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

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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 PROPOSED FINDINGS AND CONCLUSIONS REGARDING CLAIM OF PROMISSORY ESTOPPEL ______________________________________________________________________________ Plaintiff, by her attorneys, Dietze and Davis, P.C., respectfully submits the following Proposed Findings of Fact and Conclusions of Law regarding her claim of promissory estoppel. FINDINGS OF FACT 1. 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 July 1997, she came to the United States and worked as an intern for International Language Engineering Corporation ("ILE") in Boulder under a J-1 Visa.. 2. Later in 1997, ILE decided to hire Plaintiff as a full-time Translator. To continue

working in the United States, Plaintiff was required to obtain an H-1B Visa. ILE hired an attorney to obtain such a Visa and Plaintiff subsequently was granted an H-1B Visa that was valid until November 9, 2000.

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3.

ILE ultimately became known as INT'L.com. In 2000, Lionbridge acquired

INT'L.com and its Boulder operations. As a consequence of this acquisition, Plaintiff became an employee of Lionbridge. 4. In early 2000, Plaintiff was promoted to Project Manager. In that capacity, in late

2000, Plaintiff was granted an extension of her H-1B Visa for the period from November 10, 2000 until October 1, 2003. To continue living and working in the United States beyond October 1, 2003, Plaintiff needed to receive permanent resident status, i.e. a "green card." 5. In March 2001, Plaintiff was promoted to Translation Manager, effective April 1,

2001. This change of position required an amendment to her H-1B Visa. Lionbridge was aware of the need for this change, but did not file for an amendment. 6. Under Lionbridge's Permanent Resident Program ("Program"), a foreign employee

can request sponsorship of his or her green card application. The Program states that 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, must agree not move to any other position within the organization until the application for permanent residency had been on file with the INS for more than 180 days, and must agree to allow legal counsel selected by Lionbridge to handle the application process. Once the application is filed, the employee "MUST continue to be employed full-time by Lionbridge" (emphasis original). 7. The Program describes in detail the entire green card application process, from

seeking and obtaining the labor certification to issuance of the green card. It states that if the labor certification is not granted, there is an appeal process that takes about two months.

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8.

Plaintiff made a request for sponsorship after she became eligible, but the company

later misplaced her file. In September 2001, Plaintiff again requested sponsorship under the Program, thereby agreeing that if sponsorship was granted, she would continue to work for Lionbridge, allow attorneys selected by Lionbridge to handle the application process, not move to another position within Lionbridge until 180 days had passed after the application had been filed, and remain employed by Lionbridge for two years after her receipt of permanent resident status. 9. In late November 2001, Barbara Peralta, the Boulder Site Manager, submitted a

Green Card Sponsorship Form for Plaintiff as "Manager, Translation Dept." Therein, the Site Manager said that she saw Plaintiff as a long-term employee at Lionbridge with a bright future in the management team. 10. On December 17, 2001, Lionbridge informed Plaintiff that it had approved "full

sponsorship" of her application under the Program. On January 3, 2002, Lionbridge informed Plaintiff that it would have an attorney handle the application process and would begin compiling the necessary paperwork. 11. Plaintiff had worked for the company and its predecessors since 1997 and had an

excellent job performance history. She had demonstrated a high level of commitment and loyalty to the company. She recognized that Lionbridge would have complete control of the green card process, trusted it to handle it diligently and appropriately, and believed that Lionbridge would act on her behalf in the process and in the dealings with the INS. As a consequence of this relationship and Lionbridge's promises and statements, Plaintiff allowed Lionbridge to proceed with the process and she relied on Lionbridge to handle it in an appropriate manner.

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12.

When Plaintiff entered the Program, she was aware of actions that Lionbridge and

its predecessors had taken in the past with respect to other similarly situated employees and she reasonably believed that Lionbridge would take such actions with respect to her, if necessary. 13. Plaintiff reasonably relied on Lionbridge's promise to her detriment. She continued

to work for Lionbridge, instead of seeking other employment. Had Plaintiff known that Lionbridge would later refuse to take reasonable actions necessary to proceed with the application process, she would have sought employment with an employer willing to take such actions. 14. Plaintiff held the position of Translation Manager when Lionbridge agreed to provide

