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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 14-CV-48 and 14-CV-223
KISHA WALKER, APPELLANT,
V.
FEDEX OFFICE & PRINT SERVICES, INC.,
JAMIE PARKER,
NICOLE UGLOW A/K/A NICOLE FOLEY,
APPELLEES.
Appeals from the Superior Court
of the District of Columbia
(CAB-3358-11)
(Hon. Michael L. Rankin, Trial Judge)
(Argued April 2, 2015 Decided August 13, 2015)
John F. Karl, Jr. for appellant Kisha Walker.
John B. Flood, with whom M. Ginger McCauley was on the brief, for
appellee Nicole Foley.
Jonathan R. Mook for appellee Jamie Parker.
Before GLICKMAN and MCLEESE, Associate Judges, and PRYOR, Senior
Judge.
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MCLEESE, Associate Judge: Appellant Kisha Walker seeks reversal of a
trial-court order dismissing her suit against appellees Jamie Parker and Nicole
Foley, employees of appellee FedEx Office & Print Services, Inc. Ms. Walker
argues that the trial court committed both procedural and substantive errors. We
affirm.
I.
The following facts are undisputed. Ms. Walker was a Senior Center
Manager responsible for several FedEx stores in Washington, D.C. Ms. Parker
supervised Ms. Walker, and Ms. Foley was a human-resources employee at FedEx.
After FedEx terminated Ms. Walker’s employment in 2010, Ms. Walker brought
suit in the Superior Court, naming FedEx, Ms. Parker, and Ms. Foley as
defendants. Ms. Walker alleged that she was terminated as a result of racial and
gender discrimination in violation of the District of Columbia Human Rights Act
(“DCHRA”), D.C. Code § 2-1401.01 et seq. (2012 Repl.). Specifically, Ms.
Walker alleged that FedEx terminated her at least in part due to a FedEx policy
designed to reduce the number of African Americans and other minorities who
worked as managers in her district. Ms. Walker further alleged that the defendants
retaliated against her in violation of the DCHRA because she opposed the
3
imposition of discriminatory disciplinary measures against African American
employees whom she supervised. FedEx contended that Ms. Walker was instead
terminated for violating company performance and conduct standards.
FedEx filed a motion to compel arbitration, pursuant to an arbitration
agreement that Ms. Walker had signed in 2008. That arbitration agreement
provided, in pertinent part:
[A]ny and all disputes that arise between Team Member and
FedEx Kinko’s, its officers, directors, employees, or agents,
that are not resolved internally through the informal negotiation
and problem-solving procedures shall be submitted to final and
binding arbitration. Claims subject to arbitration include all
claims and disputes arising from or relating to employment with
FedEx Kinko’s or the termination of employment. This
Agreement specifically includes all claims or disputes . . .
alleging discrimination or harassment (e.g., on the basis of age,
gender, sexual orientation, race, disability, national origin,
religion, or other unlawful basis), tort claims (e.g., defamation,
infliction of emotional distress, wrongful termination in
violation of public policy), [and] claims of retaliation . . . .
...
By agreeing to submit the described claims to binding
arbitration, the Team Member . . . does knowingly waive the
right to file or seek relief in a civil action of any nature seeking
recovery of money damages or injunctive relief against FedEx
Kinko’s . . . . The Team Member understands that by agreeing
to submit all claims to binding arbitration, he or she is
knowingly waiving any right to trial by jury or other judicial
forum that might otherwise exist.
4
...
The Team Member agrees that this Agreement shall extend to
FedEx Kinko’s and also to its officers, directors, employees,
agents, administrators, parent companies, subsidiary companies,
and affiliated entities . . . .
Signing the agreement was not a mandatory condition of employment.
The trial court granted FedEx’s motion to compel arbitration and stayed
proceedings in the civil action. Ms. Walker then commenced arbitration, naming
only FedEx as a respondent. Ms. Parker and Ms. Foley made no effort to become
parties to the arbitration.
