Free Trial Brief - 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. ______________________________________________________________________________ PLAINTIFF'S LEGAL MEMORANDA RE EVIDENTIARY ISSUES ______________________________________________________________________________ Plaintiff, by her attorneys, Dietze and Davis, P.C., respectfully submits the following Legal Memoranda regarding evidentiary issues. A. Whether Ms. DerKevorkian's refusal to accept a demotion from Translation Manager to Translator is evidence of a failure to mitigate damages or a failure to perform under the contract.

Ms. DerKevorkian held the position of Manager of Translation. Lionbridge declined to proceed with the application for a green card for that position, but said it would file the application if Ms. DerKevorkian accepted an immediate demotion to Translator, with no decrease in pay. Ms. DerKevorkian declined because she had been told that an immediate demotion was not necessary1, because she did not want to do only translation work, and because of concerns about the effect of the demotion on her career. Lionbridge intends to argue that Ms. DerKevorkian's refusal to accept an immediate demotion constitutes a failure to mitigate damages, thus eliminating any claim for

The application could have been filed for a Translator position and she could have remained in her position as Translation Manager until the green card was issued.

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damages resulting from her subsequent separation from employment upon the expiration of her H1B Visa. As a matter of law, Ms. DerKevorkian did not fail to mitigate her damages or fail to perform her obligations under the contract by declining the offer of an immediate demotion with no decrease in pay. Plaintiff believes that Defendant will assert that its position is supported by Fair v. Red Lion Inn, 943 P.2d 431(Colo.1997). In Red Lion, the employer offered to reinstate the wrongfullyterminated employee into the same position she previously had held. The Colorado Supreme Court held that, despite her claimed reservations about a return to that job, her refusal constituted a failure to mitigate damages. In reaching this result, the Court relied on Giandonato v. Sybron Corp., 804 F.2d 120 (10th Cir.1986), which in turn had relied on Ford Motor Co. v. EEOC, 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982). Ford, and then Giandonato, held that an employee is obligated to minimize his damages by accepting his former employer's offer of reinstatement to a position "substantially equivalent" to his previous job. Red Lion, supra, at 440. An offer for employment is considered substantially equivalent if it affords "virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status as the position from which the ··· claimant [was] terminated." Sellers v. Delgado Community College, 839 F.2d 1132, 1138 (5th Cir.1988).2 The obligation to mitigate damages does not require that the claimant accept a position noncomparable or inferior to his previous position. Sellers, supra, at 1137. In assessing whether two positions are substantially comparable, at least one court has focused on comparability in status, rather than comparability in pay, determining that comparability in salary, although important, is not This statement and citation is found in Justice Mullarkey's dissent, joined by Justices Hobbs and Bender. Red Lion, supra, 943 P.2d at 443. 2
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the sole test of a reasonable offer of alternative employment. Sellers, supra, at 1138, citing Williams v. Albemarle City Board of Education, 508 F.2d 1242, 1243 (4th Cir.1974). In fact, "[c]omparability in status is often of far more importance-especially as it relates to opportunities for advancement or for other employment-than comparability in salary." Id. There is no question that the job of Translator had a different title and substantially different promotional opportunities, job responsibilities, working conditions, and status than that of Plaintiff's position as Manager of Translation. Nothing demonstrates this more clearly than State of Colorado's classification of the Manager of Translation position as Level 2 and the Translator position as Level 1. Therefore, the Translator position was not substantially equivalent to the position that Plaintiff was being asked to give up. If Defendant's position on this issue is accepted, an employer could enter into a contract with a prospective employee for a given position, refuse to employ the person in that job, offer the person a different job with the same salary, and then claim a failure to mitigate damages if its offer was refused. The person presumably accepted the job, and perhaps quit another one, because that job all aspects of it - was what that person wanted to do. He or she should not lose their right to the position for which they contracted because the breaching employer offered them a job they did not want to do, even if the salary was to remain the same. Here, if Lionbridge breached the contract and breached its fiduciary duties with respect to the process of applying for a green card for the Manager of Translation position that Ms. DerKevorkian held, she was not required to accept an immediate demotion to a position she did not want in order to limit the damages caused by those breaches. The defense of failure to mitigate damages will not be presented to the jury unless the trial court determines there is sufficient