full sponsorship. However, her H-1B Visa reflected her former job of Project Manager. In late January or early February 2002, Lionbridge determined that Plaintiff's Visa would have to be amended to reflect this change before an application for a green card could be filed. 15. On February 11, 2002, Lionbridge informed Plaintiff that before the application for

a green card could be filed, Plaintiff's Visa had to be amended to reflect her current job of Translation Manager. Upon request, Plaintiff immediately supplied Lionbridge with written job descriptions for her former and current positions. 16. In early March 2002, Lionbridge hired attorney Sharryn E. Ross ("Ross") to handle

the green card process for Plaintiff. Ross acted as Lionbridge's agent in this process. 17. After agreeing to handle the green card process, Ross became aware that Plaintiff's

Visa had not been amended after her April 2001 promotion to Translation Manager. Ross knew that such an amendment was necessary before the green card application could be filed. Ross also knew that Lionbridge had been required by law and/or regulation to amend the Visa when Plaintiff was promoted, that Lionbridge was in violation of the same for failing to do so, and that Lionbridge was

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subject to a claim for back wages if it was determined that it had failed to pay Plaintiff the prevailing wage for the position of Translation Manager. 18. Lionbridge also knew that it had been required by law and/or regulation to amend the

Visa when Plaintiff was promoted, that it was in violation of the same for failing to do so, and that it was subject to a claim for back wages if it was determined that it had failed to pay Plaintiff the prevailing wage for the position of Translation Manager. 19. To obtain an amendment of Plaintiff's Visa, Lionbridge was required to represent to

the United States Immigration and Naturalization Service ("INS") that it would be paying Plaintiff the prevailing wage for the Translation Manager position. This is required to prevent United States employers from taking jobs away from United States citizens by hiring aliens at salaries below what the employer would have to pay a United States citizen. 20. On March 14, 2002, Plaintiff faxed to Ross certain documents that Ross had

requested from Lionbridge. On March 15, 2002, Ross's assistant, Shaun Foster, sent an email to Plaintiff, requesting certain additional information. Plaintiff emailed the requested information to Foster the same day. 21. By March 15, 2002, Ross had prepared certain paperwork to be submitted to the INS

in order to obtain an amendment of Plaintiff's Visa. Although Ross was aware that Plaintiff had held the position of Translation Manager since April 2001, the paperwork incorrectly stated that Plaintiff held the position of Project Manager and that the promotion to Translation Manager was intended, but had not occurred. Upon information and belief, Ross intended to file this paperwork once she obtained information that the salary being paid to Plaintiff as Translation Manager met the prevailing wage requirement.

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22.

Lionbridge was aware that Ross intended to file the paperwork that incorrectly stated

that Plaintiff held the position of Project Manager and that the promotion to Translation Manager was intended, but had not occurred. Lionbridge did not want the INS to know that Plaintiff had held the Translation Manager job since April 2001. Lionbridge had concealed and misrepresented this fact in communications with the United States Department of State in June 2001 and communications with the Office of American Services in August 2001. 23. Plaintiff had been informed by Lionbridge that the process for obtaining an

amendment of her Visa would be complete by the end of March 2002. On April 12, 2002, she emailed Foster and asked that she be kept posted regarding status. On April 16, 2002, Foster emailed Plaintiff and told her that the law firm needed to obtain a formal prevailing wage determination from Department of Labor and Employment for the State of Colorado before moving forward. Later that day, he emailed Plaintiff that the law firm had filed the request for a prevailing wage determination. 24. On April 18, 2002, Ross learned from Renee Rinehart of the State of Colorado

Department of Labor Certification that Rinehart 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. Under this determination, Plaintiff would have to be paid a salary within 5% of this figure in order to satisfy the prevailing wage requirement. Plaintiff then was making $57,000 per year. Therefore, the salary being paid to Plaintiff did not satisfy the prevailing wage requirement, under the determination by the State of Colorado.

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25.