After a five-day evidentiary hearing and post-hearing briefing, the arbitrator
issued a final decision. The arbitrator concluded that FedEx was not liable to Ms.
Walker, because FedEx had not terminated Ms. Walker for discriminatory or
retaliatory reasons. Specifically, the arbitrator concluded that “there was no
evidence . . . that Ms. Parker or anyone else at FedEx” was concerned about how
customers might view Ms. Walker based on her race; the interest of FedEx
management in having a diverse workforce was not connected to the termination of
Ms. Walker’s employment; there was “no evidence that Ms. Parker or any other
5
FedEx official ever made any comment . . . about the race of any particular FedEx
employee . . .”; “[t]here [was] no evidence that management was monitoring the
race of hires . . . or that it had established any particular hiring goals in racial
terms”; Ms. Parker’s alleged statement that a particular employee made her skin
crawl was “not probative of racial preference (or animus)”; even assuming that Ms.
Parker at one point referred to an applicant’s race, that was a stray remark
unrelated to Ms. Walker’s termination; there was evidence of problems with Ms.
Walker’s job performance; Ms. Walker failed to demonstrate that FedEx’s reasons
for discharging Ms. Walker were pretextual; there was “no evidence that the
assessments of Ms. Walker’s work performance were tainted by racial or
retaliatory considerations”; and “the preponderance of the evidence in the record
does not demonstrate that either racial or retaliatory animus was a substantial
contributing factor in Ms. Parker’s criticisms of Ms. Walker’s job performance.”
The arbitrator also was “unable to find that Ms. Walker engaged in any activity
protected by the DCHRA.”
The trial court subsequently granted FedEx’s motion to confirm the
arbitrator’s decision and dismiss Ms. Walker’s suit against FedEx based on that
decision. Ms. Walker has not challenged on appeal the dismissal of the suit against
FedEx. Ms. Parker and Ms. Foley filed a motion to dismiss Ms. Walker’s suit
6
against them, arguing among other things that the arbitrator’s decision required
dismissal “under the doctrines of res judicata and claim and issue preclusion.”
The trial court orally granted the motion to dismiss, on a “collateral
estoppel[/]issue preclusion -- claim preclusion basis.” In a subsequent written
order, the trial court stated that “the arbitrator’s decision necessarily considered the
individual defendants and their actions towards the plaintiff; thus, their motion to
dismiss should be granted on grounds of collateral estoppel/claims preclusion.”
II.
Ms. Parker and Ms. Foley raise two preliminary issues. First, they argue that
the trial court lacked subject-matter jurisdiction, because Ms. Walker was required
by the arbitration agreement to arbitrate her claims against Ms. Parker and Ms.
Foley. Ms. Walker disputes that she was required to arbitrate her claims against
Ms. Parker and Ms. Foley. We need not decide that issue. Upon motion of a party
relying on an agreement to arbitrate, the court must determine whether there is an
enforceable agreement. D.C. Code § 16-4407 (a) (2012 Repl.). If the court so
determines, then the court must stay judicial proceedings and order arbitration.
D.C. Code § 16-4407 (b), (f). Ms. Parker and Ms. Foley, however, did not ask the
trial court to require arbitration of Ms. Walker’s claims. Rather, they awaited the
7
outcome of the arbitration involving FedEx and then asked the trial court to
dismiss on the basis of that arbitration. Under the circumstances, the trial court
had subject-matter jurisdiction to decide the motion to dismiss. See, e.g., Lamell
Lumber Co. v. Newstress Int’l, Inc., 938 A.2d 1215, 1220 (Vt. 2007) (“It is well
settled that a clause providing for the resolution by arbitration of disputes arising
under an agreement is not jurisdictional . . . .”) (citing cases; ellipses in Lamell;
internal quotation marks omitted).
Second, Ms. Parker and Ms. Foley argue that the trial court lacked personal
jurisdiction over them. We also do not reach that issue. In general, courts “resolve
personal jurisdiction before addressing a dispositive motion on the merits.”
