Flynn v. Omni Hotels Management Corporation ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JILL FLYNN,
Plaintiff,
v. Civil Action No. 1:19-cv-01239 (CJN)
OMNI HOTELS MANAGEMENT CORP.,
et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Jill Flynn filed this action against Omni Hotels Management Corporation and
Mark Roche-Garland, asserting various claims of discrimination and retaliation in violation of
the D.C. Human Rights Act (DCHRA), D.C. Code §§ 2-1402.11, 2-1402.61, 2-1403.16 (2020),
and the federal Equal Pay Act, 29 U.S.C. §§ 206, 215 (a)(3), 255(a) (2018). See generally
Compl., ECF No. 1. Defendants move to compel arbitration and ask this Court to either stay or
dismiss the case. See generally Defs.’ Mot. to Compel Arbitration and to Stay Litigation or, in
the Alternative, to Dismiss (“Mot.”), ECF No. 5. Flynn opposes arbitration, raising arguments
that fall into two main camps: (1) the arbitration agreement is not valid or enforceable; and (2)
Defendants’ post-litigation conduct precludes them from compelling arbitration. For the reasons
discussed below, the Court grants Defendants’ Motion in part, refers this proceeding to
arbitration, and stays the action.
I. Background
Flynn alleges that while she was working as director of sales and marketing at one of
Omni’s hotels, she learned she was being paid less than her male counterparts. E.g., Compl. at
1
1–2. After complaining about the discriminatory pay policies, she was allegedly retaliated
against, constructively terminated, and ultimately replaced by a man. See id. The facts relevant
to this Motion, however, center on events that are unrelated to Flynn’s claims. Rather, they
pertain to the circumstances in which Flynn signed an arbitration agreement and the
communications between the Parties’ attorneys after the Complaint was filed about how this
litigation would proceed.
Flynn was hired in 2013 as director of sales and marketing for the Omni Shoreham Hotel
in Washington, D.C. Id. ¶¶ 6, 10. Around April 2016, the human resources director at the hotel,
Don Frey, provided Flynn with a document entitled “Mutual Agreement to Arbitrate Claims on
an Individual Basis and Summary of the Amended and Restated Alternative Dispute Resolution
Program,” Mot., Ex. A (“Agreement Summary”), ECF No. 5-2. Pl’s Opp’n to Defs.’ Mot. to
Compel Arbitration (“Opp’n”) at 1, ECF No. 7; Pl.’s Statement of Material Facts Demonstrating
No Agreement to Arbitrate (“Pl.’s Material Facts”) ¶ 1, ECF No. 7-10.1 Flynn received a copy
of the document, and she was instructed to sign it and obtain each of her team members’
signatures. Opp’n at 1; Pl.’s Material Facts ¶¶ 2, 4. Flynn claims Frey told her the document
was related to collective bargaining and union matters that largely did not concern her team and
that she signed it without reading it. Opp’n at 2; Pl.’s Material Facts ¶¶ 5, 7. The document
instructed signatories to “review the Omni Hotels Amended and Restated Alternative_Dispute
[sic] Resolution Program” (“Program Document,” ECF No. 5-3), which contained the terms by
1
As discussed below, a motion to compel arbitration is subject to the summary judgment
standard. Because Defendants did not file their own statement of material facts and do not
appear to dispute the facts recited by Plaintiff, the facts related to the underlying dispute are
taken from the Complaint, while the facts surrounding the contract’s formation, enforceability,
and any potential waivers are taken from Plaintiff’s Opposition, Statement of Material Facts, and
supporting exhibits.
2
which disputes would be resolved and was accessible on Omni’s intranet. Agreement Summary
at 3 (all caps typeface removed).
