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volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 20-CV-287 & 20-CV-288

CHRISTOPHER STEINKE, APPELLANT/CROSS-APPELLEE,

V.

P5 SOLUTIONS, INC., APPELLEE/CROSS-APPELLANT. 

Appeals from the Superior Court

of the District of Columbia

(CAB4445-18)

(Hon. William Jackson, Motion Judge and Trial Judge)

(Argued January 28, 2022 Decided September 22, 2022)

Mitchell I. Batt for appellant/cross-appellee.

Denise M. Clark for appellee/cross-appellant.

Before GLICKMAN and BECKWITH, Associate Judges, and THOMPSON, Senior 

Judge.

*

THOMPSON, Senior Judge: Appellant/cross-appellee, Christopher Steinke, 

was terminated from his employment with appellee/cross-appellant, P5 Solutions, 

Inc. (“P5”), in April 2018. Thereafter, he initiated a lawsuit against P5, asserting 

 

* Senior Judge Thompson was an Associate Judge of the court at the time of 

argument. On February 18, 2022, she began her service as a Senior Judge. See

D.C. Code § 11-1504.
2

claims for violation of the District of Columbia Wage Payment and Collection 

Law1 (“the WPCL” or the “Act”) and breach of contract (as well as alternative 

claims for quantum meruit and unjust enrichment), based on P5’s failure to pay 

him incentive compensation that he purportedly earned in 2017.2

 After the 

Superior Court granted P5’s motion for summary judgment on Mr. Steinke’s 

WPCL claim but denied P5’s summary judgment motion as to Mr. Steinke’s other 

claims, the case proceeded to trial. On February 21, 2020, a jury found in favor of 

Mr. Steinke on his breach-of-contract claim and awarded him $100,844.55 in 

damages. 

Both parties have appealed. P5 seeks review of the trial court’s denial of 

summary judgment on Mr. Steinke’s breach-of-contract claim and also challenges 

the trial court’s exclusion at trial of one of P5’s exhibits and the court’s rejection of

P5’s proposed jury instruction regarding apparent authority. Mr. Steinke 

challenges the summary judgment ruling dismissing his WPCL claim. For the 

following reasons, we affirm. 

 

1 D.C. Code § 32-1301 et seq.

2 Mr. Steinke’s Amended Complaint and interrogatory responses refer to 

unpaid incentive compensation for the period from August 1, 2016, to December 

31, 2017, but Mr. Steinke testified at trial that the new business he helped bring 

in — the basis for the incentive-compensation claim shown on one of his trial 

exhibits — first came in during March 2017. 
3

I. Background

P5 is a corporation formed under the laws of Virginia with its sole office —

apparently, a rented workspace-sharing location — in Virginia. On July 5, 2016, 

Mr. Steinke met with Prasit Shah, co-founder and CEO of P5, to discuss the 

possibility of entering into a business relationship. The next day, in a letter signed 

by P5 President Nemisha Patel (wife of Mr. Shah), P5 confirmed that it was 

offering Mr. Steinke employment as “Director of Organizational Transformation 

and ServiceNow Practice Lead.” The letter described a compensation package,

including a salary ($180,000), medical and retirement benefits, and annual and sick 

leave, as well as a “variable compensation” package described as follows:

A variable compensation package will be established 

between you and the Co-Founder of P5 Solutions, Inc. 

which will go into effect within your first 30 days of 

employment. Variable compensation may include 

quarterly bonuses through newly gained business/revenue 

from software license sales, percentage of revenue from 

all ServiceNow professional services, and also year-end 

bonus [sic], and will all be outlined more specifically in a 

separately defined agreement. 
4

Mr. Steinke did not immediately accept the offer of employment, but he continued 

to negotiate with Mr. Shah the terms of a prospective relationship with P5. 

On July 14, 2016, Mr. Shah sent an email to Mr. Steinke outlining a revised 

offer. The emailed outline referred to “the building of a P5 ServiceNow practice” 

and contained inter alia the following language:

In summary, here are the points we discussed and agreed 

upon. This will need to get finalized as an agreement but 

here are the basics:

Agreement between P5 Solutions, Inc. and Chris Steinke 

(also company which will be established by Chris 

Steinke) that during term of his employment with P5

Solutions, Inc.:

. . . 

All new business and new clients brought into P5 by 

Chris Steinke related to ServiceNow licenses and 

services, Chris will receive a 15% commission from the 

profits associated with ServiceNow project/professional 

services. Chris will also receive 15% of any profits 

associated with receipt of licenses sales (i.e. licenser 

revenue from referrals or future sales). Profits are 

defined as the revenue minus expenses (labor costs). 

After a benchmark of $250,000 has been met by Chris 

Steinke, [he] will receive 25% of any profits associated 

with receipt of licenses or services from P5’s 

ServiceNow practice. The profits from both licenses and 

services are defined as revenue minus expenses (labor 

costs) associated with that deal. . . . 

Attached to the email was a revised offer letter that contained much of the same 

language as the previous letter, including the previously-quoted language regarding 
5

variable compensation. Mr. Steinke responded to Mr. Shah’s email later the same

day, saying, “Looks great. Please find the signed copy attached,” and he attached a 

signed copy of the revised offer letter. The next day, Mr. Shah sent another email 

to Mr. Steinke, saying, “Chris - 250k benchmark has been removed, and all work is 

at the 25% percentage outside of current existing SN [ServiceNow] work (only 

Fairfax County Government client).” 

A few days later, as contemplated by the July 14 email, Mr. Steinke 

incorporated in the District of Columbia a limited liability company called Holstein 

Amalgamated LLC (“the LLC”), of which Mr. Steinke was the sole owner and 

CEO. Mr. Shah wrote a July 21, 2016, email seeking a recommendation for a

business attorney to “draw up a legal agreement” between P5 and Mr. Steinke, “as 

his incentives compensation (partnership with P5) will flow into a company that he 

has gotten filed.” 

