Opinion
Civil Action No. 17-1633
12-20-2018
SIDI MOHAMED ABDERRAHMANE DAHY, on behalf of himself and all similarly situated, Plaintiff, v. FEDEX GROUND PACKAGE SYSTEM, INC. and FIRST ADVANTAGE BACKGROUND SERVICES CORP., Defendants.
District Judge David S. Cercone
ECF No. 60 REPORT AND RECOMMENDATION
I. RECOMMENDATION
Pending before this Court is a Motion to Dismiss Count II filed by Defendant FedEx Ground Package System, Inc. (ECF No. 60.) For the reasons stated herein, it is respectfully recommended that the Motion to Dismiss be granted and Count II as asserted against FedEx be dismissed with prejudice.
II. REPORT
A. Relevant Facts
Plaintiff, Sidi Mohamed Abderrahmane Dahy ("Plaintiff") brings this class action lawsuit under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681a-1681x, against Defendants FedEx Ground Package System, Inc. ("FedEx") and First Advantage Background Services Corp. ("First Advantage"). After Plaintiff filed the initial complaint in the Court of Common Pleas of Allegheny County, Pennsylvania on November 17, 2017, FedEx timely removed this case to this court on December 18, 2017, based upon removal of class action lawsuits, 28 U.S.C. § 1453, and because the case arises under federal law, 20 U.S.C. § 1331. (ECF No. 1.) FedEx moved to dismiss Count II for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 20.) In a Report and Recommendation, this court recommended that the Motion to Dismiss be granted and that Count II be dismissed without prejudice. (ECF No. 47.) The court also recommended that Plaintiff have leave to file an amended complaint in accordance with the Report and Recommendation. Id. The District Court adopted the Report and Recommendation of this court on September 6, 2018.
On October 1, 2018, Plaintiff filed an Amended Complaint. (ECF No. 54.) Defendant FedEx moves to dismiss Count II of the complaint with prejudice, for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 60.)
The facts of the case have been laid out in more detail in the court's previous Report and Recommendation on FedEx's first Motion to Dismiss Count II of the initial complaint. (ECF No. 47.) Briefly, in November of 2018, Plaintiff applied in person for the position of a full-time truck driver with FedEx at one of FedEx's Virginia offices. (ECF No. 54, ¶¶ 20-21.) Plaintiff underwent a smooth application process, including passing the drug screen and medical examination. Id. at ¶¶ 23-24. FedEx then ordered a background check on Plaintiff from Defendant First Advantage, a consumer reporting agency ("CRA"), including a "Social Security Number Validation." Id. at ¶¶ 19, 25. First Advantage could not verify that Plaintiff's social security number belonged to him, and, based upon the hiring criteria designated by FedEx, adjudicated Plaintiff as being "In-Eligible for Hire." Id. at ¶¶ 26. First Advantage reported the finding to FedEx, which adopted the "in-eligible" finding of Plaintiff without any independent verification action on its own, and confirmed the finding back to First Advantage. Id. at ¶¶ 32-33. Upon the confirmation from FedEx of the result of Plaintiff's background check, First Advantage mailed a copy of the background check report along with a letter to Plaintiff. Id. at ¶¶ 35-36; ECF No. 54-1, pp. 2-15. The letter states, inter alia:
In connection with your employer or prospective employer's submission to qualify you in connection with a position providing services under FedEx Ground's motor carrier operating authority, you authorized production of a Consumer and/or Investigative Consumer Report...
A copy of the Report is enclosed. Also enclosed is a summary of your rights under the Federal Fair Credit Reporting Act and state law, as applicable, and a Rehabilitation Questionnaire (Form XF-400.)
Please carefully review the Report. A qualification determination may be based in whole or in part on the information in the Report.
If you believe that any of the information in the Report is inaccurate or incomplete, please contact the consumer reporting agency that provided the Report at the above address/telephone number within five (5) business days of your receipt of this letter.
ECF No. 54-1, p. 2. Plaintiff alleges that the social security number he had provided to FedEx was accurate and belongs to him, and that the report was erroneous. (ECF No. 54, ¶ 31.) Similar to the initial complaint, Plaintiff does not allege in the Amended Complaint that he took any action to contact First Advantage or FedEx regarding this error, nor that he completed Form XF-400. Plaintiff alleges that Form XF-400 did not provide him with any opportunity to address the issue of his social security number and reconfirm his identity. Id. at ¶ 41. Furthermore, Plaintiff avers that there was no basis to dispute the inaccuracy of the report in any other manner, as he had already provided to FedEx all of his identifying information, including the accurate social security number, and further verified his identity to the drug screening and medical examination providers. Id. at ¶ 42. If no one takes any further action, First Advantage automatically mails a second similar notice letter that substantively repeats the previous notice. Id. at ¶ 45.
