UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALEXANDRIA JONES, Plaintiff,

v. JANICE QUINTANA, and DISTRICT OF COLUMBIA, Defendants

. Civil Action No. 08-00620 (CKK)

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 voici ng concerns about the manner in which the OUC intended to handle emergency “911” calls and non-emergenc y “311” calls and for filing a disability discrimination complaint with the District ’s Office of Human Rights (the “OHR”). Currently before the Court is Defendan ts’ [75] Motion for Summary Judgment. Defendants contend that Plaintiff’s remaining cl aims are barred by the terms of a settlement agreement (the “Settlement Agr eement”) entered into in late April 2009, while this action was pending, arising out of a grievance proceed ing brought by the National Association of Government Employees, Local R3-07 (the “Uni on”) on Plaintiff’s behalf. Upon careful

1 Quintana is now sued sole ly in her individual capacity.2 consideration of the parties’ s ubmissions, the relevant authorities , and the record as a whole, Defendants’ Motion for Summar y Judgment shall be DENI ED 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 dedi cate scant attention to the events underlying Plaintiff’s claims, focusing instead on the factua l 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 underlyi ng events, relying on the allegations in the Third Amended Complaint without making any assumptions as to their veracity.
* * * Plaintiff began her employment with the Di strict in August 1998. Third. Am. Compl., ECF No. [57], ¶ 2. Six months later, she was promoted to a dispatch er 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 cer tified dispatchers like Plainti ff to focus their attention on emergency 911 calls. Id. ¶ 4. Quintana’s proposed change s would adopt a new practice of3 routing non-emergency 311 calls to the emergenc y 911 line, something that Plaintiff believed would have the effect of dela ying 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 ea rly 2008, Plaintiff attempted to raise her concerns about the proposed changes with memb ers of the District of Columbia Council (the “Council”), then-Mayor Adrian Fe nty (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 “jeopa rdize 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 a bout Quintana’s proposed changes. Id. ¶ 14.

