Petition for Writ of Certiorari — Arvind Gupta, Petitioner v. Headstrong, Inc., et al.
Supreme Court briefJun 3, 2022
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PETITION APPENDIX
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APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT
HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR
AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS
COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY
CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of
Appeals for the Second Circuit, held at the Thurgood
Marshall United States Courthouse, 40 Foley
2a
Square, in the City of New York, on the 19th day of
October, two thousand twenty-one.
PRESENT:
JOHN M. WALKER, JR.,
WILLIAM J. NARDINI,
STEVEN J. MENASHI,
Circuit Judges.
Arvind Gupta,
Plaintiff-Appellant,
v.
Headstrong, Inc., Genpact Limited,
Secretary of the United States Department
of Labor,
Defendants-Appellees.
20-3657
FOR PLAINTIFF-APPELLANT:
ARVIND GUPTA, pro se, New York, NY.
FOR DEFENDANTS-APPELLEES:
DANA G. WEISBROD, (Anna K.
Broccolo, Leo Ernst, on the brief),
Jackson Lewis, P.C., New York, NY (for
Headstrong, Inc. and Genpact Limited);
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Benjamin H. Torrance, Assistant U.S.
Attorney, for Damian Williams, United
States Attorney for the Southern District
of New York, New York, NY (for the
Secretary of Labor).
Appeal from a judgment of the United States
District Court for the Southern District of New York
(Abrams, J.).
UPON DUE CONSIDERATION, IT IS
HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is
AFFIRMED.
Plaintiff-Appellant Arvind Gupta, proceeding
pro se, appeals from (1) the denial of his motion for
attorney’s fees and litigation costs, and (2) the grant
of attorney’s fees to Defendants-Appellees
Headstrong, Inc. and Genpact Limited (together
“Headstrong”). With respect to Gupta’s motion, the
district court concluded that no statute or contract
provided for attorney’s fees, and that, in any event,
Gupta was not a prevailing party who would be
entitled to attorney’s fees or litigation costs. As for
Headstrong’s motion for attorney’s fees, the court
found that Gupta and Headstrong entered into a
settlement agreement in 2008 stating that Gupta
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would pay attorney’s fees to Headstrong if he
breached the settlement agreement by initiating
further litigation, which is exactly what Gupta did.
We assume the parties’ familiarity with the
underlying facts, the procedural history of the case,
and the issues on appeal.
We review a district court’s award of
attorney’s fees for abuse of discretion. McDaniel u.
County of Schenectady, 595 F.3d 411, 416 (2d Cir.
2010). An abuse of discretion occurs “when (1) the
court’s decision rests on an error of law (such as
application of the wrong legal principle) or clearly
erroneous factual finding, or (2) its decision - though
not necessarily the product of a legal error or a
clearly erroneous factual finding - cannot be located
within the range of permissible decisions.” Id.
(quoting Kickham Hanley P.C. v. Kodak Ret. Income
Plan, 558 F.3d 204, 209 (2d Cir. 2009) (alteration
omitted)).
The district court did not abuse its discretion
by denying Gupta attorney’s fees. Under the
“American rule,” “[e]ach litigant pays his own
attorney’s fees, win or lose, unless a statute or
contract provides otherwise.” Peter u. Nantkwest,
Inc., 140 S. Ct. 365, 370 (2019). To determine
whether Congress intended to depart from the
American Rule presumption, we look first to the
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language of the statute at issue. Id. at 372.
“Congress must provide a sufficiently ‘specific and
explicit’ indication of its intent to overcome the
American Rule’s presumption against fee shifting.”
Id. (quoting Alyeska Pipeline Serv. Co. v. Wilderness
Soc’y, 421 U.S. 240, 260 (1975)).
Gupta, who was hired by Headstrong on an
Hl-B visa,1 principally alleged in his complaint that
Headstrong failed to pay him wages he earned
during the course of his employment there. Gupta
argues that 8 U.S.C. § 1182(n)(2)(C)(i)(I), the
provision of the statute that governs Hl-B visas,
permits him to obtain attorney’s fees in pursuing
any allegedly withheld wages. But, as the district
court concluded, this provision does nothing of the
sort. Instead, the statute permits the Secretary of
Labor to impose “administrative remedies (including
civil monetary penalties in an amount not to exceed
$1,000 per violation) as the Secretary determines to
be appropriate” for violations of the Hl-B visa
program. 8 U.S.C. § 1182(n)(2)(C)(i)(I). On its face,
the statute does not provide that a court may award
attorney’s fees, nor does it offer any ‘“specific and
explicit’ indication of its intent to overcome the
American rule[.]” Peter, 140 S. Ct. at 372. The
1 The H-1B visa program permits nonimmigrant foreign
workers to work temporarily in the United States in “specialty
occupationfs].” 8 U.S.C. §§ 1101(a)(15)(H)(i)(b), 1182(n).
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reference in the statute to “administrative remedies”
is not sufficient to “invoke attorney’s fees with the
kind of clarity” required to depart from the American
rule. See id. (concluding that a statute’s reference to
“expenses” was not sufficient to permit award of
attorney’s fees).
Gupta does not argue that any contractual
provision provided him with the right to recover
attorney’s fees, nor could he. The 2008 settlement
agreement executed by the parties provides that
Gupta would pay “reasonable attorneys’ fees” to
Headstrong if Gupta breached the settlement
agreement, App’x at 158, but it contains no parallel
provision permitting Gupta to recover fees from
Headstrong. Accordingly, Gupta cannot recover
attorney’s fees under any statute or contractual
provision.
Nor did the district court abuse its discretion
in denying litigation costs to Gupta. Gupta primarily
argues that he was a prevailing party and was
entitled to recover litigation costs. Under Federal
Rule of Civil Procedure 54(d)(1), litigation costs
other than attorney’s fees “should be allowed to the
prevailing party.” But a plaintiff is the prevailing
party in a litigation only when “he has received a
judicially sanctioned change in the legal relationship
of the parties.” CRST Van Expedited, Inc. v.
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E.E.O.C., 578 U.S. 419, 422 (2016) (internal
quotation marks omitted). Usually, this occurs
“when a plaintiff secures an enforceable judgment on
the merits or a court-ordered consent decree.” Id.
(alterations omitted). But it can occur in other
contexts, such as when the plaintiff secures a
settlement of the litigation that grants him the same
kind of relief he sought in the complaint. See Lyte v.
Sara Lee Corp., 950 F.2d 101, 103-04 (2d Cir. 1991).
Here, Gupta has not obtained any change in
the relationship between Headstrong and himself
that would merit an award of litigations costs. As the
district court concluded/the parties have remained
in the same positions throughout the entire
litigation, with Headstrong refusing to pay any
additional wages to Gupta after the settlement, and
no administrative agency or court requiring
Headstrong to do otherwise. And while Gupta is
correct that a plaintiff may, in some circumstances,
be deemed a prevailing party if he is involved in
litigation that ends in a settlement, see id., that
authority is of no relevance here, since the 2008
settlement was executed before any of the litigation
began. Consequently, the parties’ relationship
remained unchanged throughout the administrative
and court proceedings, such that Gupta is decidedly
not a prevailing party entitled to costs.
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Finally, the district court did not abuse its
discretion in awarding attorney’s fees to Headstrong
under the parties’ settlement agreement. “[P]arties
may agree by contract to permit recovery of
attorneys’ fees, and a federal court will enforce
contractual rights to attorneys’ fees if the contract is
valid under applicable state law.” McGuire v. Russell
Miller, Inc., 1 F.3d 1306, 1313 (2d Cir. 1993).
Although New York follows the American Rule, it
permits parties to recover attorney’s fees in a
contract if the intention to provide for such fees “is
unmistakably clear from the language of the
[contract].” Hooper Assocs., Ltd. v. AGS Computers,
Inc., 74 N.Y.2d 487, 492 (1989). Here, the settlement
agreement expressly stated that Gupta would pay
any “reasonable attorneys’ fees” incurred by
Headstrong as a result of Gupta’s breach of the
settlement agreement. App’x at 158. Gupta clearly
breached that agreement - which provided that
Gupta would not subsequently sue or file any claims
relating to unpaid wages - when he filed a
Department of Labor complaint, followed by this
federal lawsuit, in 2017. In light of that breach,
Headstrong was entitled to attorney’s fees under the
terms of the agreement.
Gupta next argues that the district court
abused its discretion in awarding fees to Headstrong
because Headstrong is a wealthy company. When
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determining whether the requested amount of
attorney’s fees is reasonable, courts consider “the
difficulty of the questions involved; the skill required
to handle the problem; the time and labor required;
the lawyer’s experience, ability and reputation; the
customary fee charged by the Bar for similar
services; and the amount involved.” F.H. Krear & Co.
v. Nineteen Named Trustees, 810 F.2d 1250, 1263 (2d
Cir. 1987) (internal quotation marks omitted). The
district court appropriately applied these factors and
did not abuse its discretion by imposing
approximately $100,000 in attorney’s fees.
We have considered all of Gupta’s remaining
arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the
district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
/s/ Catherine O’Hasan Wolfe
UNITED STATES COURT OF
APPEALS * SECOND CIRCUIT *
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APPENDIX B
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ARVIND GUPTA,
Plaintiff,
v.
HEADSTRONG, INC., GENPACT
LIMITED, and SECRETARY OF THE
U.S. DEPARTMENT OF LABOR,
Defendants.
No. 17-CV-5286 (RA)
MEMORANDUM OPINION & ORDER
DATE FILED: SEPTEMBER 28, 2020
RONNIE ABRAMS, United States District Judge:
Plaintiff Arvind Gupta, proceeding pro se,
brought this action against Defendants Headstrong,
Inc. and Genpact Limited (collectively, “Headstrong”)
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for wages allegedly owed to him under the H-1B
provisions of the Immigration and Nationality Act
and for judicial review, under the Administrative
Procedure Act, of orders of the Department of Labor
dismissing his administrative claims against
Headstrong. On September 9, 2019, the Court issued
an Opinion and Order granting Headstrong’s motion
to dismiss, granting the Department of Labor’s
motion for summary judgment, and denying Gupta’s
motion for summary judgment. Now before the Court
are Gupta’s motion for attorneys’ fees and costs and
Headstrong’s motion for attorneys’ fees. For the
reasons that follow, Gupta’s motion is denied and
Headstrong’s motion is granted, subject to the
modifications discussed below.
BACKGROUND1
Familiarity with the facts and procedural
history of this case is assumed. The Court here
provides only a brief overview of the factual and
procedural background that is relevant to the
instant motion.
In early 2006, Headstrong hired Gupta, a
citizen of India, to work in the United States
pursuant to an H-1B visa. The H-1B visa program
1 Unless otherwise noted, the factual background is taken from
the Amended Complaint. Dkt. 93 (“Am. Compl.”).
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permits non-immigrant foreign workers to work
temporarily in the United States in “specialty
occupation[s].” 8 U.S.C. §§ 1101(a)(15)(H)(i)(b),
1182(n). Headstrong filed a Labor Condition
Application (“LCA”) with the Department of Labor
(“DOL”), and United States Citizenship and
Immigration Services (“USCIS”) approved Gupta’s
H-1B petition for a period of authorized employment
running from April 24, 2006 until November 8, 2007.
Under the INA, an employer who hires a non
immigrant foreign worker pursuant to an H-1B visa
is obligated to pay that employee a stipulated wage
rate, which is specified in the LCA, for the entire
period of authorized employment. 20 C.F.R.
§ 655.730(d); see 8 U.S.C. § 1182(n)(l)(A),
(2)(C)(vii)(I). This wage obligation applies even for
periods of “nonproductive” time “due to a decision by
the employer,” though it does not apply if the
employer effects a “bona fide termination” of the
employee. 8 U.S.C. § 1182(n)(2)(C)(vii)(I), (IV); 20
C.F.R. 655.731(c)(7)(i), (ii).
On November 14, 2006, Headstrong notified
Gupta that he would be terminated and, after
November 28, 2006, it did not assign him any further
work. In December of 2006, Headstrong and Gupta
entered into a severance agreement. Then, in April
of 2008, Gupta, who was counseled at the time, sent
Headstrong a request for payment of further wages
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allegedly owed to him for the period of his authorized
employment. In May of 2008, Gupta and Headstrong
entered into a settlement and release agreement,
which was notarized and signed by both parties. Dkt
58-2 (the “Settlement Agreement”). Pursuant to the
Settlement Agreement, Headstrong agreed to pay
Gupta a lump sum payment of $7,000. Id. ]j 1. In
addition, Gupta and Headstrong agreed to a
comprehensive mutual release of claims. Id. IfU 3, 5,
11. Pursuant to this release, Gupta agreed to
“release and forever discharge” Headstrong “of and
from all . . . suits, actions, causes of actions, charges,
complaints, grievances, judgments, damages . . .
which [he] ever had, now ha[s], or which may arise
in the future, regarding any matter arising on or
before the date of [his] execution of’ the Settlement
Agreement. Id. 1} 3. He also agreed “not to sue or file
a charge, complaint, grievance, or demand for
arbitration against” Headstrong “in any forum.” Id.
U 5. The Settlement Agreement further provided
that Headstrong may recover attorneys’ fees and any
other damages incurred as a result of Plaintiff Gupta
breaching his obligations under the Settlement
Agreement:
In the event of a breach by You or any
Releasor of any provision of this
Agreement and Release, and without
limiting in any way remedies available
14a
to the Company for such breach, You
agree to indemnify and hold harmless
the Releasees from and against any
and all losses, liabilities, damages,
and expenses, including reasonable
attorneys’ fees, that any Releasee may
incur or suffer arising out of or in
connection with any breach of a
representation or agreement by You or
any Releasor.
Id. U 10. In February of 2010, Gupta sent
Headstrong an email purporting to rescind the
Settlement Agreement.
After entering into the Settlement Agreement,
Gupta filed a complaint with the DOL alleging that
Headstrong had failed to pay him wages owed
during the period of his authorized employment.
After several years of back-and-forth within the
DOL, and the resolution of a separate action filed in
this Court,2 an Administrative Law Judge (“ALJ”)
2 Gupta filed that action in August of 2012. See Gupta v.
Headstrong, Inc., 12-CV-6652 (RA). In December of 2012,
Gupta and the DOL entered into a stipulation and order of
remand, in which the DOL agreed to reconsider Gupta’s
administrative claims. See Dkt. 23. Headstrong, which was not
a party to that stipulation, filed a motion to dismiss the
complaint, which the Court granted without prejudice in
August of 2013. See Gupta v. Headstrong, Inc., 12-CV-6652
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issued a 40-page decision and order addressing
Gupta’s claims. Am. Compl. Ex. 4 at 2-41. As
relevant here, the ALJ determined that the
applicable period of Gupta’s authorized employment
with Headstrong was April 24, 2006 until November
8, 2007, and that Headstrong had effected a bona
fide termination of Gupta on February 2, 2007. The
ALJ thus concluded that Headstrong was obligated
to pay Gupta wages through February 2, 2007, even
though Gupta had stopped working for Headstrong
on November 28, 2006. The ALJ calculated the back
wages Headstrong owed to Gupta, and subtracted
the approximately $8,000 that Headstrong had
already paid Gupta pursuant to the December 2006
severance agreement. Accordingly, the ALJ
concluded that Headstrong’s back wage obligation to
Gupta was approximately $11,500. The ALJ then
considered the May 2008 Settlement Agreement. It
concluded that Gupta’s allegations of fraud had no
merit, and that Headstrong’s “obligation to pay him
back wages, or benefits, or travel expenses of any
kind, was completely extinguished by [Gupta’s]
execution of the settlement agreement and release,
and the concomitant payment of $7,000.00.” Id. at
(RA), 2013 WL 4710388, at *4 (S.D.N.Y. Aug. 30, 2013). After
Gupta appealed the Court’s decision and subsequent orders,
the Second Circuit dismissed the appeal on March 11, 2015.
See Gupta v. Headstrong, Inc., 14-3437 (2d Cir. March 11,
2015).
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39. The ALJ further noted that although the $7,000
lump sum payment was less than the $11,500 owed
to Gupta, the settlement amount “represent[ed] a
reasonable compromise” and was paid to Gupta
within 45 days of'his attorney’s demand letter. Id. at
39 n.60. Accordingly, the ALJ concluded that
Headstrong did “not currently owe any back wages,
or any other amount of money,” to Gupta. Id. at 41.
On January 26, 2017, the Administrative
Review Board (“ARB”) affirmed the decision and
order of the ALJ, finding that “the extensive
evidentiary record amply supports the ALJ’s factual
findings, including her determination that the
parties’ settlement and release of claims
extinguished all claims against Headstrong.” Am.
Compl. Ex. 2 at 4. While declining to address
Gupta’s “collateral attacks” to the May 2008
Settlement Agreement, the ARB noted that the
Agreement was “facially valid” and upheld the ALJ’s
decision as “consistent with ARB precedent.” Id. On
February 14, 2017, the ARB denied Gupta’s motion
for reconsideration.
On March 16, 2017, Gupta commenced this
action in the Northern District of Illinois. His
complaint principally alleged that Headstrong had
breached its employment agreement with Gupta by
failing to pay him all the wages it owed to him, and
1.7a
that the Secretary of Labor had erred in dismissing
Gupta’s claims. The case was transferred to this
Court in July of 2017. The Secretary of Labor
answered the complaint and Headstrong filed a
motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). On March 30, 2018, this Court
granted Headstrong’s motion, holding that the May
2008 Settlement Agreement was valid and barred
Gupta’s claims. Dkt. 78. The Court granted Gupta
leave to amend, while instructing him that his
amended allegations “would need to adequately
allege both why the agreement is voidable, and why
his retention of the lump-sum payment for the past
ten years did not ratify it.” Id. at 10.
On June 25, 2018, Gupta filed the Amended
Complaint, asserting six claims solely against
Headstrong, and an additional 14 claims jointly
against Headstrong and the Secretary. Dkt. 93. The
Secretary answered the Amended Complaint, Dkt.
101, while Headstrong informed the Court that it
would rely on its previously-filed motion to dismiss,
Dkt. 94. Gupta then filed a motion for partial
summary judgment. Dkt. 111. Headstrong filed a
request, Dkt. 118, which the Court granted, Dkt.
122, to stay Gupta’s summary judgment motion as it
pertained to Headstrong pending the resolution of its
motion to dismiss. The Secretary, meanwhile,
opposed Gupta’s motion and cross-moved for
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summary judgment on all of Gupta’s claims against
the Secretary. Dkt. 123.