Plaintiff thus alleges that the letter from First Advantage notifying him of the background check result and giving him notice to alert First Advantage of any errors is entirely pretextual. Id. at ¶ 43. Plaintiff alleges that by the time he had received the letter, FedEx had already deemed him "In-Eligible for Hire" based upon the report from First Advantage and has already concluded that he would not be hired. Id. at ¶¶ 38, 43. In addition, Plaintiff alleges that upon determining an applicant ineligible for hire based upon First Advantage's background check, FedEx continues to solicit and accept applications for the positions such as the one for which Plaintiff applied. Id. at ¶ 28. Had Plaintiff disputed First Advantage's accuracy, it would have been futile, alleges Plaintiff, because First Advantage is allotted 30 days to investigate consumer disputed inaccuracies, and it would not be enough time to save Plaintiff's opportunity to be hired. Id. ¶¶ 52-53.
Plaintiff seeks equitable relief as well as costs and attorneys' fees.
B. Standard of Review
When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Eid v. Thompson, 740 F.3d 118, 122 (3d Cir. 2014) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)). "As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a 'plausible' claim for relief, and '[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. "Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
C. Analysis
Defendant FedEx moves for dismissal of Count II, arguing that Plaintiff still does not offer any new allegations that would allow him to overcome the 12(b)(6) standard in the Amended Complaint, that his theory of liability still hinges on the position that an "adverse action" took place when First Advantage prepared his report and marked him as "ineligible for hire," which this court has already rejected. (ECF No. 61, p. 3.) Plaintiff maintains that he has pleaded additional allegations that show that the adjudication of "ineligible" by First Advantage was a final adverse action under the FCRA and the complaint should be allowed to go forward. (ECF No. 70, p. 17.)
1. Applicable law
In Count II, Plaintiff claims that FedEx violated 15 U.S.C. § 1681b(b)(3)(A) of the Fair Credit Reporting Act. Section 1681b of Title 15 is titled "Permissible purposes of consumer reports" and the relevant portion of the statute Plaintiff sues under states as follows:
(b) Conditions for furnishing and using consumer reports for employment purposes
. . .
(3) Conditions on use for adverse actions
(A)In general — Except as provided in subparagraph (B), in using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to
take such adverse action shall provide to the consumer to whom the report relates—
15 U.S.C. § 1681b(b)(3)(A). This section "requires that an employer 'provide job applicants with their background report, summary of rights, and a "real opportunity" to contest the contents of the background report before the employer relies on the report to take an adverse action against the applicant.'" Wright v. Lincoln Prop. Co., No. CV 15-3483, 2017 WL 386602, at *3 (E.D. Pa. Jan. 27, 2017) (quoting Moore v. Rite Aid Hdqtrs Corp., No. CIV.A. 13-1515, 2015 WL 3444227, at *4 (E.D. Pa. May 29, 2015). "The notice requirement contained in § 1681b(b)(3) is referred to as a 'pre-adverse action notice' and was intended 'to afford employees time to discuss reports with employers or otherwise respond before adverse action is taken.'" Wright, 2017 WL 386602, at *3 (quoting Goode v. LexisNexis Risk & Info. Analytics Grp., Inc., 848 F. Supp. 2d 532, 537 (E.D. Pa. 2012).(i) a copy of the report; and
(ii) a description in writing of the rights of the consumer under this subchapter, as prescribed by the Bureau under section 1681g(c)(3) of this title.
An "adverse action occurs 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." Burghy v. Dayton Racquet Club, Inc., 695 F.Supp.2d 689, 703 (S.D. Ohio 2010). Relevant to employment decisions under the FCRA the "term 'adverse action' - . . . (B) means- . . . (ii) a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee." 15 U.S.C. § 1681a(k)(1)(B)(ii). The "catch-all" provision defines "adverse action" as "an action taken or determination that is . . . made in connection with an application that was made by, or a transaction that was initiated by, any consumer" and "adverse to the interests of the consumer." 15 U.S.C. § 1681a(k)(1)(B)(iv). "While seemingly expansive, these definitions are constrained by the scope of the notice requirement which applies only to the persons who are 'intending' to take an adverse action." Muir v. Early Warning Systems, LLC, Civ. Act. No. 16-521 (SRC), 2016 WL 4967792, *4 (D.N.J. Sept. 9, 2016) (citing Obabueki v. Int'l Bus. Machs. Corp., 145 F.Supp.2d 371, 392 (S.D.N.Y. 2001)).
