PAUL G. BYRON, District Judge.
This cause comes before the Court on the following:
Upon consideration and review of the record, including all pleadings, deposition transcripts, affidavits, exhibits, and memoranda of respective counsel, the Court concludes that Plaintiff is entitled to summary judgment on Counts 1 and 2 of the Complaint on the issue of liability. The Court further concludes that Defendant Yale Associates, Inc. is entitled to summary judgment on Count 3.
In May 2011, Plaintiff, Thomas Miller II ("Miller"), submitted his name to Defendants, Johnson & Johnson and Janssen Pharmaceuticals, Inc. (collectively, "J&J"),
On June 28, 2011, Miller received a contingent offer letter of employment from J&J. The offer letter stated that Miller's employment was contingent on his successful completion of a background check. Miller acknowledged the offer letter with his signature. In furtherance of the required background check, Miller additionally signed an authorization for release of information to Defendant, Yale Associates, Inc. ("Yale"). Following receipt of Miller's executed authorization for release of information, Yale conducted Miller's background check. On July 6, 2011, Yale issued a consumer report (the "background report") resulting from its check of Miller's background and notified Gilland Mitchell of the results. Based on Yale's background report, Gilland Mitchell flagged Miller's application for further review. According to Miller, Gilland Mitchell called him on July 12, 2011 to inform him that J&J was rescinding his offer of employment due to information contained in the background report. (Doc. 65, pp. 3-4). Although J&J admits that Gilland Mitchell spoke with Miller on this date, J&J disputes that it had revoked Miller's offer of employment at this time. (Doc. 56, p. 5).
On July 18, 2011, Yale mailed a package to Miller containing a copy of the background report and a letter that included a summary of Miller's rights, as required by federal law. Yale's Client Services Manager, David Hinman ("Hinman"), signed the letter and included his telephone number for Miller to call to dispute any inaccurate information contained in the background report. Miller received the package on July 21, 2011. Upon receiving and reviewing his background report, Miller contacted Lather and Gilland Mitchell to dispute certain criminal activity that had been incorrectly listed in the background report. Gilland Mitchell directed Miller to contact Yale to dispute any inaccurate information.
Having not received a response from Miller, Yale mailed an adverse action letter to Miller on July 25, 2011 stating that his offer of employment with J&J had been withdrawn based, at least in part, on information contained within the background report. Miller received the adverse action letter on July 26, 2011. Miller first contacted Yale to dispute the criminal information listed in the background report on August 4, 2011. Although Hinman was not available at that time, Miller spoke with Hinman the next day and informed him of the inaccurate information. Yale then re-investigated Miller's criminal background, corrected the inaccurate information, and forwarded
On July 3, 2013, Miller initiated this lawsuit against J & J and Yale for violating the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681-1681x. (Doc. 1). Miller states three claims for relief. Counts 1 and 2 allege that J & J failed to provide Miller with a pre-adverse action disclosure and a pre-adverse action opportunity to dispute the accuracy of the background report in violation of 15 U.S.C. § 1681b(b)(3). (Id. ¶¶ 28-39). Count 3 alleges that Yale failed to maintain reasonable procedures to filter and verify disputed information in his credit file and relied upon a source that Yale knew was unreliable in violation of 15 U.S.C. § 1681i. (Id. ¶¶ 40-42).
The parties now move for summary judgment. J & J moves for summary judgment on Counts 1 and 2. (Doc. 56). Miller cross moves for partial summary judgment on these counts, but only as to J & J's liability under the FCRA. (Doc. 65). Yale moves for summary judgment on Count 3. (Doc. 64). All parties have briefed their respective positions or the time for doing so has passed.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party moving for summary judgment must "cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials" to support its position that it is entitled to summary judgment. Fed. R.Civ.P. 56(c)(1)(A). However, "[t]he court need not consider only the cited materials" and may consider any other material in the record. Fed.R.Civ.P. 56(c)(3).
