SKRYNNIKOV v. FEDERAL NATIONAL MORTGAGE ASSOC. et al

Filing 32

MEMORANDUM OPINION to the Order on Defendant's Motion to Dismiss and to Compel. Signed by Judge Gladys Kessler on 5/8/13. (CL, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TIMOTHY SKRYNNIKOV,
Plaintiff,
Civil Action No. 11-0609 (GK)

v.

FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Defendant.

MEMORANDUM OPINION
Plaintiff Timothy Skrynnikov
brings

this

Association

action against
("Defendant"

("Plaintiff"

Defendant

or

"Fannie Mae")

under the Federal False Claims Act
seq.,

and

Federal

interference with his

"Skrynnikov")

National

alleging

("FCA"),

rights

or

Mortgage

retaliation

31 U.S.C.

§

3729 et

under both the

Federal

Family and Medical Leave Act

("FMLA"),

and the

Columbia Family and Medical

Act

related District

of

29 U.S.C.

2601 et seq.,

§

Leave

("DCFMLA"), D.C. Code § 32-501 et seq.
This

Dismiss

matter

and

Its

is before

the

Motion

Compel

to

Court

Upon consideration of the Motion,
Reply

[Dkt.

reasons

granted.

set

No.

30],

forth

on Defendant's Motion to

Arbitration

Opposition

[Dkt.

[Dkt. No.

and the entire record herein,

below,

the

motion

to

compel

No.

2 6] .

29],

and

and for the

arbitration

is

I .

BACKGROUND

1

Fannie Mae is a government-sponsored corporation chartered
by Congress, with its headquarters in the District of Columbia.
SAC

5.

§

Skrynnikov was employed by Fannie Mae as a

Senior

Financial Analyst from October 9, 2007 until November 13, 2009,
when his employment was terminated.

~~

SAC

38.

6,

Skrynnikov

alleges that Fannie Mae eliminated his position in retaliation
for

his

investigation

falsehoods

in

executive

into

compensation

reported to

the United States

March 2009.

SAC

~~

disclosure

and

data

purported

of

that

Fannie

Mae

Senate Committee on Finance

11-17, 38-42.

in

Skrynnikov also alleges that

the elimination of his position interfered with his rights under
the

FMLA and DCFMLA because

it

approved medical leave of absence.
When Skrynnikov applied for

came

at

the

~~

26-38, 43-50.

Id.
his

conclusion of an

job in October 2007,

he

signed an application form acknowledging that "as a condition of
employment,
Fannie

all Fannie Mae employees must agree to be bound by

Mae's

Dispute

Resolution

certain employment-related

claims

Policy,
be

which

submitted

before a suit can be brought on them in court."
&

A.,

Ex.

1

("Employment Application")

1

at 4

requires
to

that

arbitration

De f . ' s Mem. P .
[Dkt.

No.

26-1].

The facts set forth herein are taken from the Second Amended
Complaint ("SAC") [Dkt. No. 23] and the undisputed facts set
forth in the parties' briefs and exhibits.
-2-

Similarly,

when

Skrynnikov

signed

and

accepted

Fannie

Mae's

offer of employment, he did so subject to the understanding that
Fannie Mae's Dispute Resolution Policy required him "to submit
certain employment-related claims to the mandatory arbitration
process for final resolution prior to filing these claims in a
court of

Def.'s Mem.

law. "

P.

A.,

&

Ex.

2

("Offer Letter")

[Dkt . No. 2 6-2] .
The Dispute Resolution Policy, a copy of which accompanied
Fannie Mae's Offer Letter,

provides that a Fannie Mae employee

is required to arbitrate "all claims
involving

a

. against Fannie Mae .

legally-protected

right,

that

directly

or

indirectly relate to his or her employment or the termination of
that

employment [.]"

Def. 's

Mem.

Resolution Policy" or "Policy")

§

P.

&

A.,

Ex.

3

2 [Dkt. No. 26-3].