On September 9, 2019, the Court issued an
Opinion and Order granting Headstrong’s motion to
dismiss, granting the Department of Labor’s motion
for summary judgment, and denying Gupta’s motion
for summary judgment. Dkt. 136 (“September 2019
Opinion”). As in its prior March 30, 2018 Opinion
and Order, the Court again held that the May 2008
Settlement Agreement was valid and enforceable,
and that it barred Gupta’s claims. Id. at 7-11. The
Court further held that the DOL’s decisions
dismissing Gupta’s claims against Headstrong were
supported by substantial evidence and not arbitrary,
capricious, or contrary to law. Id. at 12-13. After
Gupta appealed the Court’s decision, the Second
Circuit dismissed the appeal on August 18, 2020. See
Gupta u. Headstrong Inc., et al, 19-3044 (2d Cir.
Aug. 18, 2020).
On October 3, 2019, Headstrong filed a motion
for attorneys’ fees, Dkt. 143, which Gupta opposed
on December 9, 2019, Dkt. 165, and which
Headstrong replied in support of on December 23,
2019, Dkt. 168. On December 2, 2019, Gupta filed
his own motion for attorneys’ fees, Dkt. 159, which
Headstrong opposed on December 16, 2019, Dkt.
166, and which Gupta replied in support of on
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December 24, 2019, Dkt. 169. On September 23,
2020, in response to a Court Order, Headstrong filed
a revised version of its billing records with fewer
redactions, as well as information about the
experience of the attorneys for whom it seeks fees.
Dkt. 176.
DISCUSSION
I. Gupta’s Motion for Attorney’s Fees
Gupta moves for $2,333.33 in attorneys’ fees
related to the May 2008 settlement negotiations with
Headstrong, during which time he was represented
by counsel. Dkt. 160 (“PI. Mem.”)
19-20.
Headstrong argues that Gupta lacks any statutory
or contractual grounds for his motion for fees. See
Dkt. 166 (“Headstrong Opp’n”) at 4 (“Gupta has not
pointed to a single statute, court rule or any
provision in an agreement between the parties which
would allow him to collect the Attorneys’ Fees from
the Headstrong Defendants.”). For the reasons that
follow, the Court agrees.
The ‘“basic point of reference’ when
considering the award of attorney’s fees is the
bedrock principle known as the ‘American Rule’:
Each litigant pays his own attorney’s fees, win or
lose, unless a statute or contract provides
20 a
otherwise.” Peter v. Nantkwest, Inc., 140 S. Ct. 365,
370 (2019) (quoting Hardt u. Reliance Standard Life
Ins. Co., 560 U.S. 242, 252-253 (2010)). In other
words, under the American Rule, “the presumption
against fee shifting applie[s] by default.” Id. at 371.
“[T]he American Rule presumption is most often
overcome when a statute awards fees to a ‘prevailing
party.’” Id. at 371. That said, “Congress has indeed
enacted fee-shifting statutes that apply to
nonprevailing parties” and “the American Rule
applies to such statutes.” Id. “New York follows the
“American Rule” on the award of attorneys’ fees.”
Versatile Housewares & Gardening Sys., Inc. v. Thill
Logistics, Inc., 819 F. Supp. 2d 230, 241 (S.D.N.Y.
2011).
Gupta’s claims in this action arise under state
contract law and under the Immigration and
Nationality Act (INA) and its implementing
regulations. See Am. Compl. at 13-57. Gupta argues
that a provision of the INA, 8 U.S.C.
§ 1182(n)(2)(C)(i)(I), which authorizes the Secretary
to “impose such other administrative remedies
(including civil monetary penalties in an amount not
to exceed $1,000 per violation) as the Secretary
determines to be appropriate,” supports the
proposition that he is entitled to attorneys’ fees here.
PI. Mem. 6. Gupta fails, however, to identify any
cases holding: (1) that this provision of the INA
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authorizes the Secretary to award attorneys’ fees, (2)
that this provision of the INA authorizes a court to
award attorneys’ fees, or (3) assuming this provision
of the INA does, in fact, authorize a court to award
attorneys’ fees, that such fees are available even
where, as here, the plaintiffs claims were denied
and his complaint was dismissed.
“To determine whether Congress intended to
depart from the American Rule presumption, the
Court first look[s] to the language of the section’ at
issue.” Peter, 140 S. Ct. at 372 (quoting Hardt, 560
U.S. at 254). “While the absence of a specific
reference to attorney’s fees is not dispositive,
Congress must provide a sufficiently specific and
explicit indication of its intent to overcome the
American Rule’s presumption against fee shifting.”
Id. (internal quotation marks, citations, and
brackets omitted) (holding provision of the Patent
Act that requires applicants who file action in
federal court to pay “[a]ll expenses of the
proceeding,” 35 U.S.C. § 145, does not overcome the
American Rule’s presumption against fee shifting to
permit the Patent and Trademark Office to recover
attorneys’ fees). As Congress provided no such
“specific and explicit indication of its intent to
overcome the American Rule” in 8 U.S.C.
§ 1182(n)(2)(C)(i)(I), the Court finds that provision
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does not defeat the presumption that each litigant
must pay his own attorneys’ fees.
Gupta cites the ARB’s decision in Delcore v.
W.J. Barney Corp., ARB No. 96-161, ALJ No. 1989ERA-038 (ARB Oct. 31, 1996) for the proposition
that fees and costs are available here. PL Mem. | 6.
Delcore, however, involved violations of the Energy
Reorganization Act of 1974 (“ERA”), which provided
at the time that if the Secretary of Labor found a
violation of the Act, it “shall assess against the
person against whom the order is issued a sum equal
to the aggregate amount of all costs and expenses
(including attorneys’ and expert witness fees)
reasonably incurred, as determined by the Secretary,
by the complainant for, or in connection with, the
bringing of the complaint upon which the order was
issued.” Blackburn u. Reich, 79 F.3d 1375, 1377 (4th
Cir. 1996) (quoting 42 U.S.C. § 5851(b)(2)(B)). In
contrast to that provision of the ERA, Gupta’s cited
provision of the INA, 8 U.S.C. § 1182(n)(2)(C)(i)(I),
does not contain any statutory language providing
for attorneys’ fees or otherwise indicating Congress’s
intent to overcome the American Rule.
Gupta’s claims against Headstrong are also
distinct from immigration-related fee-shifting cases
brought under the Equal Access to Justice Act
(EAJA), which permits a prevailing party in an
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“adversary adjudication” before an administrative
agency to recover fees from the Government. 5
U.S.C. § 504(a)(1); see also Ibrahim v. U.S. Dep’t
Homeland Sec., 912 F.3d 1147 (9th Cir. 2019)
(allowing EAJA fee-shifting for a procedural due
process claim related to denial of a visa). Here,
Gupta seeks fees against Headstrong, a private
entity, rather than the Government. In any event,
for the reasons described below, Gupta is not a
prevailing party.
Moreover, Gupta is not entitled to attorneys’
fees pursuant to the parties’ May 2008 Settlement
Agreement. As described above, the Settlement
Agreement provided:
In the event of a breach by You or any
Releasor of any provision of this
Agreement and Release, and without
limiting in any way remedies available
to the Company for such breach, You
agree to indemnify and hold harmless
the Releasees from and against any
and all losses, liabilities, damages,
and expenses, including reasonable
attorneys’ fees, that any Releasee may
incur or suffer arising out of or in
connection with any breach of a
24a
representation or agreement by You or
any Releasor.
May 2008 Agreement If 10. The Settlement
Agreement defines “Releasors” to include Gupta, and
his heirs, privies, executors, administrators, assigns,
successors-in-interest, and predecessors-in-interest,
and defines “Releasees” to include Headstrong and
its parent organizations, affiliates, subsidiaries,
predecessor organizations, successors, assigns,
present or former directors, shareholders, partners,
members, officers, employees, and agents. Id. 3.
The Settlement Agreement thus unambiguously
provides that Headstrong may seek fees in the event
of Gupta’s breach, but includes no parallel provision
enabling Gupta to seek fees.
In sum, neither the l'NA nor the parties’ May
2008 Settlement Agreement provides that Gupta is
entitled to seek attorneys’ fees from Headstrong. The
Court thus holds that the American Rule
presumption applies, and Gupta is not entitled to
recover attorneys’ fees.
II. Gupta’s Motion for Costs
Gupta also seeks $2,099.28 in costs associated
with the May 2014 ALJ hearing, $1,244 in other
costs related to the litigation filed in 2012, $540 in
25a
costs related to his appeal in that case, and $1,410 in
costs related to this litigation. Dkt. 160 (“PI. Mem.”)
UH 18, 21-25. In total, Gupta seeks $5293.28 in costs.
Id. Headstrong argues that Gupta is not entitled to
costs because he is not a prevailing party.
Headstrong Opp’n at 2-3. Once again, the Court
agrees.
Fed. R. Civ. P. 54(d)(1) provides that “[ujnless
a federal statute, these rules, or a court order
provides otherwise, costs—other than attorney’s
fees—should be allowed to the prevailing party.”
Gupta, citing Roadway Exp., Inc. v. Admin. Review
Bd., 6 F. App’x 297 (6th Cir. 2001), argues that
because the ALJ found that Headstrong had engaged
in an H-1B violation, he does not need to prove that
he is a prevailing party in order to receive
reimbursement for costs. PI. Mem. H 8; see also Dkt.
169 (“PI. Reply”) U 2 (citing Roadway Express for the
proposition that “in administrative cases costs are
assessed against the party found to be in violation of
the statute”). In Roadway Express, however, the
Sixth Circuit analyzed attorneys’ fees and costs
under a different statutory scheme, the Surface
Transportation Assistance Act (“STAA”), which the
court held is not governed by the prevailing party
doctrine. See Roadway Exp., 6 F. App’x at 301. The
case does not stand for the general proposition that
parties found in violation of any statute owe
26a
attorneys’ fees and costs, and explicitly distinguishes
the STAA from fee-shifting statutes that use the
prevailing party standard. See id.
Gupta also argues that in any event, he is the
prevailing party. See PL Mem. flf 10-12. The Court
disagrees. A party is a prevailing party “if there is a
‘judicially sanctioned change in the legal
relationship of the parties’ favoring it, including an
‘enforceable judgment[t] on the merits.’” Megna u.
Biocomp Labs., Inc., 225 F. Supp. 3d 222, 224
(S.D.N.Y. 2016) (quoting CRST Van Expedited, Inc.
v. E.E.O.C., 136 S. Ct. 1642, 1646 (2016)). “The
prevailing party is one who ‘succeeds on a significant
issue in the litigation.’” Id. (quoting Warner Bros.,
Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120, 1126
(2d. Cir. 1989)).
Although, as described above, the ALJ found
that Headstrong owed back wages of approximately
$11,500, she determined that “Headstrong’s
“obligation to pay him back wages, or benefits, or
travel expenses of any kind, was completely
extinguished by [Gupta’s] execution of the
settlement agreement and release, and the
concomitant payment of $7,000.00.” Am. Compl. Ex.
4 at 39. The ALJ further noted that although the
$7,000 lump sum payment was less than the $11,500
owed to Gupta, the settlement amount
27a
“represented] a reasonable compromise” and was
paid to Gupta within 45 days of his attorney’s
demand letter. Id. at 39 n.60. Accordingly, the ALJ
concluded that Headstrong did “not currently owe
any back wages, or any other amount of money,” to
Gupta. Id. at 41. The ARB affirmed the decision and
order of the ALJ, finding that “the extensive
evidentiary record amply supports the ALJ’s factual
findings, including her determination that the
parties’ settlement and release of claims
extinguished all claims against Headstrong.” Am.
Compl. Ex. 2 at 4. Similarly, this Court held that
“the May 2008 Agreement unambiguously released
the claims that Gupta asserts against Headstrong in
this case” and upheld the Department of Labor’s
decision concluding that the parties had settled
Headstrong’s wage obligation and released Gupta’s
claims. September 2019 Opinion at 11-13.
Gupta thus plainly did not obtain a ‘“judicially
sanctioned change in the legal relationship of the
parties’ favoring it, including an ‘enforceable
judgment[t] on the merits.’” Megna, 225 F. Supp. 3d
at 224 (quoting CRST Van Expedited, Inc., 136 S. Ct.
at 1646). Gupta sought back wages, and his efforts
failed, as Headstrong and Gupta are in the same
position they were when this
28a
III.
Headstrong’s Motion for Attorneys’
Fees
Headstrong also seeks attorneys’ fees, in the
amount of $210,163.00. Dkt. 144 (“Headstrong
Mem.”) at 1. Headstrong only seeks reimbursement
for attorneys’ fees incurred in relation to Plaintiff s
claims in federal court and does not seek fees in
connection with the administrative proceedings. Id.,
see also Dkt. 145 U 5; Dkt. 176 at 1. Headstrong
contends that Gupta breached the Settlement
Agreement’s covenant not to sue, and that it is
therefore entitled to fees pursuant to the
Agreement’s fee-shifting provision. (“Headstrong
Mem.”) at 1. For the reasons that follow, the Court
agrees that Headstrong is entitled to fees, yet finds
the amount of Headstrong’s requested fee award
unreasonable.
As described above, under the American Rule,
there is a presumption that each party is responsible
for its own attorneys’ fees unless a statute or
contract provides otherwise. See Local 1180,
Communications Workers of America, AFL-CIO v.
City of New York, 392 F.Supp.3d 361, 377 (S.D.N.Y.
2020). The American Rule provides that “parties
may agree by contract to permit recovery of
attorneys’ fees, and a federal court will enforce
contractual rights to attorneys’ fees if the contract is
29a
valid under applicable state law.” Id. (citing U.S.
Fid. & Guar. Co. v. Braspetro Oil Servs. Co., 369
F.3d 34, 74 (2d Cir. 2004)). “Under New York law, a
contract that provides for an award of reasonable
attorneys’ fees to the prevailing party in an action to
enforce the contract is enforceable if the contractual
language is sufficiently clear.” NetJets Aviation, Inc.
v. LHC Communications, LLC, 537 F.3d 168, 175 (2d
Cir.2008). In other words, “the rule in New York is
that when a contract provides that in the event of
litigation the losing party will pay the attorneys’ fees
of the prevailing party, the court will order the
losing party to pay whatever amounts have been
expended by the prevailing party, so long as those
amounts are not unreasonable.” Diamond D
Enterprises USA, Inc. v. Steinsvaag, 979 F.2d 14, 19
(2d Cir. 1992). Thus, in addressing a contractual
claim for attorneys’ fees, a court must determine
what constitutes “a reasonable amount of fees.”
McGuire v. Russell Miller, Inc., 1 F.3d 1306, 1313 (2d
Cir. 1993).
For the reasons expressed in the Court’s
September 9, 2019 Opinion and Order, the May 2008
Settlement Agreement is valid and enforceable
under New York law and unambiguously released
Headstrong from the claims that Gupta asserts in
this case. September 2019 Opinion at 7-11. By filing
this action in contravention of his sworn agreement
30a
to “release and forever discharge” Headstrong “of
and from all. . . suits,” as well as his agreement “not
to sue or file a charge, complaint, grievance, or
demand for arbitration against” Headstrong “in any
forum,” Gupta plainly breached the Settlement
Agreement. Settlement Agreement
3, 5.
The Court’s analysis regarding the validity of
the Settlement Agreement extends to the validity of
its fee-shifting provision, which the Court finds
enforceable because it is “sufficiently clear.” NetJets
Aviation, LLC, 537 F.3d at 175. That provision
unambiguously states that should Gupta “breach”
any provision of the Agreement, he agrees to
“indemnify and hold harmless the Releasees from
and against any and all losses ... including
reasonable attorneys’ fees, that any Releasee may
incur or suffer arising out of or in connection with
any breach.” Settlement Agreement | 10. Gupta
argues that this provision is inapplicable because
Headstrong never filed a counterclaim for breach of
contract. Dkt. 165 (“PL Opp’n”) f 7. Yet the relevant
inquiry here is whether a party breached a
contractual fee provision that is valid under state
law, not whether Headstrong counterclaimed for
breach of contract or proved damages. Local 1180,
392 F.Supp.3d at 377. Because Gupta’s breached the
May 2008 Settlement Agreement by filing the two
related federal actions against Headstrong, the
31a
Court holds that Headstrong is entitled to collect
attorneys’ fees pursuant to the parties’ valid May
2008 Settlement Agreement.
The Court finds, however, that Headstrong’s
request for $210,163.00 in attorneys’ fees is
unreasonable. Under the law of this Circuit:
In determining the reasonableness of
attorneys’ fees in the context of a
contractual claim, a court examines a
variety of factors, including “the
difficulty of the questions involved; the
skill required to handle the problem;
the time and labor required; the
lawyer’s experience, ability and
reputation; the customary fee charged
. . . for similar services; and the
amount involved.”
HSH Nordbank AG New York Branch v. Swerdlow,
No. 08 CIV. 6131 (DLC), 2010 WL 1141145, at *6
(S.D.N.Y. Mar. 24, 2010) (quoting F.H. Krear & Co.
v. Nineteen Named Trustees, 810 F.2d 1250, 1263 (2d
Cir.1987), aff’d sub nom. HSH Nordbank AG New
York Branch v. St., 421 F. App’x 70 (2d Cir. 2011). “It
is also appropriate for a court to consider the amount
of fees requested in relation to the amount of
damages at stake in the litigation.” Vista Outdoor
32a
Inc. v. Reeves Family Tr., No. 16 CIV. 5766, 2018 WL
3104631, at *4 (S.D.N.Y. May 24, 2018) (citing
Swerdlow, 2010 WL 1141145, at *6). “Counsel are, of
course, required to present detailed
contemporaneous billing records. The court is not,
however, required to ‘set forth item-by-item findings
concerning what may be countless objections to
individual billing items.”’ Swerdlow, 2010 WL
1141145, at *6 (quoting Lundayv. City of Albany, 42
F.3d 131, 134 (2d Cir. 1994)). “At the end of the day,
“[t]he presumptively reasonable fee boils down to
what a reasonable, paying client would be willing to
pay, given that such a party wishes to spend the
minimum necessary to litigate the case effectively.’”