On July 29, 2016, Mr. Steinke, as the representative of the LLC, signed a 

Bilateral Teaming Agreement (“the Teaming Agreement” or the “Agreement”).

The parties to the Teaming Agreement were P5 and the LLC. The Teaming 

Agreement contained the following clause: “This Agreement is the entire 

agreement among the Parties and supersedes any prior oral or written agreement or 
6

understanding pertaining to this Project.” The Agreement also stated that “[t]he 

Parties agree to negotiate the distribution of Net Profit for each project. Net Profit 

will be computed by using the following equation: Revenue - Cost.” 

From July 2016 to December 2017, Mr. Steinke billed P5 at the rate of 

$15,000 per month for his services and also billed P5 for expenses he incurred. 

According to Mr. Steinke, during that same period, he worked entirely at either 

client sites in Virginia or from his home in the District of Columbia; he testified 

during his deposition that he had never been to P5’s office and had never been 

required to go there. He also testified at his deposition that during this same time 

period, there was no official employment agreement in place, no taxes were 

withheld from checks received from P5, and he did not have the option of 

participating in P5’s 401(k) plan.

Mr. Steinke’s arrangement with P5 changed as of January 2018. He was 

given a contract for full-time employment with P5, which for the first time 

included healthcare benefits, leave, and an optional 401(k) plan. Under the new 

arrangement, Mr. Steinke had a manager, George Pryor. In April 2018, Mr. Pryor

terminated Mr. Steinke’s employment. 
7

Thereafter, Mr. Steinke initiated a lawsuit against P5 based on P5’s failure to 

pay him incentive compensation, which Mr. Steinke argued was a breach of the 

July 2016 employment agreement and a violation of the WPCL. P5 filed a motion 

for summary judgment on the grounds that (1) the WPCL was inapplicable 

because, during the relevant time period, P5 was not an “employer” and Steinke 

was not an “employee,” as defined by the Act; (2) there was no enforceable 

agreement between the parties regarding incentive compensation; and (3) Mr. 

Steinke waived his right to any incentive compensation to which he might 

otherwise have been entitled. 

On July 3, 2019, the trial court entered summary judgment in favor of P5 on 

Mr. Steinke’s WPCL claim, reasoning that P5 was not operating in the District of 

Columbia, was therefore not an employer under the WPCL, and, accordingly, the 

WPCL was inapplicable. The court did not discuss whether Mr. Steinke qualified 

as an “employee” under the Act during the relevant time period. The court denied 

P5’s motion for summary judgment in other respects, determining that there were 

genuine issues of material fact such that summary judgment was precluded. 

The breach-of-contract claim proceeded to trial. During the trial 

proceedings on February 19, 2020, P5 sought to introduce a summary chart to
8

demonstrate its calculation of 2017 overhead expenses and revenue to aid the jury 

in calculating Mr. Steinke’s damages, should it award him any. After hearing 

arguments from both parties, the trial judge ruled that the summary chart was 

inadmissible because P5 had failed to make available the underlying data. Another 

disagreement between the parties arose over a jury instruction regarding apparent 

authority. The trial court gave the instruction proposed by Mr. Steinke rather than 

the one proposed by P5. 

As noted, the jury returned a verdict in favor of Mr. Steinke on his breachof-contract claim. Mr. Steinke now appeals the court’s July 3, 2019 grant of 

summary judgment in favor of P5 on the WPCL claim. P5 appeals the court’s 

denial of summary judgment on the issue of whether there was an enforceable 

agreement regarding incentive compensation (and its consideration of parol 

evidence in doing so). P5 also appeals the trial court’s decisions to exclude its 

summary chart and to issue a jury instruction on apparent authority that did not 

align with P5’s proposed jury instruction. We address these issues in turn.
9

II. Applicability of the Wage Payment and Collection Law

A. Whether P5 was an “employer”

Mr. Steinke argues that the trial court erroneously determined that the 

WPCL did not apply to the incentive-payment dispute because P5 did not fall

within the WPCL statutory definition of “employer,” and thus erred in entering 

summary judgment in favor of P5 on Mr. Steinke’s WPCL claim. We review trial 

court decisions granting summary judgment as well as questions of statutory 

interpretation de novo. District of Columbia v. Place, 892 A.2d 1108, 1110-11 

(D.C. 2006). In reviewing a grant of summary judgment, we view the record in the 

light most favorable to the non-moving party (here, Mr. Steinke), “who is entitled 

to all favorable inferences which may reasonably be drawn from the evidentiary 

materials.” Frankeny v. Dist. Hosp. Partners, LP, 225 A.3d 999, 1004 (D.C. 2020) 

(internal quotation marks omitted).

The WPCL provides that an employer who fails to pay an employee wages3

earned must “pay, or be additionally liable to, the employee, as liquidated 

 

3 The WPCL broadly defines “wages” as “all monetary compensation after 

lawful deductions, owed by an employer, whether the amount owed is determined 
10

damages, 10 per centum of the unpaid wages for each working day during which 

such failure shall continue after the day upon which payment is hereunder required, 

or an amount equal to treble the unpaid wages, whichever is smaller.” D.C. Code 

§ 32-1303(1), (4). The statute defines the term “[e]mployer” as including (with a 

few exceptions not relevant here) “every individual, partnership, firm, general 

contractor, subcontractor, association, corporation, the legal representative of a 

deceased individual, or the receiver, trustee, or successor of an individual, firm, 

partnership, general contractor, subcontractor, association, or corporation, 

employing any person in the District of Columbia.” D.C. Code § 32-1301(1B). It 

defines “employee” as “any person suffered or permitted to work by an employer.”