Around summer 2017, then-vice president of operations for Omni Hotels, Jon Hunter,
remarked that Flynn was fortunate to be one of the highest-paid women in the organization,
which Flynn took to mean that there was a two-tiered salary system in which women were
subject to a lower salary tier. See Compl. ¶¶ 24–25; see also Opp’n at 2. Flynn eventually
complained about this comment to the regional director of sales and marketing and claimed she
was entitled to a salary increase. Compl. ¶ 31; see also Opp’n at 2. Flynn felt that she was being
retaliated against for speaking out against Hunter’s comments, and in March 2018, she discussed
her retaliation concerns with the president of Omni Hotels & Resorts. Compl. ¶ 36, see also
Opp’n at 2. Two days later, Flynn’s supervisor, Defendant Roche-Garland, placed her on a
performance improvement plan; three months later, Roche-Garland told Flynn she was going to
fail the plan and gave her the option of resigning or being terminated. Compl. ¶¶ 38, 44–45; see
also Opp’n at 2.
Flynn felt her only choice was to resign, which she did, Compl. ¶ 46; see also Opp’n at 2,
and on April 29, 2019, she filed this lawsuit. On May 28, 2019, Omni’s counsel contacted
Flynn’s counsel, seeking an extension to file a responsive pleading in part because they had just
been retained. See generally Opp’n, Ex. 5, ECF No. 7-5. Flynn consented to the extension, see
id., and the next day, Omni filed its Consent Motion for Extension of Time to Respond to
Plaintiff’s Complaint, ECF No. 3, which was granted, see Min. Order (May 29, 2019).
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On June 11, defense counsel notified Flynn’s counsel that Defendants were prepared to
enforce the agreement to arbitrate that Flynn had executed.2 Opp’n at 3; Opp’n, Ex. 6, ECF No.
7-6. Sure enough, the next day, Defendants filed their Motion to Compel, which Flynn opposes.
II. Legal Standard
A motion to compel arbitration is “properly examined . . . under the summary judgment
standard of Federal Rule of Civil Procedure 56(c).” Aliron Int’l, Inc. v. Cherokee Nation Indus.,
Inc., 531 F.3d 863, 865 (D.C. Cir. 2008) (citations omitted). Review “is limited to ‘whether or
not there [was] a meeting of the minds on the agreement to arbitrate.’” Shatteen v. Omni Hotels
Mgmt. Corp., 113 F. Supp. 3d 176, 179 (D.D.C. 2015) (alteration in original) (citation omitted).
Defendants, as the Parties seeking to compel arbitration, “must first present ‘evidence sufficient
to demonstrate an enforceable agreement to arbitrate.’” Fox v. Comput. World Servs. Corp, 920
F. Supp. 2d 90, 96 (D.D.C. 2013) (citation omitted). “The burden then shifts to [Plaintiff] to
raise a genuine issue of material fact as to the making of the agreement, using evidence
comparable to that identified in [Rule] 56.” Id. (citation omitted).
III. Analysis
Flynn concedes that the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., governs this
dispute, see, e.g., Opp’n at 14, 31 (citing to the FAA), but opposes arbitration nonetheless. In
her attempt to avoid arbitration, Flynn employs the kitchen-sink approach and raises no fewer
than seven different arguments. Flynn attacks the formation and validity of the arbitration
agreement itself, id. at 17–42, and argues Defendants cannot compel arbitration based on their
conduct in the early stages of this litigation, id. at 8–17. The Court takes these arguments in turn.
2
While the Parties’ attorneys corresponded about the existence of an arbitration agreement, it
appears that defense counsel mistakenly sent Flynn’s counsel the California Program Document,
Opp’n, Ex. 8, ECF No. 7-8, instead of the operative agreement, Opp’n, Ex. 9, Ex. 7-9.
