Free Pretrial Order - District Court of Colorado - Colorado

Case 1:04-cv-01160-LTB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01160-LTB-CBS ISABELLE DerKEVORKIAN, Plaintiff, v. LIONBRIDGE TECHNOLOGIES, INC., d/b/a LIONBRIDGE US, INC., SHARRYN E. ROSS and ROSS, MARTEL & SILVERMAN, LLP Defendants. ______________________________________________________________________________ FINAL PRETRIAL ORDER ______________________________________________________________________________ 1. DATE AND APPEARANCES The Final Pretrial Conference took place on April 26, 2006 at 10:45 a.m. Appearing for the Plaintiff was Joel C. Maguire of Dietze and Davis, P.C., 2060 Broadway, Suite 400, Boulder, Colorado. Appearing for the Defendant was Richard J. Gleason, The Overton Law Firm, 1080 Kalamath Street, Denver, CO 80204. 2. JURISDICTION Subject matter jurisdiction is based on diversity of citizenship of the parties and an amount in controversy exceeding $75,000.00 under 28 U.S.C. 1332. 3. CLAIMS AND DEFENSES a. Plaintiff:

Plaintiff is a citizen of France. French is her native language, she is fluent in English, has a good knowledge of German, and speaks some Russian and Italian. In December 2001, she was

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working for Lionbridge under an H-1B Visa, which was due to expire on October 1, 2003. To continue living and working in the United States beyond that date, she needed to receive permanent resident status, i.e. a " green card." In December 2001, Lionbridge agreed to sponsor Plaintiff' green s card application under its Permanent Resident Program (" Program" It informed Plaintiff that it ). would hire an attorney to handle the application process and would been compiling the necessary paperwork. As a consequence of the employment and fiduciary relationship that existed between Plaintiff and Lionbridge and Lionbridge' promises and statements about the Program, Plaintiff s allowed Lionbridge to proceed with the process and she relied on Lionbridge to handle it in a reasonable and an appropriate manner. By late February 2002, Lionbridge had hired Attorney Sharryn E. Ross to handle the process. Plaintiff had been promoted from Project Manager to Translation Manager in April 2001, but her Visa had not been amended to reflect that change. By early February 2002, Lionbridge determined that Plaintiff' Visa would have to be amended before a green card application could be filed. To show s that Plaintiff was being paid the prevailing wage as Translation Manager, Ross took action to obtain a prevailing wage determination from the Department of Labor and Employment for the State of Colorado. On April 18, 2002, Ross learned that the State had placed the Translation Manager position within the category of " General and Operations Managers"with a Level 2 wage. This decision placed Plaintiff in the same category as managers at large companies who managed many more employees than Plaintiff. The prevailing wage for Level 2 " General and Operations Managers"was $106,288 per year. Plaintiff would have to be paid a salary within 5% of this figure to satisfy the prevailing wage requirement. She then was making $57,000 per year. Lionbridge believed that Plaintiff was being paid a salary in line with the prevailing wage for her position. Ross believed that the Translation Manager 2

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position should have been classified as Level 1, rather than Level 2, and even if the position truly was Level 2, it should have been in the category of " Manager, all other,"which had a prevailing wage of $87,922. After failing to convince the State that the Translation Manager position should be classified as Level 1, Ross elected to wait for the issuance of new guidelines from the United States Department of Labor, hoping that the new guidelines would convince the State to reclassify the position. Ross did not attempt to convince the State that the position should be placed in the category of " Managers, all other." Ross could have applied for an amendment to Plaintiff' Visa even without a favorable s prevailing wage determination from the State, by stating in the application that Lionbridge believed that it was paying Plaintiff the prevailing wage. This would have been challenged only in the unlikely event of an audit. The prevailing wage can be determined with a private wage survey. Qualified industry salary surveys also can be used. Ross and Lionbridge did not reasonably investigate either of these options or any other alternative methods for establishing the prevailing wage. Lionbridge decided it would not pay for any salary survey and told Ross that it would not pay Plaintiff within 5% of the prevailing wage as determined by the State. Plaintiff had asked Ross to keep her posted on progress, but she was not advised of the specifics of the unfavorable prevailing wage determination, of Ross' discussions with the State, or s of the new guidelines to be issued. She also was not told that Lionbridge would not pay her the prevailing wage, as determined by the State, that a private salary survey could be commissioned, but that Lionbridge would not pay for one, or that their were other alternatives to establishing the 3