An issue of fact is "genuine" only if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if the fact could affect the outcome of the lawsuit under the governing law. Id. The moving party bears the initial burden of identifying those portions of the record demonstrating a lack of genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir.2004). If the movant shows "an absence of evidence to support the non-moving party's case," the burden then shifts to the non-moving party to demonstrate that there are, in fact, genuine disputes of material facts. Celotex, 477 U.S. at 325, 106 S.Ct. 2548; see also Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir.2006). To satisfy its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, the non-movant must go beyond the pleadings and "come forward with specific facts showing that there is a genuine issue for trial." Id. at 587, 106 S.Ct. 1348.
In determining whether a genuine dispute of material fact exists, the Court must
"[A] product of the consumer movement of the 1960s," the FCRA demarcates the standards and responsibilities of consumer reporting agencies and illuminates the rights of individuals who are subjects of consumer reports. Roger D. Blair & Virginia Maurer, Statute Law and Common Law: The Fair Credit Reporting Act, 49 Mo. L.Rev. 289, 302 (1984); see also 15 U.S.C. § 1681(b) (describing the purposes of the FCRA to include ensuring fair and equitable treatment of consumers by consumer reporting agencies and safeguarding the confidentiality and accuracy of consumer credit information). The FCRA imposes both criminal and civil liability for violation of its provisions. 15 U.S.C. §§ 1681n, 1681o, 1681q, 1681r. As to civil actions, the FCRA affords a two year statute of limitations from a plaintiff's discovery of a violation and a five year absolute statute of limitations for any violation. Id. § 1681p.
Relevant to the instant case, any person
Section 1681i provides the procedure for consumer reporting agencies to investigate inaccuracies in a consumer report. When an individual informs a consumer reporting agency of an inaccuracy, the consumer reporting agency must "conduct a reasonable reinvestigation" at no cost to the individual within thirty days. Id. § 1681i(a)(1)(A). Within five days of a consumer providing notice to the consumer reporting agency of inaccurate information, the consumer reporting agency must notify any source who
The FCRA imposes civil liability on persons who willfully or negligently fail to comply with its requirements. Id. §§ 1681n, 1681o. A finding of willful non-compliance under § 1681n entitles the prevailing party to (i) either actual damages suffered by the consumer or statutory damages of not less than $100 and not more than $1,000, (ii) punitive damages as the court may allow, and (iii) reasonable attorney's fees and costs of litigation. Id. § 1681n(a). A finding of negligent non-compliance under § 1681o entitles the prevailing party to actual damages plus reasonable attorney's fees and costs of litigation. Id. § 1681o(a).
J & J moves for summary judgment on Counts 1 and 2 of Miller's Complaint. (Doc. 56). Those Counts allege that J & J violated the FCRA by failing to provide Miller with a pre-adverse action disclosure as required by 15 U.S.C. § 1681b(b)(3).
Miller cross moves for partial summary judgment on Counts 1 and 2 only as to the issue of J & J's liability under the FCRA. (Doc. 65). Miller argues that J & J failed to provide him with a pre-adverse action notice as required by the FCRA before rescinding its offer of employment. (Id. at pp. 9-14). Miller states that the issues of damages and whether J & J's violation was willful or negligent should be reserved for trial. (Id. at p. 1).
As outlined above, the FCRA requires an employer to provide a current or prospective
J & J asserts that it could not have violated the FCRA because it never took an adverse action against Miller prior to Yale sending Miller the July 18, 2011 preadverse action package. (Doc. 56, pp. 9-12). According to J & J's timeline of events, J & J received Miller's background report from Yale on July 6, 2011. (Doc. 72, ¶ 7). At that time, Gilland Mitchell flagged Miller's application for further review because of the criminal history information contained in the background report. (Doc. 56, p. 4). J & J then notified Yale of its intent to rescind its offer of employment to Miller, causing Yale to mail the July 18th pre-adverse action package. (Id. at p. 5). Although Miller received the pre-adverse action package on July 21st, he failed to contact Yale within a reasonable time to dispute the inaccurate criminal history information. (Id. at pp. 5-6). Consequently, Yale informed Miller by mail on July 25th that J & J had revoked his offer of employment. (Id. at p. 7). J & J states that, although it may have made an internal decision to revoke Miller's offer based on the criminal information contained in the background report, such an internal decision is not an "adverse action" within the meaning of the FCRA. (Id. at pp. 9-12).
Miller argues that he is entitled to summary judgment on the issue of J & J's liability because J & J indeed took adverse action before Yale issued the July 18th pre-adverse action package. (Doc. 65, pp. 9-12). Miller states that J & J contacted him prior to July 18th to advise him that his offer of employment had been withdrawn. (Id. at p. 12). As a result, J & J's conduct was more than a mere internal decision as J & J submits, but rather the actual and operative withdrawal of Miller's offer of employment. (Id.).
Based on the particular facts of this case, as highlighted by the evidence and testimony presented by the parties, there is no dispute that J & J took adverse action against Miller prior to Yale mailing the July 18th pre-adverse action package. Miller testified at his April 15, 2014 deposition as follows:
(Doc. 60, 54:3-55:4; see also id. at 58:15-59:20 & Ex. 10). Miller's Verizon phone bill confirms that, on July 12, 2011 at 5:25 p.m., Miller spoke with Gilland Mitchell for six minutes.
J & J's internal emails and Gilland Mitchell's deposition testimony further corroborate Miller's statement that J & J officially rescinded the offer of employment and communicated the rescission to Miller on July 12th, prior to Yale sending the pre-adverse action package. By email time-stamped 5:52 p.m. on July 12, 2011,
(Doc. 63-2, p. 1). At her May 13, 2014 deposition, Gilland Mitchell testified about the July 12th emails as follows:
(Doc. 58-1, 48:19-49:17) (emphasis added).
The next day at approximately 12:53 p.m., Gilland Mitchell emailed Yolanda Nieves again
J & J relies heavily on Obabueki v. International Business Machines Corp., 145 F.Supp.2d 371 (S.D.N.Y.2001), aff'd 319 F.3d 87 (2d Cir.2003), cert. denied 540 U.S. 940, 124 S.Ct. 311, 157 L.Ed.2d 253 (2003), in claiming that J & J only made an internal decision to revoke Miller's offer of employment, which does not constitute an adverse action under the FCRA. (Doc. 56, pp. 9-11; Doc. 71, pp. 5-7). In Obabueki, the plaintiff interviewed and received a conditional offer of employment for a position with IBM. Id. at 376. IBM then contracted with a consumer reporting agency to conduct a background check, which revealed that the plaintiff had been convicted of a crime which he failed to divulge on his employment application. Id. at 377. However, the background report did not disclose that the plaintiff's conviction had been dismissed. Id.
As a result of the information contained within the background report, IBM called the plaintiff on October 13, 1999 to inform him that IBM intended to withdraw its offer of employment. Id. IBM also mailed a letter to the plaintiff the same day memorializing IBM's intent. Id. Attached to the letter was a copy of the plaintiff's background report and the statutory summary of rights required by the FCRA. Id. Although the plaintiff attempted to dispute the inaccurate information contained within his background report, he was unable to present enough evidence to convince IBM to change its mind. Id. at 378. Accordingly, by letter dated October 18, 1999, IBM formally withdrew the plaintiff's offer of employment. Id.
The plaintiff in Obabueki ultimately sued IBM for violating the FCRA. He contended that IBM took an adverse action against his prospective employment prior to providing the statutorily required pre-adverse action notice. Id. at 378. Specifically, the plaintiff asserted that IBM had taken adverse action on October 13th by informing him via telephone and letter that it intended to withdraw its offer of employment due to the information contained within the background report. Id. at 391. On motion for summary judgment, IBM submitted that it had not taken adverse action until October 18th, after IBM had provided the required pre-adverse action notice and summary of rights. Id. at 392. As to the October 13th communications,
The district court agreed with IBM. Crucial to the court's decision was its analysis of what constitutes an "adverse action" under the statute:
Id. at 391-92 (citations and footnote omitted) (emphasis in original). The court found legally unsupportable the plaintiff's contention that a formation of the intent to withdraw an offer of employment constitutes an adverse action. Such a construction, the court held, would render the statute's notice requirement without effect, as anyone could claim a violation of the FCRA where an employer sends a pre-adverse action notice, asserting that the employer's decision was actually made before the notice had been sent. Id. at 392 & n. 31. Moreover, the court emphasized that the FCRA "expressly allows" employers to form an intent to take adverse action before doing so. Id. at 392. Therefore, under the FCRA, it is the actual decision to rescind that operates as an adverse action. Id. Only then is the plaintiff "denied employment" or "adversely affected" within the meaning of the statute.
Other federal courts have arrived at the same conclusion reached in Obabueki. For example, in Burghy v. Dayton Racquet Club, Inc., the court described an "adverse action" as "occur[ring] when the decision is carried out, when it is communicated or actually takes effect, and an actor has until that time to take the necessary steps to comply with the FCRA's requirements." 695 F.Supp.2d 689, 703 (S.D.Ohio 2010). In that case, the court posited that an employer who communicates to an employee during a staff meeting that she is fired has taken an adverse action. See id. Similarly, in Goode v. LexisNexis Risk & Information Analytics Group, Inc., the court stated that an adverse action takes place where "there [is] no real opportunity for [the employee] to contest" the employment decision, thus defeating the purpose of the FCRA. 848 F.Supp.2d 532, 540 (E.D.Penn.2012). See also Moore v. Rite Aid Hdqtrs Corp., 33 F.Supp.3d 569, 573-74 (E.D.Penn.2014) (holding that adverse action occurs when a decision is carried out, communicated, or takes effect).
Here, there is no dispute that J & J took adverse action against Miller prior to Yale mailing the July 18th pre-adverse action package. Miller testified that he spoke with Gilland Mitchell on July 12, 2011, when Gilland Mitchell conveyed to Miller that the job offer had been rescinded. Miller's telephone bill confirms that a conversation between the two took place on this date and Gilland Mitchell's deposition testimony and emails to numerous individuals on July 12th and 13th corroborate that the nature of the conversation was to inform Miller that his job offer had been revoked. Further, at no point in her
J & J's reliance on Obabueki is misplaced, as the facts presented in the instant case are distinguishable. In Obabueki, IBM gave pre-adverse action notice to the plaintiff on October 13th, afforded him five days to dispute any inaccuracies in the background report, then formally withdrew the offer on October 18th. Because October 18th was the date the withdrawal took effect, that was the date of adverse action. Since IBM had provided the proper notice and summary of rights five days prior, IBM did not violate the FCRA. In the instant case, however, J & J's actions went beyond a mere internal decision to rescind Miller's offer. Gilland Mitchell stated in no uncertain terms on July 18th, "We have resended [sic] the offer due to his background." (Doc. 63-5, p. 1). Therefore, the date on which J & J carried out its decision to withdraw Miller's offer occurred on or before July 18, 2011, thus denying Miller any opportunity to dispute inaccurate information in the background report in violation of the FCRA.