4
A. The Validity of the Arbitration Agreement
Flynn argues that: (1) she is entitled to rescind the arbitration agreement due to a
misrepresentation, id. at 17–19; (2) Defendants failed to establish the existence of a binding
agreement to arbitrate, id. at 19–23; (3) there was no agreement as to material terms, id.
at 24–31; (4) assuming there was an agreement to arbitrate, it is unenforceable, id. at 31–40; and,
correspondingly, (5) the lack of a savings clause means the entire agreement should be struck
down, id. at 40–42. Such “attacks on arbitration ‘res[t] on suspicion of arbitration as a method of
weakening the protections afforded in the substantive law to would-be complainants,’ and as
such, they are ‘far out of step with . . . [the Supreme Court’s] . . . strong endorsement of the
federal statutes favoring this method of resolving disputes.’” Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 30 (1991) (first alteration in original) (quoting Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 481 (1989)); see also Green Tree Fin. Corp.-Alabama
v. Randolph, 531 U.S. 79, 89 (2000). Against this backdrop, the Court will briefly address
Flynn’s numerous arguments.
Flynn argues she is entitled to rescind the arbitration agreement because Omni obtained
her signature through a misrepresentation of a material fact. Opp’n at 17–19. Under D.C. law,
which the Parties agree governs here, see, e.g., Opp’n at 9; Defs.’ Reply Br. in Supp. of their
Mot. (“Reply”) at 4, ECF No. 10, the recipient of a misrepresentation may rescind a contract,
even where the misrepresentation was made innocently. Barrer v. Women’s Nat’l Bank, 761
F.2d 752, 757–58 (D.C. Cir. 1985). As Flynn concedes, to succeed on a claim of innocent
misrepresentation,
[t]he recipient of the alleged misrepresentation must demonstrate
that the maker made an assertion: (1) that was not in accord with
the facts, (2) that was material, and (3) that was relied upon (4)
justifiably by the recipient in manifesting [her] assent to the
5
agreement. District of Columbia law adds a fifth condition, i.e., that
the recipient relied to [her] detriment.
Id. at 758 (cited in Opp’n at 18).
Flynn contends that Frey misrepresented to her that the arbitration agreement “primarily
dealt with union matters that did not involve her or her group,” and as a result, she signed the
agreement without reading it. Opp’n at 18; Pl.’s Material Facts ¶ 7. As an initial matter, Flynn
does not devote much time to explaining whether Frey’s statements are attributable to Omni
itself. Even assuming Frey’s statement qualifies as a material misrepresentation by Omni, Flynn
is still unable to show that her reliance on his statement was justified. Where the recipient of an
alleged misrepresentation “should have discovered its falsity by making a cursory examination,
[her] reliance is clearly not justified and [s]he is not entitled to relief.” Resolution Tr. Corp. v.
District of Columbia, 78 F.3d 606, 609 (D.C. Cir. 1996) (quoting Restatement (Second) of
Contracts § 172 cmt. b (Am. Law. Inst. 1979)) (rejecting misrepresentation argument and
opining that “a cursory examination of . . . language in [a] three-page estoppel certificate should
have alerted” and “put a reasonable person on notice” of the nature of the transaction at issue).
By Flynn’s own admission, Frey told her “that the document related primarily to
collective bargaining and union matters, and that in most cases it did not apply to [Flynn’s]
team.” Decl. for Jill Flynn ¶ 5, ECF No. 7-2 (emphasis added). Even if that statement could be
viewed as misleading, the caveat that the agreement could apply to Flynn and her team in some
cases should have prompted at least a cursory examination of the document. And because such a
cursory examination by Flynn—who by her own allegations was a relatively senior and
sophisticated employee—of the two-page document would have revealed its applicability to her,
her reliance on Frey’s alleged misstatement was not justifiable. See Brown v. Dorsey & Whitney,
LLP., 267 F. Supp. 2d 61, 81–82 (D.D.C. 2003) (recognizing that “courts dealing with similar
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situations have taken the education and background of the employee into account in determining
whether the employee should be bound by an arbitration agreement” and discussing case
compelling arbitration agreement that “was only two pages long” (citations omitted)); cf. Cadet
v. Draper & Goldberg, PLLC, No. CIV 05-2105, 2007 WL 2893418, at *12 (D.D.C.