Vista Outdoor, 2018 WL 3104631, at *4 (quoting
Simmons v. New York City Transit Auth., 575 F.3d
170, 174 (2d Cir. 2009)). “Ultimately, ‘[w]here a
district court has awarded attorneys’ fees under a
valid contractual authorization, ... it has broad
discretion in doing so, and an award of such fees may
be set aside only for abuse of discretion.’” Swerdlow,
2010 WL 1141145, at *6 (quoting In re Goldstein,
430 F.3d 106, 110 (2d Cir. 2005)).
Here, a number of factors point to the
unreasonableness of Headstrong’s requested fees. As
an initial matter, the damages at stake in this action
were just a fraction of the fees that Headstrong now
seeks. New York courts “‘will rarely find reasonable
33a
an award to a plaintiff that exceeds the amount
involved in the litigation.”’ Antidote Int’l Films, Inc.
v. Bloomsbury Pub., PLC, 496 F. Supp. 2d 362, 364
(S.D.N.Y. 2007) (quoting F.H. Krear & Co., 810 F.2d,
at 1254). “However, the amount ‘involved’ in the
litigation is not the amount actually recovered but
instead the ‘amount reasonably in controversy in a
litigation.’” Vista Outdoor Inc., 2018 WL 3104631, at
*5 (quoting Diamond D. Entes. USA, Inc., 979 F.2d
at 19-20). Although Gupta sought a range of
compensatory damages in addition to punitive
damages, Am. Compl. at 39-43, the ALJ found that
Headstrong owed Gupta approximately $11,500 in
back wages—just $4,500 more than the $7,000
Headstrong had already paid Gupta pursuant to the
May 2008 Settlement Agreement. Am. Compl. Ex. 4
at 39. The ALJ’s calculation reflects that the
damages “reasonably in controversy” in this action
pale in comparison to the $210,163.00 that
Headstrong expended on its attorneys’ fees. Vista
Outdoor Inc., 2018 WL 3104631, at *5. The Court
thus reduces Headstrong’s requested fee award by
thirty percent.
In addition, the Court finds that this action
did not involve any particularly difficult questions,
and accordingly that no unique degree of skill was
required to defend the action. See F.H. Krear & Co.,
810 F.2d at 1263. Rather, defending this action
34a
involved applying basic principles of contract law,
given that Gupta had signed an unambiguous
release of his claims. The Court thus reduces
Headstrong’s requested fee award by an additional
twenty percent, for a total reduction of fifty percent.
The Court nonetheless finds that some of the
factors identified above favor the reasonableness of
Headstrong’s requested fee award. In particular,
defending this action, the prior related action Gupta
filed in 2012, see Gupta v. Headstrong, Inc., 12-CV6652 (RA), and the Second Circuit appeals required
a significant expenditure of time and labor over eight
years. The time and effort required to litigate these
cases was compounded by the fact that Gupta filed
an unusually high number of motions, many of
which the Court denied, and some of which were
frivolous. See Headstrong Mem. at 3; Dkt. 145-1
(listing 23 motions Gupta has filed).
Finally, the Court finds that the rates charged
by Headstrong’s counsel, Jackson Lewis , are
reasonable in light of the firm’s significant
experience defending companies in labor disputes.
Courts in this district have recognized Jackson
Lewis as “a nationwide management-side law firm
with a well-known and respected employment and
labor law practice.” Bryant v. Potbelly Sandwich
Works, LLC, No. 17-CV-07638(CM)(HBP), 2020 WL
35a
563804, at *6 (S.D.N.Y. Feb. 4, 2020). Headstrong’s
lead attorney from Jackson Lewis, Dana Glick
Weisbrod, graduated from law school in 2004. See
Dkt. 176 at 2. Her requested hourly fees range from
$400 for work performed in 2012, when she was
eight years out of law school, to $480 for work
performed in 2019, when she was fifteen years out of
law school. See Dkt. 176-1 (“Billing Records”) at 2,
117. In light of Ms. Weisbrod’s experience, the Court
finds these proposed rates reasonable when
compared to the rates courts have approved for
attorneys with comparable experience at commercial
firms in this district. See, e.g., Vista Outdoor Inc.
2018 WL 3104631, at *6-7 (awarding 2016 rate of
$633 to associate who was seven years out of law
school and 2018 rate of $693.75 to associate who was
fifteen years out of law school at a large commercial
law firm). The Court thus declines to further modify
Headstrong’s requested fee award.
In sum, the Court concludes that Headstrong
is entitled to half its requested attorneys’ fee
award—or $105,081.05—to compensate it for the
eight years its attorneys have litigated this and
related actions.
36a
CONCLUSION
For the foregoing reasons, the Court denies
Gupta’s motion for attorneys’ fees and grants
Headstrong’s motion, subject to the modifications
discussed above. The Clerk of Court is respectfully
directed to terminate the motions pending at Docket
Entries 143, 159, and 162.
SO ORDERED.
DATED: September 28, 2020
New York, New York
/s/ Ronnie Abrams
Ronnie Abrams
United States District Judge
37a
APPENDIX C
U.S. Department of Labor
Administrative Review Board
200 Constitution Ave., N.W.
Washington, DC 20210
ARB CASE NOS. 15-032, 15-033
ALJ CASE NO. 2014-LCA-008
DATE: JANUARY 26, 2017
In the matter of:
ARVIND GUPTA,
PETITIONER/
CROSS-RESPONDENT,
v.
HEADSTRONG, INC.,
RESPONDENT/
CROSS-PETITIONER,
BEFORE:
THE ADMINISTRATIVE
REVIEW BOARD
38a
Appearances:
For the Prosecuting Party:
Arvind Gupta, pro se, Mumbai, MH, India
For the Respondent:
Dana G. Weisbrod, Esq.; Jackson Lewis, P.C.;
New York, New York; Forrest G. Read, IV, Esq.;
and Michael H. Neifach, Esq.; Jackson Lewis,
P.C.; Reston, Virginia
Before: Paul Igasaki, Chief Administrative Law
Judge; E. Cooper Brown, Administrative
Appeals Judge; and Joanne Royce,
Administrative Appeals Judge
FINAL DECISION AND ORDER
This case arises under the H-1B provisions of
the Immigration and Nationality Act, as amended, 8
U.S.C.A. §§ 1101(a)(15)(H)(i)(b), 1182(n)(2) (INA)
(Thomson Reuters 2016) and the regulations at 20
C.F.R. Part 655, subparts H, I (2016). Arvind Gupta
(Gupta) appeals and Headstrong, Inc. (Headstrong)
cross-appeals the Administrative Law Judge’s (ALJ)
Decision and Order (Jan. 21, 2015) (D. & O.)
dismissing this case. The Board affirms the
dismissal.
39a
BACKGROUND
This case was previously before the
Administrative Review Board (ARB or Board). In
2012, the ARB affirmed the dismissal of that case.
Gupta v. Headstrong, Inc., ARB Nos. 11-008, 11-065;
ALJ No. 2011-LCA-038 (ARB June 29, 2012)(no
hearing or appeal available where Labor
Department’s Wage and Hour Division (WHD) does
not investigate). Gupta sought review.
While the case was pending before the United
States District Court for the Southern District of
New York, WHD and Gupta entered into a
“Stipulation and Order of Remand and Dismissal”
based on WHD’s determination that the record was
incomplete for purposes of judicial review. The order
vacated WHD’s determination that Gupta’s
complaints were untimely and remanded the matter
to WHD “for a new decision on Gupta’s complaints
and request for investigation” and to “address
whether Gupta’s alleged telephonic complaint of
January 2008 rendered his complaint timely, and
whether any aspect of Gupta’s complaints should be
deemed timely based on equitable tolling.” The court
dismissed the case. Gupta v. Headstrong, Inc., No.
l:12-cv-06652-RA (S.D.N.Y. Dec. 10. 2012).
Headstrong was not a party to the stipulation.
40a
In 2014, WHD investigated and found that
Headstrong was liable for $5,736.96 in back wages
but had already paid these back wages.
Complainant’s Exhibit 1. Gupta requested a hearing
before an administrative law judge. After holding a
formal evidentiary hearing on May 6, 2014, the ALJ
issued her decision on January 21, 2015.1 The ALJ
dismissed the case based on the parties’ Confidential
Settlement and Release Agreement (May 8, 2008)
and concomitant $7,000.00 payment. Respondent’s
Exhibits 15-17. The ALJ found that the settlement
included a release of all claims and that the parties’
execution of it “fully extinguished” any claim Gupta
may have had related to his employment with
Headstrong. The ALJ concluded that in light of the
parties’ 2008 settlement and release of claims,
negotiated while Gupta was represented by counsel,
Headstrong “does not now owe” back wages, benefits,
damages, or interest and “has no current monetary
liability” to Gupta. D. & O. at 23, 39, 40. The ALJ
specifically rejected Gupta’s arguments that the
settlement was ineffective, void, fraudulent, or that
Gupta had rescinded it. The ALJ also concluded that
Gupta’s June 2008 written complaint was timely and
that Headstrong effected a bona fide termination of
Gupta’s employment on February 2, 2007. D. & O. at
32-33, 37-40. Gupta appeals the ALJ’s dismissal and
Gupta. v. Headstrong, Inc., ALJ No. 2014-LCA-008
(Jan. 21, 2015).
41a
Headstrong cross-appeals the ALJ’s finding that the
written June 2008 complaint was timely filed.
The ARB certified four issues for review: (1)
whether the ALJ erred in finding that the settlement
extinguished all liability; (2) whether the ALJ erred
in finding the June 2008 complaint timely; (3)
whether the ALJ erred in finding that Headstrong
was obligated to provide Gupta return
transportation costs to India; and (4) whether the
ALJ erred in determining the back wage obligation.
STANDARD OF REVIEW
The Administrative Review Board has
authority to review final decisions arising under the
Immigration and Nationality Act, as amended, 8
U.S.C.A. §§ 1101(a)(15)(H)(i)(b), 1182(n)(2) and its
implementing regulations, 20 C.F.R. § 655.845. See
also Secretary’s Order No. 02-2012, 77 Fed. Reg.
69,378 (Nov. 16, 2012)(delegating to the ARB the
Secretary’s authority to review cases arising under
the INA).
DISCUSSION
Upon review, the Board finds that the
extensive evidentiary record amply supports the
ALJ’s factual findings, including her determination
42a
that the parties’ settlement and release of claims
extinguished all claims against Headstrong. Gupta
attacks the settlement as ineffective, void, and
fraudulent, and claims that he rescinded it.
However, Gupta has evoked no statute, regulation,
or precedent authorizing the Board to adjudicate
collateral attacks on a facially valid contract. The
Board is an administrative body with only the
authority emanating from statutes, implementing
regulations, and delegations of authority.2 The ARB
has, however, affirmed an ALJ’s dismissal based on
the parties’ settlement in an INA case involving this
same complainant. Gupta v. Compunnel Software
Grp., ARB No. 16-056, ALJ No. 2011-LCA-045 (ARB
Apr. 29, 2016). In that case, as well as this, the
settlement included a release of all claims related to
Gupta’s employment. Gupta’s claims that this
settlement is ineffective, void, fraudulent, or has
been rescinded by him, are collateral issues that we
do not address in this instance.3 Because the ALJ’s
2
See, e.g., Gilbert u. Bauer’s Worldwide Transp., ARB
No. 11-019, ALJ No. 2010-STA-022, slip op. at 5 n.10 (ARB
Nov. 28, 2012) (saying the same)(citing Wonsock v. Merit Sys.
Prot. Bd., 296 Fed. Appx. 48, 50 (Fed. Cir. 2008)).
3
Gupta may choose to return to district court. See 20
C.F.R. § 655.850. After the court remanded this case to the
Labor Department in 2012, the court issued several orders
through 2015 directing Gupta to exhaust his administrative
remedies before filing another motion. However, when Gupta
persisted in filing motions with the district court, the court
43a
conclusion that the settlement extinguished all
claims is consistent with ARB precedent, we uphold
it. We, therefore, affirm the ALJ’s dismissal of this
case.4
CONCLUSION
Accordingly, the ALJ’s dismissal of Gupta’s
case is AFFIRMED. All pending motions, as well as
Gupta’s recent filing asserting supplemental
authority, to which Headstrong has responded, are
indicated, as late as December 1, 2015, that it may impose
sanctions. Gupta u. Headstrong, Inc., No. l:12-cv-06652-RA
(S.D.N.Y. Dec. 1, 2015).
4
On this record, we doubt whether Gupta had a right to
pursue his claims by seeking a formal hearing. The
Administrator, Wage and Hour Division, in his amicus brief,
asserts that while an H-1B employee may file a complaint
notwithstanding any release of his claims in a settlement
agreement entered into by the employee and his H-1B
employer, the employee cannot seek a formal evidentiary
hearing because he effectively waived his right to do so in the
settlement agreement. It appears that Gupta waived his right
to a hearing and, by extension, any authority we may have to
review the settlement agreement, by signing it. Cf. Khandelwal
v. Southern Cal. Edison, ARB No. 97-050, ALJ No. 1997-ERA006 (ARB Mar. 31, 1997)(employer named in an employee
protection provisions case filed with Occupational Safety and
Health Administration under the Energy Reorganization Act
can request termination of investigation based on settlement
agreement entered into before complaint was filed).
Administrator’s Amicus Brief at 17-21.
44a
DENIED as moot. Headstrong’s cross-appeal is
DENIED as moot as it cannot affect the outcome of
the case. This matter is DISMISSED with
prejudice.
SO ORDERED.
PAUL M. IGASAKI
Chief Administrative Appeals Judge
E. COOPER BROWN
Administrative Appeals Judge
JOANNE ROYCE
Administrative Appeals Judge
45a
APPENDIX D
U.S. Department of Labor
Office of Administrative Law Judges
2 Executive Campus, Suite 450
Cherry Hill, NJ 08002
(856) 486-3800
(856) 486-3806 (FAX)
Issue Date: 21 January 2015
Case No.: 2014-LCA-00008
In the matter of
ARVIND GUPTA
Complainant
v.
HEADSTRONG, INC.
Respondent
APPEARANCES: ARVIND GUPTA, pro se
The Prosecuting Party
DANA WEISBROD, Esq.
FORREST REID, Esq.
For the Respondent
46a
BEFORE:
ADELE HIGGINS ODEGARD
Administrative Law Judge
DECISION AND ORDER
Background
This matter arises under the Immigration and
Nationality Act, as amended, 8 U.S.C. § 1182(n)
(2005) (“INA” or “the Act”), and the regulations
promulgated thereunder at 20 C.F.R. Part 655,
Subparts H and I, C.F.R. § 655.700 et seq.1 The
Prosecuting Party is not represented by counsel.2
Procedural History
The case involves a complaint the Prosecuting
Party initially filed against a former employer, the
Respondent, with the Wage-Hour Division (“WHD”)
of the Department of Labor, in 2008. The complete
11 Unless otherwise specified, citations to federal regulations
are to Title 20, Code of Federal Regulations
2 As this decision reflects, in 2008 the Prosecuting Party was
represented by an attorney, who negotiated a settlement
agreement on behalf of the Prosecuting Party. This attorney
did not enter an appearance in this matter and does not
represent the Prosecuting Party at this time.
47a
procedural history of this litigation is long and
complex. The most salient facts are as follows:
1. In about June 2008 the Prosecuting Party
filed a complaint with WHD, alleging that the
Respondent committed various infractions relating
to the Prosecuting Party’s employment as an H-1B
nonimmigrant employee; WHD determined that the
complaint did not warrant an investigation and
denied the complaint, based on WHD’s conclusion
that the complaint was untimely (filed more than 12
months after the Respondent’s alleged infractions).
2. The Prosecuting Party claims that he provided
additional information to WHD between 2008 and
2010; in June 2010 WHD again denied his
complaint, stating that the complaint was untimely
and did not warrant an investigation.
3. The Prosecuting Party then submitted a
request for a hearing to the Office of Administrative
Law Judges (“OALJ”), and the matter was assigned
to me for adjudication.
4. In October 2010 I dismissed the Prosecuting
Party’s complaint, finding no jurisdiction to hold a
hearing in cases where WHD determined that an
investigation was not warranted. Case No. 2010LCA-00032 (ALJ Oct. 12, 2010).
5. The Prosecuting Party appealed, and on June
29, 2012 the Administrative Review Board (“ARB” or
48a
“Board”) affirmed my dismissal of his complaint.3
ARB Case Nos. 11-008, 11-065 (ARB June 29, 2012).
6. The Prosecuting Party then filed an action
appealing the ARB’s decision in the United States
District Court, Southern District of New York. Case
No.l2:cv-06652. On December 6, 2012, the
Prosecuting Party entered into a Stipulation and
Order of Remand and Dismissal with the
Department of Labor. Based on this agreement,
WHD’s determination that the Prosecuting Party’s
complaints were untimely was vacated, and the
matter was remanded to WHD for a new decision on
the timeliness of the Prosecuting Party’s 2008
complaint against the Respondent.4
7. On March 13, 2014, WHD issued a
Determination Letter informing the Prosecuting
Party that, after an investigation, it had determined
3 Additionally, in 2011 the Prosecuting Party filed yet another
complaint with WHD, which WHD refused to investigate and
rejected as untimely. He appealed to OALJ, and in July 2011, I
dismissed the matter on the same basis I dismissed his earlier
complaint (lack of a WHD investigation). Case No. 2011-LCA00038 (ALJ July 19, 2011). The Prosecuting Party appealed to
the ARB, which assigned a case number (11-065) and
consolidated that appeal with the Prosecuting Party’s appeal of
my October 2010 dismissal.
4 The Respondent was not a party to the Stipulation and Order
of Remand and Dismissal.
49a
that the Respondent owed back wages in the amount
of $5,736.96 to the Prosecuting Party and had failed
to provide him with a copy of the Labor Condition
Application (“LCA”) pertaining to him. Further,
WHD stated in the Determination Letter, the
Respondent had already paid the back wages. No
civil money penalties were assessed.
8. On March 14, 2014 the Prosecuting Party
submitted his “Hearing Request and Complaint”
(hereinafter, “Hearing Request”) to the Chief
Administrative Law Judge; it was received in the
Washington, DC office of OALJ on March 24, 2014.5
9. The case was assigned to me and on April 4,
2014 I issued a “Notice of Hearing and Pre-Hearing
Order” setting the hearing for May 6, 2014, in New
York City.
10. The hearing was held as scheduled. The
Prosecuting Party traveled from India and attended
the hearing in person.
11. By Order dated June 11, 2014, I granted the
Prosecuting Party’s unopposed Motion to Admit
Facts; by Order dated August 18, 2014,1 admitted
the Prosecuting Party’s post-hearing evidentiary
submissions.
