Whistleblower to continue helping U.S. Infosys probe

Jay Palmer, who lost court case under Alabama law, noting the federal activities says 'it isn't over'

WASHINGTON - A federal court decision on Monday to throw out a civil lawsuit against Infosys is a clear loss for the plaintiff, Jay Palmer. But it isn't much of a win for Infosys.

The real problem for IT services firm Infosys is an investigation by the U.S. Department of Homeland Security and a federal grand jury in Texas into alleged visa fraud. It's that investigation that the company felt compelled, via a SEC filing, to warn investors about.

It was Palmer, an employee of the India-based firm, who complained to federal authorities about Infosys' use of visas. It was his lawsuit that made the allegations public.

Palmer's lawsuit against Infosys was about what happened to him personally at work after he alleged that the company was using visitor visas, the B-1 visa, for work requiring H-1B work visas. Palmer alleged he was chastised by his supervisors, told to "keep quiet," sidelined from work and received threats.

"To be clear," wrote Alabama U.S. District Court Judge Myron Thompson, in his ruling Monday dismissing Palmer's case, "this litigation does not concern whether Infosys violated American immigration law."

Palmer is a federal whistleblower and remains a material witness despite the summary judgment ruling, said Kenneth Mendelsohn, Palmer's attorney in Montgomery, Ala.

"We're going to remain focused on helping our government anyway we can," Mendelsohn told Computerworld.

Palmer lives in Alabama and originally his case was filed in a state court, but because Infosys isn't in that state, it asked that the case be moved to federal court. That put a federal judge in the position of interpreting Alabama state employment law, something Thompson didn't seem too comfortable with.

The court must "make an educated guess of how the Alabama courts, and, in particular, the Alabama Supreme Court, would resolve these claims," wrote Thompson.

Alabama is an "at will" employment state, the judge wrote, which means, absent a contract, an employee "may be demoted, denied a promotion, or otherwise adversely treated for any reason, good or bad, or even for no reason at all," the judge wrote.

"The Alabama Supreme Court has, rightly or wrongly, jealously guarded this at-will status," wrote Thompson. It was against that state law that the judge considered Palmer's claims.

Thompson, in his decision, went through Palmer's various allegations, including whether he suffered what amounts to as a claim of outrage, which includes such things as "intentional infliction of emotion distress."

But Thompson, citing other cases, said the problems Palmer faced at work weren't enough to make an outrage claim, particularly since he hadn't been terminated.

Infosys never fired Palmer, but he was not being given new assignments.

"While the electronic and telephonic threats and anti-American statements are deeply disturbing, it is clear that the Alabama Supreme Court would not view them as 'beyond all possible bounds of decency," wrote Thompson, citing language in another case.

In the end, the judge seemed sympathetic to some of Palmer's claims. He called the alleged threats "deeply troubling."

Thompson wrote that "an argument could be made that such threats against whistleblowers, in particular, should be illegal."

Nonetheless, the judge said he couldn't rewrite state law, and that "this court must conclude that, under current Alabama law, Palmer has no right to recover from Infosys."

Mendelsohn isn't ruling out an appeal and it's something they will assess.

"I'm not sure that there's any basis for any appeal," Mendelsohn said. "He's a fine judge, one of the best I've ever seen," he said of Thompson.

But Mendelsohn, citing the ongoing federal activities, noted, "it isn't over."

Patrick Thibodeau covers cloud computing and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov or subscribe to Patrick's RSS feed. His e-mail address is pthibodeau@computerworld.com.

See more by Patrick Thibodeau on Computerworld.com.

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Copyright © 2012 IDG Communications, Inc.

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