J & J's contention that Miller knew of J & J's intent to take an adverse action but failed to dispute the inaccurate criminal information with Yale is similarly unfounded. J & J suggests that "Miller had a genuine opportunity to contest the accuracy of his background report and inexplicably failed to contest the accuracy of his report when he chose to ignore the pre-adverse action letter's instructions to contact Yale." (Doc. 56, p. 6; Doc. 77, p. 6) (alterations in original). Indeed, J & J goes to great lengths to paint a picture of Miller purposely ignoring Yale's pre-adverse action package, presumably to his detriment. (Doc. 56, pp. 5-7, 12-13; Doc. 71, pp. 4, 9-11; Doc. 77, pp. 2-7). However, as discussed above, by the time Yale mailed the pre-adverse action package on July 18th, it was too late—J & J had already taken adverse action against Miller. Like the plaintiff in Goode, Miller quite literally had no opportunity to dispute the inaccurate criminal information contained within his background report before J & J rescinded the offer of employment.
For these reasons, the Court finds that there is no genuine dispute of material fact as to J & J's liability under the FCRA.
Next, J & J moves for summary judgment on the basis that Miller did not suffer any damages as a result of a violation of the FCRA. (Doc. 56, pp. 13-15). J & J rightly points out that the FCRA does not impose liability for mere technical violations of its provisions; a plaintiff must actually suffer injury in order to prevail on his claim. Johnson v. Equifax, Inc., 510 F.Supp.2d 638, 647 (S.D.Ala.2007); see also Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d 1151, 1161 (11th Cir.1991) (affirming summary judgment for defendant-employer where the plaintiff failed to provide evidence that he suffered injury due to FCRA violation).
Lastly, J & J moves for summary judgment on the grounds that its actions were neither willful nor negligent, thus escaping liability under the FCRA. (Doc. 56, p. 15). J & J reaches this conclusion by re-arguing that, since it complied with the FCRA, J & J necessarily could not have negligently or willfully violated the FCRA. (Id.). However, as illuminated in Section III.B.1, supra, J & J did not comply with the FCRA. Moreover, the question of whether an employer acted willfully or negligently "is understood to be a question of fact for the jury." Cowley v. Burger King Corp., No. 07-21772-CIV, 2008 WL 8910653, at *4 (S.D.Fla. May 23, 2008); see also Hammer v. JP's SW Foods, L.L.C., 739 F.Supp.2d 1155, 1167 (W.D.Mo.2010); Edwards v. Toys "R" Us, 527 F.Supp.2d 1197, 1210 (C.D.Cal.2007).
Here, Miller's deposition testimony rebuts J & J's assertion that there is no dispute of material fact. Miller testified that the fact that J & J never gave him an opportunity to dispute inaccuracies in his background report indicate J & J's negligence or willfulness. (See Doc. 60-1, 103:2-18). Miller essentially states that the timeline of events in this particular case show that J & J must have acted willfully or negligently—i.e., no reasonable person would view J & J sending a preadverse action notice after the occurrence of an adverse action as anything but willful or negligent. (See id.). Therefore, genuine dispute exists as to whether J & J acted negligently or willfully when it violated the FCRA, an issue on which the parties will also proceed to trial.
Yale moves for summary judgment as to Count 3 on several grounds, only one of which the Court need address in order to grant Yale's motion. Yale contends that there is no genuine dispute of material fact that Yale complied with the FCRA's procedural requirements under 15 U.S.C. § 1681i for reinvestigating information contained within a consumer report which a consumer disputes. (Doc. 64, p. 6). Specifically, Yale states that it did not learn that Miller disputed information contained within his background report until Miller called Yale on August 4, 2011. (Id. at p. 5). After discussing the matter with Miller, Yale states that it reinvestigated, removed the inaccurate information, and forwarded a corrected background report to J & J by August 11th, as required by § 1681i. (Id. at p. 4).
Miller does not dispute that Yale first learned of the contested information on August 4th, reinvestigated, removed the inaccurate information, and forwarded a corrected background report to J & J by August 11th. (Doc. 72, ¶ 12). Miller offers no other evidence in his response to refute Yale's showing that it complied with § 1681i. Accordingly, Miller has failed to go beyond the pleadings to demonstrate that there is a genuine dispute of material fact. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Yale's motion for summary judgment will be granted.
For the reasons stated herein, it is