12. The parties submitted post-hearing briefs by
the deadline of September 10, 2014.
5 The Prosecuting Party mailed his Hearing Request from his
current home in India.
50a
13. By fax on September 11, 2014, the
Prosecuting Party submitted a “(Renewed) Motion
for Relief.” By Order dated September 16, 2014, I
informed the parties that I considered the
Prosecuting Party’s Motion to be a motion for an
expedited decision; I advised the parties that,
notwithstanding the practice to issue decisions in
the order in which hearings were held, and that I
had approximately 50 cases that were “older” than
the Prosecuting Party’s, I would endeavor to issue a
decision in this matter by January 15, 2015.
The Prosecuting Party’s Motions
Prior to, during, and after the hearing, the
Prosecuting Party submitted multiple motions to me.
I have reviewed the Prosecuting Party’s motions and
my adjudications of the motions. I reaffirm my prior
determinations. I find it appropriate to discuss,
briefly, some of the Prosecuting Party’s motions, and
the rationale for my determinations.6
Motions Regarding Status of Genpact Limited
In his Hearing Request, the Prosecuting Party
listed both the Respondent (Headstrong, Inc.) and
another entity (Genpact Limited) (hereinafter,
6 More complete discussions are found in the orders
adjudicating the motions.
51a
“Genpact”) as Respondents. He asserted that
Genpact Limited is the “publically held parent of
Headstrong, Inc.,” but did not otherwise articulate
why Genpact should be listed as a party. Hearing
Request at 30.
In my April 4, 2014 “Notice of Hearing and
Pre-Hearing Order,” I directed the Respondent to
inform me whether it objected to Genpact being
designated as a party. Order of April 4, 2014, at 2.
Respondent objected. By Order dated April 21, 2014,
I found that Headstrong, Inc. should be the sole
respondent, because it was the entity that employed
the Prosecuting Party and submitted the relevant
LCAs to the Department of Labor and U.S. Customs
and Immigration Service (“USCIS”).7
On May 12, 2014, the Prosecuting Party filed
a “Motion for Certification of the Issue of Genpact’s
Party Status for Interlocutory Review by ARB.” I
denied the Motion by Order dated May 28, 2014.
On review of the entire record in this matter,
including the record of the hearing and the parties’
post-hearing submissions, I find there is no evidence
71 also noted there is no evidence in the WHD Determination
Letter that it had ever investigated Genpact, and reiterated
that, under the regulation, only matters that WHD has
investigated are proper subjects for a hearing.
52a
to justify adding Genpact as a party. Specifically, I
find that Genpact was not in any way involved in the
employment of the Prosecuting Party by the
Respondent; its only involvement to date has been in
defending the Prosecuting Party’s attempt to have it
included in the litigation.
Motion for “Default” Decision
Prior to the hearing, on April 16, 2014, the
Prosecuting Party submitted a motion for a default
decision against the Respondent (“Complainant’s
(sic) Motion for an Order Declaring Respondent in
Default for Failure to Defend and Default Decision”),
in which he averred that because the Respondent did
not file an answer to his March 14, 2014 Hearing
Request within 30 days, he was entitled to a default
decision. The Respondent filed an answer in
opposition to the motion and also filed “Respondent’s
Special Exception Answer, General Denial, and
Affirmative Defenses.”
By Qrder dated April 21, 2014, I denied the
motion, finding the Respondent’s submissions
timely. On April 30, 2014, the Prosecuting Party
filed a motion for reconsideration of my Order
denying his motion for a default decision. On May
21, 2014, I denied the motion for reconsideration and
noted, in addition to the other rationales for denying
53a
a default decision set out in my Order of April 21,
2014, that the Respondent had appeared at the
hearing and had put forth a defense. Therefore, I
stated, issuing a default judgment was both
unnecessary and inappropriate. On May 27, 2014,
the Prosecuting Party submitted a second motion for
reconsideration, which I denied by Order dated June
11, 2014.
On review, I adhere to my earlier
determination that it is inappropriate to issue a
default judgment against the Respondent.
Notwithstanding the Prosecuting Party’s
contentions, the record reflects that the Respondent
timely entered an appearance; timely submitted its
required pre-hearing statement; participated in prehearing conferences; appeared at the hearing and
put on its case; and filed post-hearing submissions.
Accordingly, I find there is absolutely no basis, in
law or fact, to issue a default judgment against the
Respondent.
Discussions of Issues Prior to the Hearing
In the same Order in which I denied the
Prosecuting Party’s default motion, and in advance
of the pre-hearing conference (held on April 28, 2014,
per my Order of April 4, 2014; see Order of Apr. 4,
2014 at 4-5), I provided information to the parties
54a
about what issues I would address at the hearing.
Order of Apr. 21, 2014, at 3. Specifically, I informed
the parties that, in accordance with § 655.820(c)(3), a
request for hearing was limited to “the issue or
issues stated in the notice of determination giving
rise to such request.” Id. Therefore, I stated, the
hearing was limited to matters relating to the
Prosecuting Party’s employment under two specific
LCAs (EAC-07-010-52367, EAC-06-122-50383), for
the periods validated by the Department of Labor.
Id-1 also informed the parties that I would not
consider any aspect of the Prosecuting Party’s
request for hearing that alleged other “adverse
actions by the Respondent or that sought damages
(compensatory or punitive).” Id.
At the pre-hearing conference on April 28,
2014, I reiterated that I would limit my adjudication
of the Prosecuting Party’s claim for back wages to
the time periods covered in the LCAs. Transcript of
Apr. 28, 2014 conference at 11, 29-30.1 also informed
the parties that, because the Prosecuting Party
alleged that the Respondent retaliated against him
and this allegation was investigated, I would
adjudicate the Prosecuting Party’s allegation of
retaliation. IcL at 11-12, 30-31, 32-33. In addition, I
told the parties, I would entertain testimony on the
issue of whether the Respondent should have paid
living expenses for the Prosecuting Party. Id. at 31. I
55a
informed the parties that I saw no provision in the
regulation for compensatory or punitive damages, or
for litigation costs and attorney’s fees.8 Id.
An additional pre-hearing conference was held
on April 30, 2014. At that time I listed the issues to
be adjudicated in this matter as follows:
What is the Prosecuting Party’s entitlement to
back pay, if any?
What is the date his employment with the
Respondent ended?
What entitlement to benefits does he have?
Has the Respondent engaged in any acts of
retaliation or discrimination against the
Prosecuting Party?
What has been the effect of the failure to
provide the Prosecuting Party with a copy of
his LCA?
Was there any misrepresentation of a
material fact (as to the relevant work
location)?
Did the Respondent fail to provide reasonable
cost for return transportation, apart from an
airline ticket? 9
8 As previously stated, the Prosecuting Party is not represented
by counsel.
9 I informed the parties that I would address this issue in the
context of whether there was a bona fide termination of the
56a
•
Does the 2008 settlement extinguish any
claim for back wages or benefits?10
Transcript of Apr. 30, 2014 conference at 22-23.
The Respondent also stated that it wished me
to address the issue of whether the Prosecuting
Party’s complaints were timely. PL at 26-28. And I
informed the Prosecuting Party that, if he prevailed,
I would issue an order covering the issue of
recoupment of litigation costs. IcL at 30-31. As to the
issue of compensatory or punitive damages, I
informed the parties that I would allow the
Prosecuting Party to submit evidence, but because I
was unaware of any authority that would permit me
to award damages, I would not make any finding
regarding damages. Ich at 34-35.
Issues Disposed of at the Hearing, and Post-Hearing
At the hearing, the Respondent moved for a
directed verdict as to all aspects of the Prosecuting
Prosecuting Party’s employment. Transcript of Apr. 30, 2014
conference at 25-26.
10 The conference transcript contains a transcription error. The
transcript states: “Does the 2008 settlement extend any claim
for back wages or benefits”? Transcript of Apr. 30, 2014
conference at 23. Based on my notes, I believe the word should
be “extinguish,” not “extend.”
57a
Party’s case. Hearing Transcript (T.) at 299. I denied
the Respondent’s Motion regarding most of the
Prosecuting Party’s case, but granted the motion as
to two issues: compensatory and punitive damages,
and the Respondent’s alleged retaliation against the
Prosecuting Party. T. at 301. Later in the hearing, I
realized that I had granted the Respondent’s motion
for directed verdict without having asked the
Prosecuting Party for his position. T. at 326. I
invited the Prosecuting Party to make a written
motion for me to reconsider my action, which he did
on May 12, 2014.11 By Order dated August 18, 2014,
I informed the parties that, on reconsideration, I
adhered to my prior determinations that the
Prosecuting Party had not established a prima facie
case that the Respondent had engaged in acts of
discrimination or retaliation against him; therefore,
a directed verdict in favor of the Respondent on the
issue of retaliation was appropriate. Order of Aug.
18, 2014, at 4-6. I also informed the parties that
compensatory damages were not appropriate in this
11 By Order dated May 21, 2014,1 informed the parties that, in
order for the parties to address fully the issues the Prosecuting
Party raised in his Reconsideration Motion, it would be
necessary for the parties to have access to the transcript of the
hearing. I therefore set deadlines for the Respondent’s answer
and the Prosecuting Party’s reply that took into consideration
the time necessary to obtain a transcript. The parties timely
filed submissions.
58a
matter, and there was no statutory authority for me
to award punitive damages. Order of Aug. 18, 2014,
at 6. By Order dated August 28, 2014,1 denied the
Prosecuting Party’s request for reconsideration of my
order.
On review, I adhere to my prior
determinations. Specifically, I find that the record
before me does not indicate that the Respondent
engaged in any acts of retaliation against the
Prosecuting Party motivated by the Prosecuting
Party’s filing of a complaint against the Respondent
to enforce the Department of Labor’s H-1B
regulations. See § 655.801(a). Rather, as I noted in
my Order of August 18, 2014, the Prosecuting
Party’s allegations of retaliation appear to be
complaints about the actions and positions the
Respondent has taken in defending against the
Prosecuting Party’s complaints to WHD and the
Prosecuting Party’s actions in litigating the instant
matter. Order of Aug. 18, 2014 at 5-6. For example,
the Prosecuting Party asserts that the Respondent
retaliated against him when it “took [the] following
adverse actions,” by “Making [Prosecuting Party] go
through a full litigation to recover his wages and
benefits guaranteed by [the] INA,” and by “Not
participating in any DOL offered Settlement Judge
program that could have resulted [in a] ‘fair and
59a
reasonable’ settlement.” Prosecuting Party’s Hearing
Request at 18 (emphasis in original).
On review of the entire record, I find that the
Respondent’s actions appear to have been motivated
by its decision to mount a defense against the
Prosecuting Party’s actions in filing complaints
against the Respondent. I find that such acts are not
retaliatory in that they are not among the actions
listed as retaliatory under § 655.801(a). Rather, they
involve the Respondent’s lawful responses to the
Prosecuting Party’s actions, after the Prosecuting
Party initiated complaints or legal actions against
the Respondent. As a party in an investigative
complaint or in litigation, the Prosecuting Party does
not have the luxury of dictating or controlling his
opponent’s strategy or response. Rather, so long as
the Respondent’s actions are within the panoply of
lawful options, the Prosecuting Party must accede to
the Respondent’s decision.
I have reviewed the entire record, and I note
that the overwhelming number of submissions from
the parties in this matter have come from the
Prosecuting Party. In general, it appears that in the
administrative processing of this matter at WHD,
and in litigating this matter before me, the
Respondent has done little more than respond to the
issues that the Prosecuting Party has raised, and, in
60a
general, has filed matters with me only in response
to the Prosecuting Party’s filings.
The issue of whether the Prosecuting Party
can receive compensatory damages requires further
discussion. The current rule states that under
certain circumstances (violation of specified parts of
§ 655.810), the Administrator may impose “such
other administrative remedies as the Administrator
determines to be appropriate,” including appropriate
equitable or legal remedies.” § 655.810(e)(2). The
specified parts of § 655.810 for which such remedies
are authorized include discrimination or retaliation.
See § 655.810(b)(iii). In addition, as also discussed in
my August 18, 2014 Order, I noted that at least one
administrative law judge has commented that
compensatory damages are included among the
“appropriate legal or equitable remedies” that can be
awarded under 20 C.F.R. § 655.810(e)(2) (“other
administrative remedies”).12 Kersten v. LaGard. Inc.
2005-LCA-00017 (ALJ, May 11, 2006, slip op. at 6). I
conclude, therefore, that if I were to find that the
Prosecuting Party has established that the
Respondent retaliated against him unlawfully, I
have the discretion to fashion appropriate remedies,
which could include compensatory damages.
12 Awards of back wages and fringe benefits, civil money
penalties, and disqualification from the H-IB program are not
included in § 655.801(e); they are covered in §655.810(a)-(d).
61a
Nonetheless, as discussed above, I have found no
instance of retaliation or discrimination in this
matter, and so compensatory damages are not
appropriate.
Issues to be Addressed in this Decision
Based on the discussions at the pre-hearing
conference(s), the assertions the parties made at the
hearing and the parties’ filings, including their prehearing statements and post-hearing briefs, I find
the issues to be determined in this Decision are as
follows:
•
Whether the Prosecuting Party’s various
complaints to WHD were timely;
•
Whether the Respondent completed a bona
fide termination of the Prosecuting Party’s
employment so as to extinguish Respondent’s
responsibilities to pay the Prosecuting Party
wages and, if so, the effective date of the
Respondent’s termination of the Prosecuting
Party’s employment;
•
If the Respondent completed a bona fide
termination of the Prosecuting Party’s
employment, whether Respondent’s proffer of
funds for return travel was sufficient;
62a
•
Whether the Respondent owes the Prosecuting
Party any back wages and, if so, the amount of
back wages owed,13 and the time period for
which the Respondent’s wage liability
applies;14
•
Whether the Respondent failed to pay the
Prosecuting Party applicable fringe benefits
(including per diem payments while
employed), in violation of the Act and the
applicable regulations; and, if so, the
monetary value of the fringe benefits;
•
Whether the Prosecuting Party’s acceptance of
a payment from the Respondent in 2008 to
settle his informal complaint against the
Respondent extinguishes any liability on the
part of the Respondent to pay back wages
13 At the hearing, I remarked that the record did not indicate
how the Department of Labor arrived at the back wage liability
of $5,736.96 (see CX 1, CX 34), and I would re-examine the
issue of the amount of any back wage liability. T. at 325.
14 At the hearing, I granted the Respondent’s Motion for
directed verdict for back wage liability for any period prior to
November 27, 2006, because there is no evidence of record that
the Respondent failed to pay the Prosecuting Party’s wages
prior to that date. T. at 330.1 also reiterated that I believed
that my jurisdiction was limited, as to back wages, to the
period of the approved LCA, which expired on November 8,
2007.Id.
63a
and/or the monetary value of benefits to the
Prosecuting Party;
•
In the event that the Respondent has any
current liability to the Prosecuting Party for
back wages and/or fringe benefits, whether
the Respondent also owes the Prosecuting
Party interest and, if so, the rate and amount
of interest owed;
•
Whether the Respondent failed to provide the
Prosecuting Party with a copy of the LCAs
pertaining to his employment; and
•
Whether the Administrative Review Board’s
determination that another employer,
Compunnel, owes the Prosecuting Party back
wages, affects the Respondent’s potential
liability to the Prosecuting Party in this
matter.
In this Decision, I have considered all the
evidence of record, including the documentary
evidence, whether or not I have specifically
discussed the item of documentary evidence at issue.
I also have considered the testimonial evidence, and
the post-hearing arguments of the parties.
64a
Evidence
At the hearing, I admitted into evidence the
Prosecuting Party’s Exhibits (CX) 1-32. T. at 8.1 also
admitted into evidence the Respondent’s Exhibits
(RX) 1-24, and 26-32.15 T. at 18. Post-hearing, I
admitted the Prosecuting Party’s unopposed motion
to “admit facts,” thereby including two admissions in
the hearing record. See Order of June 11, 2014.1
also admitted the Prosecuting Party’s Exhibits CX
33-38.16
Prosecuting Party’s Evidence17
The Prosecuting Party’s most salient exhibits are
summarized as follows:
•
•
CXI: WHD Administrator’s Determination
Letter, dated March 13, 2014.
CX 2: Respondent’s offer letter to the
Prosecuting Party, dated March 13, 2006, with
copy (unsigned) of employment contract. The
15 I did not admit Respondent’s Exhibit 25 (RX 25). T. at
130-31.
16 See Order of August 18, 2014. The Respondent did not object
to the Prosecuting Party’s Motion to admit the exhibits, so I
presumed that the Respondent had no objection to their
admission.
17 Prosecuting Party’s exhibits are sequentially paginated
(Index is pages 1-12, exhibit CX 1 is pages 13-18, etc.).
A*
65a
•
•
•
•
employment contract, between the “Company”
[Headstrong, Inc.] and the Prosecuting Party,
reflects the employment is “at-will” and that
the Prosecuting Party is to be employed
beginning March 27, 2006 at a salary of
$8,750.00 per month ($105,000.00 per year),
with a “standard benefits package” and
location of employment in New York. The
employment contract defines the term
“companies” as the Company, its Parent and
any “Related Company” and their respective
successors and assigns.
CX 3: LCA filed by Respondent on March 16,
2006, covering time period from March 16,
2006 to March 16, 2009, location Fairfax,
Virginia, salary $105,000.00 per year.18
CX 5: H-1B approval notice, receipt No. EAC060122-50383, dated March 23, 2006,
reflecting approval of a visa to cover
Respondent’s employment of Prosecuting
Party from April 4, 2006 (“04/24/2006”) to
November 8, 2007 (“11/08/2007”).
CX 6: Respondent’s “Summary of Employee
Benefit Plans 2005/2006.”
CX 8: LCA filed by Respondent on October 10,
2006, covering time period from October 10,
18 This exhibit reflects that the Prosecuting Party received the
copy of the LCA in July 2011, pursuant to a Freedom of
Information Act request.
66a
•
•
•
•
•
•
2006 to November 8, 2007, location New York,
salary $105,000.00 per year.
CX 9: H-1B approval notice, receipt No. EAC07-010-52367, dated October 16, 2006,
reflecting approval of a visa to cover
Respondent’s employment of Prosecuting
Party from October 12, 2006 (“10/12/2006”) to
November 11, 2007 (“11/08/2007”).
CX 10: Respondent’s letter, dated November
14, 2006, signed by Human Resources
Director Patricia Somerville, terminating
Prosecuting Party’s employment, effective
November 27, 2006.