("Dispute
The Policy

elaborates that the claims to which it applies .may "involv [e]
rights protected by any federal,
constitution

[sic],

statute,

state,

ordinance,

or other governmental
regulation,

or

common

The Policy also states that "[t] he arbitrator will

law."

resolve all disputes over the interpretation and applicability
of

the

Policy,

and

presented under it."
On

March

23,

over
Id.

2011,

§

the

arbitrability

of

all

matters

case

against

16.
Skrynnikov

filed

this

Fannie Mae asserting a qui tam claim under the FCA on behalf of
-3-

the United States,
on

his

own

as well as various employment-related claims

behalf.

Skrynnikov's

qui

[Dkt .

tam

claim

No.
was

Government pursuant to 31 U.S.C.
17,

18].

Skrynnikov

In

his

brings

1] .

On

dismissed
§

March
on

27,

motion

Amended

Complaint

claims

solely

on

his

[Dkt.
own

of

the

[Dkt.

3730 (c) (2) (A).

Second

2012,

Nos.

No.

23],

behalf

for

retaliation under the FCA, and for interference with his rights
under the FMLA and DCFMLA.

SAC

Skrynnikov did

these

not

submit

§§

39-50.
claims

It is undisputed that
to

arbitration before

commencing this action.
On November 6,

2012,

Fannie Mae moved to dismiss the FMLA

and DCFMLA claims pursuant to Rule 12(b) (6) of the Federal Rules
of Civil Procedure, and to compel arbitration of the FCA claim.
[Dkt.

Nos.

26,

27-1] .

Court

did not

dismiss

Fannie Mae also requested that
the

FMLA and DCFMLA claims,

arbitration as :to those claims as well.

if the

it

On January 7,

compel
2013,

Skrynnikov filed his Opposition to Fannie Mae's Motion [Dkt. No.
29],

and on January 14, 2013,

Fannie Mae filed its Reply

No. 30] .

-4-

[Dkt.

STANDARD OF REVIEW 2

II.

A motion
for

to

compel

arbitration

summary disposition

ha [s]

been

a

arbitrate [,]

of

meeting

the

of

issue

the

effectively

of

minds

and therefore such a

11

is

"a

request

whether or not
on

the

there

agreement

to

motion is properly reviewed

under the summary judgment standard of Rule 56(c) of the Federal
Rules of Civil Procedure.
Indus.,

Inc.,

Aliron Int'l,

531 F. 3d 863,

865

(D.C.

Inc. v. Cherokee Nation

Cir.

2008)

(citations and

quotation marks omitted) .
"Under

this

standard,

arbitration

must

firs·t

demonstrate

an

at

*3

Int'l.,

(D.D.C.
865

present

enforceable

Computer World Servs.
Feb.

F.

Supp.

agreement

Corp.,

1,

No.

2013)
2d

party

the

seeking

sufficient

'evidence
to

12-0374

compel

to

arbitrate. '
(ABJ),

Fox v.

11

2013 WL 385610,

(quoting Hill v.

Wackenhut

89

84,

7,

(D.D.C.

June

to

Servs.

2012)).

The

burden then shifts to the opposing party "to show that there is
a

genuine

agreement []

issue
11

so

of
as

material
to

fact

preclude

the

motion to compel as a matter of law.
Hancock

LLP,

Feb. 28, 2013)
2

No.

12-749

(JDB),

(citing Hill,

2013

as

to

court

the

from

Haire v.
WL

making

751035,

of

the

deciding

the

Smith,

Currie &

at

(D.D.C.

865 F. Supp. 2d at 89).

*2

To sustain

The Court does not reach Fannie Mae's, arguments for dismissal
under Fed. R. Civ. P. 12 (b) (6), and, therefore, does not set
forth that standard of review.
-5-

its burden,
and

by

the nonmoving party must "'go beyond the pleadings

[its]

own

interrogatories,
facts

showing

affidavits,

and
that

or

admissions
there

is

by
on

a

file,

genuine

Amirmotazedi v. Viacom,

Inc.,

768 F.

2011)

Corp.

v.

(citing

Celotex

(1986); Laningham v. U.S. Navy,

depositions,

designate
issue

Supp.