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prevailing wage. In late May and early June 2002, Plaintiff was informed only that there was a problem relating to the prevailing wage and that Lionbridge was awaiting a clarification. On July 15, 2002, Plaintiff contacted Ross' office for an update and expressed concern about s the lack of progress and the fact that her Visa would be expiring in October 2003. She was told that Lionbridge had directed the law firm not to talk to Plaintiff and to tell her to contact Lionbridge for information. Plaintiff asked Lionbridge for information and Lionbridge only told her that there was a problem with the prevailing wage and that it was seeking approval of an alternative wage source. On September 17, 2002, Plaintiff expressed increasing concern to Lionbridge at the apparent absence of progress. She again stated that she was worried about the possibility that her Visa would expire before her green card process had advanced to the point where she could stay in the United States legally while the green card application was being processed. On September 19, 2002, Plaintiff finally was informed of the details of the State' unfavorable prevailing wage determination, including s the fact that the prevailing wage for the Translation Manager position was $106,000. She was told that Lionbridge could commission a survey at a cost of several thousand dollars, but that it would not do so. She was told that Lionbridge would proceed with the application if she accepted a demotion from Translation Manager to Translator, without a decrease in salary. Plaintiff did not want to be demoted from Translation Manager to Translator, the job she held until she had been promoted to Project Manager in early 2000. She believed that a demotion would have an adverse effect on her career and she did not want to limit her duties to translation work. There were many other non-management aspects of the job of Translation Manager that she enjoyed and did not want to give up. She expressed displeasure with Lionbridge' handling of the process. s

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Although Plaintiff' performance reviews always had been good to excellent, Lionbridge s suddenly found fault with her job performance. She was placed on a performance improvement plan. Some of the criticisms related to Plaintiff' expressions of displeasure with the company' handling s s of the green card process. The content of the PIP was vague and contrary to Lionbridge policy. Plaintiff requested specifics and details, but this request was declined and the request itself was construed as an example of the alleged performance problem. Plaintiff told Lionbridge that it was inappropriate and indefensible to penalize her or otherwise evaluate her performance based on her persistence in attempting to move the green card process forward or based on any frustrations that she expressed. Thereafter, Lionbridge ceased further formal criticism of her performance and the performance improvement plan expired without further adverse action. However, Lionbridge continued to treat Plaintiff poorly. At Plaintiff' request, a conference call with Ross was scheduled. It was cancelled and s Lionbridge declined to reschedule it. The new guidelines from the United States Department of Labor were issued in approximately early October 2002. Ross received and reviewed these guidelines but was unable to convince the State to reconsider its prevailing wage determination. Ross continued to believe that the State' determination was in error. She could have challenged it by filing the green s card application and stating that Plaintiff' salary met the prevailing wage requirement. Approximately s two years later, a federal analyst would have decided the issue. If that decision was adverse, it could have been appealed. Had Ross taken this route, Plaintiff would have been permitted to live in the United States and work for Lionbridge until a decision was made by a federal analyst. Such a decision would not have been reached until at least a year after her Visa expired on October 1, 2003. Plaintiff

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was not informed that she could challenge the prevailing wage determination or that she could file an application even without a favorable determination from the State. On October 24, 2002, Lionbridge informed Plaintiff that the new guidelines were not favorable. Over the next couple of months, Plaintiff made several reasonable suggestions involving modification of her job duties, job description, and/or job title to reclassify her position as Level 1. This type of " tweaking"had been done in the past by Lionbridge and its predecessor companies to meet the prevailing wage requirement and is a common practice. Plaintiff also learned that the green card application could be filed if she agreed to accept a demotion to Translator upon granting of the application. Lionbridge rejected all these suggestions and insisted that it would not proceed unless Plaintiff accepted an immediate demotion. It also refused Plaintiff' request that she be allowed to s retain separate immigration counsel, at Lionbridge' expense. It stated that Plaintiff' sole option was s s an immediate demotion to Translator. Since Plaintiff was unwilling to accept an immediate demotion, the discussions ceased. Plaintiff' H-1B Visa expired on October 1, 2003 and she was forced to resign s her employment with Lionbridge and leave the country. Plaintiff has suffered economic and noneconomic damages as a result of Lionbridge' conduct. s Plaintiff asserted claims against Lionbridge for breach of contract, promissory estoppel, negligence, and breach of fiduciary duty. Essentially, she asserts that Lionbridge failed to abide by its agreements and promises, failed to act reasonably, and failed to take reasonable actions in the effort to obtain a green card. Lionbridge' conduct and that of its agent, Ross, eliminated Plaintiff' ability s s to file an application and remain in this country. Plaintiff also asserted a claim against Ross and her law firm for legal malpractice. The Court granted summary judgment in favor of Lionbridge on Plaintiff' claim for negligence and ruled that she may not recover non-economic damages under her s 6

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claims for breach of contract or promissory estoppel. The Court also granted summary judgment in favor of Ross and her firm. b. Defendant Lionbridge:

Lionbridge vehemently denies any unlawful conduct and/or breach of contract, and further states that Plaintiff refused to accept placement in her former position, which would have resulted in continuation of her green card application and no reduction in her pay. Plaintiff' refusal to accept the s position for which she already had a visa is the direct and proximate cause of her alleged damages. Plaintiff was not entitled to, nor should she expect that Lionbridge would provide, unlimited resources in obtaining her green card. Plaintiff' suggested alternative courses of action were impractical at best, s e.g., pay her twice her annual salary, or unlawful, e.g., submit false job descriptions to the INS. Plaintiff' claims fail to state a claim upon which relief can be granted. Plaintiff' claims are s s barred by the doctrines of waiver, estoppel and/or laches. Plaintiff' claims are barred by her unclean s hands. Plaintiff' claims are frivolous, vexatious, and without substantial legal justification, and s therefore Defendant is entitled to reimbursement of its attorney fees pursuant to C.R.S. § 13-17-101. Plaintiff failed to mitigate her damages. 4. STIPULATIONS a. Defendant Lionbridge Technologies, Inc. (" Lionbridge" is a Delaware corporation, )

having a principal place of business at 950 Winter Street, Waltham, Massachusetts 02451. At all times pertinent hereto, Lionbridge did business in the County of Boulder and State of Colorado through Lionbridge US, Inc. and other wholly-owned subsidiaries.

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b.

Plaintiff is a citizen of France. In July 1997, Plaintiff came to the United States and

worked as an intern for International Language Engineering Corporation in Boulder, Colorado. Later in 1997, ILE decided to hire Plaintiff as a full-time Translator. c. Plaintiff held the position of Translation Manager when Lionbridge agreed to provide

full sponsorship. However, her H-1B Visa still reflected her job as Project Manager. On February 11, 2003, Lionbridge informed Plaintiff that it needed to amend her Visa to reflect her current job of Translation Manager. Plaintiff provided Lionbridge with the necessary information. d. Under Lionbridge' Permanent Resident Status Program (" s Program" a foreign ),

employee who has worked for the company for a certain period of time can request sponsorship of his or her green card application. The intent of the Program is to assist and support long-term employees in the process of applying for lawful permanent resident status. Employees admitted to the Program must commit to working for the company for two years after receipt of permanent resident status. Under the Program, only legal counsel selected by Lionbridge may process the application. 5. PENDING MOTIONS None. 6. WITNESSES a. Nonexpert witnesses: (1) Plaintiff: See Attachment A. (2) Defendant: See Attachment A. b. Expert witnesses: (1) Plaintiff: (a) will be present at trial:

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(i) Bart Chavez. The subject matter of his testimony will include an explanation of immigration procedures in general and his opinions about Lionbridge' conduct and s actions relating to Plaintiff' immigration case. He will testify that there is a need for a clear channel s of communication with the employee, and that when a problem arises during the process, the employer, attorney and employee work hand in hand to make the situation work. He will testify that Lionbridge failed to keep Plaintiff adequately informed of the status of the process, of all the options that may be available to her and any risks associated therewith, and failed to recommend she obtain separate counsel, that this left Plaintiff no other options to resolve her immigration issues, and that there was a disregard for Plaintiff' best interests. In person. s (b) may be present at trial: None (c) by means of a deposition: None (2) Defendant: None. 7. EXHIBITS a. Exhibits to be offered by each party: (1) (2) b. Plaintiff: See Attachment B. Defendant: See Attachment C.

Copies of listed exhibits must be provided to opposing counsel and any pro se party

no later than five days after the final pretrial conference. The objections contemplated by Fed.R.Civ. P.26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided.

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8. DISCOVERY Discovery has been completed. 9. SPECIAL ISSUES None. 10. SETTLEMENT The undersigned counsel for the parties certify that: a. Counsel for the parties met on January 3, 2005 with Magistrate Judge Schaffer to

discuss in good faith the settlement of the case. b. The participants in the Settlement Conference included counsel, Plaintiff, a

representative of Defendant, and Magistrate Judge Schaffer. c. d. e. f. g. 16.6. 11. OFFER OF JUDGMENT Counsel acknowledge familiarity with the provision of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case. The parties were promptly informed of all offers of settlement. Counsel for the parties do intend to hold future settlement conferences. It appears from the discussion by all counsel that there is little possibility of settlement. No settlement conference before the Magistrate Judge has been scheduled. Counsel for the parties have considered ADR in accordance with D.C.COLO.LCivR.

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12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. 2. 3. Trial is to a jury. It is estimated that four days will be necessary to try this case. Trial is to be held in the United States District Court for the District of Colorado in

Denver, Colorado. 4. A final trial preparation conference is scheduled for September 1, 2006 at 8:00 o' clock

a.m. Procedures for that conference and for trial are governed by the Court' Pretrial and Trial s Procedures Memorandum. DATED this 10th day of May, 2006.

BY THE COURT:

s/Craig B. Shaffer United States Magistrate Judge

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APPROVED: s/Joel C. Maguire ______________________________ Joel C. Maguire DIETZE and DAVIS, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: 303-447-1375 Attorneys for Plaintiff s/Dan S. Cross ______________________________ Dan S. Cross The Overton Law Firm 1080 Kalamath Street Denver, CO 80204 Telephone: 303-302-2737 Attorneys for Defendant

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