 January 24, 2008: Plaintiff testified before th e Council, addressing what she believed was the “lowered safety level” that would result from Quintana’s proposed changes. Id. An especially significant disclosure o ccurred on January 7, 2008, when Plaintiff attempted to have an in-person conversation wi th the Mayor while he was visiting the OUC. Id. ¶ 11. The encounter did not go well. Although Plai ntiff maintains that sh e 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.4 On January 10, 2008, three days after Plainti ff’s encounter with the Mayor, Quintana placed Plaintiff on administra tive leave without pay. Id. ¶ 12. By that point in time, Quintana was aware of Plaintiff’s efforts to “speak out” about the proposed cha nges 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 “disgr untled and disrespectful employee.” Id. On January 18, 2008, Quintana proposed that Plai ntiff be suspended for a period of thirty days. Id. ¶ 18. While it is never made clear, it app ears that the contemporan eous justification for the proposed suspension coincided with Quinta na’s stated reasons for placing Plaintiff on administrative leave one week earlier—namely, that the Mayor was “not pl eased” with Plaintiff and that Plaintiff was a “disgrunt led and disrespectful employee.” Id. ¶ 12. However, on February 11, 2008, for reasons that are left unsta ted, Plaintiff’s proposed thirty-day suspension was overruled and the “charges” against he r were “dismissed without prejudice.” Id. ¶ 23. During this same time period, Plaintiff bega n receiving medical treatment in connection with what she claims wa s job-related anxiety. Id. ¶¶ 13, 16, 24, 31, 35, 38, 41. On January 24, 2008, Plaintiff was “diagnosed with an impairmen t/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 Plai ntiff 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 Grievan ce Process, and the Settlement Agreement On August 14, 2008, the OUC notified Plainti ff that it proposed to terminate her employment for alleged insubordination and absences without official leave. Defs.’ Stmt. of5 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 Defe nse (“Pl.’s Resp. Stmt.”), ECF No. [79-1], pt. I, ¶ 1. On September 24, 2008, af ter 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 A ppeals or to file a gr ievance 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 grievan ce 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 represen tative, Plaintiff alleged that the OUC (i) failed to provide a reasonable accommodation for her alleged disabilit y, (ii) retaliated against her for requesting a reasonable accommodation, (iii) terminated her em ployment without suffi cient 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. Contem poraneously, Plaintiff executed a statement expressly designating the Un ion’s Assistant Regional Counsel “to act as [her] representative with regard to a grievance an d possible arbitration rela ted to [her] removal.” Id. at 4. The parties to the grievance proceedings m oved 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 pr ovides that “[t]he Parties . . . hereby voluntarily agree to resolve and conclude the . . . arbitration case filed . . . .” Id. ¶ 1.6 Plaintiff, who signed the Settlement Agreement, is identified only as “the Grievant” in this introductory paragraph and is not included w ithin 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 cl aims, 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 wit hout 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 clai m 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 cl aims, 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 Ag reement 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] ma y 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. ¶ 4.7 C. Procedural History When Plaintiff first brought th is action on April 10, 2008, prior to the termination of her employment and the execution of the Settlemen t Agreement, she asserted three overarching claims: retaliation in violation of the District of Columbia Whistleblower Protection Act (the “DC-WPA”), D.C. C ODE §§ 1-615.51 et seq. ; retaliation in violati on of the District of Columbia’s Workers’ Compensatio n Statute (the “DC-WCS”), D.C. C ODE §§ 31-1501 et seq. ; and deprivation of rights under the First Amen dment to the United St ates 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 Compla int, asserting two additional claims based on events allegedly transpiring afte r the filing of the Complaint: failure to provide a reasonable accommodation in violation of the Americans w ith 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 dismi ss Plaintiff’s Amended Complaint. On September 30, 2009, the Court granted the moti on in part and denied it in part. See Jones v. Quintana , 658 F. Supp. 2d 183 (D.D.C. 2009). Specifica lly, Plaintiff’s reta liation claim under the DC-WPA was dismissed against Quintana bu t survived against the District; Plaintiff’s retaliation claim under the DC-WCS was dismissed in its entiret y; 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 su rvived in its entirety. See id. at 204. As a result, only two of Plaintiff’s claims clearly surviv ed Defendants’ motion to dismiss: Plaintiff’s retaliation claim against the District under th e DC-WPA; and Plaintiff’s re taliation claim under the ADA. See id.8 As for Plaintiff’s Section 1983 claim, the Court ob served 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 capacit y, the Court directed Plaintiff to amend her Complaint a second time to iden tify those factual allegations. See id. at 196, 204. Responding to the Court’s direc tive, Plaintiff’s counsel, Jero me 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 retali ation claims against the District under the DCWPA and the ADA. See id. ¶¶ 1, 15. In an effort to clarify whether Plaintiff intended to abandon these latter two claims, the Court warned Pl aintiff 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 warnin g, Plaintiff’s counsel failed to file a timely amended pleading in accordance with the Court’s instructions. Nonetheless, because Plaintiff’s Secti on 1983 claim still remained in the Second Amended Complaint, the Court granted Defendant s leave to file a second motion to dismiss addressing that claim. See id. Defendants did so, confining thei r arguments to Plaintiff’s Section 1983 claim and assuming that Plaintiff had aba ndoned her remaining claims. Upon reviewing Defendants’ second motion to dismiss, the Court ag ain alerted Plaintiff of her failure to include claims in her Second Amended Complaint and cautio ned her that, absent an appropriate amended pleading, the Court would assume that she intended to aba ndon any unidentified claims. See Min. Order (Oct. 23, 2009). Plain tiff’s counsel responded by filing a status report with the9 Court, stating without further expl anation that Plaintiff “did not in tend to relitigate any issue that was decided by the court” in resolving the first mo tion to dismiss and did “not intend to file any response to defendants’ motion to dismiss plaintiff’s second ame nded complaint.” Pl.’s Status Report, ECF No. [35], at 1. Based on this response, the Court conclude d that Plaintiff had abandoned any claims apart from her Section 1983 claim and that she ha d, 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 