Sept. 28, 2007) (dismissing misrepresentation claim related to property bid where plaintiffs “did
not make any reasonable investigation” of property, such as performing title search or physically
inspecting property).
Flynn also argues that Defendants have not identified the necessary consideration and
material terms, Opp’n at 19–23, and, relatedly, that there was no agreement as to all material
terms, id. at 24–31. These arguments rest primarily on the fact that Defendants’ opening brief
did not spell out why the arbitration agreement satisfied each element of contract formation. But
Defendants argued there was a binding and enforceable contract under the FAA that subjects
Flynn’s claims to arbitration and included as exhibits both the signed agreement and the Program
Document. See generally Defs.’ Mem. of P. & A. in Supp. of Mot., ECF No. 5-1; Mot., Exs. A–
B. That is certainly sufficient for an opening brief. See Booker v. Robert Half Int’l, Inc., 315 F.
Supp. 2d 94, 100 (D.D.C. 2004) (“Under District of Columbia law, a signature on a contract
indicates ‘mutuality of assent’ and a party is bound by the contract unless he or she can show
special circumstances relieving him or her of such an obligation.” (some internal quotation marks
and citation omitted)), aff’d 413 F.3d 77 (D.C. Cir. 2005); see also Ekedahl v. COREStaff, Inc.,
183 F.3d 855, 858 (D.C. Cir. 1999) (“Proof of a meeting of the minds may be found . . . in the
written agreement . . . .”). Defendants were not obligated to anticipate and preemptively respond
to any and all of the arguments Flynn might make. And Defendants ultimately identified as
consideration the contracting parties’ mutual obligation to arbitrate disputes, Reply at 4–5, and
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also pointed to the material terms outlined in the Program Document that was incorporated by
reference into the document Flynn signed, id. at 9–10; Mot., Exs. A–B.
Flynn pivots and disputes that the Program Document was incorporated by reference into
the document she signed and that she agreed to be bound by the Program Document. Opp’n at
24–31. But the relevant text of the document Flynn signed—which was set apart in all caps
typeface—is clear: it obligates Flynn to “REVIEW THE OMNI HOTELS AMENDED AND
RESTATED ALTERNATIVE_DISPUTE [sic] RESOLUTION PROGRAM WHICH
CONTAINS ALL OF THE TERMS UNDER WHICH DISPUTES WILL BE RESOLVED
UNDER THE PROGRAM” and specifies that “THE PROGRAM DOCUMENT IS
INCORPORATED BY REFERENCE INTO THIS AGREEMENT.” Agreement Summary at 3.
Flynn argues that the document she signed was not sufficiently specific to incorporate the entire
Program Document, Opp’n at 26–27, but this contention is implausible and belied by the
contract’s “clear contractual language.” Mawakana v. Bd. of Tr. of Univ. of D.C., 113 F. Supp.
3d 340, 348 (D.D.C. 2015). The agreement notified Flynn of the company’s dispute resolution
program and served as “only a summary of the Program,” Agreement Summary at 2, while the
details of the program and resolution mechanisms themselves were specified in the Program
Document, which was expressly “incorporated by reference into [the] agreement,”3 id. at 3 (all
caps typeface removed).
3
Flynn also argues that the arbitration agreement could not incorporate the Program Document
because the agreement “purported to be effective immediately upon [her] signature,” on
April 12, 2016, while the Program Document was not to be effective until May. Opp’n at 29.
But she does not explain how the arbitration agreement, which summarized the parameters of the
forthcoming program, purported to be effective immediately. Regardless, it is hardly of
relevance here where the relevant misconduct occurred well after the effective date.
8
Flynn further attacks the agreement to arbitrate as unconscionable or illusory, objecting
to its confidentiality provision, limits on discovery, and Omni’s unilateral ability to modify the
rules governing arbitration proceedings. Opp’n at 31–40. Because Flynn is “resisting arbitration
on the ground that the terms of an arbitration agreement interfere with the effective vindication
of statutory rights[, she] bears the burden of showing the likelihood of such interference.”