D.C. Code § 32-1301(2). This court’s WPCL case law acknowledges, however, 

that independent contractors are not “employees” for purposes of the WPCL. See 

Sanchez v. Magafan, 892 A.2d 1130, 1134 (D.C. 2006). 

In concluding that the WPCL applies only to employers operating in the 

District of Columbia, the trial court reasoned that “the legislative history of the 

statute shows an intention to address broad economic concerns of wage theft by 

 

on a time, task, piece, commission, or other basis of calculation,” including as 

potentially relevant here any “[b]onus,” “[c]ommission,” or “[o]ther remuneration 

promised or owed” “[p]ursuant to a contract for employment, whether written or 

oral,” “[p]ursuant to a contract between an employer and another person or entity,”

or “[p]ursuant to District or federal law.” D.C. Code § 32-1301(3)(A), (B), (E).
11

District of Columbia employers, regardless of the location of their employees.” 

We agree that the legislative history evinces an intent by the Council of the District 

of Columbia (the “Council”) to reach conduct by employers operating in the 

District, but we think the trial court’s consideration of the legislative history did 

not go quite far enough. The relevant Committee Report also evinces the 

Council’s intent to protect not only low-wage and minimum-wage workers in the 

District, but also workers whose wages and local spending would be part of the tax 

base in the District. See COUNCIL OF D.C. COMM. ON BUS., CONSUMER, & REGUL.

AFFS., REP. ON BILL 20-671, THE “WAGE THEFT PREVENTION AMENDMENT ACT OF 

2014,” at 2 (Apr. 10, 2014) [hereinafter COMMITTEE REPORT] (expressing the 

Council’s concern that “[u]nderpaying or stealing wages from workers lowers tax 

revenues, which can depress consumer spending and stunt economic growth 

because less disposable income translates into less money spent at local 

businesses”). “[C]onstruing broadly the definition of ‘employer’ to serve the 

remedial purpose of the [WPCL],” District of Columbia v. Bongam, 271 A.3d 

1154, 1157 n.1 (D.C. 2022), we conclude that it is most consistent with the 

Council’s intent to interpret the term to reach entities that have agreed to pay 

wages to individuals who performed their work in the District of Columbia, 

whether from home or elsewhere4 (and who could therefore be expected to spend a 

 

4 We note that a number of other courts have concluded that a jurisdiction’s 
12

portion of their wages at local businesses in the District).5 See Lincoln-Odumu v. 

Med. Fac. Assocs., No. 15-1306 (BAH), 2016 U.S. Dist. LEXIS 88659, at *25 

 

wage-payment law applies to workers who have been permitted or required to 

perform their work within the jurisdiction. See, e.g., Hausfeld v. Love Funding 

Corp., 131 F. Supp. 3d 443, 455-56 (D. Md. 2015) (holding that the Maryland 

wage-payment law “applies to a company that either allows an employee to work 

in Maryland or instructs the employee to be present at a work site in Maryland,” 

and explaining that “[a]ll that is required is that the individual work to some extent 

in Maryland”; applying the Maryland law where the plaintiff “worked frequently 

from his home in Maryland,” “conducted various site visits to properties in 

Maryland that were the subject of loans, attended meetings at the HUD office in 

Baltimore, and attended various conferences and events in Maryland to generate 

business,” and was encouraged “to spend minimal time in his office in 

Washington, D.C.”); Himes Assocs., Ltd. v. Anderson, 943 A.2d 30, 46, 48 (Md. 

Ct. Spec. App. 2008) (applying the Maryland wage-payment law where the 

plaintiff worked for a Virginia corporation and worked out of the corporation’s 

Virginia headquarters but served as a project manager for a project in Virginia that 

required him “to attend meetings twice a month at Lockheed Martin’s Baltimore

office, in the State of Maryland”).

5 The record contains other support, too, for our conclusion that P5 was an 

“employer” within the meaning of the WPCL. Although Mr. Steinke testified at 

his deposition that he did not do any “billable work” for P5 clients located in the 

District, his affidavit supporting his opposition to P5’s motion for summary 

judgment indicates that during his tenure with P5, Mr. Steinke spent approximately

10% of his time “either working at P5 client sites located in D.C. or meeting with 

P5 prospective clients located in D.C.” In addition, the General Declaration of P5 

employee Justin Null avers that he “spent time together” with Mr. Steinke in the 

WMATA D.C. office on dates that may have been as early as April 2017. (P5’s 

opening brief states that WMATA became a P5 client in September 2017.) The 

record thus contains some support for a conclusion that P5 did operate within the 

District of Columbia in 2017. And even if Mr. Steinke did not work at P5 

prospective-client sites located in the District in 2017, the WPCL definition of 

“employer” reaches anyone who “employ[s] any person in the District of 

Columbia.” D.C. Code § 32-1301(1)(B). If Mr. Null did work for P5 in the 

District in 2017, that would be enough to bring P5 within the WPCL definition of 
13

(D.D.C. 2016) (observing that the WPCL legislative history “evince[s] the 

Council’s desire to ensure the broad [geographical] application” of the WPCL). 

With regard to Mr. Steinke’s work from his home in the District, the 

documentary record (a January 22, 2018, email) shows that P5 was aware that Mr. 

Shah “ha[d] been working predominantly at home.” We acknowledge that P5 

“disputes the email text’s authenticity” and that Mr. Shah testified during his

deposition that P5 required and expected that Mr. Steinke would perform his work 

at client sites. But even assuming that Mr. Shah’s testimony accurately described 

P5’s intent and expectation, P5’s sufferance of Mr. Steinke’s work from his home 

in the District of Columbia on any dates during 2017 is consistent with P5’s 

“employer” status vis-à-vis Mr. Steinke (unless Mr. Steinke was an independent 

contractor, an issue we discuss infra). 

 

an “employer.” Cf. Redick v. E Mortg. Mgmt., LLC, Civ. Action No. 11-1260-

GMS-CJB, 2013 U.S. Dist. LEXIS 36002, at *28 (D. Del. 2013) (“[T]he reference 

to ‘any person’ in the [New Jersey Wage Law’s] definition of ‘[e]mployer’ could 

simply amount to a requirement that the employer employ ‘any person’ in New 

Jersey – but not necessarily the person bringing the claim-at-issue.”).
14

B. Whether Mr. Steinke was an “employee”

Having determined that P5 was not an “employer” for purposes of the 

WPCL, the trial court had no need to reach the issue of whether Mr. Steinke was 

an “employee” within the meaning of the Act in order to conclude that the Act was 

inapplicable. We cannot avoid that question, as our rejection of the trial court’s 

rationale for concluding that P5 was an “employer” during the relevant time period 

is not sufficient to enable us to conclude that the WPCL applies in this case. 

We have not established a WPCL-specific test for distinguishing employees 

from independent contractors, but because of the similarity between the employerliability provisions of the WPCL and those of the federal Fair Labor Standards Act 

(the “FLSA”), our sister federal courts have looked to the FLSA test for 

“employee” status to assist in such a determination under the WPCL. See 

Thompson v. Linda & A., Inc., 779 F. Supp. 2d 139, 146 (D.D.C. 2011) (“With 

respect to employers’ liability, [the WPCL is] construed consistently with the 

FLSA.”); Ventura v. Bebo Foods Inc., 738 F. Supp. 2d 1, 5 n.2 (D.D.C. 2010)

(same); see also Donovan v. DialAmerica Marketing, Inc., 757 F.2d 1376, 1382 

(3d Cir. 1985) (noting the recognition by Congress and the courts that “of all the 

acts of social legislation, the [FLSA] has the broadest definition of ‘employee’”). 
15

The FLSA test looks to whether the “economic reality” indicates an employeremployee relationship, rather than an independent contractor one. See Goldberg v. 

Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961).

The “economic reality” test considers various factors, including:

1) the nature and degree of the alleged employer’s 

control as to the manner in which the work is to be 

performed; 

2) the alleged employee’s opportunity for profit or loss 

depending upon his managerial skill; 

3) the alleged employee’s investment in equipment or 

materials required for his task, or his employment of 

workers;

4) whether the service rendered requires a special skill; 

5) the degree of permanency and duration of the 

working relationship; 

6) the extent to which the service rendered is an integral

part of the alleged employer’s business.

Morrison v. Int’l Programs Consortium, Inc., 253 F.3d 5, 11 (D.C. Cir. 2001); 

Sec’y of Labor v. Lauritzen, 835 F.2d 1529, 1534-35 (7th Cir. 1987). “No one 

factor standing alone is dispositive[,] and courts are directed to look at the totality 

of the circumstances and consider any relevant evidence.” Morrison, 253 F.3d at 

11. “[T]he final and determinative question must be whether the total[ity] of the 

[circumstances considered] establishes the personnel are so dependent upon the 
16

business with which they are connected that they come within the protection of the 

FLSA or are sufficiently independent to lie outside its ambit.” Id. (internal 

quotation marks omitted). Courts applying state wage laws have applied the 

foregoing FSLA factors and additional factors, such as “whether or not the work is 

a part of the regular business of the principal” and “whether or not the parties 

believe they are creating the relationship of employer-employee.” Bowerman v. 

Field Asset Servs., Inc., 39 F.4th 652, 658 (9th Cir. 2022) (quoting S.G. Borello & 

Sons, Inc. v. Dep’t of Indus. Rels., 769 P.2d 399, 404 (Cal. 1989)). 

 

Courts have held that whether an individual is an “employee” within the

meaning of the FLSA is a legal question. Morrison, 253 F.3d at 10 n.3 (adding 

that “[n]evertheless, [a]ny subsidiary factual issues leading to this conclusion are, 

of course, questions of fact for the [finder of fact].” (internal quotation marks 

omitted)).

6

 But even if we consider Mr. Steinke’s “employee” status for purposes 

of the WPCL to be a mixed question of fact and law, see Hickey v. Bomers, 28 

A.3d 1119, 1123 (D.C. 2011) (“The determination of whether an employer-

 

6 See also Schultz v. Capital Int’l Sec., Inc., 466 F.3d 298, 304 (4th Cir. 

2006) (“The ultimate conclusion as to whether a worker is an employee or 

independent contractor under the FLSA presents a legal question that we review de 

novo.”); Baker v. Flint Eng’g & Constr. Co., 137 F.3d 1436, 1440 (10th Cir. 1998)

(“[T]he court must decide, as a matter of law, whether the individual is an 

‘employee’ under the FLSA.”). 
17

employee relationship exists [under the District of Columbia’s unemployment 

compensation law] involves a mixed question of law and fact.”), we may decide 

the issue as a matter of law where the facts are undisputed and “only one 

conclusion could reasonably be drawn from the evidence.” Kumar v. D.C. Water 

& Sewer Auth., 25 A.3d 9, 16 (D.C. 2011). Viewing the evidence in the light most 

favorable to Mr. Steinke and based largely on his own testimony, and giving due 

regard to the Council’s cautionary words about misclassification of workers as

independent contractors, see COMMITTEE REPORT at 2, we conclude for the 

following reasons that Mr. Steinke was not a P5 “employee” during the relevant 

time period and that summary judgment therefore was proper on his WPCL claim.

As to “control as to the manner in which the work [was] to be performed,” 

Lauritzen, 835 4.2d at 1535, the record contains considerable evidence that Mr. 

Steinke exercised control over the manner in which he performed his work. He 

testified at his deposition that he had responsibility for “defining how [P5] would 

run” the ServiceNow line of the business. He further testified that he generally 

determined how many hours he would work each day (and Mr. Shah agreed in his 

deposition that Mr. Steinke wanted to set his own working hours and not be an 

employee.). In addition, rather than utilize “leave” or seek approval from P5 to 

take time off, Mr. Steinke just let P5 know when he “was going to be gone.” 
18

According to his testimony, Mr. Steinke also chose to work from his home, leaving

Mr. Shah without “any awareness” of where Mr. Steinke was working on any 

given day. In opposing summary judgment, Mr. Steinke detailed a multi-page list 

of ways in which he claimed Mr. Shah directed his work (asking Mr. Steinke to, 

e.g., “create marketing content,” “attend [a] meeting,” and “provide status 

reports”), but none of the entries appears to direct the manner in which Mr. Steinke 

was to accomplish the various listed tasks.

7

 

“A court’s most important task in analyzing the profit or loss factor is to 

ascertain which party controls the major determinants of the worker’s ability to 

make a profit.” Herman v. Express Sixty-Minutes Delivery Serv., Inc., 161 F.3d 

299, 308 (5th Cir. 1998) (King, J., concurring) (“If the employer largely controls 

these major determinants, this points toward a finding of employee status. On the 

other hand, if the workers themselves exert substantial control over their ability to 

 

7 See Sanchez, 892 A.2d at 1134 (“If an employer has the right to control and 

direct the work of an individual, not only as to the results achieved, but also as to 

the details by which that result is achieved, an employer/employee relationship is 

likely to exist.” (emphasis added) (internal quotation marks omitted)); cf. Cmty. for 

Creative Non-Violence v. Reid, 490 U.S. 730, 752 (1989) (determining that the fact 

that a putative employer “directed enough of Reid’s work to ensure that he 

produced a sculpture that met their specifications” was not enough to create an

employment relationship when weighed against other factors, including that Reid 

“worked in his own studio in Baltimore, making daily supervision of his activities 

from Washington practicably impossible”).
19

profit or over the likelihood that they will suffer loss, they are more like 

independent contractors.”). As for Mr. Steinke’s opportunity for profit depending 

upon his managerial skill, the jury found that he was entitled to a portion of P5’s 

profits based on the incentive compensation agreement, which tied Mr. Steinke’s 

commissions to his success in selling ServiceNow professional services and 

generating licenser revenue from referrals and sales. Mr. Steinke’s June 26, 2017, 

email to Mr. Shah indicates that Mr. Steinke exerted control over these 

opportunities for profit through “water[ing] and nurtur[ing]” relationships with 

ServiceNow partners and through expanding P5’s work for clients to whom the 

company was introduced. There was no evidence that Mr. Steinke made any 

capital investment in P5 that exposed him to an opportunity for loss, but on 

balance, we think the foregoing evidence weighs on the side of his independent 

contractor status. 

As to investment in materials required for Mr. Steinke’s work, the record 

reflects that Mr. Steinke used his own phone and laptop computer for work at first, 

but when his laptop broke, P5 agreed to replace it with a “better working” 

company laptop. Mr. Steinke testified that he never used the P5 office, and thus he 

made no use of any equipment furnished there. We see no evidence in the record 
20

that Mr. Steinke (or the LLC) had any employees. In sum, this evidence weighs on 

both sides of the employee vs. independent contractor argument and is neutral.

The service Mr. Steinke provided did require special skill, specifically Mr. 

Steinke’s experience with ServiceNow. In his deposition, Mr. Steinke described 

his previous experience with the ServiceNow platform and testified that P5, by 

contrast, was a “new ServiceNow partner,” that Mr. Shah had little or no 

ServiceNow experience, and that Mr. Steinke wanted to help P5 “grow a 

company.” (Similarly, Mr. Steinke testified at trial that Mr. Shah was looking for 

someone to “help build [the ServiceNow] line of business,” and that Mr. Steinke 

was interested in a company “just getting started” where “we could build 

something.”) The July 6, 2016, offer letter expressed P5’s confidence that Mr. 

Steinke had the “experience, skills, and relationships to succeed and help P5 

grow.” These same facts are pertinent to other factors identified above: the extent 

to which the service rendered is an integral part of the putative employer’s 

business, and whether it is a part of the regular business of the principal. The 

record, including Mr. Steinke’s testimony, seems to indicate that the ServiceNow 

work became a regular or integral part of P5’s business only with Mr. Steinke’s 

arrival; indeed, as far as the record shows, the ServiceNow logo or legend 
21

(“ServiceNow Services Partner”) began appearing on P5’s stationery only after the 

company obtained Mr. Steinke as its ServiceNow lead. 

It appears from the record that, as originally envisioned, Mr. Steinke’s 

position was permanent, a fact that suggests “employee” status. See Thompson, 

779 F. Supp. 2d at 150. But that is overshadowed by the facts pertinent to 

“whether . . . the parties believe[d] they [we]re creating the relationship of 

employer-employee.” Bowerman, 39 F.4th at 658. Mr. Steinke testified in his 

deposition that he “determined to open up Holstein Amalgamated and be 

represented as a separate company rather than a direct employee of the company.” 

Further, Mr. Steinke acknowledges that there was no official employment 

agreement in place during the period in dispute, that P5 never used the W-4 Mr. 

Steinke filled out in 2016, and that — unlike a typical employee — Mr. Steinke 

invoiced P5 for his services each month.8

 The record also indicates that no taxes 

were withheld from checks received from P5, that Mr. Steinke did not have the 

option of participating in P5’s 401(k) plan (because, according to Ms. Patel’s 

testimony about advice from ADP, contractors are not allowed to participate in the 

 

8 “[P]ayments by invoice . . . are common indicators of an independent 

contractor relationship.” Janette v. Am. Fid. Group, Ltd., 298 Fed. App’x 467, 475

(6th Cir. 2008).
22

company’s 401(k) plan or benefits plans), and that Mr. Steinke benefitted from 

“sort of an unlimited vacation policy.”9 And as to whether Mr. Steinke was so 

dependent upon P5 that he should be deemed to come within the protection of the 

WPCL, it is noteworthy that the Teaming Agreement did not bar his LLC from 

doing work for others; it provided that “[n]othing in this agreement shall preclude 

either party from conducting business with existing customers.”10 

An additional significant fact is that after a year of being “represented as a 

separate company,” Mr. Steinke decided that he wanted to become an at-will 

payroll employee. The parties’ relationship at that point changed: he started 

receiving health insurance, he was given the option to participate in a 401(k) plan, 

and he was assigned a direct supervisor. At that point, Steinke was clearly a 

dependent employee. This change in the parties’ relationship highlights the fact 

 

9 Cf. Cmty. for Creative Non-Violence, 490 U.S. at 753 (noting that the fact 

that a putative employer “did not pay payroll or Social Security taxes, provide any 

employee benefits, or contribute to unemployment insurance or workers’

compensation funds” supported the conclusion that Reid was an independent 

contractor rather than an employee for purposes of the copyright work-for-hire 

doctrine).

10 Razak v. Uber Techs., Inc., No. 16-573, 2018 U.S. Dist. LEXIS 61230, at

*41 (E.D. Pa. Apr. 11, 2018) (“Plaintiffs . . . are permitted to work for competing 

companies. This is well-established as a leading indicator that a worker is an 

independent contractor.”).
23

that, prior to signing the at-will employment agreement, Mr. Steinke was operating 

in a much more independent way.

These additional considerations tip the balance. We conclude as a matter of 

law that Mr. Steinke was not an employee but was instead an independent 

contractor during the relevant time period, bringing him outside the ambit of the 

WPCL. “In the absence of procedural unfairness, we may affirm a judgment on 

any valid ground, even if that ground was not relied upon by the trial judge.” 

Stone v. Landis Constr. Co., 120 A.3d 1287, 1289 n.6 (D.C. 2015) (internal 

quotation marks omitted). “The requirement of procedural fairness is satisfied 

here, since the parties have fully briefed and argued th[e] substantive question” of 

Mr. Steinke’s employee status. Id. The trial court ultimately arrived at the proper 

conclusion in dismissing Steinke’s WPCL claim, so we affirm the trial court’s 

ruling.
24

III. The Breach-of-Contract Claim

A. The Denial of Summary Judgment

In P5’s appeal, it argues that the trial court erred in denying its motion for 

summary judgment because there was no enforceable agreement between the 

parties regarding incentive compensation. Rather, P5 argues, with respect to 

incentive compensation, the conversations and agreements between the parties 

merely amounted to an agreement to agree in the future, which is unenforceable 

under Virginia law.11 

We begin our analysis by questioning whether it is proper for P5 to appeal 

the denial of its motion for summary judgment after a trial and final judgment on 

the merits. In Morgan v. American University, this court announced a “general 

rule that denial of summary judgment after a trial and final judgment is not an 

appealable order.” 534 A.2d 323, 328 (D.C. 1987). We did leave open “the 

 

11 See CGI Fed. Inc. v. FCi Fed., Inc., 814 S.E.2d 183, 188 (Va. 2018) (“In 

Virginia, it is well-settled that contractual provisions that merely set out 

agreements to negotiate future subcontracts are unenforceable.” (internal quotation

marks omitted)). The trial court determined that Virginia law (which the Teaming 

Agreement stated would govern) applies to the breach-of-contract claims in this 

case, and neither party disputes this determination on appeal.
25

possibility that . . . one of the exceptions recognized in other jurisdictions might 

apply in an appropriate case where review of a denial of summary judgment would 

not ‘defeat the fundamental purpose of judicial inquiry.’” Id. at 328-29 (footnote 

omitted) (quoting Home Indemnity Co. v. Reynolds & Co., 187 N.E.2d 274, 278 

(Ill. App. Ct. 1962)).12 We need not decide whether this case falls within an 

exception to the Morgan rule because Mr. Steinke has not taken issue with P5’s 

appeal on this basis and because, in any event, we have little trouble rejecting P5’s 

argument that it was entitled to summary judgment on Mr. Steinke’s breach-ofcontract claim.

As already noted, our review of rulings on motions for summary judgment is 

de novo. Washington v. District of Columbia, 137 A.3d 170, 173 (D.C. 2016). We 

conduct an independent review of the record to determine whether there were 

genuine issues of material fact in dispute at the time of the ruling and whether the 

moving party was entitled to judgment as a matter of law. Id. We examine the 

 

12 We cited as an example the situation presented in St. Paul Fire and 

Marine Ins. Co. v. Speerstra, 666 P.2d 255, 257 (Or. Ct. App. 1983), where the 

denial of respondents’ motion for summary judgment was reviewable because final 

judgment was entered for respondents and they had no reason or means to assert 

that the denial of their summary judgment motion was error. Morgan, 534 A.2d at 

329 n.13. We also note that some jurisdictions recognize an exception to the 

general rule when the denial of summary judgment was “based on the 

interpretation of a purely legal question.” Wolfgang v. Mid-America Motorsports, 

Inc., 111 F.3d 1515, 1521 (10th Cir. 1997). 
26

evidence in the light most favorable to the nonmoving party to determine whether 

there was any evidence upon which a jury “could properly proceed to find a verdict 

for the [non-moving] party.” Hamilton v. Howard Univ., 960 A.2d 308, 313 (D.C. 

2008). 