th at “[i]n less than 90 days afte r his inauguration President Obama had restructured the American automobile indust ry” and then proceeding to ask when the Court would refer this case to a ma gistrate judge for a settlement conference. Pl.’s Mot. for Clarification, ECF No. [38], at 1. The Court responded by referri ng 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 l earned of the appeal and secure d 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 fr om 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 Plain tiff to file her Third Amended Complaint. See10 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 Complain t is Plaintiff’s Third Amended Complaint. Therein, Plaintiff asserts three “live” claims: retalia tion under the DC-WPA against the District (Count I); deprivation of rights under the First Amendment in viol ation of Section 1983 against Quintana in her personal capaci ty (Count III); and re taliation under the ADA against the District (Count V). See Third Am. Compl. ¶¶ 45-58. Upon the filing of the Third Amended Complain t, 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 sche duling conference. In anticipation of the scheduling conference, De fendants filed a report in which they argued—for the very first time—that Plaintiff’s remaining clai ms 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 an d 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 permit11 Defendants to file a motion for summary judgm ent prior to the conc lusion of discovery. See Scheduling & Procedures Orde r, ECF No. [67], at 5-6. Defendants first attempted to file the in stant 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]. Defenda nts 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. fo r 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.’ Re ply”), ECF No. [80]. The motion is now fully briefed and ripe for a decision. In an exercise of its discretion, the Court fi nds that holding oral argument would not be of assist ance in rendering a decision. See LCvR 7(f). II. LEGAL STANDARDS A. Motions for Summary Judgment Summary judgment is appropria te where “the movant show s that there is no genuine dispute as to any material fact and [that it] . . . is entitled to judgment as a matter of law.” F ED
. R. C IV
. 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 avoi ded based on just any disagreement as to12 the relevant facts; th e dispute must be “genuine,” mean ing that there must be sufficient admissible evidence for a reasonable trie r of fact to find for the non-movant. Id. In order to establish that a fact is or cannot be genuinely disp uted, a party must (a) cite to specific parts of the record—inc luding deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence—in suppor t of her position, or (b) demonstrate that the materials relied upon by the opposing party do not actua lly establish the absence or presence of a genuine dispute. F ED
. R. C IV
. P. 56(c)(1). Conclusory asserti ons offered without any factual basis in the record cannot crea te 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 part y fails to properly support an as sertion of fact or fails to properly address another party’s a ssertion of fact,” the district court may “consider the fact undisputed for purposes of the motion.” F ED
. R. C IV
. P. 56(e). When faced with a motion for summary judgm ent, 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 a ll justifiable inferences drawn in her favor. Liberty Lobby , 477 U.S. at 255. If material facts are genu inely in dispute, or undisputed facts are susceptible to divergent yet justifiable infe rences, summary judgment is inappropriate. Moore v.
Hartman , 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, th e district court’s task is to determine “whether the evidence presents a sufficient di sagreement to require submission to a jury or whether it is so one-sided that one pa rty must prevail as a matter of law.” Liberty Lobby , 477 U.S. at 251-52. In this regard, the non-movant mu st “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 eviden ce is merely colorable, or is not13 sufficiently probative, summary judgment may be granted,” Liberty Lobby , 477 U.S. at 249-50 (internal citations omitted). B. Contract Interpretation unde r 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 wri tten 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 contra ct 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 surround ing 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 conduc t of the parties under the contract. In re Bailey , 883 A.2d 106, 118 (D.C. 2005). III. DISCUSSION Settlement agreements are creatures of contr act and, as such, are en titled 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. Th e 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, resolu tion of the instant motion turns on ordinary and non-controversial principles of agen cy and contract law that are hard ly unique to the District of Columbia.14 the terms of the Settlement Agreement. Despite th e 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 Agreem ent (or otherwise bound by its terms)? and, if so, does the release operate to preclude Plai ntiff 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 f eature of the Settlement Agreement—the one Defendants repeatedly attempt to evade—is that Plai ntiff is clearly not iden tified as one of “[t]he Parties,” a designation that is reserved for th e 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 agreem ent 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 de finition of the term “[t]he Part ies”—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 ag reement . . . .”). Simply put, the drafters of the Settlement Agreement proved themselves capab le of defining the part ies to the agreement, but they conspicuously left Plaintiff off the list. There is an obvious conclusion to be dr awn from Plaintiff’s omission from the contractual definition of “[t]he Parties” in the Settlement Agreement—namely, that Plaintiff is15 not a party to the agreement. Defendants atte mpt to avoid this obvious conclusion, but they never articulate with any meaningful measure of cl arity under what theory they seek to do so. In their opening memorandum, Defendan ts 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 a nd assert that Plainti ff is therefore bound under basic principles of agency. See Defs.’ Reply at 2-4. Though De fendants’ argument on this point is disjointed and often difficult to follow, there is some support for their position. 3 It is a noncontroversial 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.” R ESTATEMENT (T HIRD ) OF A GENCY § 6.01 (2003). “Whether an agency relationship exists is a question of fact for which the person asser ting 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, Plai ntiff, who had the option to pursue her grievance without Union representation, expres sly authorized the Union to act as her representative. Compare D.C. C ODE § 1-617.06 (“[A]n individual employee may present a grievance at any time to his or her employer wit hout the intervention of a labor organization . . . .”), with Defs.’ Stmt. Ex. C (Ltr. from Sarah E. Sus zczyk 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 arbitra tion related to [her] removal . . . .”).