Booker, 413 F.3d at 81. Such a burden cannot be met by “‘mere speculation’ about how an
arbitrator ‘might’ interpret or apply the agreement.” Id.
To be sure, a court may void a contract on grounds of unconscionability if the contract
was both procedurally and substantively unconscionable. See Fox, 920 F. Supp. 2d at 97 (citing
Urban Invs., Inc. v. Branham, 464 A.2d 93, 99 (D.C. 1983) (other citations omitted)). But Flynn
does not even explain how the agreement was procedurally unconscionable, which should end
the matter.4 See Urban Invs, 464 A.2d at 99 (“Usually, the party seeking to avoid the contract
must prove both elements: an absence of meaningful choice on the part of one of the parties
together with contract terms which are unreasonably favorable to the other party.” (internal
quotation marks and citation omitted)). Although “in an egregious situation, [either procedural
or substantive unconscionability] may suffice,” id. (citation omitted), this is not that situation:
Flynn’s arguments that the program’s confidentiality provision and discovery limits are
substantively unconscionable are unavailing.
4
Flynn avers generally that “there are problems from a procedural viewpoint,” Opp’n at 41, but
she does not actually argue that the manner in which the Parties executed the agreement was
unconscionable. Rather, her procedural contentions (e.g., the alleged misrepresentation related
to the agreement and Omni neglecting to provide her with a copy of the signed agreement)
appear in a later section where she argues that the “offending provisions” of the contract are so
“pervasive[]” that the entire agreement should be “stricken.” Id. at 40, 42.
9
The Parties’ briefing on the confidentiality question is not particularly helpful as they
largely rely on out-of-circuit decisions. And although the Supreme Court’s decision in Gilmer v.
Interstate/Johnson Lane Corp. highlights some potential problems with confidentiality
provisions in the analogous Age Discrimination in Employment Act (ADEA) context, the Court
did not go so far as to hold that such provisions are necessarily unconscionable. 500 U.S. at
31–32. In fact, the Court observed more generally that public policy concerns surrounding
arbitration are ameliorated by the reality that “judicial decisions addressing ADEA claims will
continue to be issued because it is unlikely that all or even most ADEA claimants will be subject
to arbitration agreements,” further noting that such concerns about confidentiality apply “equally
to settlements[,] . . . which . . . are clearly allowed.” Id. at 32.
The confidentiality provision here is not as broad as the “draconian” provisions that have
been held unenforceable by other courts. Opp’n at 34 (quoting Ting v. AT&T, 182 F. Supp. 2d
902, 906 (N.D. Cal. 2002), aff’d in part, rev’d in part, 319 F.3d 1126 (9th Cir. 2003)). Those
agreements prohibited plaintiffs from “disclos[ing] the existence, content or results of any
arbitration or award except as may be required by law or to confirm and enforce an award,” Ting,
182 F. Supp. 2d at 931, while the scope of this agreement is much narrower: the Parties are
barred from disclosing the award only, see Program Document at 4. Omni readily admits that
Flynn would be permitted to discuss “communications or other records or proof,” Reply at 18,
which mitigates the public policy concern that a victim of discrimination could not discuss his or
her allegations with other victims, co-workers, or elected officials, Opp’n at 34.
Flynn’s argument regarding limitations on discovery also fails. Id. at 34–37. Arbitration
proceedings often have rules that vary from the discovery provisions in the Federal Rules of
Civil Procedure. Indeed, that is a feature of arbitration, as it allows a party to “trade[]the
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procedures and opportunity for review of the courtroom for the simplicity, informality, and
expedition of arbitration.” See Gilmer, 500 U.S. at 31 (internal quotation marks and citation
omitted). Although in Gilmer the limits on discovery were countered by the inapplicability of
the Federal Rules of Evidence—a counterbalance not present here—courts have since upheld
arbitration agreements with varying discovery rules. See, e.g., Booker, 413 F.3d at 82
(upholding discovery provision despite concerns that “arbitrator might provide inadequate
discovery, might not order a needed conference, [or] might assign burdens of production or proof
that do not vindicate statutory rights”); Fox, 920 F. Supp. 2d at 100 (enforcing agreement with
provision that limited discovery to deposition of only one individual and any expert witness
designated by another party and allowed additional discovery only upon showing of “substantial
need”).