Hawkins v. W.R. Berkley Corp., 889 A.2d 290, 293 (D.C. 2005). That general rule
is not absolute, however, and courts in appropriate circumstances may deny relief
on the merits without deciding an issue of personal jurisdiction. See, e.g., Yazdani
v. Access ATM, 941 A.2d 429, 433 (D.C. 2008). In the present case, Ms. Parker
and Ms. Foley have indicated that they have no objection to this court’s resolving
this appeal on the basis of claim or issue preclusion, without addressing their
challenge to the trial court’s personal jurisdiction. Under the circumstances, we
elect to resolve the matter on the merits. Cf. id. at 434 (in upholding trial court’s
decision to decide case based on forum-selection clause without deciding issue of
8
personal jurisdiction, court notes that appellee “has not insisted on a jurisdictional
ruling”); cf. also, e.g., Parker v. K & L Gates, LLP, 76 A.3d 859, 865 n.6 (D.C.
2013) (“An objection to the court’s personal jurisdiction is waivable . . . .”)
(ellipses in original; internal quotation marks omitted); Fenelon v. United States
Postal Serv., 43 F.3d 669, at *2 (5th Cir. 1994) (unpublished table decision) (“[A]
dismissal on the basis of res judicata is . . . a final decision on the merits.”).
III.
Ms. Walker argues that the trial court erred procedurally, by ruling on a
motion to dismiss rather than awaiting a summary-judgment motion. We disagree.
We have previously held that the defenses of collateral estoppel and res judicata
may be raised by a motion to dismiss. Goldkind v. Snider Bros., Inc., 467 A.2d
468, 471-72 (D.C. 1983); see, e.g., Smith v. Public Def. Serv., 686 A.2d 210, 212
(D.C. 1996) (affirming dismissal on basis of collateral estoppel). Moreover, the
trial court permissibly considered the arbitrator’s decision in ruling on the motion
to dismiss, because that decision was attached to the motion to dismiss and
consisted of a ruling reached as part of the present litigation. See Super. Ct. Civ.
R. 12 (b) (if defendant moves to dismiss for failure to state claim under Super. Ct.
Civ. R. 12 (b)(6), and “matters outside the pleading are presented to and not
9
excluded by the court, the motion shall be treated as one for summary judgment
and disposed of as provided in Rule 56”); Grimes v. District of Columbia, Bus.
Decisions Info. Inc., 89 A.3d 107, 111 (D.C. 2014) (“A trial court is not required to
convert a Rule 12 (b)(6) . . . motion into a motion for summary judgment,
however, as long as the court does not consider matters outside the pleadings.”);
Smith, 686 A.2d at 212 (opinions, orders, briefs, and transcripts attached to motion
to dismiss do not constitute “matters outside the pleading” requiring consideration
of motion to dismiss as motion for summary judgment); Cannon v. District of
Columbia, 569 A.2d 595, 597 n.3 (D.C. 1990) (per curiam) (“Proceedings in
related cases may be judicially noticed.”); Missouri Bank & Trust Co. v. Gas-Mart
Dev’t Co., 130 P.3d 128, 132 (Kan. Ct. App. 2006) (arbitrator’s decision attached
to motion to dismiss was not “matter outside pleadings” and could properly be
considered on motion to dismiss).
IV.
Ms. Walker contends that the trial court erred in dismissing the case on
“grounds of collateral estoppel/claims preclusion.” We conclude that Ms.
Walker’s claims are barred by collateral estoppel.