Ross and Lionbridge believed that Plaintiff was being paid a salary in line with the

prevailing wage for her position. Other Lionbridge employees holding similar positions at other offices were being paid salaries equal to or less than Plaintiff. Employees holding similar jobs at other companies in the same industry were being paid salaries similar to that being paid to Plaintiff. 26. Ross believed that the Translation Manager position should have been classified as

Level 1, rather than Level 2. 27. On April 18, 2002, Ross communicated with Rinehart via email and questioned why

the position was classified as Level 2. Rinehart stated that Level 1 wages are for entry level jobs or positions requiring little or no experience and that Level 2 wages are for experienced positions. Rinehart stated that the fact that the Translation Manager position required a bachelor's degree and two years experience made it a Level 2 position. Ross told Rinehart that she disagreed with this determination and expected that certain new guidelines to be forthcoming from the United States Department of Labor would clearly state that a job which requires a bachelor's degree and two years experience can be classified as Level 1. Rinehart said that she would not consider changing her position until such new guidelines were issued. 28. Had Lionbridge been willing to agree to pay Plaintiff, upon issuance of a green card,

a salary of $100,974, which is within 5% of $106,288, Plaintiff's Visa could have been amended and the green card application could have been filed using the prevailing wage as determined by the State of Colorado. 29. Had Lionbridge acted to amend Plaintiff's Visa when she was promoted in April

2001, the prevailing wage problem would have arisen at that time, rather than in April 2002, thus allowing ample time to attempt to address and solve the problem.

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30.

Although Rinehart had elected to place the Translation Manager position within the

category of "General and Operations Managers," Plaintiff was not a general manager or operations manager and Ross did not believe that she was. Ross determined that if the Translation Manager position was placed within the category of "Managers, all other," the prevailing Level 2 wage would be reduced from $106,288 to $87,922 per year. If Plaintiff's position had been so classified, a salary of $83,546, which was within 5% of $87,922, would have satisfied the prevailing wage requirement, even if Rinehart had refused to classify the position as Level 1. 31. Ross did not attempt to convince Rinehart that the Translation Manager position

should be classified with "Managers, all others" instead of "General and Operations Managers." 32. Although Plaintiff had asked Foster to keep her posted, neither Foster nor Ross

informed Plaintiff of the unfavorable prevailing wage determination, of Ross's communications with Rinehart, or of the new guidelines expected to be issued by the United States Department of Labor. However, Ross informed Lionbridge of these developments on April 24, 2002. In that

communication, Ross told Lionbridge that a private wage survey could be commissioned, to be used in lieu of the prevailing wage determination. She told Lionbridge that she had decided not to do this and instead would wait for six weeks for the new guidelines to be issued. 33. Lionbridge told Ross on or about April 24, 2002 that it would not pay Plaintiff a

salary sufficient to satisfy the prevailing wage requirement as determined by the State of Colorado. 34. Ross could have applied for an amendment to Plaintiff's Visa without a favorable

prevailing wage determination for the State of Colorado. Specifically, if Lionbridge believed that it was paying Plaintiff the prevailing wage for the position of Translation Manager, it could have made such a statement in the application. This statement would have been challenged only in the

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unlikely event of an audit. Nevertheless, Ross did not seek to amend Plaintiff's Visa even though she was aware that such an amendment should have been sought when Plaintiff was promoted to Translation Manager in April 2001. Lionbridge did not want to seek an amendment because the INS might discover that Lionbridge had been in violation of the law and/or regulation that required the Visa to be amended when Plaintiff was promoted. 35. After communicating with Foster on April 16, 2002, Plaintiff heard nothing for over

a month. She contacted Foster for information. On May 29, 2002, Foster informed her that the law firm had encountered a problem relating to the prevailing wage and that they were awaiting a clarification from the National Office of the Department of Labor. He did not provide any specifics regarding the prevailing wage determination received from the State of Colorado on April 18, 2002. Plaintiff asked Foster to find out from Ross when the clarification would be received. On June 4, 2002, Foster told Plaintiff that Ross said that the information from the Department of Labor had not been received. developments. 36. Another month and a half passed without any additional information being provided Foster said that he would notify Plaintiff as soon as there were any new

to Plaintiff. On July 15, 2002, she asked Foster for an update and expressed concern about the lack of progress and the fact that her Visa would be expiring in October 2003. On July 17, 2002, Foster informed Plaintiff that the law firm had been instructed that Plaintiff should contact Lionbridge for information about her case. Ross had been instructed by Lionbridge not to engage in further communications with Plaintiff. 37. Plaintiff contacted Lionbridge for information on July 18, 2002. On July 22, 2002,

Lionbridge told Plaintiff that there was a problem with the prevailing wage and that it was seeking