Catrett,

answers

477

813 F.2d 1236,

specific

for

2d 256,

trial.'"

260

U.S.
1242

to

(D.D.C.

317,

322

(D.C.

Cir.

1987)).
III. ANALYSIS
A.

Legal Standard Under the Federal Arbitration Act

The Federal Arbitration Act

("FAA") , 9 U.S. C.

§

1 et seq.,

governs the enforcement of an arbitration agreement such as the
one at issue in this case. 3
that "[a]

The FAA provides, in relevant part,

written provision in any .

transaction

involving

commerce

to

contract evidencing a
settle

by

arbitration

controversy thereafter arising out of such contract .
be valid,

irrevocable,

and enforceable,

as

at

in

exist

contract."

law

9 U.S.C.

or
§

equity

for

a

. shall

save upon such grounds
the

revocation

of

any

2.

Although "arbitration is a matter of contract and a party
cannot be required to submit to arbitration any dispute which he
3

The Dispute Resolution Policy states that it "is an agreement
to arbitrate pursuant to the FAA" and must "be interpreted,
enforced, and governed under the FAA." Policy § 16.
-6-

has not agreed to so submit[,]"

United Steelworkers of Am.

Warrior & Gulf Navigation Co., 363 U.S. 574, 582
a

agreements."

CompuCredit Corp. v. Greenwood, -- U.S. --, 132 S.

665,

669

Therefore,

(2012)

federal

(citation

policy

(1960), the FAA

"establishes

Ct.

liberal

v.

and

favoring

quotation

arbitration

marks

as our Court of Appeals has emphasized,

omitted) .

"any doubts

concerning the scope of arbitrable issues should be resolved in
favor of arbitration [.]"
517,

520

Mercury

(D.C.

Cir.

Constr.

principle applies
statutory claims,

Wolff v. Westwood Mgmt., LLC, 558 F. 3d

2009)

Corp.,

(citing Moses H.
460

u.s.

"even when the

Cone Mem'l Hosp. v.

1,

24-25

claims

at

(1983)).
issue

are

This
federal

unless the FAA's mandate has been 'overridden

by a contrary congressional command. '"

CompuCredi t

Corp. ,

132

S. Ct. at 669 (quoting Shearson/Am. Express Inc. v. McMahon, 482

u.s.

220, 226 (1987)).
Although the Supreme Court has long recognized and enforced

a

"liberal

federal

policy

favoring

Moses H. Cone Memorial Hosp.,

arbitration

460 U.S.

at 24,

it has also made

clear that there is an exception to this policy:
whether

the

arbitration,
for

judicial

parties
i.e.,

have

submitted

a

agreements,"

particular

the question
dispute

to

the "question of arbitrability" is "an issue

determination

[u]nless

unmistakably provide otherwise [.] "
-7-

AT

the
&

parties

clearly

and

T Technologies, Inc. v.

Communications Workers of America, 475 U.S. 643, 649, 106 S. Ct.
1415, 89 Lawyers Ed. 648

(1986)

will

III.B.1.,

discuss

infra

at

(emphasis added).
in

this

As the court

case,

the

actual

language in the Policy is clear and unmistakable.
B.

The Dispute Resolution Policy Requires Each of
Pending Disputes to Be Submitted to Arbitration

When a

party invokes

the

FAA to

compel

arbitration,

the

the

Court first must determine whether there is a valid agreement to
arbitrate.

See,

e.g.,

97

(D.D.C.

Supp.

2d 90,

Inc.,

215 F. Supp.

Johns

v.

2012)

2d 143,

Newsmax Media,

(citing Nelson v.

150

(D.D.C.

2002)).

Inc.,

887

F.

Insignia/Esg,
The Court then

must assess whether the specific dispute falls within its scope.
Id.

In answering these questions,

principles apply.

u.s.

ordinary state-law contract

First Options of Chicago, Inc. v. Kaplan, 514

938, 944 (1995) . 4
1.

