Free Proposed Findings of Fact - District Court of Colorado - Colorado

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

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Filed 11/17/2006

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IN THE UNITED STATESDISTRICT COURT FOR THE DISTRICT OF COLORADO

160-LTB-CBS Civil ActionNo. 04-cv-01 ISABELLE DeTKEVORKIAN.
Plaintiff,
V.

LIONBRIDGETECHNOLOGIES, INC., d/b/aLIONBRIDGEUS, INC,
Defendant.

(PROPOSED) FINDINGS OF FACT, CONCLUSIONSOF LAW AND JUDGMENT

DefendantLionbridge Technologies, Inc. (Lionbridge),by and through its attomeys,The 1,2006, submitsits proposed OvertonLaw Firm, pursuantto the Court's Order datedSeptember findings on PlaintifPs promissoryestoppelclaim, as follows: THIS MATTER comesbeforethe Court aftera three-day trial. Pursuantto F.R.C.P.52, 54 and 58, the Court makesthe following findings of fact and conclusions law as to Plaintiff s of judgment accordingly. and enters SecondClaim for Relief for promissoryestoppel, FINDINGS OF FACT

t.

The jury determined therewas no contractbetweenLionbridge and Ms. Der Kevorkian regardingher applicationfor permanent residentstatus.

2.

Lionbridge had at all pertinent times a PermanentResidentProgram (PRP), and its stated intent is "to assistand supportlong-termemployees the processof applying for lawful in permanentresident status" with the (then) Immigration and Naturalization Service GNS).

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3.

at The PRP states that Lionbridgewill pay one-halfof the fees,estimated $5,055.00, with the employee's application for permanentresident status. associated

4.

At the time plaintiff applied to participate in the PRP in Januaryof 2002, her position with Lionbridge was Manager of Translation and her baseannual salarywas approximately $57,000.00.

5.

her Plaintiff appliedto participatein the PRP in part because work visa was due to expire "green in November of 2003, and unlessshewas grantedpermanentresident status(a working in the United Statesof America and leavethe card"), shewould have to cease country.

6.

at of Plaintiff s dutiesincludedsupervision eight or more translators, leastfour of which were on the Lionbridgepayroll.

7.

The INS requires that an employeebe paid in the range determinedby the Departmentof as by Labor for the employee'sposition. The pay rangefor a manager, determined the DOL, on an annualbasiswas approximately $106,000.

8.

determined that (i) it could not pay plaintiff almost doublewhat it Lionbridgereasonably paid other Managersof Translationand (ii) so long as plaintiff supervised Lionbridge her would be as a manager. employees, DOL classification

9.

to Plaintiff agreedthat it was unreasonable expectLionbridgeto pay her more than as $100,000.00 a Managerof Translation.

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10.

Nothing plaintiff suggested a solution or an alternative alteredthe fact that her position as as a Manager of Translation required the supervisionof Lionbridge employees,and that shewould thereforebe classified by the DOL as amanager(for purposesof determining the required pay level in her application for permanentresident status).

11.

Plaintiff admitted that during her employmentwith Lionbridge she did not believe that Ms. Sharryn Ross was acting as her attomey.

t2.

Ms. Sharrlm Ross, the Lionbridge attorney,advisedthat plaintiff s annual salary of was within the DOL wage classification a Lionbridge Translator,and of $57,000.00 suggested that plaintiff could successfullyapply for permanentresident statusas a Translator.

13.

In late August or early Septemberof 2002, Lionbridge offered plaintiff a Translator position at her current salary,with the understandingthat her application for permanent residentstatuswould be approved. Plaintiff immediately rejectedthe offer out of hand on the basis that it was a "demotion'o and would be bad for heroocareer."

T4,

15.

Plaintiff understoodwhen rejecting Lionbridge's offer that if she acceptedthe Translator position she could continue to work for Lionbridge at her current salary after her visa expired.

16.

After rejecting Lionbridge's offer, plaintiff worked at Lionbridge until her visa expired in

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November of 2003, and she left the United States.

CONCLUSIONS OF LAW

L

The parties agreethat Colorado applies.

2.

of Under Coloradolaw, the elements a promissoryestoppelclaim are: (1) the promisor made a promise to the promisee; (2) the promisor should reasonablyhave expectedthat promisewould induceaction or forbearance the promisee;(3) the promiseein fact by reasonablyrelied on the promise to the promisee'sdetriment; and (4) the promise must be enforcedto prevent injustice. Berg v. StateBoard of Agricutture, 919 P.2d 254,259 (Colo. 1996),citing, Centennial-Aspen Ltd. Partnershipv. City of Aspen,852 F. Supp. II 1486(D. Colo.1994).

a J.

I conclude that plaintiff did not reasonablyrely on any promise by Lionbridge and that Lionbridge acted consistentlyat all times with any promises it made to plaintiff.

4.

Plaintiff seeksto transform any commitment made by Lionbridge into a guaranteeby Lionbridge that she could retain her position as Manager of Translation and obtain a green card, when in fact all Lionbridge promised, if anything, is to offer assistance and to pay some limited fees.

5.

I concludeit would not preventinjusticeto enforcethe commitmentsallegedby Plaintiff; to the contrary, it would be an injustice to hold Lionbridge accountablefor INS and DOL regulationsbeyond its control.

4

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6.

I conclude that Lionbridge was not the proximate causeof any allegeddetriment to plaintiff nor of any alleged damagessoughtby plaintiff.

7.

Lionbridge has pled and proven its affirmative defensethat plaintiff failed to mitigate her damages. Plaintiff allegesemotional distressbecauseof her absencefrom Colorado, but sheconsciouslychoseto leaveColoradoand her employmentwith Lionbridgeby rejectingthe offer of a Translatorposition at her Managerpay level. Plaintiff had the opportunity to significantly reduce,if not eliminate, all her damagesand she failed to do so.

JUDGMENT judgmentin favor of Defendant Lionbridgeandagainst the WHEREFORE, Courtenters estoppel. on Claimfor Reliefbased promissory theplaintiff on plaintiff s Second

17, submitted:November 2006. Respectfully THE OVERTONLAW FIRM

By:

s/ DanS. Cross 1080Kalamath Street Denver, 80204 CO 303.302.2737 overtonlawfirm. com dan. ss@ cro FORDEFENDANT ATTORNEYS

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CERTIFICATE OF SERVICE certifiesthat on November17,2006,a true andcorrectcopyof the The undersigned filed with the Clerk of Courtusingthe CIWECF Proposed Findingswas electronically foregoing U. system, which will sendnotificationof suchfiling, andwassentby first-class S. mail, postage prepaid, the following: to

Esq. JoelC. Maguire, j maeuire@dietzdavis. com DietzeandDavis,P.C. 2060Broadway, Suite400 Boulder, 80302 CO

/s/ Bernadette Lopez