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approval of an alternative wage source. She was informed that the law firm still had not received the clarification. 38. Although the prevailing wage can be established though a prevailing wage

determination from the State Department of Labor Certification, other methods are available. As Ross stated to Lionbridge on April 24, 2002, a private wage survey can be commissioned, to be used in lieu of a prevailing wage determination. Qualified industry salary surveys also can be used. 39. Ross did not reasonably investigate the cost of commissioning a private survey. At

most, she merely talked to a lawyer at another firm, who told her that another lawyer in that firm had commissioned a survey at a cost upward of $10,000. Based on this information, which Ross admits is hearsay, Ross informed Lionbridge that a private survey to be used in Plaintiff's case would cost $10,000 or more. Lionbridge later relied on this information in deciding not to commission a survey. 40. Any source for a survey is acceptable, as long as the survey has state-specific

information and complies with requirements established by the United States Department of Labor. The survey can be conducted by an independent survey company or by the employer, itself. There were surveys available through industry associations that could have been used in 2002 to demonstrate that Plaintiff was being paid the prevailing wage for the position of Translation Manager. Ross failed to reasonably investigate whether such surveys might exist. 41. On September 5, 2002, Ross emailed Lionbridge, asking whether it used any industry

surveys in its work. According to Ross, Lionbridge told her that the only industry surveys of which it was aware were not state-specific. According to Ross, Lionbridge did not tell her what effort had been made, if any, to find a survey that might be utilized in the process. Lionbridge made no effort

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to determine whether qualified industry surveys were available or whether there existed industry data that could be utilized to demonstrate the Plaintiff was being paid the prevailing wage for her position. 42. Lionbridge was aware that the Colorado law firm that obtained Plaintiff's H-1B Visa

in 1997 had previously indicated that there were a number of alternative methods for establishing the appropriate prevailing wage and had offered assistance to Lionbridge in dealing with the prevailing wage requirement. However, Lionbridge did not contact that firm for assistance in connection with the problems encountered in Plaintiff's case. 43. Lionbridge's decision whether to pay for a private survey was given to Barbara

Peralta. Based on the information provided by Ross, she believed that the cost of such a survey was around $10,000. Such expense would have affected her bottom line and she was not willing to bear this expense. 44. 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. 45. Plaintiff could have continued working in the United States beyond October 1, 2003

if her green card application had been filed at least one year prior to that date. 46. Plaintiff's September 17, 2002 communication resulted in a meeting at Lionbridge.

For the first time, Plaintiff was informed that the prevailing wage determination indicated 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 because

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of the expense. 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. Translator is a Level 1 position and Plaintiff's salary was within the prevailing wage range for Level 1 positions within the category of "General and Operations Managers." 47. Plaintiff did not want to be demoted from Translation Manager to Translator, even

though her salary would remain the same. 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. 48. Plaintiff requested that Lionbridge arrange for a conference call with Ross, so that

Plaintiff could ask her questions. Lionbridge scheduled the call for October 8, 2002, which it stated was the earliest date that could be arranged. However, the conference call was not held. Plaintiff requested that the conference call be rescheduled, but Lionbridge refused to do so. Ross was aware that Plaintiff wanted to speak to her and ask questions. 49. The new guidelines from the United States Department of Labor were issued in

approximately early October 2002. Ross received and reviewed these guidelines. She then spoke to Jim Shimada, a representative of the Department of Labor Certification for the State of Colorado, in an attempt to convince him to reconsider the prevailing wage determination issued in April 2002. He declined to do so. Ross had no further contact with the State of Colorado concerning Plaintiff's case. 50. After the issuance of the new guidelines and her unsuccessful attempt to convince

Shimada to reconsider the prevailing wage determination, Ross continued to believe that the

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Translation Manager position should be classified as Level 1, rather than Level 2. 51. After the State of Colorado declined to reconsider its prevailing wage determination,

