
clear and unmistakable.
2. Each of the Pending Disputes Falls Within the
Scope of the Arbitration Agreement
Skrynnikov also argues that even if the agreement is
enforceable, it only applies to "a small subset of the possible
claims [he] might bring," and does not apply to his FCA claim
because he did not "explicitly or by implication, agree to
arbitrate claims under the False Claims Act." Pl.'s Opp'n at 9-
The District of Columbia "adheres to an objective law of
contracts, meaning that the written language embodying the terms
of an agreement will govern the rights and liabilities of the
parties regardless of the intent of the parties at the time they
entered into the contract, unless the written language is not
susceptible of a clear and definite undertaking, or unless there
is fraud, duress, or mutual mistake." Dyer v. Bilaal, 983 A.2d
349, 354-55 (D.C. 2009) (citation and internal punctuation marks
omitted) . In determining whether a contract is susceptible of a
clear and definite interpretation, courts examine the document
5
Skrynnikov does not address whether the Policy applies to his
FMLA and DCFMLA claims.
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on its face and give the language its plain meaning. Tillery v.
Dist. of Columbia Contract App. Bd., 912 A.2d 1169, 1176 (D.C.
2006) (citation omitted).
The Dispute Resolution Policy states that it applies to any
"claims that an employee might make against Fannie Mae
involving a legally-protected right, that directly or indirectly
relate to his or her employment or the termination of that
employment [ . ] " Policy § 2 (emphasis added) . This language,
which is broad and inclusive, has previously been held to apply
to whistleblower claims similar to Skrynnikov's. See Taylor v.
Fannie Mae, 839 F. Supp. 2d 259, 264 (D.D.C. 2012) (retaliation
claim under Sarbanes-Oxley whistleblower provision subject to
Fannie Mae's Dispute Resolution Policy); Kimpson v. Fannie Mae
Corp., No 06-18 (RWR), 2007 WL 1020799, at *3 (D.D.C. Mar. 31,
2007) (noting "inclusive and comprehensive language of the
policy").
More importantly, even if the scope of the arbitration
agreement is ambiguous, as Skrynnikov contends, the Policy
provides that "[t] he arbitrator will resolve all disputes over
the arbitrability of all matters presented under it[,]"
Policy § 16 (emphasis added) , and thus it "clearly and
unmistakably" reserves the authority to decide which claims are
arbitrable to the arbitrator, rather than the court. See
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Carson, 175 F.3d at 330 ("Those who wish to let an arbitrator
decide which issues are arbitrable need only state that 'all
disputes concerning the arbitrability of particular disputes
under this contract are hereby committed to arbitration,' or
words to that clear effect.") . That is precisely what Fannie
Mae has written into its Policy. Therefore, Skrynnikov's FCA
claim must be submitted to the arbitrator who will decide
arbitrability issues.
C. Fannie Mae's Rule 12(b) (6) Defenses Must Also Be
Submitted to Arbitration
Fannie Mae also asks the Court to dismiss Skrynnikov's
DCFMLA claim on statute of limitations grounds, and his FMLA
claim for failure to state a cause of action. Def.'s Mem. P & A
at 9-12. Fannie Mae argues that because these claims fail "[o]n
the face of the complaint," they do not involve any "legally
protected right(s)," and therefore, may be dismissed outright by
the Court pursuant to Rule 12(b) (6), rather than being referred
to arbitration. Id. at 14.
However, Fannie Mae's Dispute Resolution Policy expressly
provides that claims brought under the FMLA (and by logical
extension, the DCFMLA) are subject to arbitration. See Policy §
2 ("For example, claims asserting rights protected by the .
Family and Medical Leave Act would be covered by the Policy.").
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The Policy also states that "[i]f [Fannie Mae] contends that [a]
claim was not made within the time limit [set by law for
bringing suit on that claim in court] the arbitrator may be
requested to decide the issue before any hearing on the
substance of the claim." Policy § 6 (emphasis added) . The
Policy further contemplates that if Fannie Mae "assert [s] that
the employee's claim is barred because it does not involve a
legally-protected right, the arbitrator may be requested
to rule on this issue as a preliminary matter before conducting
a hearing on the substance of the ~mployee's claim." Policy § 2
(emphasis added) .
Thus, it is perfectly clear that the arbitration agreement
commits the resolution of Fannie Mae's defenses under Rule
12(b)(6) to the arbitrator, not the court. 6 "By its terms the
[FAA] leaves no place for the exercise of discretion by a
district court, but instead mandates that district courts shall
direct the parties to proceed to arbitration on issues as to
which an arbitration agreement has been signed." Dean Witter
6
Even if the Dispute Resolution Policy was silent on this
issue, judicial precedent also supports the referral of Fannie
Mae's Rule 12(b) (6) defenses to arbitration. See Howsam v. Dean
Witter Reynolds, Inc., 537 U.S. 79, 84 (2002) ("' [P]rocedural
questions which grow out of the dispute and bear on its final
disposition' are presumptively not for the judge, but for an
arbitrator, to decide.") (emphasis in original) (citing John
Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557 (1964)).
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Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (emphasis in
original) (citing 9 U.S.C. §§ 3, 4); see also Nat'l R.R.
Passenger Corp. v. Boston & Maine Corp., 850 F.2d 756, 759 (D.C.
Cir. 1988) ("It is a necessary corollary of the principle that
'arbitration is a matter of contract' that when the parties have
provided that a particular type of dispute should be settled in
arbitration, rather than in litigation, a court may not override
that agreement by itself deciding such a dispute.") (emphasis in
original) .
Moreover, although parties may waive their right to
arbitration by acting "'inconsistently with the arbitration
right,'" Khan v. Parsons Global Servs., Ltd., 521 F.3d 421, 425
(D.C. Cir. 2008) (citation omitted), Fannie Mae has made clear
that, notwithstanding its request for dismissal of the FMLA and
DCFMLA claims under Rule 12(b) (6), it is not waiving its right
to arbitrate those claims. See Def.'s Mem. P & A at 14 ("If
th[e] court . does not dismiss [the FMLA and DCFMLA claims] ,
then [they] must be compelled to arbitration for further
proceedings inasmuch as the claims at issue fall
squarely within the agreement to arbitrate [.] "); Def. 's Reply
Br. at 5 ("Any Surviving Claims Should be Sent to
Arbitration").
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Accordingly, the Court will enforce the arbitration clause
in its entirety, deny Fannie Mae's Rule 12(b) (6) Motion without
prejudice, and refer the Rule 12(b) (6) issues to arbitration.
C. The Case Will Be Stayed
The FAA provides that when the court is satisfied that the
issues before it are subject to arbitration, the court shall
"stay the trial of the action until such arbitration has been
had in accordance with the terms of the agreement [ . ] " 9 u.s.c.
§ 3. Accordingly, this action will be stayed pending conclusion
of arbitration.
IV. CONCLUSION
For the foregoing reasons, Fannie Mae's motion to compel
arbitration is GRANTED, and its motion to dismiss pursuant to
Rule 12 (b) (6) is DENIED without prejudice to renewal in
arbitration. An Order shall accompany this Memorandum Opinion.
May 8, 2013 /s;{i'~~
Gladys K~
1
United States District Judge
Copies to: attorneys on record via ECF
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