Flynn finally argues that the arbitration agreement was illusory because it granted Omni
unilateral powers of cancellation and modification without adequate notice. Opp’n at 37–40. As
Defendants note, one court has already opined on these questions and rejected this very argument
with respect to a similar Omni arbitration agreement. Reply at 19–20 (citing Shatteen, 113 F.
Supp. 3d at 181 (D.D.C. 2015). For the same reasons expressed in Shatteen—including that the
agreement prevents Omni from retroactively revoking employees’ rights to arbitrate—the Court
rejects the argument that this contract is illusory. 113 F. Supp. 3d at 180–81.
B. Defendants’ Litigation Conduct
Flynn’s second set of arguments involves the circumstances that followed the filing of her
Complaint. She argues that Defendants forfeited or waived their right to enforce arbitration or
should otherwise be estopped from compelling arbitration because they did not invoke their right at
the first available opportunity. She also contends that because Defendants did not alert her to the
existence of the agreement to arbitrate until after the statute of limitations had run, she would be
11
prejudiced if she had to arbitrate her claims, which she believes would be deemed untimely. These
arguments hold no water.
Forfeiture, “the failure to make a timely assertion of a right, . . . is the appropriate standard
for evaluating a late-filed motion under . . . the FAA.” Zuckerman Spaeder, LLP v. Auffenberg, 646
F.3d 919, 922 (D.C. Cir. 2011). Flynn argues that Defendants presumptively forfeited the right to
compel arbitration because they did not invoke it “on the record at the first available opportunity.”
Opp’n at 13 (quoting cases). But Flynn conveniently omits the rest of the D.C. Circuit’s decision,
which defines “the first available opportunity” as “typically [when a litigant] file[s] his first
responsive pleading or motion to dismiss.” Zuckerman Spaeder, 646 F.3d at 922.5 Defendants’
Motion for an Extension of Time was certainly not a responsive pleading. And as Flynn very well
knows (based on the cases she herself cites), courts typically find that litigants have forfeited their
right to arbitration only when they seek to compel arbitration after substantial litigation has
progressed and the parties have incurred real costs. See, e.g., id. at 922–24 (affirming denial of
motion to compel where movant “had answered the complaint and moved the case from state to
federal court, and from the court to mediation, all before filing his petition or even indicating he
intended to arbitrate his claims”); Lee v. PSI Servs. III, Inc., No. CV 18-1286, 2019 WL 131956,
at *1–2 (D.D.C. Jan. 8, 2019) (denying motion to compel arbitration after defendants filed answers,
requested mediation, and were referred to mediation and where plaintiff “incurred real costs and
5
In various portions of their briefs, the Parties quibble over whether Defendants’ Motion is a
responsive pleading under the Federal Rules of Civil Procedure. Flynn argues that this is a
motion to compel arbitration, Opp’n at 14 & 14 n.2, while Defendants insist that it is a “motion
for a stay . . . or in the alternative, to dismiss,” which qualifies as a responsive pleading, Reply at
14. This dispute is of little consequence here. If Flynn is right that Defendants’ Motion is not a
responsive pleading, then Defendants certainly could not have forfeited their right to compel
arbitration as they have yet to file such a pleading. And if Defendants are right that their Motion
is “[b]y definition” a responsive pleading, Reply at 14, then they did indeed invoke the right to
arbitration at the first available opportunity.
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expenses”). At the early stage of this case, where the Parties have not delved into the merits of the
underlying dispute, it cannot be said that Defendants forfeited their right to arbitrate.