CX 12: Prosecuting Party’s earnings
statement from Respondent for November
2006.
CX 13: Prosecuting Party’s signed separation
agreement, dated December 6, 2006.
CX 15: Copy of Respondent’s check to
Prosecuting Party, dated December 6, 2006, in
the amount of $8,055.94. Per Prosecuting
Party, the payment represents severance pay
and vacation balance.19
CX 16: Copy of letter from Respondent
(“Headstrong Services, LLC”) to USCIS, dated
19 The check is drawn on the account of Headstrong Services
LLC. In his Index to Exhibits, the Prosecuting Party stated
that Headstrong, Inc., did not pay the severance but rather the
severance was paid by “Headstrong Services LLC.”
67a
•
•
•
January 15, 2007, referring to EAC-07-01052367 and stating that Prosecuting Party was
no longer employed by Respondent. Letter has
stamp (rather illegible) in lower right corner.20
CX 17: Copy of receipt for airline ticket for
Prosecuting Party, from Newark NJ to
Bangalore, India. Ticket issued January 26,
2007, date of travel February 24, 2007.21
CX 19: “Confidential Settlement and Release
Agreement,” signed by Prosecuting Party on
May 8, 2008, in which the Prosecuting Party
agreed to release the Respondent from any
claim relating to Prosecuting Party’s
employment with Respondent that arose on or
before the date of the agreement, in
consideration of payment of $7,000.00.22
CX 20: Copies of checks: From Respondent to
Prosecuting Party’s attorney’s law firm, dated
May 9, 2008, in the amount of $7,000.00; and
from Prosecuting Party’s attorney’s law firm
20 In his Index to Exhibits, Prosecuting Party asserts that the
date letter was mailed is not known; Prosecuting Party also
asserts that the Letter was sent by Headstrong Services, LLC
and allegedly refers to employment by the entity.
21 Per Prosecuting Party, ticket was “not under H-1B program.”
(See Cover sheet to exhibit).
22 An official of the Respondent also signed the document, on
May 9, 2008.
68a
to Prosecuting Party, dated May 16, 2008, in
the amount of $4,666.67.
•
CX 23: Copy of e-mail from Prosecuting Party
to Patricia Somerville (Respondent’s Human
Resources Director),23 dated February 11,
2010.
•
CX 28: Letter from WHD to Prosecuting
Party, dated January 25, 2013, informing him
that WHD found “reasonable cause to conduct
an investigation based on the information [he]
provided.” Letter from WHD to Prosecuting
Party dated September 27, 2013, informing
him that complaint is under investigation and
investigation is in progress.
CX 32: E-mail from Respondent’s counsel to
Prosecuting Party, dated April 19, 2014,
forwarding copies of letters from the
Respondent to USCIS relating to Respondent’s
LCA petition for the Prosecuting Party.24
CX 34: WHD investigator’s calculation of
Respondent’s back wage liability. CX 36:
•
•
23 This is the same individual who signed the letter terminating
the Prosecuting Party’s employment (CX 10).
24 The date on these items is April 18, 2014. It is clear from the
context of the letters that the date is in error (it appears that
when the Respondent encountered electronic copies of the
letters, the act of retrieving them caused a new date to be
inserted). Respondent raised this issue at the hearing, and I
informed the parties I would not consider the dates. T. at 6-8.
69a
•
•
Respondent’s policy document regarding “atwill” employment.
CX 37: Respondent’s policy document
regarding extension of H visas.
CX 38: Respondent’s 1-129 (LCA Petition) for
Prosecuting Party, dated October 10, 2006,
reflecting the purpose of the application is to
change previously approved employment
(EAC-06-122-50383), with new places of
employment listed as New York City and
Chicago, for a time period up to November 8,
2007, at salary of $105,000.00 per year with
standard benefits.
Respondent’s Evidence
The most salient of the Respondent’s exhibits
that I admitted into evidence are summarized as
follows:25
25 Some of the Respondent’s exhibits duplicate the Prosecuting
Party’s exhibits. These are as follows: RX 2 (duplicates CX 5);
RX 10 (duplicates CX 15); RX 12 (duplicates CX 16); RX 16
(duplicates CX 19); RX 24 (duplicates CX 23). Additionally, RX
17 and 19, together, duplicate CX 20. As well, RX 1 duplicates a
portion of CX 3, RX 3 duplicates a portion of CX 8, and RX 26
and 27 duplicate a portion of CX 14. In this Decision, for the
sake of consistency, when referring to documents that both
parties have submitted, I will refer to the Prosecuting Party’s
exhibit, unless a witness cited the Respondent’s exhibit in
testimony.
70a
•
RX 4, 5, 6: E-mails reflecting that the
Prosecuting Party was informed of his
termination from employment in November
2006, prior to its effective date of November
27, 2006.
•
RX 7: E-mail from Prosecuting Party to
Respondent’s officials, dated December 4,
2006, transmitting signed separation
agreement and inquiring if Respondent will
consider paying reasonable costs of
transportation to home country, which
Prosecuting Party estimated to be $2,000;
letter to Prosecuting Party, notifying him of
the termination of his employment, dated
November 14, 2006, and acknowledged by
Prosecuting Party on December 4, 2006.26 Also
termination agreement, signed by Prosecuting
Party on December 6, 2006, which duplicates
CX 13.
•
RX 8: Letter from Respondent’s controller to
WHD Investigator, dated March 21, 2013,
listing wages paid to Prosecuting Party from
April 2006 to December 31, 2006.
26 Another copy of this document, signed by the Respondent’s
Human Resources Director, but not reflecting the Prosecuting
Party’s acknowledgment, is at CX 10.
71a
•
•
•
•
•
•
RX 9: E-mail string regarding return travel
arrangements for Prosecuting Party, dated
December 5, 2006 to January 23, 2007.
RX 13: E-mails dated January 23, 2007
through January 25, 2007, relating to
purchasing the airline ticket for the
Prosecuting Party’s travel to India.
RX 14: Letter from USCIS to Respondent,
dated March 30, 2007, confirming that
petition EAC-07-010-52367, submitted on
October 12, 2006 and approved on October 24,
2006, was revoked because the Respondent no
longer employed the Prosecuting Party.
RX 15: “Demand Letter” dated April 1, 2008,
from Prosecuting Party’s attorney to
Respondent’s then-President, asserting the
Respondent owes Prosecuting Party back
wages, up through November 8, 2007
(expiration date of LCA) or, alternatively up to
February 24, 2007 (date of air ticket to home
country).
RX 18: Transaction document indicating RX
17 (settlement check to Prosecuting Party’s
attorney) was cashed.
RX 20. Excerpt of Prosecuting Party’s 2008
complaint to WHD.
72a
•
•
•
•
•
•
RX 22: Excerpt (first page) of Prosecuting
Party’s complaint to WHD.27
RX 23: E-mail from WHD employee to
Prosecuting Party, dated June 8, 2010,
informing Prosecuting Party that his
complaint was “not timely:” also a copy of
letter from WHD to Prosecuting Party, dated
June 10, 2010, informing him that there was
no reasonable cause to conduct an
investigation because Prosecuting Party failed
to provide evidence complaint was timely.
RX 29: Prosecuting Party’s January 2011
complaint to WHD.
RX 30: Copy of WHD letter to Prosecuting
Party, dated May 18, 2011, rejecting portions
of Prosecuting Party’s January 2011
complaint based on untimeliness.
RX 31: Copy of “screenshots.”28
RX 32: Payroll records. Prosecuting Party’s
monthly earnings statements for April
through November 2006.
27 In the Index to Exhibits, Respondent asserts that
Prosecuting Party filed this document in June 2010. I note,
however, that this document appears to duplicate the first page
of RX 29 (Prosecuting Party’s 2011 complaint to WHD).
28 Respondent asserts that this exhibit establishes that
documents at CX 32 were not created in 2014, but rather were
created in 2006. (Respondent states the error was due to a
programming feature that re-populates the field with a current
date when the document is opened).
73a
Stipulated Facts
At the hearing, the parties agreed to the
following stipulated facts:
1. On or about March 23, 2006, the Respondent
filed an H-lB petition and LCA application,
for the time period through March 26, 2009,
with USCIS, intending to employ the
Prosecuting Party in an H-1B visa status.
2. USCIS approved the petition through
November 8, 2007, petition receipt number
EAC-06-122-250383.
3. The Prosecuting Party and Mr. Sahai, on
behalf of the Respondent, executed CX 19
(Confidential Settlement and Release
Agreement) on May 8 and 9, 2008,
respectively.
4. Headstrong, Inc., the Respondent, is a
company incorporated in Virginia, with its
principal place of business in Virginia.
5. The Respondent maintains offices in several
locations, including New York City.
6. The Prosecuting Party is a citizen of India.
7. On or about March 16, 2006, the Respondent
filed an LCA with the DOL as part of the
process of the government’s approval for the
Prosecuting Party’s H-1B employment.
74a
8. The Respondent sent the Prosecuting Party an
airline ticket on February 2, 2007, for travel to
Bangalore on February 24, 2007.
9. On March 13, 2006, the Respondent sent the
Prosecuting Party an employment agreement
in the same form as CX 2.
10. Per the parties’ employment agreement, the
Prosecuting Party’s job location was in New
York City and his job title was “Senior
Consultant.”
11. In the LCA the Respondent submitted in
March 2006, the work location is listed as
Fairfax, Virginia.
12.The LCA’s job title is listed as “Project
Manager.”
13. This LCA “was certified” for a period of
03/16/2006 to 03/16/2009.
14. The LCA’s wage rate was listed at
$105,000.00 per year.
15. The Respondent did not submit a copy of the
employment agreement (CX 2) to the
Department of Labor.
16.USCIS approved the Respondent’s LCA
petition for an H-1B validity period of
04/24/2006 to 11/08/2007.
17. On November 14, 2006, the Respondent sent
the Prosecuting Party the termination letter
at CX 10.
75a
18. In November 2006, the Respondent offered the
Prosecuting Party separation pay in exchange
for signing a general release of all claims and
covenant not to sue in the form of CX 13.
19.19. According to CX 10, all company benefits
for the Prosecuting Party were to be
terminated effective November 27, 2006,
unless otherwise stated in the separation
agreement.
20.20. In April 2008, the Prosecuting Party’s
representative, Goldberg & Fliegel LLP, sent
the Respondent a letter intended to revoke the
Prosecuting Party’s consent to the separation
agreement, and to request payment of
additional wages and benefits.29
T. at 24-27
Testimonial Evidence
As noted above, the hearing in this matter
was held on May 6, 2014. The hearing took a full
day, commencing at 9:49 a.m. and concluding at 8:06
29 Based on my review of RX 15 (Goldberg & Fliegel, LLP’s
demand letter, dated April 1, 2008), I conclude that the hearing
transcript does not accurately reflect the stipulation (there is
likely a transcription error in which several words are omitted).
76a
p.m. I summarize the testimonial evidence as
follows:30
Alphonse Valbrune.
Mr. Valbrune was called as a witness by both
the Prosecuting Party and the Respondent, and
testified under oath, with his initial testimony on
behalf of the Prosecuting Party. He stated that he
has been employed by the Respondent for 14 years
and that his direct employer is “Headstrong, Inc.”
Mr. Valbrune stated that he has heard of the
company called “Headstrong Services,” and testified
that it is a “sister company” of Headstrong, Inc.,
because both companies are subsidiaries of a holding
company called “Headstrong Corporation.” Mr.
Valbrune remarked that in 2006 the ultimate parent
of Headstrong, Inc. was Headstrong Corporation, a
private company, and that presently the parent
company of Headstrong, Inc. is Genpact, Limited. T.
at 43-45.
Mr. Valbrune stated that he had no
involvement with the Prosecuting Party’s case until
30 Because of constraints on witness availability (some
witnesses were available only at certain times, other witnesses
were available only by telephone), the witness testimony was
not in order. I summarize the testimony in the order that the
witnesses testified at the hearing.
77a
2008, when the Respondent received a demand letter
from the Prosecuting Party’s attorney, and he
identified RX 15 as that item. He stated that after he
received the demand letter, he gathered documents
relating to the Prosecuting Party’s employment
termination, consulted with counsel, and ultimately
obtained a settlement and release. Mr. Valbrune
stated that the settlement was for $7,000.00,
involved all of the Prosecuting Party’s claims that he
had or may have had outstanding against the
Respondent, and included a general release; he
identified RX 17 as the check that the Respondent
paid. The witness acknowledged that the check was
drawn on “Headstrong Services,” but remarked that
“Headstrong Services” would have paid the check on
behalf of “Headstrong, Inc.,” because it was sent to
the Prosecuting Party’s attorney pursuant to the
settlement and release agreement. T. at 45-49.
The Prosecuting Party directed the witness’
attention to CX 19 (the settlement and release
agreement), and acknowledged that paragraph 12 of
the document reflects that the agreement supersedes
any prior agreements between the Respondent and
the Prosecuting Party. The witness stated that the
settlement amount of $7,000.00 was arrived at by
negotiation between the Prosecuting Party’s
attorney and the Respondent’s officials. The witness
identified CX 23 as an e-mail from the Prosecuting
78a
Party, dated February 2010, in which the
Prosecuting Party attempted to rescind his
settlement agreement and “threatened [the
Respondent] with some action if we didn’t agree to
the recission.”31 The threatened actions included
complaints to be filed with the Department of Labor,
USCIS, and the U.S. District Court for the Southern
District of New York. Additionally, the witness
testified, the Prosecuting Party stated he would
inform the “ministry of overseas Indians” about the
Respondent’s harassment of Indian workers. The
witness commented that the Prosecuting Party had
no right to rescind the agreement. T. at 49-56.
The witness identified CX 24 and 25, e-mails
from the Prosecuting Party dated November 2010
and August 2011, respectively. He acknowledged
that the Respondent chose not to participate in a
settlement judge proceeding with the Prosecuting
Party, commenting that the Respondent had no
reason to believe the Prosecuting Party would honor
any additional settlement, because he was
attempting to rescind a settlement he had already
entered into. Mr. Valbrune reiterated that he
became involved with the Prosecuting Party’s case in
2008 so whatever he knows about the facts
pertaining to the Prosecuting Party’s employment,
31 At this point the witness clarified that he is an attorney who
represents the Respondent. T. at 54.
79a
he learned by reviewing documents. He identified
CX 10 (termination letter dated November 14, 2006)
and CX 2 (letter dated March 13, 2006, offering the
Prosecuting Party employment and enclosing
employment agreement), and acknowledged that the
termination letter referred to the employment offer
letter. T. at 56-63.
On cross-examination, Mr. Valbrune
confirmed that the Respondent had never agreed
that the 2008 settlement agreement with the
Prosecuting Party had been rescinded, and also
acknowledged that the Prosecuting Party never
repaid any of the money paid to him under that
settlement. He also stated that he negotiated the
2008 settlement agreement via telephone with the
Prosecuting Party’s attorney. The witness stated he
did not negotiate directly with the Prosecuting Party
and did not discuss with the Prosecuting Party the
demand letter that his attorney sent to the
Respondent. See RX 15. Aside from being copied on
e-mails the Prosecuting Party sent on the issue of
the recission of the 2008 settlement agreement, Mr.
Valbrune stated, he did not have any direct
communication with the Prosecuting Party and had
never spoken with the Prosecuting Party until the
date of the hearing. On re-direct examination, the
witness reiterated it was the Respondent’s position
that the 2008 settlement agreement, and its
80a
accompanying release, are valid and binding. T. at
64-67.
On direct examination by the Respondent, Mr.
Valbrune stated that Genpact is the parent of
Headstrong and acquired Headstrong in 2011.32 And
on cross-examination by the Prosecuting Party, the
witness stated that the Respondent is a subsidiary of
Genpact and that the companies share some
functions, but that employees of Headstrong at the
time of the acquisition have remained employees of
Headstrong. T. at 67-71.
Valerie Snratling
Ms. Spratling was called as a witness by both
the Prosecuting Party and the Respondent, and
testified under oath, with her initial testimony on
behalf of the Prosecuting Party. She stated that she
has been employed by Headstrong since September
2006; the witness testified that from when she joined
the company up until March of 2011, she was
assigned to “Headstrong, Inc.” but that she then had
a break in service until November 2011; since she
resumed employment, her paycheck comes from
32 As noted above, this witness testified on behalf of both the
Prosecuting Party and the Respondent. After he testified on
behalf of the Prosecuting Party, I permitted the Respondent to
ask questions on direct examination.
81a
“Headstrong Services, LLC.” Ms. Spratling stated
that in 2006-07 she managed human resources
(“HR”) for Headstrong North America, reporting to
Patricia Somerville, who was the Director of Human
Resources for North America. She stated that Ms.
Somerville contacted her and requested that she
prepare the termination agreement and severance
agreement for the Prosecuting Party, and identified
RX 4 as the e-mail documenting that request. T. at
73-77.
The witness identified the Prosecuting Party’s
termination letter (CX 10) and stated she prepared
that document. She stated that the first paragraph
of the termination letter referred to the Prosecuting
Party’s March 13, 2006 offer of employment and
noted that the Prosecuting Party’s employment was
“at will.” Additionally, Ms. Spratling stated, the
reason for the termination, lack of work (“layoff’),
was given in the second paragraph of the letter. Ms.
Spratling acknowledged that in the fourth
paragraph of the termination letter the Prosecuting
Party was informed that he would be paid his
vacation balance as of November 27, 2006. She
stated that she was the person who was identified to
the Prosecuting Party as his point of contact in
processing his employment termination. T. at 77-83.
82a
Ms. Spratling identified the severance
agreement the Prosecuting Party was tendered (CX
13).33 She stated that per the agreement, the
consideration for the Prosecuting Party’s release was
as follows: four weeks of base pay in the amount of
$8,076.92, less withholdings; continuation of medical
and dental benefits through November 30, 2006; and
payment of vacation balance as of November 27,
2006. She stated that she notified the payroll office
to release the payment to the Prosecuting Party,
after the expiration of the period specified in the
agreement in which the Prosecuting Party could
revoke the release. T. at 83-86.
The witness identified CX 12 as e-mails
relating to the Prosecuting Party’s request for
transportation costs; she confirmed that initially the
Respondent refused to make such payment, but
stated that within a day and after consultation with
other officials, it was learned that the company was
obligated to make such payment, and an official
contacted the Prosecuting Party directly to arrange
travel. She stated that the last time she had any
involvement with the Prosecuting Party’s
termination action was when the issue of his return
33 The hearing transcript stated that this document was at tab
30.1 find that the reference in the hearing transcript is a
transcription error.
