Zajac v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

Notice: This opinion is subject to formal revision before publication in the

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 23-CV-0781

ALEXANDER ZAJAC, APPELLANT,

V.

FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP, APPELLEE.

Appeal from the Superior Court of the

District of Columbia

(2023-CAB-001468)

(Hon. Robert R. Rigsby, Trial Judge)

(Argued September 19, 2024 Decided November 13, 2025)

Alexander Zajac, pro se.

Trina Fairley Barlow, with whom Cori B. Schreider was on the brief, for

appellee.

Before DEAHL and HOWARD, Associate Judges, and CROWELL, Associate

Judge, Superior Court of the District of Columbia. *

HOWARD, Associate Judge: Appellant Alexander Zajac challenges the trial

court’s orders dismissing his complaint for failure to state a claim and denying his

*

Sitting by designation pursuant to D.C. Code § 11-707(a).

2

motion for leave to amend the original complaint. Mr. Zajac, appearing pro se, stated

at oral argument that his original complaint was vague, and thus conceded that the

trial court’s dismissal of his original complaint was proper. We therefore affirm the

trial court’s dismissal of the original complaint. However, Mr. Zajac maintained

that the trial court abused its discretion in denying his motion for leave to file an

amended complaint on the basis that it contradicted his original complaint and

suffered from the same legal infirmities as the original. We agree and reverse and

remand to the trial court for further proceedings consistent with this opinion.

I. Background

Taking the allegations in the underlying complaints as true, the facts are as

follows. Mr. Zajac was formerly employed by Appellee Finnegan, Henderson,

Farabow, Garrett & Dunner, LLP (Finnegan) from August 15, 2016, through March

31, 2020. Mr. Zajac began his employment for Finnegan as a “Student Associate,”

and he held this position until he became an “Associate Attorney” (Associate) in

March 2019. Attached to the complaint was a copy of the 2016 letter offering him

the Student Associate position.

This offer letter contained numerous details regarding Mr. Zajac’s condition

of employment. In relevant part the conditions of the offer letter included: (1) annual

salary of $100,000; (2) eligibility “for [Finnegan’s] bonus plan;” (3) the expectation

3

to “meet all of [Finnegan’s] performance expectations in order to become eligible

for a discretionary merit bonus;” (4) Finnegan’s ability, “within its discretion,” to

award productivity bonuses to Student Associates; and (5) Finnegan’s policy for

reimbursing 100% of tuition expenses on a semester by semester basis upon two

conditions: (i) that reimbursement would be provided only “for credits in which a

grade of B or above is received” and (ii) only if Mr. Zajac received “satisfactory

performance reviews” and remained in “good standing.” The offer letter indicated

that it did “not constitute a contract of employment.”

Mr. Zajac accepted Finnegan’s offer of employment as a Student Associate

with the above conditions. In March 2018, Mr. Zajac was offered employment as

an Associate upon successful completion of law school. Mr. Zajac was then

promoted from Student Associate to Associate in March 2019 after sitting for the

Maryland bar exam. According to Mr. Zajac, Associates were required to bill 2000

hours annually and “[i]t was understood throughout the firm that 100 hours over the

requirement resulted in a 10% productivity bonus, that 200 hours over the

requirement resulted in a 20% productivity bonus, and that 300 hours over the

requirement resulted in a 25% productivity bonus.” At the end of fiscal year 2019,

Mr. Zajac billed over 2200 hours but did not receive a productivity bonus.

4

As to his tuition reimbursement, Mr. Zajac’s 2016 offer letter stated that

Student Associates would be reimbursed for “tuition costs for credits in which a

grade of B or above is received,” provided that the Student Associate was receiving

satisfactory performance reviews and was an employee in good standing. The letter

explained that if the conditions were met, Finnegan would “reimburse you for 100%

of the tuition expenses incurred on a semester by semester basis” from Fall 2016

through Spring 2018, but “may, at its sole discretion, adjust the reimbursement rate.”

Mr. Zajac claimed he received “pre-tax” reimbursement and asserted that “[b]ased

on customary business practice, ‘100%’ reimbursement means tuition expenses are

covered post-tax.” As a consequence, Zajac alleged he “lost no less than $33,789.14

in tuition reimbursement.”

Appellant’s employment ended on March 31, 2020. In March 2023, after

proceeding through various unfruitful administrative processes, Mr. Zajac filed a

complaint alleging two counts of wage theft under the D.C. Wage Payment and

Collection Law (DCWPCL), one count concerning a productivity bonus, and the

other count concerning tuition reimbursement. Finnegan filed a motion to dismiss,

arguing that, per the 2016 offer, the funds were discretionary and did not qualify as

“wages” under the DCWPCL. In his opposition, Mr. Zajac suggested that he could

plead additional facts that would defeat the motion, though he did not attach an

amended complaint. Mr. Zajac asserted that productivity bonuses were mandatory

5

for Associate Attorneys, and the bonus “was mentioned in Plaintiff’s offer letter for

conversion to a full [A]ssociate” without any “qualification as discretionary,” though

he claimed Finnegan later destroyed his copy of this letter. Finnegan filed a reply

with the putative 2018 Associate Attorney offer letter (“2018 offer”) attached as an

exhibit; the letter stated that it could award productivity bonuses “within its

discretion.”

The trial court agreed with Finnegan’s reasoning that the productivity bonus

was discretionary, thus not qualifying as a wage under the DCWPCL and granted

the motion to dismiss. The trial court dismissed the tuition reimbursement claim

finding that “expense reimbursements” do not constitute wages. The trial court

stated, however, that it would permit Mr. Zajac to file a motion for leave to amend

his complaint. In August 2023, Mr. Zajac filed his motion for leave to amend along

with the proposed amended complaint.

The proposed amended complaint acknowledged that the 2016 offer expressly

stated that it was not a contract but asserted that Mr. Zajac had additionally received

oral promises of mandatory performance bonuses from individuals with the authority

to bind the firm and, moreover, that such bonuses were standard practice. Mr. Zajac

also claimed that Finnegan’s agents promised that he would receive post-tax tuition

reimbursement. He reiterated his claim that post-tax reimbursement was the

6

“customary business practice” at other law firms and stated that the 2016 offer left

“no discretion for tuition benefits.”

Finnegan argued the motion for leave to amend should be denied, asserting

that the proposed amended complaint contradicted the original complaint because,

in its view, the original complaint asserted that the 2016 offer was a binding contract

while the amended complaint relied on oral promises and insisted that the offer

letters were not binding. The trial court denied Mr. Zajac’s motion for leave,

concluding that the proposed amended complaint contradicted the original

complaint, and that denial was warranted on that basis. The trial court noted, in any

event, that the proposed amended complaint did not cure the defects in the original

complaint. This timely appeal followed.

II. Discussion

Mr. Zajac abandoned his challenge to the dismissal of the original complaint

at oral argument. We therefore dispense with unnecessary discussion of that point

and affirm the original dismissal. However, the trial court’s reasoning and the

parties’ arguments regarding the dismissal remain relevant to Mr. Zajac’s second

challenge: that the trial court abused its discretion in denying him leave to amend

his complaint. We agree.

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The trial court articulated two bases for denying Mr. Zajac leave to amend.

First, it applied federal precedent and indicated that Mr. Zajac’s amended complaint

was contradictory to his original. Second, and alternatively, the trial court concluded

that amending the complaint would be futile, because it would still suffer from the

same deficiencies as the original complaint—that is to say that Mr. Zajac still had

not adequately alleged that either the productivity bonus or the law school tuition

reimbursement were wages under the DCWPCL because of their discretionary

nature. Today, we hold first that the trial court abused its discretion by applying an

inappropriate standard when it determined that leave to amend should not have been

granted because the amended complaint contradicted the original. Next, applying

de novo review, we hold that the motion for leave to amend was not futile because