As support for its argument that the parties had only an “agreement to agree” 

regarding incentive compensation, P5 points to (1) the language in the Teaming 

Agreement that says, “The Parties agree to negotiate the distribution of Net Profit 

for each project,” and (2) the statement in the Teaming Agreement that the 

Agreement was “the entire agreement among the Parties [that] supersede[d] any 

prior oral and written agreement or understanding pertaining to [the] Project.” P5 

argues that it was error for the trial court to look beyond the four corners of the 

Agreement, to parol evidence, to create a factual ambiguity as to whether there was 

an agreement regarding incentive compensation. 

We are unpersuaded by P5’s argument because, reading the Teaming 

Agreement in the light most favorable to Mr. Steinke as the non-moving party, we 

agree that it raises or leaves unresolved a number of material factual issues. The 

Agreement declares that it was the entire agreement between the parties — P5 and 

the LLC — but it does not say anything about the prior discussions between P5 and 
27

Mr. Steinke, or about Mr. Steinke’s acceptance of P5’s revised proposal regarding 

the incentive compensation that would be paid to Mr. Steinke (not to the then-notyet-existent LLC). Moreover, the Teaming Agreement can be read to refer to a 

plan to agree on how net profit would be distributed (e.g., on what schedule net 

profit would be divided), rather than a plan to agree on whether the LLC or Mr. 

Steinke was entitled to share in the profit in the first place. These are just a few 

reasons why the trial court did not err in determining that there were issues of fact 

regarding the parties’ intent and the circumstances surrounding the Teaming 

Agreement that precluded summary judgment. 

We are satisfied that the record at the summary judgment stage would have 

permitted (though it did not compel) a finder of fact to find (as the jury eventually 

did find, and as Mr. Steinke argues) that the parties had reached a binding 

agreement regarding basic and incentive compensation as of July 15, 2016, (as 

supported by the fact that P5 effectively paid Mr. Steinke the salary promised in 

Mr. Shah’s July 2016 offer letter and email) and did not intend for the Teaming 

Agreement (which mentioned no compensation amount) to disturb that agreement. 

As the trial court identified, “the frequency of the communication between the 

parties during this time period, combined with the detailed compensation and 

employment terms laid out in the July 14 email, the attached offer letter of 
28

employment, and the July 15 email” established a genuine dispute of material fact 

as to whether the parties reached an enforceable agreement on the terms of 

incentive compensation. At the motion stage, it would have been inappropriate for 

the trial court to grant summary judgment and prevent this issue from going to 

trial. Therefore, we affirm the trial court’s denial of P5’s motion for summary 

judgment on this issue.

B. The Exclusion of P5’s Summary Exhibit

P5’s next argument focuses on its trial Exhibit 11, which set out 

“Defendant’s calculation of overhead for the contracts at issue.” The exhibit was 

not specifically discussed at the pre-trial conference, but it was among the mass of 

exhibits that the court ruled would be admitted (a ruling that Mr. Steinke asserts 

and the transcript states pertained only to plaintiff’s exhibits). In a supplement to 

the parties’ Joint Pretrial Statement and at trial, however, Mr. Steinke’s counsel 

objected to its admission, arguing that P5 had not presented predicate testimony

and also had not previously provided Mr. Steinke with underlying data from which 

the summary document was created. P5 contends that the trial court abused its 

discretion in sustaining Mr. Steinke’s objection to the admission of the summary 

exhibit. 
29

Our case law establishes that a summary of “voluminous records” is 

admissible “if the original source material is available for verification of the 

summary’s accuracy.” Roberts v. United States, 508 A.2d 110, 112 (D.C. 1986). 

P5 contends that it made the summary’s original source documents available by 

(repeatedly) offering to allow Mr. Steinke’s counsel to examine its banking records 

during discovery. The trial court determined that because the documents P5 made 

available during discovery were not the same as the source documents from which 

the summary chart was made, the availability requirement was not met. 

We review a trial court’s evidentiary decisions for abuse of discretion, 

“broadly defer[ring] to the trial court due to its ‘familiarity with the details of the 

case and its greater experience in evidentiary matters.’” Johnson v. United States, 

960 A.2d 281, 294 (D.C. 2008) (quoting Sprint/United Mgmt. Co. v. Mendelsohn, 

552 U.S. 379, 384 (2008)). With this deference in mind, we affirm the trial court’s 

decision to exclude P5’s summary exhibit. We do so in part because P5 has not 

enabled us to understand (and, more to the point, we see no evidence that P5 

enabled the trial court to understand) how banking records, which presumably do 

not show which expenditures for overhead were allocable to the projects on which 

Mr. Steinke worked, would have enabled Mr. Steinke to verify the accuracy of 
30

P5’s exhibit showing the overhead expenses it deducted from each project’s 

revenues to perform its calculation of damages from any breach of an agreement 

regarding incentive compensation. We therefore decline to disturb the trial court’s 

determination that P5 failed to meet the availability requirement for admission of 

its summary exhibit.

There is an additional reason why we decline to disturb the trial court’s 

ruling. The jury verdict and damages award show that the jury was persuaded that 

P5 and Mr. Steinke reached an agreement regarding incentive compensation in 

July 2016. The record shows that the proposal Mr. Steinke accepted included the 

statement (which appears twice in Mr. Shah’s revised offer email) that “[p]rofits 

are defined as the revenue minus expenses (labor costs).” In light of the jury 

verdict finding that P5 breached a contract with Mr. Steinke, we conclude that 

exclusion of P5’s summary exhibit was harmless error, if it was error at all, 

because the jury presumably would not have accepted a damages calculation that 

deducted other overhead expenses, and not just “labor costs,” from project 

revenues to determine the incentive compensation P5 owed Mr. Steinke. That is, 

the jury appears to have found — accepting Mr. Steinke’s position — that there 

was an agreement based on Mr. Steinke’s acceptance of the revised offer outlined 

in Mr. Shah’s July 14, 2016, email, and not merely an agreement to negotiate 
31

regarding profit-sharing as referenced in the Teaming Agreement (with its 

reference to computing “Net Profit” as “Revenue - Cost”). 