3 Defendants also appear to make the separate ar gument that Plaintiff is an intended beneficiary of the Settlement Agreement. See Defs.’ Reply at 4-7. The argument is, quite frankly, perplexing. Even assuming Defenda nts 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. R ESTATEMENT (S ECOND ) OF C ONTRACTS §§ 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).16 But the mere fact that the Union may have ha d the authority to act as Plaintiff’s agent during the grievance and arbitrati on process does not ineluctably lead to the conclusion that the parties intended to, and in fact did, bind Plainti ff 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 Plaint iff from pursuing this action? The second question—whether the release prec ludes Plaintiff from pursuing this action— subdivides into several components. The C ourt need only address two at this stage. 1. Does the Release Cover Plaintiff? The first component presents a question sim ilar 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 labori ng 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 th e 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 ha ve intended some promises to r un from the Union, others to run

4 Defendants contend that the Settlement Agr eement required Plaintiff to return to work, see Defs.’ Reply at 5-6, but this is a specious r eading of the agreement, which at best made Plaintiff’s return to work a condition precedent to certain aspects of the OUC’s performance.17 from Plaintiff, and still others to run from bot h the Union and Plaintiff. And yet Defendants offer no support—legal or factual—for their appa rent 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 gove rnment 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 Defendant s’ 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 wh ether those understandings were reasonable. These gaps in the record are fata l to Defendants’ motion because the question of whether there has been a “meeting of the minds” mu st be approached with an eye towards how a reasonable person in the contrac ting parties’ position would ha ve 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 th e sort of evidence—such the circumstances surrounding the making of the contract and custom ary 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 th at Defendants have faile d 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, wi thout deciding, that th e language is ambiguous.18 2. Does the Release Cover Plaintiff’s Claims? The second component likewise presents a que stion of contract in terpretation: does the scope of the release cover the claims a sserted by Plaintiff in this case? The release extends to any claims “arising ou t of and in connection with the removal of [Plaintiff] for alleged insubordination and absenc e 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 agreem ent’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] ma y 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 th e 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 i nvolving Plaintiff’s return to work “shall be null and void.” The uncertain relationship between these two senten ces, and their uncertain relationship to the release’s reference to claims relating to Plaintiff’s “removal, ” render the agreement ambiguous. Because the agreement is ambi guous in this regard, the Cour t must engage in “a probing inquiry into the understanding of each party to the alleged contra ct 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 ev idence that would allow the Court to conduct this inquiry. As a result, the Court can only conclude that that De fendants 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 separa te, independent basis.19 IV. CONCLUSION The remaining arguments tendered by the partie s are either without me rit or need not be reached in light of the basis for the Court’s d ecision. 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