83a
transportation was addressed and resolved. T. at 8692.
On cross-examination, Ms. Spratling agreed
that she was never advised that the Prosecuting
Party was being benched for lack of work. She also
agreed that the Prosecuting Party was notified on
November 14, 2006 that his employment with the
Respondent was to be terminated effective
November 27, 2006. She also agreed that the
Prosecuting Party signed the separation agreement
in December 2006 and that, when travel
arrangements were being discussed, the Prosecuting
Party requested that his return travel date be
February 24, 2007. T. at 93-96.
On re-direct examination, the witness stated
that, though she had no direct involvement with the
Prosecuting Party after December 2006, she was
aware that an airline ticket with a return date of
February 24, 2007 had been purchased, that the
Prosecuting Party had approved the itinerary on
January 23, 2007, and that the ticket was issued on
that same date. The witness was shown CX 17
(airline e-ticket receipt);34 she stated that the
document reflects the ticket was issued to
Headstrong on January 26, 2007 for the Prosecuting
34 The transcript reflects CX 7; this appears to be a
transcription error.
84a
Party’s travel on February 24, 2007, but she did not
know when the Prosecuting Party actually received
the airline ticket.35 The Prosecuting Party requested
that the witness review CX 15 (a check reflecting
payment to the Prosecuting Party of $8,055.94,
dated December 6, 2006, drawn on “Headstrong
Services LLC Disbursement Account”). In response
to a question regarding which entity owed the
Prosecuting Party severance pay, the witness
responded that, according to the separation
agreement, “Headstrong, Inc.” was the proper entity.
T. at 96-104.
On direct examination by the Respondent, Ms.
Spratling testified that Headstrong intended the
Prosecuting Party’s last day of employment to be
November 27, 2006, and stated that the Prosecuting
Party did not perform any work for the Respondent
after that day and did not receive regular wages
after that date either.36 Regarding effectuating the
Respondent’s termination of the Prosecuting Party’s
employment, Ms. Spratling stated that the company
must notify USCIS of an employee’s termination,
35 At this point the Prosecuting Party stated that he did not
receive the airline ticket until February 2, 2007
36 As noted, this witness testified for both the Prosecuting Party
and the Respondent. After completing testimony on behalf of
the Prosecuting Party, the witness testified as the Respondent’s
witness
85a
and that the Respondent does so by letter. The
witness identified RX 12 as a letter that the
Respondent sent to USCIS, dated January 15, 2007,
to revoke the Prosecuting Party’s H-1B status
because of the termination of his employment. As to
why the Respondent waited so long to notify USCIS,
Ms. Spratling stated that sometimes employees
request some delay so that they can try to find
different sponsoring employers and thus remain in
the United States. She stated that in this case the
Respondent accommodated the Prosecuting Party’s
request. T. at 104-11.
On further direct examination, Ms. Spratling
testified that the position that the Prosecuting Party
was offered in his employment agreement (CX 2),
“Senior Consultant,” is an internal designation,
which would not be the same position as listed on an
LCA. As to the job location on an LCA, Ms. Spratling
stated that the location typically is accurately listed,
but on occasion if the Respondent is unaware of
where the employee is to be working, the location of
the corporate office was used to initiate the H-1B
process, and later an amended LCA was filed to
reflect the new location. Ms. Spratling admitted that
there could be a time lag in filing an amended LCA.
T. at 111-15.
86a
On cross-examination, Ms. Spratling stated
she was not sure which “Headstrong” entity (e.g.,
Headstrong Services, Headstrong, Inc.) produced the
e-mail at RX 25 (initiating the termination of the
Prosecuting Party’s employment).37 She stated that
she had some familiarity with LCA requirements
because at one point in her employment, in 2009, she
managed immigration for the Respondent. As for the
Prosecuting Party’s LCA (CX 3), she testified that
the dates in the application, March 16, 2006 and
March 16, 2009, reflected the period that the
employment could cover. She agreed that these were
the dates for which the application was certified by
the Department of Labor. As to the LCA at CX 8, the
witness stated she did not have any direct
knowledge of it.38 As to the letter to USCIS at CX 17,
Ms. Spratling stated she had seen it before many
times, and she acknowledged that the letter was
written on behalf of “Headstrong Services, LLC,”
even though the entity reflected on the Prosecuting
37 At this point, after a colloquy on how RX 25 was obtained, I
disallowed the admission of RX 25. See T. at 118-31.1
authorized further re-direct examination: Ms. Spratling stated
she had no role in the preparation of the Prosecuting Party’s
LCA (RX 1), and she explained that the job title in the LCA,
“Project Manager,” may not be the same as the Respondent’s
internal designation of a job title. T. at 131-34.
38 The Prosecuting Party referred to the document not by its
exhibit number but by its sequential page number, 48, in his
exhibits
87a
Party’s termination letter and separation agreement
was “Headstrong, Inc.” She also acknowledged that
USCIS’ approval of the Prosecuting Party’s LCA
application (CX 5), receipt number EAC-06-12250383, was made to “Headstrong, Inc.” and that the
letter to USCIS at CX 17 related to receipt number
EAC-07-010-52367.39 The witness reiterated, though,
that “Headstrong is all one company.” T. at 135-43.
On re-direct examination, Ms. Spratling
confirmed that the receipt number referred to in the
Respondent’s letter to USCIS [EAC-07-010-52367] is
the same receipt number that appears at CX 9
(USCIS’s October 2006 approval of Prosecuting
Party’s LCA petition).40 The witness identified RX 14
as the USCIS’ notification to the Respondent of the
revocation of the approval of the Prosecuting Party’s
LCA petition, with the receipt number matching that
on the USCIS approval notice and the January 15,
2007 letter to USCIS. In response to my question,
Ms. Spratling clarified that her work in human
resources involved all of the “Headstrong”
39 In response to the Prosecuting Party’s intimation that there
was no evidence USCIS received this letter, I informed him
that CX 17 appears to bear a faint and barely legible receipt
stamp, dated either January 26 or January 23, 2007. T. at 14243.
40 Respondent’s counsel referred to this exhibit by its sequential
page number in the Prosecuting Party’s exhibits, which is 53.
88a
companies. On the issue of vacation pay, Ms.
Spratling stated that it was accrued on a monthly
basis, at the rate of 6.67 hours per month. T. at 14447.
Ackv Kandar
Mr. Kandar was called as a witness by both
the Prosecuting Party and the Respondent, and
testified under oath, with his initial testimony on
behalf of the Prosecuting Party. His testimony was
taken by telephone, by concurrence of the parties. He
stated that he joined Headstrong in‘1999 and left in
2014. In 2006, he testified, he was responsible for a
business unit that addressed large clients in New
York, and he said he worked for “Headstrong
Services.” As to any distinction between Headstrong
Services and Headstrong, Inc., Mr. Kandar stated he
was aware there was some sort of structure, but was
unsure what that specifically meant. He stated he
did not recall any circumstances surrounding the
Prosecuting Party’s termination from employment,
and does not recall ever meeting the Prosecuting
Party. T. at 150-52.
On cross-examination, Mr. Kandar stated that
the Prosecuting Party was not under his direction
and did not report directly to him. On further
examination from the Prosecuting Party, the witness
89a
stated that he knew Ricky Pool, but was unsure
whether Mr. Pool worked for Headstrong Services or
Headstrong, Inc., and stated that when preparing for
his testimony he concluded that the Prosecuting
Party had worked under Mr. Pool’s supervision. T. at
152-54.
Patricia Somerville
Ms. Somerville was called as a witness by both
the Prosecuting Party and the Respondent, and
testified under oath, with her initial testimony on
behalf of the Prosecuting Party. Her testimony was
taken by telephone, by concurrence of the parties.41
Ms. Somerville stated that she began working
at Headstrong in July 2006 and worked there until
August 2008, and that she was the human resources
(“HR”) director. She stated that documents were
retained at the corporate office, which at that time
was in Fairfax. She identified CX 3, noted that the
applicable employer was Headstrong, Inc., and
stated that the employment period specified in that
document was March 2006 through March 16, 2009,
with a location of Fairfax, Virginia. She stated that
41 Prior to her testimony, the Prosecuting Party provided copies
of some exhibits to Respondent’s counsel, and requested that
counsel forward the documents to the witness. The witness
confirmed receipt of the documents. T. at 156-59.
90a
this was the period for which authorization was
given to work in the United States, and noted that
she is not an immigration specialist. Ms. Somerville
stated she did not sign this LCA but has signed
other ones. Ms. Somerville examined CX 5, the
USCIS receipt, indicated that employment was valid
from April 24, 2006 to November 8, 2007, and it
related to the Prosecuting Party. Ms. Somerville
identified CX 8 as an LCA that she signed in October
2006, with the employer listed as Headstrong, Inc.
with dates of employment from October 10, 2006
(“ 10/10/2006”) to November 8, 2007 (“11/08/2007”),
pertaining to the Prosecuting Party. She stated she
did not recall any specific details about this action,
nor did she recall any specific documents that may
have been filed with the LCA. She stated she did not
recall why the second LCA was filed, but did note
that the location in the second LCA was specified as
New York. She stated that if any employee switched
locations, a new LCA may have been needed.
Alternatively, she also remarked, if the company did
not initially know where an employee would be
working, but later found out, a new LCA may have
been filed. As to these particular LCAs, however, Ms.
Somerville testified, she did not recall. She stated
she did not know if any additional LCAs were filed
pertaining to the Prosecuting Party. T. at 156-67.
91a
The witness identified CX 10, the November
14, 2006 letter terminating the Prosecuting Party’s
employment, and verified that she signed the letter.
She said she was unable to explain why there was no
work (the reason given in the termination letter)
when she also had signed, under penalty of perjury,
an LCA indicating that the Prosecuting Party was to
be employed through November 2007. She
acknowledged that the termination letter referred to
the Prosecuting Party’s initial offer of employment.
She stated that the offer of a severance payment was
the Respondent’s usual practice. Ms. Somerville
identified CX 12 as the Prosecuting Party’s earnings
statement covering November 2006, and she stated
that the amount paid was less than the regular gross
pay rate, because the termination date was prior to
the end of the month. She identified CX 14 as emails relating to the cost of air transportation, and
stated that Headstrong did not provide funds to
employees but rather purchased airline tickets
directly. She acknowledged that the Prosecuting
Party’s termination letter did not indicate that air
transportation back to his home country would be
provided. She identified CX 17 as an e-mail
containing an airline ticket e-receipt, and noted the
date the e-mail was sent was February 2, 2007. T. at
167-75.
92a
Regarding RX 4, Ms. Somerville identified it
as an e-mail she sent to Ms. Spratling regarding the
Prosecuting Party’s termination from employment,
and she stated that Rick Pool had asked her to do
that. Though the date of the e-mail was November
14, 2006, she stated, she had a conversation with
Mr. Pool prior to that date. She stated that according
to Mr. Pool, there was no more work and so the
Prosecuting Party’s employment was to be
terminated. Ms. Somerville commented that she
could not recall any details of the decision to
terminate the Prosecuting Party’s employment.
Regarding RX 6, Ms. Somerville stated that it
contained e-mails regarding the Prosecuting Party’s
last day of employment, and that Headstrong
determined it would remain November 27, 2006,
despite the Prosecuting Party’s request for leave
without pay. She stated she did not know whether
the termination agreement was submitted to the
Department of Labor or other authority, and also did
not know whether the LCA was ever withdrawn. T.
at 175-80.
On cross-examination by Respondent’s
counsel, Ms. Somerville noted that some of the email communications with the Prosecuting Party in
RX 6 were sent to his work account and others were
sent to a personal (“Yahoo”) account. She stated that
she wanted to confirm that the Prosecuting Party
93a
was aware that it was decided that his last day was
to be November 27, 2006. She stated she had
authority to approve air travel for the Prosecuting
Party, even though the immigration specialist was
making the travel arrangements. Ms. Somerville
stated that it was her understanding that an LCA
does not guarantee employment for any period of
time, and she confirmed that the Prosecuting Party
was an “at-will” employee for the Respondent. She
confirmed that the Respondent would purchase an
airline ticket for a terminated H-1B employee and
also confirmed that if an employee requested a
specific travel date that the Respondent would
attempt to accommodate that request. Ms.
Somerville clarified that, though she signed LCAs on
behalf of the Respondent, the content of the LCAs
was prepared by the Respondent’s immigration
specialist. She acknowledged that, at times, the work
location on an LCA was not accurate, despite the
Respondent’s best intentions (and if the location was
uncertain the Respondent’s headquarters would be
designated as the work location); she also stated
that, if possible, the Respondent would endeavor to
submit an updated LCA reflecting an accurate
location. When comparing CX8 with CX 3 (the two
LCAs pertaining to the Prosecuting Party), she
indicated it was probable that the second LCA was
submitted because it reflected a changed work
location - that is, New York. Ms. Somerville
94a
acknowledged that it was the Respondent’s practice
to provide a copy of the LCA to the affected
employee, and this task would have been done by the
immigration specialist. T. at 180-87.
On further examination by the Prosecuting
Party, Ms. Somerville reiterated that it was her
understanding that submitting an LCA does not
guarantee that an employee will be employed for the
LCA period. She stated she could not cite a
regulation or other source for this conclusion, and
acknowledged this was only her opinion. In response
to my question, Ms. Somerville stated that an
employee who refused to sign a severance agreement
would not receive a severance payment, but would
receive payment of wages up to the date of
termination, as well as accrued vacation pay. She
stated she could not recall whether there was any
specific notice period that the Respondent used when
informing employees that their employment was to
be terminated. T. at 187-91.
Arvind Gupta (Prosecuting Party)
The Prosecuting Party, Arvind Gupta,
testified on his own behalf. He stated that he first
came into contact with Headstrong in March 2006,
when he was working in Atlanta. He interviewed
and Rick Pool offered him long term employment.
95a
The Prosecuting Party also commented that the
recruiter told him it was Headstrong’s policy to
sponsor green card applications for employees after
six months. The Prosecuting Party stated that he
accepted Headstrong’s employment offer in part
because the job was for a project manager in the
financial services sector, and he had an interest in
that area. To join Headstrong, the Prosecuting Party
stated, he resigned from his employment, which was
based in India. The Prosecuting Party stated that,
after some delay, his work with Headstrong started
about May 1, and he moved from Atlanta to New
York. But it was not a project manager position but
instead was an analyst position in the “PMO Group.”
In August, the Prosecuting Party stated, Headstrong
told him that the client had obtained someone
internally for the project manager position, so that
job was not available. Accordingly, he said, he
worked on other projects for Headstrong for a while.
Then, as of September 19, he was asked to go to
Chicago to work on a short-term project, which he
did. Then on November 3, the Prosecuting Party
stated, that project ended, and he returned to New
York, and took leave for a few days of vacation. T. at
194-97.
While he was on vacation, the Prosecuting
Party stated, he got an e-mail from Mr. Pool asking
him to call. He called and told Mr. Pool he was on
96a
vacation, and said he would contact him when he
returned on November 13. The Prosecuting Party
stated that he called Mr. Pool on November 13 but
was not able to speak with him. On the morning of
November 14, he stated, Mr. Pool called him back
and started yelling at him about why he did not call
him immediately upon his return from Chicago. The
Prosecuting Party stated that he surmised that Mr.
Pool did not know about his approved leave. Then,
the Prosecuting Party stated, Mr. Pool told him he
was laid off - that is, he was fired. The Prosecuting
Party stated he could not believe it and figured that
Mr. Pool would change his mind once he cooled off.
The Prosecuting Party stated he called Mr. Pool back
the next day and Mr. Pool confirmed that he was to
be laid off. Shortly thereafter, the Prosecuting Party
said, he got a letter telling him that due to lack of
work his employment was terminated. The
Prosecuting Party stated he contacted several
officials at Headstrong but the decision had already
been made. However, the Prosecuting Party stated,
Acky Kandar took his (Curriculum vitae (“CV”) and,
he believed, circulated it within the New York area.
The Prosecuting Party testified that Mr. Kandar told
him that no work was available at the time but in
several months an alternative position may come up,
and that they would not cancel his H-1B visa but
rather would continue his H-1B status. T. at 197200.
97a
The Prosecuting Party testified that when he
got his pay stub for November it did not show his full
pay, and Ms. Somerville told him that his
employment was terminated. At that time, he said,
Mr. Kandar advised him to go ahead with the
separation agreement, because if he did not, he
would not receive any payment. The Prosecuting
Party stated that he signed the separation
agreement and received four weeks’ pay. He said he
did not hear anything from Headstrong and so in
January 2008 he contacted them to ask about the
status of his H-1B visa, which was supposed to last
until November 8, 2007. At that time, he said, he got
an e-mail informing him that Headstrong had told
USCIS on January 15, 2007 that his job had been
terminated. The Prosecuting Party stated that he
disputes that, because he contacted USCIS and they
told him they did not have any request from
Headstrong, Inc. to cancel his visa. He remarked,
though, that USCIS, “by mistake,” issued a letter to
Headstrong Services relating to the petition
approved in October 2006. However, the Prosecuting
Party stated, he did not understand this issue in
January 2008, so he contacted an attorney, who
contacted Headstrong and made a demand based on
the information that was available at that time. The
Prosecuting Party said that after a while the
attorney told him that Headstrong had offered
98a
$7,000.00 on a take-it-or-leave it basis, which he
took, and the attorney received a check for $7,000.00
from Headstrong Services, LLC. T. at 200-202.
In January 2008, the Prosecuting Party
stated, he contacted the Department of Labor and
informed them he had not received wages up to
November 2007 from Headstrong. At the time, the
Prosecuting Party stated, the Department of Labor
believed his complaint to be untimely, and asked for
more information. He said he provided information
as requested by the Department of Labor, but
ultimately, in April 2009, he left the United States
and returned to India. He said that he continued to
press his case with the Department of Labor from
India. The Prosecuting Party testified that he filed
cases against Headstrong in 2010 and 2011, which
were dismissed, but eventually, in 2013, the
Department of Labor found reasonable cause to
investigate his allegations, and then conducted an
investigation. T. at 202-205.