C. The Jury Instruction on Apparent Authority

One of P5’s theories at trial was that the putative agreement between Messrs. 

Steinke and Shah regarding incentive compensation was invalid and unenforceable 

because, while Mr. Shah had authority to negotiate an agreement with Mr. Steinke, 

Mr. Shah did not have authority — actual or apparent — to enter into such an 

agreement without the express approval of P5 co-founder Nemisha Patel. That 

defense theory set the stage for a jury instruction on the law regarding apparent 

authority. P5 requested the following instruction: 

An individual may have authority to negotiate an 

agreement, but not have the authority to bind a principal. 

The principal may be bound if the individual had 

apparent authority to bind the principal. The individual 

does not have apparent authority to bind the principal if 

the evidence demonstrates that the other party had no 

basis to conclude the individual had authority to bind the 

principal. . . .

Mr. Steinke requested an instruction that was phrased differently, and the trial 

court ultimately issued the following instruction based on the language Mr. Steinke 

had proposed:
32

An agreement is binding on the company where its agent 

has either actual or apparent authority. An act is within 

an agent’s apparent authority if, in view of the character 

of his actual and known duties, an ordinarily prudent 

person, having a reasonable knowledge of the usages of 

the business in which the agent is engaged, would be 

justified in believing that he is authorized to perform the 

act in question.

The trial court chose that instruction because it would better assist the jury in 

understanding “how [to] determine whether or not there was apparent authority.” 

P5 now challenges the court’s decision regarding the jury instruction. It 

argues that the jury instruction given was an inaccurate reflection of Virginia law 

in that it failed to explain that an individual (Mr. Shah) might have had authority to 

negotiate an agreement on behalf of P5 without authority to bind P5.

13 P5 asserts 

that it was prejudiced by the trial court’s failure to convey to the jury through its 

instruction that Mr. Steinke needed to present evidence that Mr. Shah had authority 

to bind P5, as P5’s proposed instruction conveyed. 

We review a court’s refusal to issue a particular jury instruction for abuse of 

discretion, “which may be found if the court’s charge as a whole does not fairly 

 

13 The instruction issued by the court was drawn directly from Virginia case 

law. See Wright v. Shortridge, 73 S.E.2d 360, 364-65 (Va. 1952). We do not 

discern any way in which the issued instruction was not an accurate and fair 

representation of the applicable law.
33

and accurately state the applicable law.” NCRIC, Inc. v. Columbia Hosp. for 

Women Med. Ctr., Inc., 957 A.2d 890, 898 (D.C. 2008). However, we review the 

legal accuracy of the contents of the jury instruction actually given de novo. 

Brown v. United States, 139 A.3d 870, 875 (D.C. 2016). “When the reviewing 

court concludes that the trial court erred while instructing the jury, the question 

whether the error requires reversal ordinarily invokes harmless error analysis . . . .” 

Blaine v. United States, 18 A.3d 766, 775 (D.C. 2011).

We conclude that the trial court did not abuse its discretion in choosing to 

give a jury instruction that included a straightforward definition of apparent 

authority, which P5’s proposed instruction lacked. Additionally, we are not 

persuaded that it was necessary to instruct the jury that Mr. Steinke had the burden 

to prove that Mr. Shah had actual or apparent authority to bind P5, given that the 

jury was already instructed that “[t]he plaintiff bears the burden of proof.” 

Finally, as to the claimed harm from the court’s failure to draw the jury’s

attention to a distinction between authority to negotiate and authority to bind, we 

are persuaded that P5 was not prejudiced by the omission. In her trial testimony, 

Ms. Patel agreed that a reasonable person could think that the “co-founder” of P5 

was Mr. Shah. This was significant testimony because the revised employment 
34

offer accepted by Mr. Steinke specified that “[a] variable compensation package 

will be established between you and the Co-Founder of P5.” Ms. Patel’s testimony 

essentially acknowledged to the jury that Mr. Steinke could reasonably believe that 

Mr. Shah, as co-founder, had agreed to (and not merely negotiated) an incentive 

compensation package and had authority to set the 25% incentive compensation 

that he confirmed in an email to Mr. Steinke.

14 We think her testimony would 

have had the same impact even if the jury had heard P5’s favored instruction that 

“[t]he principal may be bound if the individual had apparent authority to bind the 

principal.” Given that, we are unpersuaded by P5’s argument that the trial court 

abused its discretion in issuing the jury instruction, as any error was harmless. See 

Johnson v. United States, 398 A.2d 354, 366 (D.C. 1979) (prejudice is a necessary 

component of abuse of discretion).

 

14 Ms. Patel’s concession might have been based just as appropriately on Mr. 

Shah’s role as the CEO of P5. “[A]t least one court has found that where a 

corporation appoints someone to act as chief executive officer and chairman of the 

board . . . appointing a person to such a position may, in itself, create apparent 

authority in an employee.” Columbia Hosp. for Women Found. v. Bank of TokyoMitsubishi, 15 F. Supp. 2d 1, 8 (D.D.C. 1997) (internal quotation marks omitted) 

(quoting Fed. Deposit Ins. Corp. v. Tex. Bank of Garland, 783 S.W.2d 604, 607 

(Tex. App. 1989)). Similarly, “[c]ourts have commonly imposed liability based on 

‘apparent authority’ upon a corporation,” particularly when the person making the 

representation at issue “is an important corporate official.” In re Atl. Fin. Mgmt., 

Inc., 784 F.2d 29, 32 (1st Cir. 1986) (citing 10 R. Eickhoff, Fletcher on 

Corporations § 4886 (1978 & Supp. 1985)).
35

IV. Conclusion

For the foregoing reasons, the judgment of the Superior Court is

Affirmed.