Steinke v. P5 Solutions, Inc.

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

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

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

CHRISTOPHER STEINKE, APPELLANT/CROSS-APPELLEE,

V.

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

Appeals from the Superior Court

of the District of Columbia

(CAB4445-18)

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

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

Mitchell I. Batt for appellant/cross-appellee.

Denise M. Clark for appellee/cross-appellant.

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

Judge. *

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

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

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

*

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

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

D.C. Code § 11-1504.

2

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

Law 1 (“the WPCL” or the “Act”) and breach of contract (as well as alternative

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

him incentive compensation that he purportedly earned in 2017. 2 After the

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

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

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

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

damages.

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

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

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

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

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

following reasons, we affirm.

1

D.C. Code § 32-1301 et seq.

2

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

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

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

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

exhibits — first came in during March 2017.

3

I. Background

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

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

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

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

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

offering Mr. Steinke employment as “Director of Organizational Transformation

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

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

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

A variable compensation package will be established

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

which will go into effect within your first 30 days of

employment. Variable compensation may include

quarterly bonuses through newly gained business/revenue

from software license sales, percentage of revenue from

all ServiceNow professional services, and also year-end

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

separately defined agreement.

4

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

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

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

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

and contained inter alia the following language:

In summary, here are the points we discussed and agreed

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

here are the basics:

Agreement between P5 Solutions, Inc. and Chris Steinke

(also company which will be established by Chris

Steinke) that during term of his employment with P5

Solutions, Inc.:

...

All new business and new clients brought into P5 by

Chris Steinke related to ServiceNow licenses and

services, Chris will receive a 15% commission from the

profits associated with ServiceNow project/professional

services. Chris will also receive 15% of any profits

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

revenue from referrals or future sales). Profits are

defined as the revenue minus expenses (labor costs).

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

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

with receipt of licenses or services from P5’s

ServiceNow practice. The profits from both licenses and

services are defined as revenue minus expenses (labor

costs) associated with that deal. . . .

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

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

5

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

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

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

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

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

Fairfax County Government client).”

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

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

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

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

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

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

has gotten filed.”

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

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

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

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

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

6

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

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

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

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

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

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

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

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

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

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

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

participating in P5’s 401(k) plan.

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

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

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

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

terminated Mr. Steinke’s employment.

7

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

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

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

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

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

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

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

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

otherwise have been entitled.

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

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

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

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

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

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

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

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

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

8

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

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

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

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

disagreement between the parties arose over a jury instruction regarding apparent

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

the one proposed by P5.

As noted, the jury returned a verdict in favor of Mr. Steinke on his breach-

of-contract claim. Mr. Steinke now appeals the court’s July 3, 2019 grant of

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

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

agreement regarding incentive compensation (and its consideration of parol

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

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

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

9

II. Applicability of the Wage Payment and Collection Law

A. Whether P5 was an “employer”

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

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

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

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

court decisions granting summary judgment as well as questions of statutory

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

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

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

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

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

(internal quotation marks omitted).

The WPCL provides that an employer who fails to pay an employee wages 3

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

3

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

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

10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11

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

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

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

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

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

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

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

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

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

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

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

revenues, which can depress consumer spending and stunt economic growth

because less disposable income translates into less money spent at local

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

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

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

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

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

whether from home or elsewhere 4 (and who could therefore be expected to spend a

4

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

12

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

office, in the State of Maryland”).

5

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

13

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

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

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

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

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

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

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

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

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

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

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

contractor, an issue we discuss infra).

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

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

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

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

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

14

B. Whether Mr. Steinke was an “employee”

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

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

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

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

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

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

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

from independent contractors, but because of the similarity between the employer-

liability provisions of the WPCL and those of the federal Fair Labor Standards Act

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

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

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

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

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

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

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

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

15

The FLSA test looks to whether the “economic reality” indicates an employer-

employee relationship, rather than an independent contractor one. See Goldberg v.

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

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

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

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

performed;

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

depending upon his managerial skill;

3) the alleged employee’s investment in equipment or

materials required for his task, or his employment of

workers;

4) whether the service rendered requires a special skill;

5) the degree of permanency and duration of the

working relationship;

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

part of the alleged employer’s business.