"'The FCRA "expressly allows for the formation of an intent to take adverse action before complying with Section 1681b(b)(3), as it states that "the person intending to take" adverse action must provide the report and description of rights' prior to taking the adverse action." Manuel v. Wells Fargo Bank, NA, 123 F. Supp. 3d 810, 822 (E.D. Va. 2015) (quoting Javid v. SOS International, LTD, 2013 WL 22886046, *4 (E.D. Va. 2013), quoting Obabueki, 145 F.Supp.2d at 392 (quoting 15 U.S.C. § 1681b(b)(3) (emphasis added))); see also Muir, 2016 WL 4967792, *4 (statute limiting notice requirement to those "intending" to take adverse action "means that the statute must allow for a method by which such intent may be formed"). "The formation of such intent, therefore, cannot be the adverse action." Javid, 2013 WL 22886046, *4; Moore v. Rite Aid Hdqtrs Corp., 33 F. Supp. 3d 569, 574 (E.D. Pa. 2014) ("For this reason, an internal decision to rescind an offer, standing alone, cannot be considered an adverse action").
2. Discussion
Defendant argues that Plaintiff's theory still rests on the same allegations as in the original Complaint. (ECF No. 61, p. 1.) Defendant states that there are still no allegations in the Amended Complaint that Plaintiff was somehow "prevented" from initiating a dispute with First Advantage of FedEx regarding the error on his background report. Id. at p. 5. Nor does the Amended Complaint explain why Plaintiff personally believed that a dispute would have been futile or why he did not dispute the background report. Id. at p. 6. Defendant also argues that while Plaintiff made new allegations that the nature of the alleged error prevented him from disputing the error—namely, that he had provided the social security number and his name already, such allegations are immaterial to the fact that FedEx complied with its pre-adverse action obligations. Id. at p. 9.
Plaintiff argues that he has pleaded enough detail to survive dismissal under the "short and plain statement of the claim showing that the pleader is entitled to relief" standard. (ECF No. 70. p. 5.) Plaintiff maintains that his allegations show that Defendant failed to abide by the requirements of section 1681b(B)(3) of the FCRA, because he has pled that FedEx blindly relies upon First Advantage to make the final adverse action determinations, even after FedEx had verified Plaintiff's identity and had the correct information available to it well before the adjudication by First Advantage based upon the allegedly erroneous report. Id. at p. 6. Plaintiff maintains that he would have no meaningful ability to dispute the alleged error because First Advantage would not be able to complete a dispute investigation within the five-day window allotted by FedEx for an applicant to respond, and because there was nothing else about his identity Plaintiff could provide, having given FedEx all of his identifying information. Id. at pp. 12-13.
a. Previous Motion to Dismiss
In a Report and Recommendation adopted by the District Court, this court recommended granting Defendant's Motion to Dismiss. (ECF No. 47.) The court found that the adjudication of ineligible is not itself an adverse action, but rather an evaluation that results in a decision to take adverse action. Id. at p. 9; furthermore, the notice sent to Plaintiff was sent before any final adverse action was taken, and fully complied with the FCRA. Id. at p. 12. "The 'timing of the pre-adverse action notice' occurring after First Advantage's adjudication and FedEx's adoption of the adjudication 'is precisely the timing envisioned by the FCRA." Id. Under the allegations pled in the initial complaint—which do not allege Plaintiff having disputed the report—neither the adjudication of ineligible by First Advantage, nor FedEx's adoption of that adjudication, had any effect on Plaintiff's opportunity to challenge the background report which states that his social security number does not belong to him. Id. at p. 12. There did not appear to the court to be any substantive distinction between FedEx making a preliminary but not final adjudication of ineligible for hire until Plaintiff had been notified, and what FedEx actually did, which was to adjudicate Plaintiff ineligible, but give him notice and an opportunity to dispute any errors. Id. at p. 13. The court emphasized that, according to its reading of Moore, there are plausible scenarios where a plaintiff could allege that the employer made a final adverse employment decision against them and issued a notice after-the-fact when the opportunity to respond was disingenuous because the decision had already been made. Id. at p. 16. However, in this instant, the court did not consider there to be enough allegations to demonstrate that Defendant completed the intent of taking an adverse action, for example, by filling the position with another applicant before the pre-adverse action notice had been sent out or before Plaintiff has had a chance to respond, etc. Id. at p. 18. The allegations in the initial complaint did not demonstrate that Defendant failed to comply with the statute's requirements for notice and opportunity to be heard, because Plaintiff took no action upon receipt of the notice from First Advantage. Id. at p. 22.