The Prosecuting Party acknowledged that in
December 2006, when he was out of work, he
contacted Headstrong about payment for his return
to India. However, he said, Headstrong’s offer to pay
for an airline ticket did not necessarily indicate that
Headstrong had terminated his employment. He said
he was aware of many instances in which employees
99a
traveled between India and the United States, and
just because the employer may have paid for the
ticket did not mean an employee had been
terminated. He reiterated that Headstrong, Inc.
never informed him of the termination of his H-1B
visa. He remarked that he contacted USCIS and
obtained copies of documents, none of which show
that Headstrong, Inc. informed USCIS about the
termination of his employment or withdrew any of
the two approved petitions. He said that under such
circumstances, because there was no termination of
employment, Headstrong was not obligated to pay
any return transportation; however, he asked about
return transportation because he was not working
and figured he could leave the United States until
work became available and he could return. The
Prosecuting Party stated that he was available for
work, and remained fully available for work, from
November 2006 up to the present. T. at 205-06.
Additionally, the Prosecuting Party remarked,
“Headstrong should make me whole for ... whatever
actions it has taken. And Headstrong is legally
obligated to do it. ... These minimum program
requirements have to be met by all employers and
Headstrong cannot be the exception to it. It has to
comply with law.” T. at 206-07.
100a
On cross-examination, the Prosecuting Party
conceded that his employment agreement with the
Respondent set his first day of work as sometime
early in April 2006. He also conceded that a project
for him did not become available until May 2006, but
he was paid his full salary for April. The Prosecuting
Party further conceded he was basically paid the
amount due under his employment agreement
through November 27, 2006, though he said that the
amount he was actually paid for that time period
was about $300 to $400 less than he was due, on a
prorated basis. He stated he was aware that USCIS
only approved Headstrong’s H-lB visa petition
through November 8, 2007, and acknowledged that it
was his position that Headstrong owed him wages
up to at least that date. He confirmed that after Mr.
Pool informed him of his impending termination, he
reached out to several officials, but denied that he
tried to get them to delay the termination date. The
Prosecuting Party also confirmed that he spoke with
Mr. Kandar, but denied that he indicated a concern
about keeping his H-lB status active; rather, he
stated, he informed Mr. Kandar that Headstrong’s
action [in terminating his employment] was contrary
to the law, as he understood the law to be. He
confirmed that after circulating his curriculum vitae,
Mr. Kandar told him that no position was available,
but also said that Mr. Kandar told him that his H-lB
visa would not be cancelled and he would be offered
101a
a position as soon as one became available. The
Prosecuting Party disagreed that Mr. Kandar told
him that a termination date of November 27, 2006
stood; rather, he stated, Mr. Kandar told him that
the termination letter would stand. The Prosecuting
Party acknowledged that the letter reflected that his
employment would be terminated as of November
27, 2006. T. at 213-23.
The Prosecuting Party stated that he
informed Headstrong officials that it was possibly a
violation of H-1B program regulations to have him
working in Chicago, because his “appointment letter”
specified a New York work location. He
acknowledged that he performed no work for
Headstrong after November 27, 2006 and that he
signed a separation agreement on December 4, 2006.
He also acknowledged he received separation pay of
$8,076.92, less withholding, which was equivalent to
four weeks’ wages. As for accrued vacation pay, the
Prosecuting Party acknowledged receiving a
payment, but stated he was unsure whether the
amount tendered was accurate. T. at 223-26.
On the issue of a return airline ticket, the
Prosecuting Party acknowledged requesting an
airline ticket back to India; however, he stated, by
doing so it was not his intention to “conclude” his
termination of employment. He acknowledged,
102a
however, that in an e-mail at RX 26 he attempted to
get the Respondent to pay the cost of his air travel
by citing the regulation that requires an employer to
pay the cost of return transportation if an employee
is dismissed from employment; he also acknowledged
that shortly after this e-mail, the Respondent agreed
to pay for an airline ticket. The Prosecuting Party
further acknowledged that an employer must notify
USCIS in order to effect a bona fide termination of
an H-1B worker’s employment. He stated that
Headstrong, Inc. never notified USCIS. T. at 227-33.
The Prosecuting Party acknowledged that he
entered into a confidential settlement agreement
with Headstrong and received $7,000.00 in exchange
for releasing his claims against the company. He also
acknowledged that Headstrong Services, LLC issued
a check in that amount to his attorney’s law firm. He
stated that he later received a check from his
attorney for a smaller amount. The Prosecuting
Party further acknowledged that in February 2010
he sent an e-mail to Headstrong stating that he
wished to rescind the 2008 agreement. The
Prosecuting Party acknowledged that the
Department of Labor did not investigate his 2008
complaint, but stated he was not sure whether the
reason was the alleged untimeliness of his
complaint; and he acknowledged that his 2008
complaint did not raise the issue of retaliation. See
103a
RX 20. As for the Prosecuting Party’s 2011 complaint
(RX 29), the Prosecuting Party acknowledged that
initially, the Department of Labor refused to
investigate because of concerns as to the timeliness
of the complaint. He stated that it was his belief that
the Department of Labor investigated his claims, at
least in part, in 2010. He also stated that the WHD’s
Determination Letter, dated March 2014, addressed
all of his complaints, including his complaint of
retaliation. See CX 1. The Prosecuting Party
conceded that he received the WHD’s letter of May
2011, relating to his 2011 complaint, but stated that
this letter was an “incomplete answer” to his
complaint. T. at 233-49.
As for his other employers, the Prosecuting
Party said that he resigned from his Indian
employer, “Wipro Technologies,” in order to take a
position with Headstrong, but did not resign from a
U.S. employer. He conceded that he had filed a
complaint with the Department of Labor asserting
that Wipro owed him wages, and said he currently
has a lawsuit pending against that company in
federal court in California. T. at 249-56.
The Prosecuting Party acknowledged a claim
against Compunnel is pending with the ARB
[Administrative Review Board], The Prosecuting
Party conceded that he claims to still be employed by
104a
both Headstrong and Compunnel, and stated he is
not involved in litigation regarding any other claim
of employment during the period he was employed
by Headstrong. He acknowledged that after
receiving the November 14, 2006 termination letter,
he engaged in employment discussions with
Compunnel, and stated that such discussions
occurred approximately November 20 to 22. The
Prosecuting Party acknowledged that he
subsequently interviewed and was hired for a
position at Compunnel. He stated that he was paid
wages by Compunnel for the following periods:
February to July 2007; and December 2007 to March
2008. He stated that he was also paid wages by an
employer in India for the period from May 2010 to
December 1, 2010. The Prosecuting Party stated that
in 2009 he took steps to establish a consulting
company in India, but eventually decided not to do
so. T. at 256-70.
Regarding job applications, the Prosecuting
Party stated that he may have filled out “hundreds
or thousands” of job applications online since
November 2006, and when he listed Headstrong as
an employer he indicated employment up to
November 27, 2006. He stated that the first time he
returned to India after April 1, 2006 was in April
2009. He stated that he believed that the receipt
date for Compunnel’s H-1B petition was about
December 10 or 11, 2006, with employment dates of
105a
February 27 or 28, 2007 through April 30, 2009. T.
at 271-274
In response to my questions, the Prosecuting
Party clarified that it was his position that in order
to effect a bona fide termination of his employment,
the Respondent was required to notify USCIS to
cancel both LCAs [EAC-06-122-50383 and EAC-07010-52367].42 T. at 275-76.
The Prosecuting Party then testified about his
asserted compensatory damages and provided facts
that, in his view, justified an imposition of punitive
damages against Headstrong. He stated that he was
shocked by the way Headstrong treated him because
Headstrong’s officials promised him long-term
employment. Because Headstrong terminated his
employment, the Prosecuting Party stated, he
suffered financially. He stated that all of his
problems started due to Headstrong’s violations of
the H-1B program requirements, and noted that he
has spent a lot of time and energy litigating his
claims. He stated that he has suffered and that his
character has been “totally destroyed” due to
Headstrong’s false promises. He stated that he has
been unable to find employment and he believes this
is due to Headstrong’s harassment. He further
42 At the hearing, I referred to these LCAs by their last two
digits, “83” and “67.” T. at 275.
106a
stated: “All the problems in my life for the last eight
years, they all got started and got compounded by
Headstrong’s violations of the INA. All these
violations took place in America and all the remedies
have to be given by [the] USA system, the make
whole relief has to be given by [the] U.S. justice
system because all this was done in America, using
American laws and by violating American laws and
by continuing to violate these American laws.”
Additionally, the Prosecuting Party remarked: “I
was working reasonably well, and Headstrong made
false promises to me. It destroyed my career. It
destroyed my personal life. It destroyed my
emotional life. It destroyed the happiness of all my
near and dear ones.” He also stated: “So all my
professional life is destroyed. My personal life is
destroyed. My psychological life is destroyed and not
from one year, one month, one week, it is now eight
years and it is continuing.” T. at 277-85.
On cross-examination, the Prosecuting Party
stated that Headstrong was not putting him back
into productive status, and was not using a neutral
forum to settle the dispute. Rather, he said,
Headstrong was making him go through “full
litigation” and was doing everything in its power not
to follow the law, not to pay him wages, and to keep
on harassing him. He confirmed that participating in
litigation has taken a big toll on him because of the
107a
time involved and the emotional strain of the
proceedings. He acknowledged he did not see any
mental health professionals or request that any
medications be prescribed for him, but also
commented that he could not afford to do so. T. at
285-97.
David O’Shaughnessv
Mr. O’Shaughnessy testified under oath on
behalf of the Respondent. He stated that he is an
employee of the Respondent and when he was hired
in July 2006 his position was “Comptroller North
America.” In that capacity, he testified, he was
responsible for all of the Respondent’s entities in
North America, the United Kingdom, and Germany
for matters such as statutory compliance, direct
taxation, payroll, invoicing clients, collections, and
accounts payable. He testified that RX 8 is a
document he compiled in response to this litigation,
reflecting payments made to the Prosecuting Party
during his employment up to December 31, 2006.
Mr. O’Shaughnessy stated that the Prosecuting
Party’s salary was $8,750.00 per month, but he was
paid less than that for November 2006 because his
employment was terminated prior to the end of the
month, and so he was paid a pro-rata amount. The
payments made in December 2006, Mr.
O’Shaughnessy stated, were accrued vacation pay
108a
and payments made pursuant to the severance
agreement. The witness identified RX 10 as the
check remitted to the Prosecuting Party in December
2006, number 4723. He stated that Headstrong
Services, LLC paid the check because that was the
entity that paid non-payroll accounts payable
obligations for the Respondent. He identified RX 11
as a listing of uncleared checks in December 2006,
and noted that check number 4723, paid to the
Prosecuting Party, was not listed. The witness
identified RX 17 as another accounts payable check
from Headstrong Services, LLC, and noted the check
was paid to Goldberg and Fliegel, LLP in the amount
of $7,000.00 in May 2008. He stated that the
documentation indicated the check was paid for
“settlement.” Mr. O’Shaughnessy stated that
Headstrong Services, LLC was again acting as the
common paymaster for accounts payable. He stated
the check was cashed. T. at 305-16.
On cross-examination, the witness confirmed
that neither check was a payroll check, but noted
that Internal Revenue Service regulations construe
payment of accrued vacation and severance as wages
for tax purposes. In response to my questions, he
stated that Thanksgiving was treated as a paid
holiday for the calculation of the Prosecuting Party’s
pro-rata compensation for November 2006. On
review of CX 1, he stated he was not aware how the
109a
Department of Labor had calculated the Prosecuting
Party’s back wage entitlement, and stated that he
compiled the document at RX 8 in response to a
request from “Immigration” and had no direct
contact with the Department of Labor’s investigator.
He stated that rate of vacation pay was calculated as
follows: divide the annual salary ($105,000.00) by
the number of hours in a work year (2,080) for the
hourly rate; vacation was accrued at the rate of 6.67
hours per month for the Prosecuting Party; and he
noted the Prosecuting Party was paid for 67 hours of
accrued vacation. He confirmed that the figures in
RX 8 for the severance and accrued vacation pays
were gross and not net figures. T. at 316-23.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
Statutory and Regulatory Framework
The Act’s H-1B visa program permits
American employers to temporarily employ
nonimmigrant aliens to perform specialized
occupations in the United States. 8 U.S.C.
§ 1101(a)(15)(H)(i)(b). The Act defines a “specialty
occupation” as an occupation requiring the
application of highly specialized knowledge and the
attainment of a bachelor’s degree or higher. 8 U.S.C.
§ 1184(i)(l). To hire an H-1B nonimmigrant alien,
110a
the employer must first receive permission from the
U.S. Department of Labor. To receive permission
from the DOL, the Act requires an employer to
submit an LCA to the Department. § 8 U.S.C
1182(n)(l); § 655.730(a).
The Department has promulgated detailed
regulations setting forth requirements to implement
the statutory provisions. These requirements include
provisions covering the determination, payment, and
documentation of required wages, as well as
requirements for working conditions and
computation and payment of benefits. 20 C.F.R. Part
655, subpart H. Under these regulations, an
employer’s LCA must include, among other things,
the occupational classification for the proposed
employee; the actual wage rate; the prevailing wage
rate and the source of such wage data; and the
location (city) and period of employment. §§ 655.730734. In most circumstances, an LCA is valid only for
the period of time for which the Department of Labor
has approved the employment. § 655.750(a). This
period commences not earlier than the date that the
application is certified and may not continue for
more than three years. 43 Id. Moreover, an H-1B
43 The regulation recognizes that under the “increased
portability” provisions of § 214(n) of the Act, employment may
commence prior to the date of certification; in such instances,
the inception date of authorized employment applies back to
111a
nonimmigrant may enter the United States only
with a valid visa; DHS accepts the employer’s
petition (DHS Form 1-129) with the DOL-certified
LCA attached, and is responsible for approving the
H-1B visa classification for the H-1B employee.
§ 655.705(b). Accordingly, an H-1B nonimmigrant is
authorized to be employed within the United States
only for the term for which the visa has been
approved. § 655.700; see also 8 C.F.R. § 214.1(e)
The regulation requires that an employer pay
H-1B nonimmigrants at the “required wage rate.”
This rate is defined as the greater of: (1) the “actual
wage rate,” defined as the rate paid by the employer
to all other individuals with similar experience and
qualifications for the specific employment in
question; or (2) the “prevailing wage,” defined as the
wage rate for the occupational classification in the
area of employment, at the time the LCA is filed.
§ 655.731(a). The employer must also provide an
H-1B nonimmigrant employee with the same fringe
the first date of employment. § 655.750(a). From the record
before me, I conclude that this situation may have pertained to
the Prosecuting Party’s employment with the Respondent,
because the Respondent employed the Prosecuting Party
beginning in early April 2006, and the inception date of the
approved LCA was April 24, 2006. See T. at 195 (Prosecuting
Party testified he was working in Atlanta for a different
employer); see also CX 5.
112a
benefits that are provided to similarly employed U.S.
workers. § 655.731(c)(3).
Once the employment period begins, the
employer is required to pay an H-1B employee the
required wage at the full-time rate for any time that
is non-productive due to a decision by the
employer.44 However, an employer need not pay
wages for H-1B workers in nonproductive status due
to conditions unrelated to employment which take
them away from work at their own convenience or
request (e.g., touring), or which render them unable
to work (e.g., temporary incapacitation due to
accidental injury). § 655.731(c)(7)(ii).
The H-1B nonimmigrant’s first location of
employment must be at the location specified in the
approved LCA. § 655.735(e). However, an employer
may later place an H-1B nonimmigrant at another
location for a maximum of 30 days per year, provided
that the employer pays the H-1B nonimmigrant the
required wage for the permanent worksite and pays
the actual costs of meals and lodging.45
44 Employer-determined nonproductive time, or “benching,” can
result from factors such as lack of available work or lack of the
individual’s license or permit. 8 U.S.C. § 1182(n)(2)(C)(vii); §
655.731(c)(7) (i).
45 If the H-1B nonimmigrant maintains an abode in the United
States at the permanent worksite location and spends a
113a
§ 655.735(b)(3), (c). Once the H-1B nonimmigrant’s
short-term placement has reached this limit, the
employer must either file a new LCA for the new
location or terminate the H-1B nonimmigrant’s
placement in the other location. § 655.735(f). The
regulation also requires that an employer provide
each H-1B employee with a copy of the LCA (form
ETA 9035 or 9035E), certified by the Department of
Labor and signed by the employer or its
representative. § 655.734(a)(3).
After the employment has begun, an employer
need not pay a nonimmigrant worker, if it has
effected a “bona fide termination” of the employment
relationship. § 655.731(c)(7)(h). To terminate the
obligation to pay an H-1B employee, the regulation
states that the employer must notify DHS that it has
terminated the employment relationship so that
DHS may revoke approval of the H-1B visa.46 8
C.F.R. § 214.2(h)(ll); § 655.731(c)(7)(h).
Additionally, in certain circumstances, the employer
must provide the H-1B nonimmigrant with payment
for transportation to his or her home. IcL; see also 8
C.F.R. § 214.2(h)(4)(iii)(E). Under 8 C.F.R.
substantial amount of time at that location, the employer may
station the H-1B nonimmigrant for up to 60 days per year at a
location other than the permanent worksite. § 655.735(c).
46 I note that USCIS is a component of DHS. See
http://www.dhs.gov/department-components.
114a
§ 214.2(h)(4)(iii)(E), the employer is responsible for
“reasonable costs of return transportation” to the
employee’s last place of foreign residence, if the alien
employee “is dismissed from employment by the
employer” before the end of the LCA period.
A complaint must be filed not later than 12
months after the latest date(s) on which the alleged
violations were committed, defined as the date(s) on
which the employer allegedly failed to perform an
act or fulfill a condition specified in the LCA, or the
date on which the employer allegedly demonstrated
a misrepresentation of material fact in the LCA.
§ 655.806(a)(5). No particular form of complaint is
required, except that it must be in writing or, if oral,
be reduced to writing by the WHD official who
received the complaint. § 655.806(a)(1). Under the
regulation, no hearing or appeal is available if the
Administrator determines that investigation of a
complaint is not warranted. § 655.806(a)(2).
After investigation, the WHD Administrator
issues a determination letter, which is served on the
interested parties, including the H-1B nonimmigrant
whose LCA was the subject of the investigation.
§ 655.815(a). The determination letter sets out the
Administrator’s conclusions; in the event the
Administrator finds that an employer committed
violation(s), the Administrator’s letter will prescribe
115a
remedies. § 655.815(b)(1). For back wage obligations,
under the regulation, the amount owed is defined as
the difference between the amount the employee
should have been paid and the amount actually paid.