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evidence to support it. United Intern. Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1230 (10th Cir. 2000); Red Lion, supra, at 437. Any evidence of Ms. DerKevorkian's refusal to accept an immediate demotion is not evidence of a failure to mitigate damages or a failure to perform under the contract. Lionbridge is not entitled to an instruction on mitigation of damages. B. Evidence of breach of fiduciary duty.

If a fiduciary relationship existed between Lionbridge and Ms. DerKevorkian, either as a result of an agency relationship or a relationship of trust and confidence, Lionbridge will have had certain fiduciary duties to Ms. DerKevorkian. The jury instruction (C.J.I. Civ. 4th 26:4) requires that the Court identify these duties. Plaintiff has tendered a proposed jury instruction setting forth several different duties. An agent has a fiduciary duty to disclose to the principal all facts relative to the subject matter of the agency which might reasonably affect the principal's decision. Kunz v. Warren, 725 P.2d 794, 797 (Colo. App. 1986) and Brunner v. Horton, 702 P.2d 283, 285 (Colo. App. 1985). An agent has a fiduciary duty to act with utmost good faith and loyalty in all dealings with the principal and to use reasonable care in carrying out the agency. Moore and Company v. T-A-L-L, Inc., 792 P.2d 794, 798-99 (Colo. 1990). An agent has a fiduciary duty to act with utmost faith and loyalty in behalf of, and to act solely for, the benefit of the principal. Brunner v. Horton, supra. An agent is subject to a duty to his principal to act solely for the benefit of the principal in all matters connected with his agency. Jet Courier Service, Inc. v. Mulei, 771 P.2d 486, 492 (Colo. 1989), citing Rest. (2d) Agency §387 (1957). An agent has a fiduciary duty to exercise reasonable care and

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skill. Command Communications, Inc, v. Fritz Companies, Inc., 36 P.3d 182, 189 (Colo. App. 2001). When the agent places his own interests above those of the principal there is a breach of fiduciary duty to the principal. Gelfand v. Horizon Corp., 675 F.2d 1108, 1110 (10th Cir.1982) (based on New Mexico law, but stating that the law throughout the United States is generally similar). A fiduciary duty comprises two prongs: a duty of care and a duty of loyalty. The duty of care requires that the fiduciaries exercise their best care and judgment. Seymour Ambulance v. Marcucio, 2005 WL 3371991 (Conn. Super. 2005). An agent is required to use its best efforts in its representation of its principal. Sadler-Cisar, Inc. v. Commercial Sales Network, Inc., 786 F. Supp. 1287, 1299 (N.D.Ohio 1991). The general rule is that he who undertakes to act for another in any manner of trust or confidence shall not in the same matter act for himself against the interest of the one relying upon his integrity. Las Luminarias of the New Mexico Council of the Blind v. Isengard, 587 P.2d 444 (N.M. App. 449); Rice v. First Nat. Bank in Albuquerque, 171 P.2d 318, 320 (N.M.1946). Dated this 17th day of November, 2006. Respectfully submitted, DIETZE and DAVIS, P.C. By: "s/ Joel C. Maguire" Joel C. Maguire Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: (303) 447-1375 Fax: (303) 440-9036 Email: [email protected] Attorney for Plaintiff Isabelle DerKevorkian 5

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CERTIFICATE OF SERVICE I hereby certify that on November 17, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: John Edwin Bolmer, II [email protected] [email protected] Dan S. Cross [email protected] [email protected] David Everett Leavenworth, Jr. [email protected] [email protected] [email protected]

By: "s/ Susan J. Armour" Susan J. Armour, Legal Assistant Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: (303) 447-1375 Fax: (303) 440-9036 Email: [email protected]

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