b. New Allegations
Plaintiff alleges in the Amended Complaint that after First Advantage makes its determination of ineligible,
Discovery will show that First Advantage then communicates that grade to FedEx, which adopts the ineligible adjudication wholesale and electronically parrots-back [sic] the grade to First Advantage. At this point, Discovery will confirm, FedEx's records indicate that the applicant is indeed ineligible for hire,
and FedEx no longer considers the applicant a candidate for the position for which he applied.
(ECF No. 54, ¶ 27.) Despite the fact that these allegations lay out in more detail the alleged process that takes place when a candidate is labeled to be ineligible, Plaintiff does not overcome the conclusory nature of these allegations. Plaintiff is still alleging that FedEx made its decision based solely on First Advantage's allegedly erroneous background check results; therefore, according to Plaintiff, FedEx has taken a final adverse action rather than a pre-adverse one. The new complaint lacks any plausible facts to indicate that the decision not to hire Plaintiff was a final one, other than Plaintiff's conclusory statement that FedEx has made a final decision, in so many words. The Achilles' Heel of Plaintiff's case remains the fact that he does not allege that he took any action to dispute the report. Based on the court's previous findings, Plaintiff has alleged no facts that would demonstrate that the notice sent out by First Advantage is disingenuous or pretextual, other than saying that they are pretextual. As a result, Plaintiff fails to overcome the fatal flaw of his initial complaint. "The FCRA permits an employer to fully intend to take a final adverse action once it learns of a negative adjudication so long as it complies with the statute's requirements for notice and an opportunity to be heard." (ECF No. 47, p. 18.)
The court acknowledges that based on the holding in Moore I, it is possible to allege that an employer to take an adverse action by sending out the notice. Moore v. Rite Aid Hdqtrs Corp., 33 F.Supp.3d 569, 574 (E.D. Pa., 2014). However, even the court in Moore I stated that if an argument that the employer made a final adverse decision were "supported by allegations in the Complaint,"(emphasis added), it would state a claim upon which relief could be granted. Id. There is no controversy that Section 1681b(b)(3)'s requirement that employers provide a "real opportunity" for applicants to challenge the adjudication of an employer based upon a background check should be anything else but a real opportunity. But it is precisely because the opportunity to dispute needs to be a real one that facts need to be alleged to show that it was not real in order to plausibly demonstrate that an employer may have violated the requirements of Section 1681b(b)(3). In Moore II, the plaintiff amended the original complaint with several new allegations: 1) once it adjudicated an applicant as ineligible, Rite Aid automatically removed that applicant from the "hire" track and, as a matter of custom and practice, actually rejected the applicant at that time; 2) Rite Aid did not give the plaintiff the promised five days to respond because it mailed out the final adverse action notice denying the plaintiff employment five days after mailing the initial notice letter; and 3) Rite Aid did not include key information used to adjudicate her application for employment, and thus the plaintiff had insufficient information to challenge Rite Aid's decision. Moore v. Rite Aid Hdqtrs Corp., No. 13-cv-1515, 2015 WL 3444227, at *5-6 (E.D. Pa. Dec 21, 2017). The court in Moore II found that such allegations were sufficient to show that the plaintiff did not have a genuine opportunity for her to dispute the LexisNexis report, and allowed the case to go forward.
Plaintiff's allegation that "FedEx's records indicate that the applicant is indeed ineligible for hire, and FedEx no longer considers the applicant a candidate for the position for which he applied" seems to suggest that this was also FedEx's custom and practice. However, because this particular allegation could equally be interpreted as another conclusory allegation dressed in alternative language, this court is of the opinion that, along with Plaintiff's failure to satisfactorily plead his reasons for not taking any action to dispute the report, the Amended Complaint remains insufficient.
Plaintiff explains not taking action to dispute by alleging that responding to the report would have been futile.
41. The rehabilitation questionnaire ("Form XF-400") enclosed with Letter 1 purported to permit Plaintiff an opportunity to submit additional information
"about [his] criminal record or rehabilitation" for consideration by FedEx Ground. Form XF-400 had no application to FedEx Ground's confirmation of Plaintiff's ineligibility for employment because Plaintiff has no criminal history and Letter 1 disclosed no such history. Form XF-400 did not provide Plaintiff with any opportunity to re-confirm his already confirmed identity.
