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Lucas v. NCR Corp.

March 31, 2005


The opinion of the court was delivered by: James Robertson United States District Judge


Valerie Lucas, a French citizen, was lawfully employed in the United States by defendant NCR Corporation as the holder of an H-1B (skilled worker) visa. She ceased working for NCR on May 15, 2003 when her visa expired. In this diversity action, she brings a number of common law claims against NCR, all arising from NCR's alleged mishandling of her visa application. Because NCR had no express or implied duty to ensure or protect Ms. Lucas's ability to work in the United States, and because its statements regarding the termination of her employment were privileged and not defamatory, NCR's motion for summary judgment must be granted.


A company called Frantech first sponsored Ms. Lucas for an H-1B visa in 1994. She had retained an attorney to prepare her visa application, and the application was granted by the Bureau of Citizenship and Immigration Services (BCIS) on April 1, 1995 for a three-year period. She was required to apply for a new visa when she changed jobs in February 1996. She again retained an immigration attorney, and she received a new H-1B visa for the period February 12, 1996 to January 14, 1998. In 1998 Ms. Lucas attended graduate school and was covered by a F-1 student visa, during which time she completed a four-month internship with NCR. NCR offered her a permanent position in 1999. The formal offer letter stated "NCR will sponsor you for your H-1B visa. When you start work we will begin the process of submitting the documentation necessary for you to obtain your H- 1B visa." Def. Facts Statement ¶ 15. Ms. Lucas accepted the job offer, and NCR obtained a H-1B visa for her for the period February 8, 2000 to December 15, 2002.

A foreign national may remain in the United States on an H-1B visa for six years. Time spent on separate H-1B visas is added together for purposes of this calculation. The clock restarts if a worker leaves the country for at least 12 months. 8 C.F.R. 214.2(h)(13)(iii). Because Ms. Lucas had not spent a year abroad since obtaining her first H-1B visa in 1995, her clock continued to run. She had less than one year remaining for a H-1B visa extension beyond December 2002.*fn1 The parties mistakenly believed that Ms. Lucas's H-1B visa could be extended another three years until December 15, 2005. Indeed, Glen Adams, a NRC human resources consultant, sent an e-mail to a fellow NCR employee to this effect, with copies to Ms. Lucas and to Sharon Bartik, NCR's manger for travel and expatriate services. Ms. Bartik, who failed to discover the problem, filed a petition with BCIS in October 2002 to extend Ms. Lucas's visa. BCIS approved the extension in December, but only through May 15, 2003. When Ms. Bartik inquired at BCIS about why the visa had not been extended to 2005 as anticipated, she learned that Ms. Lucas had not spent a year abroad, and that her H-1B clock accordingly had not restarted.

Upon discovering the mistaken calculation, NCR spent about three months crafting an offer for Ms. Lucas to be transferred to its Dublin office for one year, after which NCR would attempt to bring her back to the United States on a L-1 visa as an inter-company transferee. Nothing came of that effort, however, because Ms. Lucas wanted a statement in writing regarding NCR's intentions to return her to the United States after her year abroad, and NCR refused to issue one. Ms. Lucas ceased working at NCR on May 15, 2003 when her H-1B visa expired. She objected to NCR's characterization of her departure as a "resignation" based on her refusal to accept the Dublin proposal, and in this action asserts that she was defamed by this characterization. The plaintiff continues to live in the United States on an E-2 investor visa and now operates a business.


Ms. Lucas is a citizen of the District of Columbia, and NCR, a citizen of Ohio and Maryland. The parties apparently agree that the applicable law is that of Virginia, but they do not say why. Def. Opp'n Mot. Am. Compl. 3; Def. Mot. 14 n. 4; Pl. Answer Def. Opp'n Mot. Am. Compl. Apparently Ms. Lucas worked at least in part in a "'virtual' environment from Virginia and Washington, D.C. with her team in Atlanta, Georgia." Def. Reply 2. In any event, Virginia law will be applied here. Jaffe v. Pallotta TeamsWorks, 374 F.3d 1223, 1227 (D.C. Cir. 2004).

Wrongful Termination

Ms. Lucas had no employment contract and was an at-will employee unless she was terminated for reasons that violated a public policy of Virginia. Bowman v. State Bank of Keysville, 229 Va. 534, 539 (1985). Virginia's courts locate public policy in "laws containing explicit statements of public policy" and in laws "designed to protect the rights and personal freedoms, health, safety, or welfare of the people in general," and require a plaintiff to demonstrate that she belongs to the class "the specific public policy is intended to benefit." Brown v. Wal-Mart Stores, Inc., No. CL 00-152, 2000 WL 1093072, at *2 (Va. Cir. Ct. Jul. 27, 2000).

Ms. Lucas cannot satisfy that requirement. Her attempt to find the requisite public policy in the Virginia Human Rights Act, Va. Code. Ann. § 2.1-714-725, is precluded by Doss v. Jamco, Inc., 492 S.E.2d 441, 446-47 (1997) (causes of action based upon policies in Human Rights Act are limited to rights of action and remedies provided under other laws). Her invocation of Virginia's laws against discrimination based on disability, Va. Code. Ann. § 51.5-41, and her argument that she had a "legal disability" which NCR was obligated to "reasonably accommodate" by promising to bring her back to the United States if she accepted the Dublin proposal, is imaginative but completely without support. The Virginia statute protects the employment of persons with "known physical and mental impairments," Va. Code. Ann. § 51.5-41(c)) (emphasis added). Virginia's courts have never interpreted the word "disability" in the statute to include the "legal disability" of a foreign national whose visa is due to expire, and neither will I.


To prove defamation, the plaintiff must show that NCR published a false and defamatory statement about her with the requisite intent. Steinla v. Jackson, No. 96-285, 1997 WL 1070597, at *3 (Va. Cir. Ct. May 20, 1997). A defamatory statement must be more than "irksome, or embarrassing," id. at *4, and is not defined in relation to a plaintiff's particular sensitivities, but rather in accordance with words' "plain and natural meanings... as other people would understand them." Id.

Ms. Lucas claims that the e-mail publication within NCR of statements about her "resignation" was defamatory per se because it either impugned her ability to do her work or her possession of the skills needed to do her work, or prejudiced her in her profession. Eslami v. Global One Communications, Inc., No. 174096, 1999 WL 51864, *4 (Va. Cir. Ct. Jan. 11, 1999). This claim fails as a matter of law. Plaintiff has not alleged, shown, or even suggested any "nexus between the content of the defamatory statement and the skills or character required to carry out the particular occupation of the plaintiff." Id. Plaintiff is simply wrong as a matter of English language usage when she asserts that the word resignation is "synonymous with abandonment and abdication" and that its use was intended to show she ...

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