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

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

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

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

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

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

16

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

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

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

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

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

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

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

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

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

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

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

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

omitted)). 6 But even if we consider Mr. Steinke’s “employee” status for purposes

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

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

6

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

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

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

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

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

‘employee’ under the FLSA.”).

17

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

18

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

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

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

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

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

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

was to accomplish the various listed tasks. 7

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

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

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

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

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

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

7

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

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

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

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

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

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

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

employment relationship when weighed against other factors, including that Reid

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

from Washington practicably impossible”).

19

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

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

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

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

commissions to his success in selling ServiceNow professional services and

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

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

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

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

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

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

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

contractor status.

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

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

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

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

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

20

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

21

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

company obtained Mr. Steinke as its ServiceNow lead.

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

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

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

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

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

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

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

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

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

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

invoiced P5 for his services each month. 8 The record also indicates that no taxes

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

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

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

8

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

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

(6th Cir. 2008).

22

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

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

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

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

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

either party from conducting business with existing customers.” 10

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

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

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

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

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

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

9

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

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

employee benefits, or contribute to unemployment insurance or workers’

compensation funds” supported the conclusion that Reid was an independent

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

doctrine).

10

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

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

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

independent contractor.”).

23

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

in a much more independent way.

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

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

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

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

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

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

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

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

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

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

ruling.

24

III. The Breach-of-Contract Claim

A. The Denial of Summary Judgment

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

summary judgment because there was no enforceable agreement between the

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

incentive compensation, the conversations and agreements between the parties

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

under Virginia law. 11

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

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

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

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

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

11

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

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

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

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

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

case, and neither party disputes this determination on appeal.

25

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

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

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

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

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

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

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

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

contract claim.

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

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

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

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

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

12

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

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

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

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

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

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

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

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

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

26

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

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

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

2008).

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

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

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

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

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

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

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

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

an agreement regarding incentive compensation.

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

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

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

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

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

27

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

the incentive compensation that would be paid to Mr. Steinke (not to the then-not-

yet-existent LLC). Moreover, the Teaming Agreement can be read to refer to a

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

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

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

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

regarding the parties’ intent and the circumstances surrounding the Teaming

Agreement that precluded summary judgment.

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

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

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

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

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

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

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

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

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

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

28

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

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

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

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

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

judgment on this issue.

B. The Exclusion of P5’s Summary Exhibit

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

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

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

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

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

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

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

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

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

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

exhibit.

29

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

30

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

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

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

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

its summary exhibit.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

31

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

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

C. The Jury Instruction on Apparent Authority

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

Steinke and Shah regarding incentive compensation was invalid and unenforceable

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

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

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

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

authority. P5 requested the following instruction:

An individual may have authority to negotiate an

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

The principal may be bound if the individual had

apparent authority to bind the principal. The individual

does not have apparent authority to bind the principal if

the evidence demonstrates that the other party had no

basis to conclude the individual had authority to bind the

principal. . . .

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

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

had proposed:

32

An agreement is binding on the company where its agent

has either actual or apparent authority. An act is within

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

of his actual and known duties, an ordinarily prudent

person, having a reasonable knowledge of the usages of

the business in which the agent is engaged, would be

justified in believing that he is authorized to perform the

act in question.

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

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

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

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

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

negotiate an agreement on behalf of P5 without authority to bind P5. 13 P5 asserts

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

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

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

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

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

13

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

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

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

representation of the applicable law.

33

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

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

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

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

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

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

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

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

give a jury instruction that included a straightforward definition of apparent

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

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

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

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

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

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

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

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

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

34

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

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

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

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

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

that he confirmed in an email to Mr. Steinke. 14 We think her testimony would

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

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

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

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

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

component of abuse of discretion).

14

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

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

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

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

authority in an employee.” Columbia Hosp. for Women Found. v. Bank of Tokyo-

Mitsubishi, 15 F. Supp. 2d 1, 8 (D.D.C. 1997) (internal quotation marks omitted)

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

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

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

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

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

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

35

IV. Conclusion

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

Affirmed.