Andresen v. Intepros Fed.

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JENSINE ANDRESEN, Plaintiff, v. INTEPROS FEDERAL, INC., Defendant.

Civil Action No. 15-446 (EGS)

United States District Court, District of Columbia

September 12, 2024

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge.

I. Introduction

Plaintiff Dr. Jensine Andresen (“Dr. Andresen”), proceeding pro se, brings this action against Defendant IntePros Federal, Inc. (“IntePros”). Dr. Andresen asserts various federal claims under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C § 621, et seq.; Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.; the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201, et seq.; the National Defense Authorization Act for Fiscal Year 2013 (“2013 NDAA”), Pub. L. No. 112-239, 126 Stat 1632 (2013); and 10 U.S.C. § 2409, a section of the 2013 NDAA that provides whistleblower protections for contractor employees, Pub. L. No. 112-239, § 827, 126 Stat. 1632, 1833-37 (2013).^[1] See Am. Compl., ECF No. 53 at 105-13 ¶¶ 469-513.^[2] Dr. Andresen also advances District of Columbia statutory claims under the District of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1401, et seq.; and the District of Columbia Wage Payment and Collection Law (“DCWPCL”), D.C. Code § 32-1301, et seq. See Id. at 105-10 ¶¶ 469-97. Dr. Andresen alleges that while rendering services to IntePros as an information technology (“IT”) analyst, she suffered discriminatory and retaliatory conduct based on her age, gender, and disclosure of certain information to the U.S. Department of Defense Inspector General (“DoD IG”), and that she was denied overtime pay. Id. at 1 ¶ 1, 3 ¶ 15.

On February 27, 2017, the Court granted IntePros' motion to compel arbitration, stayed this action pending the conclusion of arbitration, and referred Dr. Andresen's claims to an arbitrator to assess their arbitrability, see Order, ECF No. 24 at 1; following which an appointed arbitrator from the American Arbitration Association (“AAA”) determined that her claims were “arbitrable in their entirety[,]” Joint Status Report, ECF No. 27 at 1. On June 6, 2019, after a telephonic hearing on the parties' dispositive motions, the arbitrator made an award in favor of IntePros that “dismissed, denied, and disallowed” all of Dr. Andresen's pending claims in this matter. Award, Ex. 2 to Def.'s Mot. to Dismiss, ECF No. 35-2 at 11. About a month later, IntePros moved to dismiss Dr. Andresen's “currently stayed claims . . . due to the completion of arbitration[,]” and it argues that “this matter is now ready for one final act: dismissal.” Def.'s Mot. to Dismiss, ECF No. 35 at 1.

Pending before the Court is IntePros' motion to dismiss. See Def.'s Mot. to Dismiss, ECF No. 35. Also pending is Dr. Andresen's cross-motion to permit litigation of two retaliation claims in this Court, see Pl.'s Cross-Mot. to Permit Litigation of Two Retaliation Claims in D.C. District Ct. (“Pl.'s Cross-Mot. to Litigate”), ECF No. 38;^[3] her motion for leave to file a second amended complaint (“SAC”) that she alleges corrects “drafting error[s]” in the Amended Complaint pertaining to those two claims, see Pl.'s Mot. to File SAC, ECF No. 42 at 2-3;^[4] and her motion to lift the stay in this matter, see Pl.'s Mot. to Lift Stay, ECF No. 70. In addition, Dr. Andresen has filed a motion to vacate the arbitration award, see Pl.'s Mot. to Vacate, ECF No. 45; and IntePros has filed a cross-motion to confirm the award, see Def.'s Cross-Mot. to Confirm, ECF No. 55;^[5]both of which are also pending before the Court.

Upon careful consideration of the arbitration award before the AAA Commercial Tribunal, Dr. Andresen's Amended Complaint before the Court, the various pending motions and cross-motions, the oppositions and replies thereto, the applicable law, and the entire record herein, the Court GRANTS IntePros' motion to dismiss; DENIES Dr. Andresen's cross-motion to litigate her two retaliation claims in this Court; DENIES Dr. Andresen's motion for leave to file a SAC; DENIES Dr. Andresen's motion to vacate the arbitration award; and GRANTS IntePros' cross-motion to confirm the arbitration award. The Court therefore DENIES as moot Dr. Andresen's motion to lift the stay in this action.

II. Background

A. Factual Background

IntePros is a privately-owned federal contractor, based in Washington, D.C., that provides IT services to various agencies and departments of the federal government. Am. Compl., ECF No. 53 at 2 ¶ 5. On June 13, 2013, Dr. Andresen entered into a contract with IntePros, entitled “Sub Contractor Agreement IT Consulting” (the “Sub Contractor Agreement”), wherein she contracted with IntePros to perform work on a government contract with TRICARE Management Activity, which has since become the Defense Health Agency (“DHA”). Id. at 3 ¶ 13; see Sub Contractor Agreement, Ex. A, ECF No. 12-1. The Sub Contractor Agreement contains an arbitration clause that reads in full:

Any and all disputes, controversies and claims arising out of or relating to this Agreement or concerning the respective rights or obligation[s] hereunder of the parties hereto shall be settled and determined by arbitration before the Commercial Panel of the American Arbitration Association in accordance with the Commercial Arbitration Rules. The arbitrators shall have the power to award specific performance or injunctive relief and reasonable attorneys' fees and expenses to any party in any such arbitration. However, in any arbitration proceeding arising under this Agreement, the arbitrators shall not have the power to change, modify or alter any express condition, term or provision hereof, and to that extent the scope of their authority is limited. The arbitration award shall be final and binding upon the parties and judgment thereon may be entered in any court having jurisdiction thereof.

Sub Contractor Agreement, Provision 9(f), Ex. A, ECF No. 12-1 at 6.

Dr. Andresen worked for IntePros pursuant to the Sub Contractor Agreement as an “Information Technology Analyst I” at DHA, specifically at a Department of Defense site in Falls Church, Virginia, for twelve months until she was terminated on June 16, 2014. See Am. Compl., ECF No. 53 at 3 ¶¶ 14-15, 39 ¶ 174; Award, Ex. 2 to Def.'s Mot. to Dismiss, ECF No. 35-2 at 2. During this time, Dr. Andresen alleges that she experienced age discrimination, sex discrimination, unlawful retaliation, denial of overtime compensation, and ultimately, unlawful termination related to “protected whistleblowing” activities she engaged in by disclosing information related to IntePros' contract with DHA to the DoD IG, among other agencies, departments, and officers of DHA and IntePros. See, e.g., Am. Compl., ECF No. 53 at 81 ¶ 370, 85-90 ¶¶ 387-406, 105-13 ¶¶ 469-513.

B. Procedural Background

1. Initiation of Dr. Andresen's Suit in District Court and IntePros' Motion to Compel Arbitration

On March 26, 2015, Dr. Andresen filed the instant action. See Compl., ECF No. 1. Pursuant to the Sub Contractor Agreement's arbitration provision, IntePros subsequently filed a motion to compel arbitration under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq. See Def.'s Mot. to Compel Arbitration, ECF No. 5. Prior to the Court resolving that motion, on November 25, 2015, Dr. Andresen filed a motion to amend the complaint to add two claims of unlawful termination, related to her alleged protected disclosures to the DoD IG, as Counts V and VI. See Pl.'s Mot. to Amend Compl., ECF No. 10; Pl.'s Mot. to Vacate, ECF No. 45 at 10. IntePros opposed this motion and filed a renewed motion to compel arbitration. See Def.'s Renewed Mot. to Compel Arbitration, ECF No. 11. On March 29, 2016, the Court granted Dr. Andresen's motion to amend, see Am. Compl., ECF No. 53; and, in light of the renewed motion to compel arbitration, denied as moot IntePros' initial motion to compel arbitration, see Min. Order (Mar. 29, 2016).

On February 27, 2017, the Court granted IntePros' motion to compel arbitration and ordered the parties to proceed to arbitration “for an arbitrator to determine, in the first instance, whether the claims in this action are arbitrable[,]” and it stayed the action during the pendency of the arbitration. Order, ECF No. 24 at 1; see Andresen v. IntePros Fed., Inc., 240 F.Supp.3d 143, 149-50, 163 (D.D.C. 2017) (discussing the arbitration clause's incorporation of the AAA rules and concluding that “the question of arbitrability is properly reserved for arbitral resolution”).^[6] The Court also ordered the parties to file a joint status report—following an arbitrator's determination of whether Dr. Andresen's claims were arbitrable—

to inform the Court whether any claims remained for the Court to address. Order, ECF No. 24 at 1. Finally, the Court noted that if the arbitrator determined that all claims in this case were arbitrable, then IntePros could “at that time seek dismissal.”

Andresen, 240 F.Supp.3d at 163.

2. Early Phases of Arbitration—Limited to Assessing the Arbitrability of Dr. Andresen's Claims, and Jurisdictional, Exhaustion, and Other Preliminary Issues Regarding Those Claims

In compliance with the Court's Order, on March 22, 2017, Dr Andresen submitted her first demand for arbitration with the AAA, see Ex. 2 to Def.'s Reply to Pl.'s Opp'n to Mot. to Dismiss 6 Opp'n to Pl.'s Cross-Mot. to Litigate (“Def.'s Mot. to Dismiss Reply & Opp'n to Cross-Mot. to Litigate”), ECF No. 43-2 at 2; “limited to the issue of the arbitrability of [her] federal and state employment discrimination, retaliation and whistleblower charges[,]” Ex. 10 to Def.'s Mot. to Dismiss Reply & Opp'n to Cross-Mot. to Litigate, ECF No. 43-10 at 3-4.^[7] On October 17, 2017, AAA arbitrator Peter F. Healey (“Arbitrator Healey”) ...