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Collateral estoppel bars relitigation of an issue of fact or law when “(1) the
issue is actually litigated; (2) determined by a valid, final judgment on the merits;
(3) after a full and fair opportunity for litigation by the parties or their privies; and
(4) under circumstances where the determination was essential to the judgment,
and not merely dictum.” Hogue v. Hopper, 728 A.2d 611, 614 (D.C. 1999)
(brackets, ellipses, and internal quotation marks omitted). “An arbitration award is
considered a final judgment on the merits for purposes of res judicata,” EDCare
Mgmt., Inc. v. DeLisi, 50 A.3d 448, 451 (D.C. 2012), and we see no reason to
reach a different conclusion for purposes of collateral estoppel. See, e.g., Jacobson
v. Fireman’s Fund Ins. Co., 111 F.3d 261, 267-68 (2d Cir. 1997) (collateral
estoppel applies to confirmed arbitrators’ decisions and even unconfirmed
arbitrators’ decisions if there has been final judgment). Collateral estoppel may be
invoked defensively by a defendant who was not a party to the original
proceedings, to prevent a plaintiff from relitigating an issue that the plaintiff had
previously litigated unsuccessfully. See, e.g., United States v. Mendoza, 464 U.S.
154, 159 n.4 (1984); Carr v. Rose, 701 A.2d 1065, 1076 (D.C. 1997) (“[A]
stranger to the first action may invoke issue preclusion against a party to that
action. Hence the [] defendants, while not privy to the prior dispute, are not
thereby necessarily prevented from asserting defensive ‘non-mutual’ collateral
estoppel.”) (citation omitted); Dumont Tel. Co. v. Power & Tel. Supply Co., 962 F.
11
Supp. 2d 1064, 1081 (N.D. Iowa 2013) (“The doctrine of non-mutual defensive
collateral estoppel prevents plaintiffs who lost to a defendant in arbitration from re-
litigating the same issues against co-defendants in federal court.”). Precluding
“parties from contesting matters that they have had a full and fair opportunity to
litigate protects their adversaries from the expense and vexation attending multiple
lawsuits, conserves judicial resources, and fosters reliance on judicial action by
minimizing the possibility of inconsistent decisions.” Montana v. United States,
440 U.S. 147, 153-54 (1979).
In the present case, Ms. Walker brought the same claims against FedEx and
against Ms. Parker and Ms. Foley, alleging that FedEx and the two individuals
wrongfully terminated Ms. Walker as the result of racial and gender discrimination
and retaliated against Ms. Walker. The arbitrator’s decision reflects a rejection of
those claims as a matter of fact and law.
Although Ms. Walker raises numerous objections to the trial court’s
collateral-estoppel ruling, we do not find those objections persuasive. First, Ms.
Walker argues that Ms. Parker and Ms. Foley were not parties to the arbitration
and were not in privity with FedEx. As we have already noted, however, this
jurisdiction permits a defendant in an action to invoke collateral estoppel based on
12
a prior determination rejecting a plaintiff’s claim against other parties, even in the
absence of privity. Carr, 701 A.2d at 1076; see also Schoenfeld v. U.S. Resort
Mgmt., Inc., No. 05-4368-CV-C-NKL, 2007 WL 2908622, at *3 (W.D. Mo. Oct. 4,
2007) (“[I]t is immaterial that [defendant] was not a party to the arbitration; the
mutuality requirement was excised from the collateral estoppel doctrine long
ago.”).
Second, Ms. Walker argues that the arbitrator did not actually resolve Ms.
Walker’s claims against Ms. Parker and Ms. Foley. It is true that the arbitrator did
not explicitly and separately analyze Ms. Walker’s claims against Ms. Parker and
Ms. Foley. But in deciding that Ms. Walker had no claim against FedEx, the
arbitrator focused extensively on Ms. Walker’s claims about Ms. Parker’s conduct
and made numerous explicit findings inconsistent with Ms. Walker’s claims
against Ms. Parker and Ms. Foley. Moreover, the arbitrator ultimately concluded
that Ms. Walker had failed to show that her termination was the result of
discrimination or that there had been acts of retaliation in violation of the DCHRA.
Those findings are fatal to Ms. Walker’s claims against Ms. Parker and Ms. Foley.
Under the circumstances, collateral estoppel is warranted. Cf., e.g., Hogue, 728
A.2d at 614 (where arbitrator determined that plaintiff did not receive less than his
share of funds following windup of company, plaintiff was collaterally estopped
13
from bringing subsequent claim against company’s accountant in which plaintiff
argued that he received less than his share due to accountant’s alleged
wrongdoings).