42. There would have been no basis upon which Plaintiff could have disputed the inaccuracy of his First Advantage report. He had already provided FedEx his name, Social Security Number, and date of birth in his application materials, so he had nothing more to provide...
(ECF No. 54, ¶¶ 41-42.) The court agrees with Defendant that the "nature of the alleged inaccuracy is entirely immaterial to FedEx's compliance with its pre-adverse action obligations." (ECF No. 61, p. 9.) The fact that Form XF-400 does not address the particular issue of a non-matching social security number is immaterial, as is the fact that Plaintiff had already provided all of his identifying information to FedEx. The one thing that neither First Advantage nor FedEx knew, but Plaintiff could have helped them know, is that the background check was allegedly mistaken when it indicated that the social security number did not match Plaintiff's identity. Plaintiff is incorrect in saying that there would have been "no basis" to dispute the inaccuracy of the First Advantage report. The basis was that a mistake appeared to have been made when the report came back saying that the social security number he provided did not match his identity. Plaintiff's argument that to dispute would have been futile does not hold up to scrutiny.
Another allegation that Plaintiff offers in the Amended Complaint to demonstrate that a dispute of the report would have been futile is that the time period given to Plaintiff to dispute, five days, is too short to resolve the issue.
51. Discovery will confirm that the supposed ability of applicants to contest the contents of their First Advantage reports is nonexistent or, at best, unsuitable for applicants to save their jobs. Though the report indicates that applicants must contact First Advantage in order to dispute the contents of their reports within five days of receiving the letter, such a period is unreasonably short to expect to save
the applicant's job because, discovery will show, First Advantage adheres to the FCRA's statutory allowance of 30 days to investigate inaccuracies that consumers raise.
52. In other words, no investigation of a dispute by First Advantage will be completed within the five day promised, so no one who disputes will have a report corrected in time to save his or her job at FedEx. Even had Plaintiff disputed First Advantage's inaccuracy, then, such dispute would have been futile.
(ECF No. 54, ¶ 51.) It is difficult to ascertain whether Plaintiff has misapprehended the five-day period to be one within which First Advantage has promised that any disputes would be resolved, or Plaintiff simply feels that even simply responding within five days would initiate a process that would conceivably last longer than FedEx would be willing to wait until the dispute had been resolved. In either case, the argument is futile. If Plaintiff's argument presupposes that the five-day period is the period in which his dispute would be resolved, then he has misunderstood the nature of the dispute process. The letter from First Advantage clearly states that Plaintiff had five days from the date of his receipt of the letter to alert them of any mistakes. First Advantage made no promises that any dispute would be resolved within five days. If Plaintiff is simply saying that the timeline for the dispute as a whole is too cumbersome and that it unrealistically expects FedEx to hold open a job opening while First Advantage investigates, Plaintiff neither alleges what a more realistic time frame would be, nor does he allege why First Advantage should not have the 30 days prescribed in the FCRA to investigate the dispute. Had Plaintiff put First Advantage on notice that it made an error in his background report, we would better know what the response would have been, how long it took to investigate, what the result was, and whether FedEx hired someone else before the dispute was resolved. Such allegations may have provided the plausibility needed for Plaintiff to survive the Motion to Dismiss. "An employer's response to a dispute, or lack thereof, is an important fact in determining whether a plaintiff can plausibly claim that his or her employer failed to provide a real opportunity to contest the contents of a consumer report...Accordingly, to state a claim for relief, plaintiff must allege facts that prevented her from responding to the initial notice letter." Moore v. Rite Aid Hdqtrs Corp., 33 F.Supp. 3d 569, 576 (E.D. Pa. Jul. 30, 2014).