Mr. Zajac stated plausible claims of wage theft under the DCWPCL in his amended

complaint based on the productivity bonus and tuition reimbursement. We address

each in turn. 1

1

Finnegan, in one line of its brief, raises for the first time that Mr. Zajac’s

claim is barred by the statute of limitations. However, this argument was not briefed

any further, argued below, nor raised at oral argument. We have held that “issues

not raised in the trial court will not be considered on appeal.” Akassy v. William

Penn Apartments Ltd. P’ship, 891 A.2d 291, 302 (D.C. 2006); Hollins v. Fed. Nat’l

Mortg. Ass’n, 760 A.2d 563, 574 (D.C. 2000) (“we ordinarily do not consider issues

raised for the first time on appeal”). Thus, we will not consider this issue here as it

was not raised below nor passed on by the trial court.

8

A. The Trial Court Abused its Discretion by Applying an

Inappropriate Standard to Deny Leave to Amend Based on

Contradictions Between the Complaints

This court reviews the denial of a motion to file an amended complaint for

abuse of discretion. See Nat’l Ass’n of Postmasters of U.S. v. Hyatt Regency Wash.,

894 A.2d 471, 477-78 (D.C. 2006). The trial court’s exercise of discretion in

granting or denying a motion for leave to amend will not be disturbed absent an

abuse of discretion. Johnson v. Fairfax Vill. Condo. IV Unit Owners Ass’n, 641

A.2d 495, 501 (D.C. 1994). “[P]olicy favor[s] resolution of cases on the merits,”

thus “creat[ing] a virtual presumption that a court should grant leave to amend where

no good reason appears to the contrary.” Bennett v. Fun & Fitness of Silver Hill,

Inc., 434 A.2d 476, 478 (D.C. 1981) (internal quotations omitted).

The trial court denied Mr. Zajac leave to amend, first citing to our precedent,

Miller-McGee v. Washington Hosp. Ctr., to establish that “leave to amend should be

given freely in the absence of . . . reason for not permitting amendment.” 920 A.2d

430, 436 (D.C. 2007) (internal quotations omitted). It quoted further, “[r]easons that

may justify denying leave to amend are ‘undue delay, bad faith, dilatory motive,

repeated failure to cure deficiencies [and] futility of amendment.’” Id. From there

the trial court cited federal authorities to justify looking back to the original

complaint. See W. Assocs. Ltd. P’ship, ex rel. Ave. Assocs. Ltd. P’ship v. Mkt.

9

Square Assocs., 235 F.3d 629, 634 (D.C. Cir. 2001). Then it went on to cite Hourani

v. Alexander V. Mirtchev & Krull Corp. as support for the proposition that a party

“may not plead facts in their amended complaint that contradict those in their

original complaint.” 943 F. Supp. 2d 159, 171 (D.D.C. 2013).

Mr. Zajac argues the trial court erred in denying the leave to amend because

the trial court “avoid[ed] any substantive analysis of [his] allegations” in his

proposed amended complaint. Finnegan argues, in turn, that Mr. Zajac’s “alleged

facts contradicted those in the original Complaint” and thus warranted denial of

leave to amend. While the presence of alleged contradictions is relevant to the trial

court’s analysis of a motion for leave to amend, Mr. Zajac is correct in arguing that,

under our precedent, the trial court was obligated to conduct a fuller analysis here

than it did.

“In reviewing for abuse of discretion, we must determine whether the decision

maker failed to consider a relevant factor, whether the decision maker relied upon

an improper factor, and whether the reasons given reasonably support the

conclusion.” District of Columbia v. Facebook, Inc., 340 A.3d 1, 10 (D.C. 2025)

(quoting Bishop v. United States, 310 A.3d 629, 641 (D.C. 2024)). Our precedent

has established that several factors guide the determination of whether a motion to

amend should be granted. These factors include: “(1) the number of requests to

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amend; (2) the length of time that the trial has been pending; (3) the presence of bad

faith or dilatory reasons for the request; (4) the merit of the proffered amended

pleading; and (5) any prejudice to the non-moving party.” Johnson, 641 A.2d at

501. A key concern for our court in assessing these factors is “whether the party

seeking amendment is abusing the court system.” Bare v. Rainforest All., Inc., 336

A.3d 619, 627 (D.C. 2025).

Here, the trial court did not consider the factors collectively. It focused on

points arguably going toward factors three and four only. First, the trial court briefly

mentioned “undue delay, bad faith, dilatory motive, [and] repeated failure to cure

deficiencies” as reasons for denying leave to amend. It focused on alleged

contradictions between the original and amended complaints, relying on a non-

binding district court case, Hourani, as support. We believe the trial court abused

its discretion by improperly relying on Hourani and failing to consider additional

relevant factors. 2

To be sure, while we have not endorsed the line of thinking in cases like

Hourani, contradictions in a complaint have independent relevance on principles of

2

While we are inclined to think that the above five factors weigh in favor of

granting Mr. Zajac’s motion for leave to amend, we are “[m]indful that we are a

court of review, not of first view,” so we leave it to the court below to apply the

relevant factors in the first instance. Facebook, Inc., 340 A.3d at 10.

11

estoppel. See, e.g., Porter v. Howard Univ., 317 A.3d 342, 347 (D.C. 2024) (“The

Supreme Court has recognized that judicial estoppel is a doctrine whose ‘purpose is

to protect the integrity of the judicial process by prohibiting parties from deliberately

changing positions according to the exigencies of the moment.’” (citing New

Hampshire v. Maine, 532 U.S. 742, 749-50 (2001))); Dennis v. Jackson, 258 A.3d

860, 862 (D.C. 2021) (describing more specifically the principle that judicial

estoppel prevents parties from taking contradictory positions in litigation); Clay v.

Howard Univ., 128 F. Supp. 3d 22, 26 (D.D.C. 2015) (“The court does have the

authority to strike obviously ‘false and sham’ allegations that have changed from the

complaint to the amended complaint.”).

If we were to apply Hourani in this case, we remain unconvinced that we

would reach a different result because the contradictions must be fundamental and

change the nature of the causes of action. The court in Hourani, following the

language quoted by the trial court, goes on to clarify in language more reflective of

estoppel principles that contradictions become an issue when the “plaintiff blatantly

changes” their facts of the case, thus “directly contradict[ing] the facts set forth in

[plaintiff’s] original complaint.” 943 F. Supp. 2d at 171 (emphasis added). A later

case from the District Court limited Hourani further, explaining that the

contradictions the courts are concerned with are fundamental contradictions, such as

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“180 degree change[s] in the allegations,” that foundationally change the nature of

the plaintiff’s allegations. Clay, 128 F. Supp. at 27.

As we read Mr. Zajac’s amended complaint, we do not see direct, fundamental

contradictions that would indicate bad faith. It appears that Mr. Zajac, in his

amended complaint, attempted to fill holes in the original complaint identified by

the trial court, not that he sought to fabricate contradictory assertions as was

suggested at oral argument. For example, Finnegan points out that Mr. Zajac’s

original complaint distinguishes between merit and productivity bonuses, but the

amended complaint then alleges an oral promise of mandatory productivity bonuses.

The oral promise allegation in the amended complaint does not contradict any

statement made in the original complaint, it provides additional detail that supports

Mr. Zajac’s claim without creating a “180 degree change.” Id. The same can be

said for the allegations of oral promises that were added in the amended complaint

regarding the productivity bonuses upon Mr. Zajac’s conversion to an Associate.

This is the purpose of amending a complaint: Mr. Zajac realized that his original

complaint was deficient in various ways and requested leave to amend. This does

not indicate bad faith or abuse of our court system, nor does it foundationally change

the nature of Mr. Zajac’s allegations. Therefore, we cannot say that the court’s

reliance on the alleged contradictions in the amended complaint as the primary

reason for denial, without considering other factors, was reasonable.

13

Based on the above, we conclude that the trial court abused its discretion. We

therefore reverse and remand for the trial court to consider the motion for leave to

amend in light of the non-exhaustive list of factors set forth in Johnson.

B. Amending the Complaint Would Not be Futile Because, as

Amended, It States Plausible Claims of Wage Theft for the

Productivity Bonus and Law School Tuition Reimbursement.

The trial court also concluded as a basis for denying Mr. Zajac leave to amend

that his amended complaint suffered from the same legal deficiencies that caused it

to grant dismissal on the original complaint, thus rendering amendment futile. In

addition to “abusing the court system,” the other concern for our court when

reviewing a motion for leave to amend is “whether amendment would be futile.”

See Bare, 336 A.3d at 627. Futility on its own is a sufficient basis to justify denial

of leave to amend. Farris v. District of Columbia, 257 A.3d 509, 517 (D.C. 2021).

“An amendment is futile if it fails as a matter of law to state a claim upon which

relief can be granted.” Id.

Mr. Zajac’s amended complaint, as we have described, alleges two counts of

wage theft, one regarding a productivity bonus and the other regarding tuition

reimbursement. A claim for wage theft must allege: (1) the complainant was an

employee of the employer, (2) who performed work for the employer, (3) was not

compensated or timely compensated for such work, and (4) the measure of damages

14

due to the employee. District of Columbia v. Bongam, 271 A.3d 1154, 1162 (D.C.

2022) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946)).

Further, it must be determined whether the disputed funds qualify as wages under

the DCWPCL. The DCWPCL defines wages as:

(A) Bonus; (B) Commission; (C) Fringe benefits paid in

cash; (D) Overtime premium; and (E) Other remuneration

promised or owed: (i) Pursuant to a contract for

employment, whether written or oral; (ii) Pursuant to a

contract between an employer and another person or

entity; or (iii) Pursuant to District or federal law.

D.C. Code § 32-1301(3).

The trial court’s relevant reasoning, articulated in its dismissal of the original

complaint, was that neither of Mr. Zajac’s alleged counts of wage theft could survive

as a matter of law because neither were wages under the DCWPCL. First, the

productivity bonus was “discretionary,” and second, the tuition reimbursement was

conditional and tethered to actual expenses incurred. Mr. Zajac argues the amended

complaint alleges “multiple facts showing that mandatory productivity bonuses were

orally promised,” which he argues satisfies the DCWPCL. Similarly, Mr. Zajac

alleges the amended complaint “includes multiple facts showing that full tuition

15

benefits were promised to Appellant both in writing and orally.” 3 Finnegan argues

the productivity bonus was “discretionary” and the tuition reimbursement

“conditional,” so neither are wages under the DCWPCL.

Looking to the standard of review, we have traditionally articulated that denial

of a motion or request for leave to amend is governed by the abuse of discretion

standard. See Nat’l Ass’n of Postmasters of U.S., 894 A.2d at 477-78. However, a

denial of leave to amend on the basis of futility necessarily implicates a review of

whether the claims would survive a motion to dismiss—a review we conduct de

novo. Further, given the similarity between our prior treatment of denials of leave

to amend for futility and motions to dismiss, this court appears to have effectively

applied a de novo standard of review for futility denials in the past. See, e.g., Rayner

v. Yale Steam Laundry Condo. Ass’n, 289 A.3d 387, 402 (D.C. 2023) (concluding

that the appellant’s “proposed amendments fail to overcome the same hurdles that

merited dismissing [appellant’s] claims under Rule 12(b)(6)”); Farris, 257 A.3d at

3

Alternatively, Mr. Zajac, for the first time on appeal, raises a breach of

contract claim regarding the productivity bonus and tuition reimbursement. “In

general, parties may not assert one theory at trial and another on appeal.” Clark v.

United States, 51 A.3d 1266, 1271 (D.C. 2012) (quoting Cowan v. United States,

629 A.2d 496, 503 (D.C.1993)). These new theories will not be heard by the

appellate court absent “exceptional” circumstances. District of Columbia v. Wical

Ltd. P’ship, 630 A.2d 174, 182 (D.C. 1993). This new theory of liability was never

pled at the trial level, and there are no exceptional circumstances present. Thus, we

will not discuss Mr. Zajac’s breach of contract theory here.

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517-18 (analyzing the trial court’s dismissal of appellant’s motion for leave to amend

for futility and finding that appellant’s asserted claim was not “plausible”); Bare,

336 A.3d at 629-30 (evaluating the merit of appellant’s proposed amendments and

finding that both were futile and thus dismissal by the trial court was proper). We

now clarify and explicitly hold that we review denials of leave to amend for futility

applying the de novo dismissal standard. 4

Consistent with this standard, we take the “allegations of the [amended]

complaint as true, and construe all facts and inferences in favor of the plaintiff.”

Grayson v. AT&T Corp., 15 A.3d 219, 228 (D.C. 2011) (quoting Solers, Inc. v. John

Doe, 977 A.2d 941, 947 (D.C. 2009)). To survive a futility argument, the amended

complaint must contain sufficient factual matter, and the plaintiff must plead

4

This de novo standard for futility denials now brings our court in line with

every federal court of appeals. See e.g., Rife v. One West Bank, F.S.B., 873 F.3d

17, 20 (1st Cir. 2017); Mosaic Health, Inc. v. Sanofi-Aventis U.S., LLC, 147 F.4th

183, 190 (2d Cir. 2025); In re Walmart Inc. Sec. Litig., 151 F.4th 103, 113 (3d Cir.

2025); Ricketts v. Wake Cnty. Pub. Sch. System, 125 F.4th 507, 520 (4th Cir.

2025); Clark v. Dep’t of Pub. Safety & Corrs., 141 F.4th 653, 661 (5th Cir. 2025);

Greer v. Strange Honey Farm, LLC, 114 F.4th 605, 617 (6th Cir. 2024); Reilly v.

Will Cnty. Sheriff’s Office, 142 F.4th 924, 930 (7th Cir. 2025); Trambly v. Bd. of

Regents of Univ. of Nebraska, 145 F.4th 922, 928 (8th Cir. 2025); In re Cloudera,

Inc., 121 F.4th 1180, 1190 (9th Cir. 2024); Seale v. Peacock, 32 F.4th 1011, 1027-

28 (10th Cir. 2022); United States ex rel. Smith v. Odom, 148 F.4th 1322, 1328

(11th Cir. 2025); Rudometkin v. United States, 140 F.4th 480, 491 (D.C. Cir.

2025).

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sufficient factual content that “allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Potomac Dev. Corp. v. District

of Columbia, 28 A.3d 531, 544 (D.C. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)). This is a low standard and does not require a likelihood that the plaintiff

will ultimately prevail on the merits. See Poola v. Howard Univ., 147 A.3d 267, 276

(D.C. 2016).

Reviewing de novo whether Mr. Zajac’s amendments were futile, and thus

leave to amend should not be granted, we conclude that the amended complaint

plausibly alleged wage theft on the counts that Finnegan both failed to pay Mr. Zajac

a productivity bonus and failed to fully reimburse him for tuition expenses. 5 We

address each count in turn.

1. The Productivity Bonus

We turn first to the productivity bonus Mr. Zajac alleges he is owed. In

viewing all facts and inferences in favor of Mr. Zajac, as we would at the dismissal

5

We pause to explicitly note that we make this determination under the

dismissal standard. Because we have not yet decided whether the discretionary

nature of funds to be paid to an employee is decisive in the consideration of wages

under the DCWPCL, we would benefit from a full record and the trial court’s

analysis of it to make such a determination.

18

stage, he has sufficiently pled factual content to support his allegation that Finnegan

withheld funds owed to him as a “wage” under the DCWPCL.

The DCWPCL clearly states that a bonus is a “wage.” D.C. Code § 32-

1301(3)(A). Thus, the productivity bonus Mr. Zajac alleges he is owed would in

fact qualify under the act. But the issue is not whether the bonus qualifies as a wage,

instead the issue is whether Mr. Zajac has sufficiently pled that he was actually owed

the bonus. Finnegan asserts that the productivity bonus was discretionary and thus

they had the discretion to decline to pay Mr. Zajac the bonus. Mr. Zajac disputes

the discretionary nature of the bonus. However, this case is not simply word against

word on its face. Mr. Zajac referenced his 2018 Associate offer letter in his

complaint and amended complaint, and Finnegan supplied the court with a purported

copy of the document. We recently held in Tovar v. Regan Zambri Long, PLLC,

that when a plaintiff incorporates a document by reference in their complaint and

does not contest the authenticity of the document, the trial court is permitted to

consider the document without converting the motion to dismiss to one for summary

judgment. 321 A.3d 600, 609-10 (D.C. 2024). That complicates consideration of a

complaint at dismissal, where we otherwise accept well-pled allegations as true. See

Bell v. Weinstock, Friedman & Friedman, P.A., 341 A.3d 1, 8-9 (D.C. 2025). There

is now documentary evidence to contest such allegations.

19

While we have not directly held as much before, we agree with our sister court

in New York that “allegations consisting of bare legal conclusions as well as factual

claims flatly contradicted by documentary evidence are not entitled to any such

consideration.” Myers v. Schneiderman, 85 N.E.3d 57, 61 (NY 2017) (internal

quotation marks omitted) (quoting Simkin v Blank, 968 N.E.2d 459, 462 (NY 2012)).

And that is how we have approached consideration of such evidence in the past as

well. See, e.g., Tovar, 321 A.3d at 611 (concluding that the relevant settlement

agreement “unequivocal[ly]” released a different party, not the defendant, from

future legal action, thus making dismissal of plaintiff’s claims on these grounds

error); Creative Consolidation, LLC v. Erie Ins. Exch., 311 A.3d 902, 909 (D.C.

2024) (ruling that appellant’s claim for insurance coverage under a particular

provision could not stand against the text of the insurance policy which made “clear

that such coverage” was inapplicable, so dismissal on this point was justified);

Chamberlain v. Am. Honda Fin. Corp., 931 A.2d 1018, 1024-25 (D.C. 2007)

(analyzing sales contracts between both parties which show “dispositive facts” that

the alleged regulatory violations could not be sustained, thus rendering dismissal

proper). That is to say that factual allegations are not required to be accepted as true

when contradicted by clear, appropriately considered documentary evidence at the

dismissal stage.

20

Turning back to our case, we do not view the 2018 Associate offer letter as so

decisive. First, unlike the authenticated settlement agreement in Tovar, Mr. Zajac

does not validate, and insinuates a challenge to the authenticity of, the letter copy,

alleging that his original copy of the letter was destroyed while he was “on

severance.” Next, even if we accept it as authentic, the offer letter that Finnegan

presents does not foreclose the possibility that agents of the firm could have made

oral promises to Mr. Zajac after his offer letter was given, as he pleads. Therefore,

based on the record before us, we have no way to fully determine the merits of either

side’s argument because the documentary evidence does not flatly eliminate Mr.

Zajac’s factual allegations. While the letter provides some evidentiary value, we are

essentially left at this stage with a final dispute of Mr. Zajac’s word against that of

Finnegan’s. Our reading of the record reveals that there are various ways for Mr.

Zajac to prove (and Finnegan to disprove) whether the bonus was discretionary.

In viewing all facts and inferences in favor of Mr. Zajac, we conclude that Mr.

Zajac has sufficiently pled facts that Finnegan withheld a productivity bonus from

him.

2. Law School Tuition Reimbursement

We turn next to whether the tuition reimbursement qualifies as a wage. The

closest we have come to deciding this issue is our opinion in Sivaraman v. Guizzetti

21

& Assocs., Ltd., 228 A.3d 1066 (D.C. 2020), which the trial court recognized and

both parties raise in their briefs. There, interpreting the DCWPCL, we held that a

moving stipend qualified as a wage because, akin to a signing bonus, it was a “lump

sum simply for accepting the offer of employment and starting [the] job.”