Ross could have challenged this determination by filing the green card application and stating that Plaintiff's salary met the prevailing wage requirement. Approximately two years later, a federal analyst would have decided the issue. If that decision was adverse, it could have been appealed. 52. Had Ross elected to challenge the State of Colorado's prevailing wage determination

and filed the green card application, Plaintiff would have been permitted to live in the United States and work for Lionbridge until a decision was made by the federal analyst. Such a decision would not have been reached until at least a year after her Visa expired on October 1, 2003. 53. Ross did not tell Plaintiff that she could challenge the prevailing wage determination

or that she could file an application even without a favorable determination from the State of Colorado. 54. Ross now contends that such a challenge would have been too risky, because it could

have been unsuccessful, thus wasting the time and effort put into the process. Ross did not ask Plaintiff if she wanted to proceed with the green card application despite this risk. 55. On October 15, 2002, Ross emailed Lionbridge, stating that the new guidelines had

come out, but that the Colorado office would not lower the prevailing wage. She stated that the only option was for Plaintiff to accept a demotion to Translator. 56. On October 24, 2002, Lionbridge informed Plaintiff that the new guidelines were

not favorable for the position of Translation Manager. 57. Although Plaintiff's job title was Translation Manager, management duties made up

only about 20% of her duties. She had only four direct reports. Her management duties consisted

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of writing yearly performance reviews for the four direct reports, approving time sheets and conducting a weekly department meeting. If these management duties had been eliminated, she still would have had sufficient work to easily fill a forty hour work week. 58. Lionbridge and its predecessor companies have assisted employees in the past by

"tweaking" job descriptions and/or job duties to meet the prevailing wage requirement. In fact, Lionbridge previously has removed direct reports to obtain a favorable prevailing wage determination. Such tweaking is a common practice. Although Lionbridge had not expressly promised to tweak her job description and/or job duties, Lionbridge told Plaintiff that it would do whatever it takes to meet the prevailing wage requirement and gave her reason to believe that this would include modification of her job description and/or job duties. Barbara Peralta acknowledged in an email that Lionbridge had tweaked descriptions in the past for green card purposes. 59. Plaintiff suggested to Lionbridge that her job duties be modified to take away her

direct reports, thus removing her direct management duties. This same action had been taken by Lionbridge and predecessor companies in order to meet prevailing wage requirements for other employees. Ross believes that tweaking of job duties is an appropriate way around a prevailing wage problem, if the employee actually will be performing the job, as modified. 60. After Plaintiff suggested to Lionbridge that her direct reports be eliminated,

Lionbridge asked Ross whether this could be done. Ross was told by Lionbridge that the elimination of direct reports would take away most of Plaintiff's job duties and "it wouldn't be the job anymore." Based on this representation, Ross told Lionbridge that this was not an option. However, Ross did not ask Plaintiff whether Lionbridge's representation was true. 61. Although Ross believes that tweaking of job duties is appropriate if the employee

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actually will be performing the job, as modified, she believes that modification of the job to lessen its requirements may open the position to qualified United States citizens. In such event, the employer would be unable to demonstrate that there are no United States citizens qualified to perform the job, a showing required for the issuance of H-1B Visas and green cards. 62. Although the lessening of job requirements makes it more likely that the job could

be opened to qualified United States citizens, Ross believes that the existence of a language requirement can eliminate that concern, since it is difficult to find United States citizens fluent in a foreign language and having knowledge of foreign language computer terminology and software applications. 63. Ross contends that removal of Plaintiff's direct reports would have opened the job to

qualified United States citizens. She acknowledges, however, that the existence of a language requirement for the position of Translation Manager would have eliminated this concern. 64. The written job description for the position of Translation Manager was provided to

Ross by Lionbridge and is contained in her file. This document indicates that the job requires a Bachelor's Degree in translation, two to four years translation experience, and knowledge of other languages. It requires training and supervision of other translators. Under "Position Summary" on the first page of the job description, it states, "This position is primarily responsible for supervising the in-house and external translators and the accomplishments of the translation portion of projects including the quality of the service." 65. Ross claims that she asked and was told by Lionbridge that there was no language

requirement for the Translation Manager position. She contends that, based on this representation, she believed that there was no language requirement, even though the written job description was

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then in her possession. Ross has admitted that she did not know what Plaintiff did on her job. She never asked Plaintiff about her job duties or whether knowledge of a foreign language was required to perform her job. 66. Ross never discussed the relevance of the language requirement with Lionbridge or

Plaintiff. Since the inclusion of a language requirement would have eliminated the concern that the removal of the direct reports would make the job available to United States citizens, Plaintiff's job duties could have been changed to eliminate her four direct reports and reduce the job from Level 2 to Level 1. If this effort was successful, the green card application could have been filed with a favorable prevailing wage determination from the State of Colorado. 67. Plaintiff suggested that she be given the title of Translation Supervisor, which would

eliminate her management duties, but would preserve the desirable non-management aspects of her job that distinguished her position from that of Translator. This job title had been held by employees at other Lionbridge offices. Lionbridge communicated this suggestion to Ross, stating "the job would actually entail technical translation with lead responsibilities over other translators." Ross told Lionbridge that this would not change the result. 68. Supervisor. 69. Although Ross told Lionbridge that changing the job title to Translation Supervisor Lionbridge rejected Plaintiff's suggestion that her job be changed to Translation

would not change the prevailing wage, she did not have sufficient information to make that determination. She now asserts that she needed to see a complete job description for the proposed Translation Supervisor position. However, she did not request that she be provided with one or

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indicate to Lionbridge that she needed more information before she could render an opinion on this question. 70. Although Lionbridge said that it would proceed with the green card application only

if Plaintiff accepted a demotion to Translator before the application was filed, an immediate demotion was not required. The employer is required only to represent that it will have the designated job available for the applicant when the green card is issued. Therefore, Plaintiff could have remained in the position of Translation Manager pending a decision on the application for a green card for the position of Translator. 71. Through her own investigation, Plaintiff learned that any demotion accepted for

purposes of a green card application does not have to be made effective until the application is granted. Plaintiff provided this information to Lionbridge and expressed a willingness to accept a future demotion to Translator, while continuing to hold her Translation Manager position during the pendency of her application. 72. Lionbridge told Ross that Plaintiff had offered to accept a future demotion. Ross

knew that the green card application could be filed for the position of Translator, without requiring Plaintiff to accept an immediate demotion. 73. Lionbridge refused Plaintiff's suggestion that she accept a future demotion. It

continued to insist, without explanation, that the application could not be filed without an immediate demotion. Ross was aware that Lionbridge had refused Plaintiff's suggestion.

Lionbridge's insistence that Plaintiff accept an immediate demotion was motivated in part by its awareness that Plaintiff's retention of the Translation Manager position, without amendment to her Visa, would cause Lionbridge to be in continued violation of the law and/or regulations that required

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an amendment upon Plaintiff's promotion from Project Manager to Translation Manager in April 2001. 74. Ross now agrees that the green card application could have been filed for the position

of Translator without requiring Plaintiff to accept an immediate demotion, but asserts that this could have raised a red flag at the INS and caused it to question whether Plaintiff actually would be performing the job of Translator. She did not ask Plaintiff if she wanted to proceed with the application despite this alleged risk. 75. In November 2002, Plaintiff requested that Lionbridge authorize Plaintiff to retain

her own immigration counsel, at Lionbridge expense, to proceed forward. 76. In a letter dated December 20, 2002, Lionbridge's general counsel acknowledged that

the green card application could have been filed for the position of Translator without requiring an immediate demotion. However, she stated that this would raise a red flag at the INS and reiterated Lionbridge's position that it would proceed with the green card application only if Plaintiff accepted an immediate demotion. The letter refused Plaintiff's request that she be allowed to hire separate immigration counsel, stating that employees were required to use counsel designated by Lionbridge for the entire process. 77. With regard to the possibility of modifying Plaintiff's job description, the December

20, 2002 letter stated that taking away Plaintiff's management responsibilities was not feasible, because management was her main responsibility. Plaintiff told Lionbridge general counsel in late December 2002 that management responsibilities made up only 20% of her duties and that other duties, formerly performed by Plaintiff, could be added to Plaintiff's responsibilities if the

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management duties were eliminated. Plaintiff also asked general counsel to consider applying for the green card using the position of Translation Supervisor. 78. Lionbridge general counsel forwarded Plaintiff's suggestions to Ross, stating that she

was prepared to reject the suggestions unless Ross convinced her otherwise. Ross still did not have sufficient information to determine whether the position of Translation Supervisor was a Level 1 job and did not request such information from the general counsel. 79. On January 7, 2003, Shukur rejected the suggestion that Plaintiff be made a

Translation Supervisor. She stated that Plaintiff's sole option was an immediate demotion to Translator. Since Plaintiff was unwilling to accept an immediate demotion, the discussions ceased. 80. Plaintiff's H-1B Visa expired on October 1, 2003 and she was forced to resign her

employment with Lionbridge. 81. Plaintiff obtained a Tourist Visa, which allowed her to remain in the country until

the end of January 2004. 82. Plaintiff was forced to leave the United States after the expiration of her Tourist Visa.

To obtain another H-1B Visa, Plaintiff must remain outside of the country for a total of 365 days and must also secure another job. Congress has drastically reduced the number of H-1B Visas to be issued, reducing the likelihood that Plaintiff will be able to obtain one. 83. Plaintiff was receiving a salary of $57,000 as of October 1, 2003. On November 11,

2005, she was hired by the United Nations to work with the International Criminal Tribunal in The Hague, Netherlands. 84. United States: Plaintiff has incurred the following expenses as a result of her departure from the

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a. b. c. d. e. f. g.

$1700: $2500: $450: $600: $1200: $300: $300:

airfare car car insurance gas ISP subscription; phone, food, contribution to other bills and general living expenses attorney fees consulting with other immigration attorneys in Fall 2002 expenses of therapy CONCLUSIONS OF LAW

1.

Under the terms of Lionbridge's Permanent Resident Program, Lionbridge promised

to assist and support Plaintiff in the process of applying for permanent resident status. Plaintiff's part of the bargain required her to commit to remain at the company for two years following the receipt of permanent resident status, to not move to any other position within the organization until the application for permanent residency had been on file with the INS for more than 180 days, and to allow legal counsel selected by Lionbridge to handle the application process. 2. Lionbridge breached this promise by failing to assist and support Plaintiff as

promised. Lionbridge breached this promise by: a. b. c. d. e. f. never submitting an application for permanent resident status; waiting over two months to hire counsel to handle the process; delaying the process further by failing to amend her H1-B visa to reflect the job change that occurred long before sponsorship was approved; failing to provide her with information about the unfavorable prevailing wage determination; failing to appeal the initial adverse prevailing wage determination; failing to pay her the prevailing wage for her job as determined by the State of Colorado;

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g. h. i. j. k.

failing to make any effort to determine whether other industry sources were available for use in determining the prevailing wage; failing to make any effort to determine the actual cost of a salary survey; refusing to commission such a survey, which could have been used in lieu of the prevailing wage determination by the State of Colorado; instructing its attorney not to talk to Plaintiff; refusing to take reasonable action to tweak Plaintiff's job description or modify her job duties or title, which it had done in the past for other employees in order to meet the prevailing wage requirement; refusing to do anything further unless Plaintiff agreed to an immediate demotion, even though such a demotion was not necessary to file the application; declining to challenge the prevailing wage determination by filing the application with a statement that Plaintiff's salary would meet the prevailing wage requirement, even though it believed this to be true.

l.

m.

3.

Promissory estoppel is an extension of the basic contract principle that one who

makes promises must be required to keep them. Patzer v. City of Loveland, 80 P.3d 908, 912 (Colo. App. 2003). The elements of promissory estoppel are: (1) the promisor made a promise to the promisee; (2) the promisor should reasonably have expected that the promise would induce action or forbearance by the promisee; (3) the promisee in fact reasonably relied on the promise to the promisee's detriment; and (4) the promise must be enforced to prevent injustice. Id. 4. Promises which are ancillary to an otherwise at-will employment arrangement may

support a claim for promissory estoppel. Pickell v. Arizona Components Co., supra, at 395. See also, Gomez v. Martin Marietta Corp., supra, at 1515. 5. Lionbridge made a promise to assist and support Plaintiff in the process of applying

for lawful permanent resident status. Plaintiff relied on the promise by accepting Lionbridge's offer

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of sponsorship and continuing to work for Lionbridge rather than attempting to secure employment elsewhere. She further agreed to allow counsel selected by Lionbridge to handle the entire process. As outlined above, Lionbridge and its counsel did not assist and support Plaintiff. As a

consequence, no application was filed and Plaintiff was required to resign her employment and leave the country. 6. As a proximate result of Lionbridge's breach of promise, Plaintiff has suffered Judgment is entered in favor of

economic damages in the amount of $__________________.

Plaintiff and against Defendant Lionbridge in the amount of $_______________, plus pre-judgment interest in an amount to be determined. 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

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Document 105

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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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