Defendants did not waive their right to arbitration, either. Waiver, in contrast to forfeiture,
“refers to a party’s ‘intentional relinquishment or abandonment of a known right.’” Zuckerman
Spaeder, 646 F.3d at 922 (citation omitted). Courts examine the “totality of the circumstances,”
including the potential prejudice to the non-moving party, in assessing “whether the defaulting party
has acted inconsistently with the arbitration right.” Cho v. Mallon & McCool, LLC, 263 F. Supp. 3d
226, 228 (D.D.C. 2017) (citations omitted). Flynn urges the Court to focus on how she was
prejudiced by Defendants neglecting to mention the arbitration agreement until after their extension
motion was granted. Opp’n at 15 (citing Zuckerman Spaeder, 646 F.3d at 992) (other citation
omitted). According to Flynn, because Defendants requested an extension, they “pushed Plaintiff
beyond the statute of limitations for her [DCHRA] claims,” which would “require the arbitrator to
dismiss those claims.” Id. at 16.
Even if the Court were to conclude (despite Plaintiff’s unpersuasive arguments) that
Defendants acted inconsistently with their right to invoke arbitration, Flynn would not be
prejudiced. As Defendants themselves acknowledge, Flynn’s “DCHRA claim would be tolled
during the pendency of this Motion and would relate back to the date of filing of the Complaint.”
Reply at 17. And because Defendants acknowledge this Court has jurisdiction to enter a stay while
arbitration proceeds, it will do so, thereby eliminating Flynn’s claimed concern that referring the
matter to arbitration now would make untimely her DCHRA claims. See 9 U.S.C. § 3 (“If any suit or
proceeding be brought . . . upon any issue referable to arbitration . . . , the court in which such suit is
pending, upon being satisfied that the issue involved in such suit or proceeding is referable to
arbitration under such an agreement, shall on application of one of the parties stay the trial of the
action until such arbitration has been had in accordance with the terms of the agreement . . . .”).
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Flynn’s equitable estoppel and unclean hands arguments6 likewise fail. She takes issue with
Omni’s failure to disclose the existence of the arbitration agreement and the fact that Omni, prior to
filing its Motion to Compel, appears to have mistakenly sent Flynn’s counsel a different program
document that had a more forgiving statute of limitations. Opp’n at 3–5. But because the statute of
limitations is not a concern, this argument falls apart.
To summarize: Flynn’s arguments based on Defendants’ litigation conduct hinge on a
communication related to an extension request and Omni’s counsel’s attachment of the wrong
document to a communication involving arbitration. The Court will not concern itself with the
“pre-trial huffery and puffery [where] a party may float all sorts of intentions, serious or not.”
Zuckerman Spaeder, 646 F.3d at 923. Instead, it looks “only [to] intentions placed upon the record.”
Id. And the record here indicates Defendants promptly asserted their right to arbitration; that Flynn’s
DCHRA claims are (or will be deemed) timely; and that Flynn will not be prejudiced by a stay
pending arbitration.
IV. Conclusion
For the foregoing reasons, it is hereby ORDERED that Defendants’ Motion to Compel
Arbitration and to Stay Litigation or, in the Alternative, to Dismiss is GRANTED IN PART.
The Court grants the motion to compel arbitration; denies the motion to dismiss; and stays this
action pending arbitration. An Order will be entered contemporaneously with this Opinion.
6
The doctrine of unclean hands refers to a “defense available ‘where the plaintiff’s misconduct
occurred in connection with the same transaction that is the subject of her claim.’” Hughes v.
Abell, 794 F. Supp. 2d 1, 11 (D.D.C. 2010) (quoting Zanders v. Reid, 980 A.2d 1096, 1101 (D.C.
2009)). Even assuming Flynn can invoke the doctrine to avoid arbitration, the alleged
misconduct on Defendants’ part is not connected to the formation of the contract, but to events
post-dating this lawsuit.
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DATE: April 2, 2020
CARL J. NICHOLS
United States District Judge
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