Third, we disagree with Ms. Walker’s contention that the arbitrator’s
findings and conclusions do not foreclose the theory that Ms. Parker or Ms. Foley
attempted to violate the DCHRA or aided and abetted a violation of the DCHRA.
The complaint does not allege any conduct by Ms. Parker or Ms. Walker other than
actions taken on behalf of FedEx, and the arbitrator’s ruling that FedEx did not
violate the DCHRA forecloses a theory that Ms. Parker or Ms. Foley aided and
abetted such a violation by FedEx. Cf., e.g.¸ Hairston v. United States, 908 A.2d
1195, 1198 (D.C. 2006) (“To be an aider and abettor, one must aid or abet or
procure someone else to commit a substantive offense. One cannot aid or abet
himself.”) (ellipses, emphasis, and internal quotation marks omitted); McCaskill v.
Gallaudet Univ., 36 F. Supp. 3d 145, 156-57 (D.D.C. 2014) (court concludes that
that university could not have aided and abetted employees in creating hostile work
environment, because court found that no actionable hostility took place).
Fourth, Ms. Walker argues that collateral estoppel is inapplicable to rulings
of law. We have held to the contrary. See, e.g., Franco v. District of Columbia, 3
14
A.3d 300, 303-04 (D.C. 2010) (“Collateral estoppel, or issue preclusion, prohibits
the relitigation of factual or legal issues decided in a previous proceeding and
essential to the prior judgment.”) (internal quotation marks omitted).
Fifth, Ms. Walker argues that for various reasons it would be inequitable to
preclude her claims based on collateral estoppel. Specifically, Ms. Walker argues
that she should be free to elect whether to pursue her claims against Ms. Parker and
Ms. Foley through arbitration or through litigation in court, and that giving the
arbitrator’s decision collateral-estoppel effect would deprive her not only of the
right to make that election but also of her related rights to a jury trial and to appeal
from a trial-court ruling. By signing the optional arbitration agreement, however,
Ms. Walker waived both her right to a jury trial for claims properly before the
arbitrator and her right to appeal the arbitrator’s final decision. See
BiotechPharma, LLC v. Ludwig & Robinson, PLLC, 98 A.3d 986, 996 (D.C. 2014)
(“Because an arbitration agreement necessarily embodies a waiver of the right to
trial by jury, a determination that there is a valid arbitration agreement here would
foreclose any claim [appellant] might have had to a jury trial.”); Hercules & Co.,
Ltd. v. Shama Rest. Corp., 613 A.2d 916, 923 (D.C. 1992) (“[An arbitration
agreement] is fundamentally a creature of contract, and parties to a contract should
be held to the terms to which they have agreed.”) (citation omitted). Moreover,
15
Ms. Walker is no longer contesting the validity of the arbitration agreement, which
explicitly requires Ms. Walker to go to binding arbitration not only as to FedEx,
but also as to FedEx employees such as Ms. Parker and Ms. Foley.
Finally, Ms. Walker argues that the arbitrator committed various factual and
legal errors. In general, mere claims of error in the underlying judgment are not an
adequate basis to avoid application of collateral estoppel. Cf. Oubre v. District of
Columbia Dep’t of Emp’t Servs., 630 A.2d 699, 703 (D.C. 1993) (describing
application of preclusion principles in judicial proceedings as having “rigid
finality”). Where the underlying ruling was made by an agency rather than a court,
we have stated that a showing of “manifest error” may overcome the application of
collateral estoppel. Id. at 703-04. We assume, without deciding, that collateral-
estoppel principles are also applied somewhat less rigidly when the underlying
judgment is an arbitrator’s decision. Cf. 18B Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction and
Related Matters § 4475.1 (2d ed. 2002) (indicating need for careful consideration
before applying preclusion based on arbitrator’s decision). Ms. Walker, however,
has not demonstrated manifest error sufficient to permit Ms. Walker to relitigate
issues resolved against her by the arbitrator.
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Accordingly, the judgment of the Superior Court is
Affirmed.