Sivaraman, 228 A.3d at 1073. In so holding we determined that a lump sum stipend

is similar to a bonus or fringe benefit because it is a “net monetary benefit[] conferred

on an employee by reason of [] employment.” Id. at 1074. However, we also held

that an expense reimbursement does not qualify as a wage under the statute because

“reimbursements for specific expenses confer no monetary benefit or enrichment on

an employee [].” Id. at 1075.

In interpreting the DCWPCL, we have said that the word “wages” “refers to

one’s salary and other employment-related earnings, rather than mere repayments

for expenses incurred.” Id. at 1075. We reiterate that when the D.C. Council

amended the DCWPCL, replacing the restrictive language of “for labor or services,”

see 60 D.C. Reg. 12472, § 2062 (2013) (codified as amended at D.C. Code § 32-

1301(3)), with broader categories of monetary benefits, it is clear that the D.C.

Council intended a more expansive reading of what qualifies as a wage. See

Sivaraman, 228 A.3d at 1074 (citing Arangure v. Whitaker, 911 F.3d 333, 341 (6th

Cir. 2018)).

22

Today we clarify and hold that a lump sum or stipend does not qualify as a

wage where it does nothing more than reimburse the employee for expenses incurred

on behalf of the employer, or put simply, makes the employee whole. See

Sivaraman, 228 A.3d at 1075 (“[R]eimbursements for specific expenses confer no

monetary benefit or enrichment on an employee, but serve only to make [the

employee] whole.”). However, the tuition reimbursement here (if mandatory) is akin

to the moving stipend in Sivaraman because it is a net benefit conferred to Mr. Zajac

by reason of his employment. Mr. Zajac isn’t being made whole by Finnegan’s

tuition reimbursement for an expense he took on as necessary to be employed with

the firm, he is collecting a benefit for an expense he incurred independent of the

firm.

We view the offer to reimburse tuition as an enticement made by the firm to

encourage Mr. Zajac to accept its offer of employment. And this makes sense—

various law firms have created fellowships and programs to attract the candidates

that the firm desires. These programs offer additional benefit, often in scholarship

form, beyond the traditional summer associateships that are the primary entry-level

pathway to employment with such firms. Such enticement makes all the more sense

for a leading law firm focused on intellectual property law, a field that often requires

particular technical knowledge and can require additional examination, resulting in

a smaller pool of candidates to recruit from.

23

As an enticement, the pled tuition reimbursement is no different from the

moving stipend in Sivaraman that was offered as an enticement to accept the offer

of employment. See Sivaraman, 228 A.3d at 1073. Regardless of whether Finnegan

decided to pay for Mr. Zajac’s education, he was still receiving the education at the

time the offer was made. Further, unlike the expense reimbursements in Sivaraman,

the tuition reimbursement offer to Mr. Zajac is not reimbursing him for business

expenses he incurred on behalf of the business.

In sum, we conclude that the tuition reimbursement in this case is in fact a

wage either as a bonus or fringe benefit because it is a net monetary benefit conferred

on Mr. Zajac by reason of his employment. This is not a reimbursement with the

sole purpose of making Mr. Zajac whole.

Although we have determined that the tuition reimbursement does in fact

qualify as a wage under the DCWPCL, the analysis does not stop there. Whether it

is discretionary or not remains a question. As noted above, whether the wages are

discretionary is a determination we are unable to make without the benefit of a fuller

record. For example, we are unable to discern: whether others were paid the tuition

reimbursement while Mr. Zajac was not, whether it was at a pre-tax or post-tax rate,

whether in fact the alleged oral promises were made, nor whether the required

conditions for reimbursement were satisfied. Mr. Zajac’s amended complaint

24

contains sufficient facts to raise the issue. Thus, this is an issue better resolved with

development of a factual record by the trial court. We remand.

III. Conclusion

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

of Columbia is reversed and remanded for further proceedings consistent with this

opinion.

So ordered.