In

There Is a Valid Agreement to Arbitrate

support

of

its

Motion

to

Compel,

Fannie

Mae

submitted copies of Skrynnikov's Employment Application,
Mae's

Offer

Skrynnikov' s
Letter

Letter,

and

its

Dispute

Resolution

has

Fannie
Policy.

signature on the Employment Application and Offer

evidences

his

acceptance

4

of

the

Dispute

Resolution

Skrynnikov's opposition papers assume that District of
Columbia law applies to the arbitration agreement.
Pl.'s Opp'n
at 7-8.
Since Fannie Mae does not dispute this assumption, the
Court will apply District of Columbia law.
-8-

Policy,

particularly

Policy's requirement

because

these

that he submit

documents

emphasize

the

"certain employment-related

claims to the mandatory arbitration process for final resolution
prior to filing

[such]

at 1; see also Employment Application at 4
as

a

condition

agree

to

which

be

of

employment,

bound

requires

Offer Letter

claims in a court of law."

by

Fannie

all

Fannie

Mae's

certain

that

("I acknowledge that,
Mae

Dispute

employees

Resolution

employment-related

must

Policy,

claims

be

submitted to arbitration before a suit can be brought on them in
court.").
Under District of Columbia law,

"'one who signs a contract

has a duty to read it and is obligated according to its terms.'"
Curtis v. Gordon,
Travel,

Inc.

(D.C.

2002);

Supp.

2d

indicates
contract
relieving

89,

v.

980 A.2d 1238,
Canal

1244

(D.D.C.

'mutuality
unless
him

he

or

her

2009)

804

A.2d

Square Assocs.,

see also Hughes v.
96

(D.C.

of
or
of

CACI,

2005)

("[A]

assent'

and

she

can

such

an

(quoting Pers
1108,

1110-11

Inc.-Commercial,
signature

a

party

show

is

special

obligation.")

on

a

384

F.

contract

bound

by

the

circumstances
(ci·tation

and

quotation marks omitted) .
Skrynnikov

does

not

deny

that

he

signed

Fannie

Mae's

Dispute Resolution Policy, and does not suggest that any special
circumstances exist which would relieve him of his obligations
-9-

under the

Policy.

Instead,

arbitration provisions

he cites

several

cases

addressing

in collective bargaining agreements

for

the proposition that the arbitration agreement in this case is
unenforceable

because

contains

only

"sweeping broad statements."

(citing,

inter alia,

331-32

Policy

as

not

Carson v.

"clear

and

unmistakable"
Pl.'s

Giant Food,

Skrynnikov did not

part

therefore,

the

v.

(1998)

is

Universal

Inc.,

not

Opp' n

and

at

10

175 F.3d 325,

by

applicable

from

Therefore,

in this

Serv.

"union's

Corp.,

agreement,
in

525

waiver

"individual's

Carson,

175

at

331

to arbitrate [,]
must

be

'clear

e.g.,

70,

80-81

rights

the

waiver

F.3d

See,

U.S.

of

of

his

of
own

standard did
("collective

unlike
and

and

collective

case.

"clear and unmistakable"

indi victuals,

(emphasis added)

unenforceable

standard
applicable

latter);

bargaining agreements

the Dispute Resolution

bargaining

Maritime

employees"

to

accept

collective

and noting that

apply

executed

a

(distinguishing

represented
rights,"

of

stricter

bargaining cases

not

is

(4th Cir. 1999)).

However,

Wright

it

contracts

unmistakable. '")

(citing Wright, 525 U.S. at 79-80).
the

simply

Dispute
because

language.

See Brown v.

1217, 1221

(11th Cir. 2000)

Resolution
it

uses

Policy

broad

and

ITT Consumer Financial Corp.,

is

not

inclusive
211 F.3d

("A party cannot avoid arbitration .
-10-

because

the

arbitration

clause

uses

general,

inclusive

language, rather than listing every possible specific claim.").
Finally,

the

actual

language

in the

Policy is,

in fact,

clear and unmistakable.
2.

