A Refresher And Follow Up Look At The Case Of DerKevorkian v. Lionbridge Techs, Inc.
I. PERM Cases: Obligation, Mitigation and costly Litigation.
On January 26, 2006 the United States District Court for the District of Colorado issued a decision in the case of DerKevorkian v. Lionbridge Technologies.1 A foreign national, Isabelle DerKevorkian, sued her former employer (Lionbrdge) when Lionbridge refused to go forward with a green card process that had been initiated on her behalf. At trial, a jury awarded DerKevorkian $313,570 in economic damages $1 million in noneconomic damages. Upon review, the judge reduced the noneconomic award to $366,250 and reduced the economic damages award to $221,433.2 Even with the reduction in place, Lionbridge was left with a judgment against it of $587,683.
Over two years later, on December 3, 2008, the 10th Circuit remanded and now DerKevorkian may lose all of those damages. Nonetheless, Lionnbridge spent nearly two years in court, and the road it took to get there is instructive. This article will focus on points of law relevant to the immigration bar.3
While DerKevorkian, a French national, was working as an intern, Lionbridge agreed to sponsor her for permanent residence through the labor certification process. DerKevorkian entered into Lionbridge's Permanent Resident Program. DerKevorkian was initially working as a translator. She was later promoted to the position of "Translation Manager." After the filing of the initial prevailing wage determination, it was discovered that DerKevorkian's work visa had not been amended to reflect her promotion. When the prevailing wage documentation was updated to reflect her new title and responsibilities, the position became a "Level Two, General Operations Manager," which resulted in a wage of $106,288. At that time, DerKevorkian's annual salary was $57,000. Lionbridge informed DerKevorkian that it was unwilling to meet the new wage obligation and suggested that DerKevorkian take a demotion, without a decrease in pay, to her former position as a Translator. DerKevorkian refused on the grounds that a demotion would adversely affect her career.
III. Trial Before the District Court.
Subsequent negotiations failed to yield a result satisfactory to both parties and Lionbridge did not move forward with the labor certification process. At the end of her visa term DerKevorkian left the United States and subsequently brought suit against Lionbridge.
DerKevorkian alleged that a contract was created between herself and Lionbridge in which the latter agreed to "assist and support," DerKevorkian through the green card process. According to DerKevorkian's argument, when Lionbridge refused to meet the new wage obligation and go forward with the green card process they breached that contract. Importantly, DerKevorkian did not claim that her employment contract covered the green card process. Rather, she argued that when Lionbridge agreed to sponsor her green card a contract separate and apart from her employment contract was created. She argued that because Lionbridge did not take actions such as challenging the prevailing wage that was issued or commission a private wage survey, they had failed to "[take] all reasonable and appropriate actions to enable [DerKevorkian] to apply for the green card," and breached the contract associated with the Green Card process.
Lionbridge, for its part, argued that since DerKevorkian was admittedly in an at-will employment arrangement where Lionbridge could have ended her employment at any time, its decision to discontinue its support of her green card fell within the confines of that employment arrangement.
The judge did not buy Lionbridge's argument and concluded that when DerKevorkian entered into Lionbridge's Permanent Resident Program, a contractual agreement to support the green card process that was created.
2. Promissory Estoppel
Promissory estoppel is an old concept in the law that governs contractual obligations. A claim under promissory estoppel arises when an employer makes a promise, on which it should reasonably expect the employee to rely, and the employee in fact relies on the promise; and injustice can be avoided only by enforcement of the promise.4
In this case, DerKevorkian argued that Lionbridge promised its full sponsorship of the green card process under its Permanent Resident Program. DerKevorkian further argued Lionbridge reasonably should have expected her to rely on its support of the Permanent Resident Program from start to finish; that she did in fact rely on the Permanent Resident Program to her detriment. Presumably, if she had believed that Lionbridge was not going to meet its obligations under the Permanent Resident Program to its conclusion, she could have sought out another US employer would have sponsored her for a green card. She did not, and when her non-immigrant visa lapsed, she was left with no way to remain in the U.S.
3. Breach of fiduciary duty.
Using reasoning similar to that used in her other claims; DerKevorkian argued that Lionbridge violated its obligation to act in her best interest, or fiduciary duty. She argued that Lionbridge took complete control of the green card process and then mishandled it such that the result was that she did not obtain her green card.
Here again, the judge sided with DerKevorkian concluding that a fiduciary duty was created when DerKevorkian's long term employer agreed to sponsor her for the green card process and then violated that duty when it was mismanaged and subsequently abandoned.
IV. Decision of the 10th Circuit Court of Appeals.
Appeals and cross-appeals were filed to bring the case in from of the 10th Circuit Court of appeals ((10th Circuit).
The 10th Circuit did not completely reverse the lower courts rulings with respect the contractual and fiduciary duties discussed above. Rather, it took a more nuanced view of the relationship between the parties. If there was a fiduciary relationship between Lionbridge and DerKevorkian, and the 10th Circuit agreed that there was, did DerKevorkian have any duty to cooperate with Lionbridge? The 10th Circuit answered that question in the affirmative.
By extension, the 10th Circuit concluded that DerKevorkian had a duty to mitigate. In the context of this case that means that when Lionbridge offered her a different job (essentially a demotion), with a wage more in line with what they were already paying her, she failed to mitigate when she refused it.
The 10th Circuit further stated that DerKevorkian's true goal was the green card and not to work permanently in the job she held at the time. So if an opportunity to continue on the green card presented itself, even though it was via different job, her duty to mitigate required she take it.
On remand, it places before the jury at the district court, the question of to what extent DerKevorkian's actions contributed to the derailing of the green card process. The 10th Circuit acknowledged that the jury could find that had DerKevorkian taken the job as a translator she would presently have a green card. Such a finding would completely absolve Lionbridge of any fault in the process and would void the earlier awards of financial compensation. Of course, a contrary finding could leave in place much of the damages awarded to DerKevorkian.
This case emphasizes how important it is for employers to craft their green card sponsorship agreements is such a way as to clearly define what if any additional contractual obligations they intend to create.
It further underscores the necessity of crafting job descriptions that accurately reflect the requirements and responsibilities associated with a given position. While the case does not go into detail, it implies that had the job description been fine tuned so as to precisely describe DerKevorkian's job, the wage might have come back closer to what her actual salary was; which might have avoided the problems that led to the lawsuit.
The failure of Lionbridge to clearly define what additional contractual obligations it was taking on, coupled with its mismanagement of an employment based green card case cost it dearly. While it may yet avoid paying the damages awarded at the district court, the time spent pursuing the case cannot be recovered.
End Notes1DerKevorkian v. Lionbridge Technologies, No. 04-cv-01160-LTB-CBS, 2006 U.S. Dist. LEXIS 4191 (D. Colo. Jan. 26, 2006)
John Rotterman, Esq. joined the Hammond Law Firm as an attorney in July of 2006. Prior to that, he worked as the firm's law clerk. John graduated from the Case Western Reserve School of Law in May of 2006. Before attending law school, John worked as a bi-lingual customer service agent, and earned his Bachelor's degree from Miami University in 2002. He also spent a semester of college studying in Chile.
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