This is also distinguishable from the allegation in Moore II that the five-day period to dispute was illusory. In Moore II, the employer allegedly sent the final rejection letter before the five days from the plaintiff's receipt of the initial notice letter were up, contradicting their own statement that plaintiff would have five days from the receipt of the initial notice letter to dispute the report. Here, there are no such allegations to indicate that FedEx took a final action on the "ineligible" adjudication. Just because Plaintiff was adjudicated "ineligible" does not mean that FedEx would not have reconsidered him had he disputed the report—which is why a valid reason for Plaintiff not disputing is so crucial to his complaint. See Moore v. Rite Aid Hdqtrs Corp., No. 13-cv-1515, 2015 WL3444227, at *5-6 (E.D. Pa. Dec 21, 2017). --------
Plaintiff argues that the word "adverse" as defined under 15 U.S.C. § 1681a(k)(1)(B)(iv) includes a decision that is "adverse to the interests of the consumer," and that therefore Congress did not mean that a reversible decision is naturally not an adverse one. (ECF NO. 70, p. 16.) Assuming the courts agree with Plaintiff, this line of reasoning still implicates the problem of how an employer makes an internal decision about an applicant whose background check has a problem. By Plaintiff's argument, any internal decision that puts an applicant on hold in the hiring process would be considered adverse, and any categorization of the applicant internally, no matter what the term used, would violate the FCRA. As soon as an employer saw a background report with information indicating that an applicant is ineligible, it must make a decision to either not hire her or give her a chance to respond to the report. The former decision violates the FCRA if the decision is made without notifying the applicant. The latter would also violate the FCRA if the employer flags the applicant's file in any kind of way, if we are to agree with Plaintiff's argument about the definition of the word "adverse" as intended by Congress. However, the court disagrees that such a result was what Congress intended. "Nothing in the FCRA...prevents employers form affirming a [consumer reporting agency's recommendation." Muir v. Early Warning Systems, LLC, No. 16-521, 2016 WL 4967792, *5 (D.N.J. Sept. 9, 2016) (citing Williams v. First Advantage LNS Screening Solutions, Inc., 155 F.Supp. 3d 1233, 1247(N.C. Fl. 2015)). "...the communication of the results of an adjudication to the employer is, like the adjudication itself, akin to an internal decision or intermediate step in a multi-stage decision making process, not an adverse action. This is especially true where...the adjudication results from the application of criteria established by the employer..." Williams, 155 F.Supp. 3d at 1247. Here, when Plaintiff did nothing after receiving an allegedly erroneous report of his social security number, it is tenuous to rely on so finely distinct a definition of the word "adverse" to argue that Defendant was solely responsible for going against Plaintiff's interests.
Plaintiff also cites the Williams case to support his argument that an employer who flags an applicant's status during the hiring process due to a negative background check result, but also prepares the initial pre-adverse action notice on the same day, while a notation was added the next day to continue the search to fill that employment position, has violated the FCRA by taking an adverse action before giving the applicant a chance to rectify any mistakes. (ECF No. 70, p. 18.) First, the Court in Williams did not make a ruling on that particular issue—whether the employer, Rent-a-Center, did indeed violate the FCRA by taking an adverse action. It was addressing the distinction between an adverse action taken by the CRA, in that case also First Advantage, and an action taken by the employer. See Williams, 155 F.Supp. 3d. at 1248. Should the issue have been whether the employer took an adverse action against the applicant, then the decision in Williams only indicates that the court would have taken into account the factors of the pre-adverse action notice being prepared on the same day as the employer receiving the report, and the employer making a notation to continue the search for qualified applicants. Second, the applicant in Williams contacted the employer right away and tried to challenge the findings in his background report. See Williams, 155 F.Supp. 3d at 1238. The CRA in that case also found criminal records under the applicant's name but ones that did not match the applicant's social security number or address. Id. Taking the entire fact-pattern of Williams into account, there is good reason for the court in that case to find the actions of the employer, to be troubling. In contrast, the facts here do not form as compelling a case for arguing that Defendant's action was a final adverse action.
III. CONCLUSION
Although Plaintiff has painstakingly amended his initial complaint to demonstrate why Defendant's labeling of his application for employment as "ineligible" was an adverse action, and therefore the pre-adverse action notice was pretextual, his allegations are not sufficient to show enough plausibility to state a claim for the violation of the FCRA. No matter how much finality Plaintiff tries to paint Defendant's actions with, his own inaction precludes any hope of showing that an adverse decision was made against him. Defendant has the authority under the FCRA to make a preliminary decision to not hire him, pending any dispute from Plaintiff, which First Advantage has 30 days to investigate and resolve. Plaintiff's claims of futility are not plausible, especially when he could have simply told First Advantage that the social security number he provided does indeed belong to him and that the background check report was erroneous.
For the aforementioned reasons, it is respectfully recommended that Defendant's Motion to Dismiss Count II of the Amended Complaint (ECF No. 60) be granted, and that the count should be dismissed with prejudice, as any further amendments would be futile.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, Plaintiff shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiff's failure to file timely objections will constitute a waiver of his appellate rights.
Dated: December 20, 2018.
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge