Appeals Court Returns Green Card Lawsuit to Jury

December 31, 2008 (PLANSPONSOR.com) - A court of appeals returned a case to the jury to determine whether an employee should have accepted a reduced position during a green card dispute.
By PS

The 10th Circuit Court of Appeals affirmed in part and reversed and remanded for new trial a claim for breach of fiduciary duty in a lawsuit over a green card.

A jury awarded foreign national Isabelle DerKrevorkian more than $500,000 after she brought suit against her former employer, Lionbridge Technologies, Inc. Her temporary H1-B visa expired while she and her employer disputed a wage issue in filing her green card. During this dispute, she accepted a position for lower pay, according to the court opinion.

Cause of Action

Lionbridge Technologies appealed the denial of a motion for a new trial and the entry of judgment, following a jury trial, in favor of DerKevorkian, according to the court document. In this case, DerKevorkian cross-appealed an adverse ruling on summary judgment for attorney Sharryn Ross, an immigration attorney retained by Lionbridge to assist in the green card application process, as well as a reduction of pre-judgment interest on one of the amounts due her from Lionbridge.  At that point, the attorney assisting DerKevorkian determined that DerKevorkian was paid less than other managers.

Subsequently, DerKrevorkian and her employer via Ross’ law firm went back and forth disputing whether she should accept a lower position in line with her lower pay, but DerKrevorkian refused to accept a demotion. During this dispute, the employee’s visa expired and she was forced to leave the U.S.  DerKrevorkian later filed suit against her employer, alleging negligence, contract breach, fiduciary breach, and promissory estoppel. The district court granted summary judgment against the negligence claim.

After the case was removed to federal court, she added as defendants Ross and her law firm, Ross, Silverman & Levy, and asserted a legal malpractice claim against them on January 7, 2003, the court documents said. An amended complaint asserting a legal malpractice claim against Ross as well as Lionbridge was filed on March 15, 2005, according to the court document.

The case was presented to a jury on the three claims (breach of contract, breach of fiduciary duty and promissory estoppel) in December 2006. At trial, the district court refused the instruction Lionbridge sought concerning DerKevorkian’s mitigation of damages by taking a demotion to the translator job.  The jury returned a verdict against Lionbridge on the contract claim, awarding DerKevorkian almost $500,000 damages.

Decision Affirmed

The 10th U.S. Circuit Court of Appeals affirmed the district court’s grant of summary judgment against DerKrevorkian and in favor of Ross on the ground that the statue of limitations had expired at the time DerKrevorkian filed her action against Ross and her firm. So while affirming in part, it also reversed and remanded for a new trial for breach of fiduciary duty. 

The court of Appeals returned the case to the jury to decide whether DerKrevorkian should have accepted a reduced position.

The case is Der Kevorkian v. Lionbridge Technologies Inc., 10th Cir., Nos. 07-1125, 07-1149 (Dec. 3, 2008).

—Ellie Behling

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