§ 655.810(a). The Administrator also may assess
civil-money penalties and other remedies, as listed
in § 655.810. § 655.815(c)(1).
An interested party requests a hearing under
procedures set out in § 655.840. The regulation
indicates that a hearing relates to “review of a[n
Administrator’s] determination issued under §§ 655
and 655.815.” § 655.840(a). Under § 655.840(b), an
administrative law judge has the authority to affirm,
deny, reverse, or modify, in whole or in part, the
determinations of the Administrator. The
administrative law judge is not authorized to render
findings on the “legality of a regulatory provision or
the constitutionality of a statutory provision.” §
655.840(d).
Timeliness of the
Prosecuting Party’s Complaints
The Respondent asserts that this action
should be dismissed because the Prosecuting Party’s
complaints to the WHD were untimely. Respondent’s
brief at 8-11. The Prosecuting Party did not
116a
specifically address the timeliness of his complaints.
Prosecuting Party’s brief.
The Prosecuting Party testified that he
initially made an oral complaint to the WHD in
January 2008. T. at 203. The record indicates that
the Prosecuting Party made at least two written
complaints to the WHD, in June 2008 (RX 20) and
January 2011 (RX 29). The June 2008 complaint
(form WH-4) alleged that the Respondent committed
the following violations of the INA and the H-1B
regulations: supplied incorrect or false information
on the LCAs; failed to pay the higher of the
prevailing or actual wage; failed to pay for time off
due to decisions by the employer; failed to provide
fringe benefits equivalent to those provided to U.S.
workers; failed to provide employee with a copy of
the LCA; and failed to provide reasonable costs of
return transportation (apart from airline tickets)
after terminating the Prosecuting Party’s
employment before the end of the period of
authorized stay. RX 20.
Initially, the WHD declined to investigate the
June 2008 complaint, based on a determination that
the Prosecuting Party had failed to provide sufficient
information to indicate that the Respondent
committed a violation within the 12 months
preceding the complaint, as required under the
117a
regulation. RX 21; see § 655.806(a)(5). Under the
terms of the settlement of the Prosecuting Party’s
District Court complaint, WHD’s determination that
the Prosecuting Party’s June 2008 complaint was
untimely was vacated, and the Prosecuting Party’s
complaint was remanded to WHD for a new
investigation. Case No. 12:cv-06652 (S.D.N.Y.),
“Stipulation and Order of Remand and Dismissal,”
Dec. 10, 2012.
The record indicates that, after the remand,
WHD then investigated the issues raised in the
Prosecuting Party’s June 2008 complaint. CX 28.
Eventually, in March 2014, WHD issued a
Determination Letter. CX 1. Though the
Determination Letter did not specifically address the
issue of whether the Prosecuting Party’s June 2008
complaint was timely, it did include findings that the
Respondent owed the Prosecuting Party back wages
and also that the Respondent failed to provide the
Prosecuting Party with a copy of his LCA. IcL I
presume, therefore, that the WHD found the
Prosecuting Party’s June 2008 complaint to be
timely.
On review of the record, I note that the
Prosecuting Party’s June 2008 complaint to the
WHD stated that the Respondent owed back wages
to the Prosecuting Party for nonproductive periods;
118a
the complaint also specifically cited the Respondent’s
dates of alleged violations as extending from
11/28/2006 to 11/08/2007 (that is, from the date after
the Prosecuting Party’s termination of employment
to the end of the authorized LCA period).47 Because
there is evidence of record that, at the time the
Prosecuting Party made his June 2008 complaint to
WHD, he alleged that the Respondent committed
violations up to November 8, 2007, I find there is
evidence that the Prosecuting Party’s allegation was
timely, as he alleged violations that occurred within
the 12 months preceding his complaint. Therefore, I
conclude that the Prosecuting Party’s June 2008
complaint, as resurrected by the settlement
agreement in his District Court action, was timely.
Accordingly, any allegations pertaining to the items
the Prosecuting Party checked on the form WH-4, as
listed above, are timely.
The record indicates that the Prosecuting
Party submitted an additional complaint to the
WHD in January 2011. RX 29. This complaint
alleges, for the first time, that the Respondent
471 note that the notation 11/28/2006 is typewritten and the
phrase “to 11/08/2007” is handwritten. I presume that the
handwritten addendum was made by the Prosecuting Party. In
the absence of evidence to the contrary, I will presume that this
notation was made in June 2008, at the time the Prosecuting
Party filed his initial complaint.
119a
retaliated against the Prosecuting Party.
Additionally, the complaint specifies that the
Respondent misrepresented a material fact in the
LCA when it listed the work location as Fairfax,
Virginia. In support of this allegation, the
Prosecuting Party cited the LCA the Respondent
filed in March 2006, which listed the job location as
Fairfax, Virginia. The record also indicates that, by
letter dated May 18, 2011, WHD informed the
Prosecuting Party that no investigation was
warranted as to the Prosecuting Party’s allegations
of the Respondent’s misrepresentation in the LCA
because the alleged violation occurred more than 12
months before the complaint was made. RX 30. The
evidence is that the Respondent submitted the LCA
in which it asserted that the Prosecuting Party’s job
location was to be Fairfax, Virginia, in March 2006.
CX 3. This is almost five years prior to the date of
the Prosecuting Party’s January 2011 complaint,
and is clearly untimely under the regulations. I
affirm the Administrator’s determination that the
Prosecuting Party’s allegation that the Respondent
misrepresented the facts in the LCA by indicating
the job was located in Fairfax, Virginia was
untimely.
As for the Prosecuting Party’s allegation that
the Respondent retaliated against him, I find that
the record does not specifically indicate whether the
120a
WHD ever investigated this allegation. See RX 30.
The WHD’s letter of May 18, 2011, which informed
the Prosecuting Party that it would not investigate
the complaint pertaining to the Respondent’s alleged
misrepresentation of the Prosecuting Party’s work
location, does not address this allegation. Neither
does the WHD Determination Letter dated March
2014. If the WHD opted not to investigate the
allegations of retaliation, then the Prosecuting
Party’s complaint on this issue is not properly before
me, because I am limited to adjudicating only those
issues that WHD investigated. § 655.806(a)(2). If
WHD investigated such allegations, then I have
jurisdiction to adjudicate them, provided the
Prosecuting Party included them in his hearing
request. See § 655.820(a). The Prosecuting Party did
include allegations of discrimination in his Hearing
Request. Hearing Request at 16-20.
As discussed above, however, I have found
that the Prosecuting Party’s allegations about the
Respondent’s conduct do not constitute allegations of
retaliation that are cognizable under the regulation,
and I have granted the Respondent’s motion for
summary decision on such issue. Therefore, even
assuming arguendo that WHD conducted an
investigation, I find that my action in granting the
Respondent’s motion for summary decision
adequately disposes of the issue.
121a
Lastly, there is some evidence the Prosecuting
Party submitted a complaint in 2010 against the
Respondent. RX 23. This complaint was rejected,
without investigation, as untimely.48 IcL Because the
WHD did not investigate the complaint, there is no
basis for me to adjudicate it. See § 655.806(b)(2).
The Applicable H-1B Employment Period
The record firmly establishes that the
applicable H-1B employment period runs from April
24, 2006 to November 8, 2007. These are the dates
for which DHS approved a visa for the Prosecuting
Party. CX 5, 9. As the record reflects, the
Respondent’s initial petition was dated March 16,
2006 and was intended to cover the period from
March 16, 2006 to March 16, 2009. CX 3; see also CX
4. It listed a job location of Fairfax, Virginia. It was
approved on April 24, 2006 (receipt no. EAC-06-12250383) but only for the period from that date up to
November 8, 2007. CX 5. Later, in October 2006, the
Respondent submitted a second LCA petition for the
Prosecuting Party; this petition was the same as the
initial petition regarding the Prosecuting Party’s job
title and wage, but listed the job locations as New
48 It is not clear, from the record, what allegations the
Prosecuting Party made against the Respondent in the 2010
complaint.
122a
York and Chicago, consistent with the Prosecuting
Party’s recent worksites. CX 8; see also T. at 195.
This petition was approved on October 24, 2006
(receipt no. EAC-07-010-52367), for the period up to
November 8, 2007. CX 9.
The Department of Labor has cognizance only
over the period of employment covered by an
approved LCA petition. § 655.805; see also VoitisekLom v. Clean Air Technologies Int’l, Inc.. ARB No.
07-097, ALJ No. 2006-LCA-9 (ARB July 30, 2009),
slip op at 16. Therefore, the employment period for
which the Prosecuting Party may seek enforcement
remedies extends from April 24, 2006 (the date
reflected on receipt no. EAC-06-122-50383) to
November 8, 2007 (the date reflected on receipt nos.
EAC-06-122-50383 and EAC-07-010-52367).
Accordingly, I will consider the Respondent’s wage
and employment obligations to the Prosecuting
Party only for the period up to November 8, 2007. As
noted above, I have found that the Respondent paid
all wages due the Prosecuting Party for the period
up to November 27, 2006.49 Therefore, the period for
which the Respondent may be responsible for back
49 I granted judgment in favor of the Respondent as to any
wages due up to November 27, 2006. T. at 330.1 will address
the allegation that the Respondent failed to pay fringe benefits
during the period of employment (such as per diem allowances)
below.
123a
wages is limited to the timeframe between
November 28, 2006 and November 8, 2007.
Period for Which Back Wages Are Owed
Under the regulation, an employer must pay
the applicable required wage to an H-1B employee
throughout the entire H-1B employment period (less
authorized deductions). § 655.731(c)(1). However, an
employer is not required to pay an employee for
periods when the employee is in a “nonproductive
status” for reasons unrelated to the employment,
such as travel for the employee’s personal
convenience. § 655.731(c)(7)(h). In addition, an
employer’s obligation to pay wages to an employee is
extinguished when there has been a bona fide
termination of the employment relationship. IcL
However, up to the time that there has been a bona
fide termination, an employer’s wage obligation to an
H-1B continues unabated, up to the end of the
authorized period of employment. IcL; see also Mao v.
Nasser Eng’g & Computing Svcs.. ARB No. 06-121,
ALJ No. 2005-LCA-36 (ARB Nov. 26, 2008), slip op.
at 10.
In this matter, the Respondent asserts that it
properly terminated its employment relationship
with the Prosecuting Party, by January 15, 2007.
Respondent’s brief at 18-22. The Prosecuting Party,
124a
on the other hand, contends that the Respondent
never properly terminated the employment
relationship. Prosecuting Party’s brief at 17-20.
The Board has held that there are three
elements to establish a bona fide termination of
employment: first, unequivocal notice to the
employee that the employment relationship has been
terminated; second, the employer’s notice to
immigration officials of the terminated employment;
and third, payment for transportation back to the
employee’s home country.50 Amtel Group of Fla, v.
Yongmahanakorn, ARB No. 04-087, ALJ No. 2004LCA-06 (ARB, Sept. 29, 2006), slip op. at 11-12, affd
on recon, ARB No. 07-104 (Jan. 29, 2008); see also
Gupta v. Jain Software Consulting. Inc. ARB No. 05008, ALJ No. 2004-LCA-39 (ARB, Mar. 30, 2007),
slip op. at 5-6. The Board also has held that the
burden is on the employer to establish each element
of the bona fide termination. Gupta v. Jain, slip op.
at 5 n. 3.
50 Section 655.731(c)(7)(ii) states that payment for
transportation back to the employee’s home must be tendered
under certain circumstances, and cited 8 C.F.R. §
214.2(h)(4)(iii)(E). This provision states that transportation
must be provided when the employee has been dismissed prior
to the expiration of the approved LCA period.
125a
As to the first requirement, the parties agreed
that the Respondent sent the Prosecuting Party a
letter on November 14, 2006, informing him of the
termination of employment. T. at 26; see also CX 10.
Additional evidence establishes that the Prosecuting
Party was aware in advance that this was the date of
his proposed termination of employment because he
contacted the Respondent’s officials in an effort to
get them to change their decision or, alternatively,
delay the termination date. RX 4, 5; see also T. at
179-80.
The Prosecuting Party contends that the
Respondent does not have the ability to terminate
his employment, because he had a contract with the
Respondent. Prosecuting Party’s brief at 17-18; see
also CX 2 (employment agreement). I reject this
contention, because the employment agreement
between the Respondent and the Prosecuting Party
explicitly states that the Prosecuting Party’s
employment was “at-will.” CX 2 at 2. The
Respondent’s employment policies indicate that,
“except when defined by a written contract for a
specified period of time, all employment with
Headstrong is on an ‘at-will’ basis, which means that
the employee may terminate employment at any
time, with or without notice, and Headstrong also
may terminate employment at any time.” CX 36.
126a
The Prosecuting Party also contends that the
Respondent’s action in terminating his employment
was improper, either because the regulation requires
that employment continue throughout the entire
H-1B period, or because the Respondent’s position
that the Prosecuting Party was terminated due to
“lack of work” is not consistent with its assertion in
the LCA petitions that the Prosecuting Party would
be employed through March 2009 (first petition) or
November 2007 (second petition). Prosecuting
Party’s brief at 21; T. at 168, 282. Contrary to the
Prosecuting Party’s position, I find that there is no
regulatory bar to terminating an employee’s
employment prior to the end of the H-1B period.51
§ 655.731(c)(7)(ii). Even though it is not necessary
for an employer to justify its reasons for terminating
an H-1B employee’s employment, I note that the
record reflects there is some evidence to support the
Respondent’s rationale that there was a lack of work
for the Prosecuting Party. For example, the
Prosecuting Party testified that after he received the
termination notice, he contacted Mr. Kandar, who
circulated his curriculum vitae and attempted to find
him work, without success. T. at 199-200.
51 The regulation makes it clear that, unless and until a bona
fide termination of the employment relationship is
accomplished, an employer’s wage payment obligation
continues. But a bona fide termination extinguishes an
employer’s wage payment obligation.
127a
Based on the foregoing, I find that the
evidence establishes that there was neither a
regulatory nor contractual bar to the Respondent’s
action in terminating the Prosecuting Party’s
employment. I also find that the Respondent notified
the Prosecuting Party that his employment was to be
terminated, in advance of the November 27, 2006
termination date. Thus, the Respondent satisfied
this first requirement for a bona fide termination.
The second requirement for a bona fide
termination is that the employer notify USCIS that
the employee’s employment has ended.
§ 655.731(c)(7)(ii). The record reflects that the
Respondent notified USCIS, by letter dated January
15, 2007. CX 16; additional copy at RX 12. The notice
accurately reflected the Prosecuting Party’s
applicable LCA (receipt no. EAC-07-010-52367). A
date stamp indicates that USCIS received the
Respondent’s letter on January 23, 2007.52 The
Prosecuting Party contends that the Respondent’s
January 15, 2007 letter did not fulfill the
requirement to notify USCIS, because the
Respondent did not refer to the first approved LCA
(receipt no. EAC-06-122-50383) and the entity that
52 The date stamp is more legible on RX 12 than on CX 16. See
T. at 142-43 (discussion of date stamp on Prosecuting Party’s
exhibit).
128a
informed USCIS was not Headstrong, Inc., but was
Headstrong Services, LLC. Prosecuting Party’s brief
at 19-20; see also T. at 228-31, 275-76.
I reject both of the Prosecuting Party’s
contentions. The regulation indicates that when an
employer submits a subsequent LCA petition to
cover the same employment period, such a petition is
intended to supersede the earlier LCA. § 655.735(g);
see also § 655.750(c)(3) (discussing that subsequent
approved applications supersede earlier
applications). Notably, a purpose of submitting a
subsequent LCA petition for the same time period is
to reflect a change in the location of an employee’s
worksite. § 655.735(g); see also § 655.735(c) and (e)
(in general, workers are to be located at the areas
specified in the approved LCAs). At the hearing, Ms.
Spratling testified that a second LCA petition is filed
when an employee’s worksite is different from the
site stated in the initial LCA petition. T. at 113.
Based on the foregoing, I find that on January 15,
2007, the only applicable LCA was the petition
approved in October 2006, specifically receipt no. 07010-52367. And because the Respondent’s notice to
USCIS referenced that approved LCA petition, its
notice was adequate.
As to the issue of the entity that informed
USCIS, I find that it is immaterial whether the
129a
notice referred to Headstrong Services, LLC or
Headstrong, Inc. The record reflects that the
Prosecuting Party’s employment agreement was
with Headstrong, Inc. (designated as the “Company”
in the agreement). CX 1. Most notably, however, the
employment agreement also specified that the term
“companies” meant the Company (that is,
Headstrong, Inc.), its parent, and any related
company, RL The testimonial evidence established
that Headstrong, Inc. and Headstrong Services, LLC
were related companies. T. at 311. Accordingly, I
find that the Prosecuting Party’s employment
agreement with Headstrong, Inc. also embraced
related companies such as Headstrong Services,
LLC, and therefore Headstrong Services, LLC’s
notice to USCIS was adequate.
Based on the foregoing, I find that the
Respondent fulfilled this second requirement for a
bona fide termination of employment by January 15,
2007, the date of its notice to USCIS.
The third requirement, under the regulation,
is that, where an employer dismisses the employee
before the end of the approved LCA period, the
employer must “provide the employee with payment
for transportation home.” § 655.731(c)(7)(ii); 8 C.F.R.
§ 214.2(h)(4)(iii)(E). The evidence of record on this
issue includes various e-mail chains. CX 14, 17, 33;
130a
RX 9, 13. These documents indicate that initially the
Respondent refused to provide the Prosecuting Party
with such payment (CX 14, Dec. 4, 2006); the next
day, however, the Respondent acknowledged its
responsibility (RX 9, Dec. 5, 2006). Ms. Somerville
approved the purchase of a ticket (RX 13, Jan. 25,
2007). A ticket from Newark, NJ to Bangalore, India
for travel on February 24, 2007, was issued on
January 25, 2007. RX 13. The record reflects this
travel date was the date the Prosecuting Party
chose, and that the Prosecuting Party requested
travel to Bangalore. CX 33, RX 9. By January 31,
2007, the record indicates, a ticket may have been
issued but the Prosecuting Party had not received it;
I infer this because the Prosecuting Party was
asking about the status of the ticket.53 CX 33.
Ultimately, on February 2, 2007, the Prosecuting
Party received an e-ticket. CX 17.
Though the Respondent accepted
responsibility for this cost on December 5, 2006 and
a ticket was issued on January 25, 2007, the
Respondent did not tender the ticket to the
Prosecuting Party until February 2, 2007.1 therefore
find th
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