Each of the Pending Disputes Falls
Scope of the Arbitration Agreement

Skrynnikov
enforceable,
claims

[he]

because

he

also

argues

that

even

if

the

Within

agreement

the

is

it only applies to "a small subset of the possible
might bring," and does not apply to his FCA claim
did

not

"explicitly

or

by

implication,

arbitrate claims under the False Claims Act."

agree

to

Pl.'s Opp'n at 9-

The District of Columbia "adheres to an objective law of
contracts, meaning that the written language embodying the terms
of an agreement will govern the rights and liabilities of the
parties regardless of the intent of the parties at the time they
entered into the contract,

unless the written language is not

susceptible of a clear and definite undertaking, or unless there
is fraud,

duress, or mutual mistake."

349, 354-55 (D.C. 2009)
omitted) .

Dyer v. Bilaal, 983 A.2d

(citation and internal punctuation marks

In determining whether a contract is susceptible of a

clear and definite

interpretation,

5

courts examine the document

Skrynnikov does not address whether the Policy applies to his
FMLA and DCFMLA claims.
-11-

on its face and give the language its plain meaning.

Tillery v.

Dist.

of Columbia Contract App.

1176

2006)

(citation omitted).

Bd.,

912 A.2d 1169,

(D.C.

The Dispute Resolution Policy states that it applies to any
"claims

that

an employee

might

make against

involving a legally-protected right,
relate

to

his

or

employment [ . ] "

her

employment

Policy

§

2

that directly or indirectly
or

the

(emphasis

which is broad and inclusive,

Fannie Mae

termination
This

added) .

claim

839 F.

under

Supp.

2d 259,

Sarbanes-Oxley

264

(D.D.C.

whistleblower

Fannie Mae's Dispute Resolution Policy);
Corp.,

No 06-18

2007)

(noting

(RWR),

2007 WL 1020799,

"inclusive

that

language,

has previously been held to apply
See Taylor v.

to whistleblower claims similar to Skrynnikov's.
Fannie Mae,

of

and

2012) (retaliation

provision
Kimpson v.

at *3

comprehensive

subject

to

Fannie Mae

(D.D.C.

Mar.

31,

language

of

the

policy").
More
agreement

importantly,
is

provides that

ambiguous,

as

if

the

scope

Skrynnikov

"[t] he arbitrator will

of

the

contends,

resolve all

arbitration
the

Policy

disputes over

arbitrability of all matters presented under it[,]"

the
Policy

even

§

16

unmistakably"
arbitrable

to

(emphasis

added) ,

and

thus

it

"clearly

and

reserves the authority to decide which claims are
the

arbitrator,

rather

-12-

than

the

court.

See

Carson,

175 F.3d at 330

("Those who wish to let an arbitrator

decide which issues are arbitrable need only state that
disputes
under

concerning

this

contract

the

arbitrability

are

hereby

be

submitted

to

disputes

arbitration,'

or

That is precisely what Fannie

Mae has written into its Policy.
must

particular

committed to

words to that clear effect.") .

claim

of

'all

the

Therefore,
arbitrator

Skrynnikov's FCA
who

will

decide

arbitrability issues.
C.

Fannie Mae's Rule 12(b) (6)
Submitted to Arbitration

Fannie

Mae

also

asks

the

DCFMLA claim on statute of

Court

Defenses

to

Must

dismiss

limitations grounds,

claim for failure to state a cause of action.

Also

Be

Skrynnikov's
and his

FMLA

Def.'s Mem. P & A

at 9-12.

Fannie Mae argues that because these claims fail "[o]n

the

of the complaint,"

face

they do not

involve any "legally

protected right(s)," and therefore, may be dismissed outright by
the Court pursuant to Rule 12(b) (6),
to arbitration.
However,
provides

that

rather than being referred

Id. at 14.

Fannie Mae's Dispute Resolution Policy expressly
claims

brought

under

the

FMLA

(and

extension, the DCFMLA) are subject to arbitration.

by

logical

See Policy

§

2 ("For example, claims asserting rights protected by the .
Family and Medical Leave Act would be covered by the Policy.").
-13-

The Policy also states that "[i]f

[Fannie Mae]

contends that

[a]

claim

the

time

limit

[set

for

in

court]

the

was

not

bringing

suit

requested

to

substance

of

made
on

within

that

decide
the

claim
the

claim."

issue
Policy

Policy further contemplates that
the

employee's

claim is

before
§

6

legally-protected right,

any

hearing

(emphasis

it

law

arbitrator

may
on

be
the

added) .

The

"assert [s]

if Fannie Mae

barred because

by

that

does

not

involve

a

the arbitrator may be requested

to rule on this issue as a preliminary matter before conducting
a hearing on the substance of the

~mployee's

claim."

Policy

§

2

(emphasis added) .
Thus,

it is perfectly clear that the arbitration agreement

commits

the

12(b)(6)

to the arbitrator,

[FAA]

resolution

leaves

no

district court,
direct

the

place

of

for

Fannie

defenses

not the court. 6
the

exercise

under

Rule

"By its terms the
of

discretion

by

a

but instead mandates that district courts shall

parties

to proceed

which an arbitration agreement

6

Mae's

to
has

arbitration on
been signed."

issues

as

to

Dean Witter

Even if the Dispute Resolution Policy was silent on this
issue, judicial precedent also supports the referral of Fannie
Mae's Rule 12(b) (6) defenses to arbitration.
See Howsam v. Dean
Witter Reynolds, Inc., 537 U.S. 79, 84 (2002) ("' [P]rocedural
questions which grow out of the dispute and bear on its final
disposition' are presumptively not for the judge, but for an
arbitrator, to decide.")
(emphasis in original)
(citing John
Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557 (1964)).
-14-

Reynolds,

Inc.

original)

v.

Byrd,

(citing

9

470 U.S.

U.S.C.

§§

213,
3,

218

4);

(1985)

see

(emphasis in

also

Nat'l

R.R.

Passenger Corp. v. Boston & Maine Corp., 850 F.2d 756, 759 (D.C.
Cir.

1988)

("It is a necessary corollary of the principle that

'arbitration is a matter of contract' that when the parties have
provided that a particular type of dispute should be settled in
arbitration, rather than in litigation, a court may not override
that agreement by itself deciding such a dispute.")

(emphasis in

original) .
Moreover,
arbitration

although

by

acting

parties

may

waive

"'inconsistently

with

right,'" Khan v. Parsons Global Servs., Ltd.,
(D.C.

Cir.

2008) (citation omitted),

their
the

right

to

arbitration

521 F.3d 421, 425

Fannie Mae has made clear

that, notwithstanding its request for dismissal of the FMLA and
DCFMLA claims under Rule 12(b) (6),
to arbitrate those claims.
th[e] court
then

it is not waiving its right

See Def.'s Mem.

P

&

A at 14

. does not dismiss [the FMLA and DCFMLA claims] ,

[they]

must

be

compelled

to

arbitration

proceedings inasmuch as
squarely within the

to

for

further

the claims at issue

Br.

at

5

("If

("Any

agreement

Surviving

Claims

Arbitration").

-15-

arbitrate [.] ");
Should

fall
Def. 's Reply
be

Sent

to

Accordingly,

the Court will enforce the arbitration clause

in its entirety, deny Fannie Mae's Rule 12(b) (6) Motion without
prejudice, and refer the Rule 12(b) (6) issues to arbitration.
C.

The Case Will Be Stayed

The FAA provides that when the court is satisfied that the
issues before

it

are

subject

to

arbitration,

"stay the trial of the action until

the

court

such arbitration has been

had in accordance with the terms of the agreement [ . ] "
§

3.

shall

9

u.s.c.

Accordingly, this action will be stayed pending conclusion

of arbitration.
IV. CONCLUSION

For the

foregoing

arbitration is GRANTED,
Rule

12 (b) (6)

arbitration.

is

reasons,

Fannie Mae's motion to compel

and its motion to dismiss pursuant

DENIED

without

prejudice

to

renewal

An Order shall accompany this Memorandum Opinion.

/s;{i'~~

May 8, 2013

Gladys K~
United States District Judge

1

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