Cassara v. DAC Serv. Inc., Nos. 00-5021
| Decision Date | 17 January 2002 |
| Docket Number | 00-5026,Nos. 00-5021 |
| Citation | 276 F.3d 1210 |
| Parties | (10th Cir. 2002) JOSEPH L. CASSARA, Plaintiff-Appellant/Cross-Appellee, v. DAC SERVICES, INC., Defendant-Appellee/Cross- Appellant |
| Court | U.S. Court of Appeals — Tenth Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. NO. 98-CV-473-B)
[Copyrighted Material Omitted] David F. Barrett (R. Deryl Edwards, Jr. with him on the brief), Joplin, Missouri, for the Plaintiff-Appellant/Cross-Appellee.
Larry D. Henry (Patrick W. Cipolla with him on the brief) of Gable & Gotwals, Tulsa, Oklahoma, for the Defendant-Appellee/Cross-Appellant.
Before HENRY and BRISCOE, Circuit Judges, and JENKINS, Senior District Judge.*
Plaintiff Joseph L. Cassara brought this civil action under the Fair Credit Reporting Act, 15 U.S.C. 1681-1681t (2000) ("FCRA"), alleging that DAC Services, Inc. ("DAC"), a "consumer reporting agency" under the FCRA, has violated 15 U.S.C. 1681e(b) (2000)1 by failing to adopt appropriate procedures ensuring the accuracy of the reporting of his employment history in a DAC-prepared report furnished to prospective employers, and that DAC has failed to disclose to Cassara the identity of all of the recipients of that report, a violation of 15 U.S.C. 1681g(a)(3)(A)(I) (2000).2 DAC answered by denying liability and pleading a counterclaim alleging that Cassara's claims were frivolous and filed in bad faith.
On December 30, 1999, the district court denied Cassara's motion for partial summary judgment as to liability, dismissed DAC's counterclaim, and granted DAC's motion for summary judgment. Judgment was entered on January 3, 2000. Cassara filed a notice of appeal on February 2, 2000.
We have jurisdiction of this appeal pursuant to 28 U.S.C. 1291 (1994). On appeal, the district court's grant of summary judgment is reviewed de novo, considering the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). Summary judgment is proper if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When, as in this case, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying "a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case. Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994).
In an effort to promote greater safety in the operation of large trucks on the Nation's highways, in 1970 the United States Department of Transportation promulgated the Federal Motor Carrier Safety Regulations ("FMCSR") establishing minimum qualifications for commercial motor vehicle drivers and requiring employers to investigate the driving record and employment history of prospective employees being hired to drive large trucks. 49 C.F.R. 390.1-390.37, 391.1-391.69 (2000). The investigation of an applicant's driving record must include inquiries to "the appropriate agency of every State in which the driver held a motor vehicle operator's license or permit" during the preceding three years. 49 C.F.R. 391.23(a)(1) (2000). The investigation of the applicant's employment record for the preceding three years "may consist of personal interviews, telephone interviews, letters, or any other method of obtaining information that the carrier deems appropriate," but the employer must maintain a written record as to each past employer that was contacted. 49 C.F.R. 391.23(c) (2000).
The regulations require that drivers applying for employment likewise must disclose detailed information, including the "nature and extent of the applicant's experience in the operation of motor vehicles," a list of "all motor vehicle accidents in which the applicant was involved" during the three years preceding the application, "specifying the date and nature of each accident and any fatalities or personal injuries it caused," and a list of "all violations of motor vehicle laws or ordinances . . . of which the applicant was convicted or forfeited bond" during the three years preceding the application. 49 C.F.R. 391.21(b)(6)-(8) (2000). A driver applicant must detail "the facts and circumstances of any denial, revocation or suspension of any license, permit, or privilege to operate a motor vehicle that has been issued to applicant," as well as furnish a list "of the applicant's employers during the 3 years preceding the date the application is submitted" indicating the term and reason for leaving employment. 49 C.F.R. 391.21(b)(9), (10) (2000).
As used in these regulations, "accident" means:
an occurrence involving a commercial motor vehicle operating on a highway in interstate or intrastate commerce which results in:
(i) A fatality;
(ii) Bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or
(iii) One or more vehicles incurring disabling damage as a result of the accident, requiring the motor vehicles to be transported away from the scene by a tow truck or other motor vehicle.
49 C.F.R. 390.5 (2000). The definition expressly excludes an "occurrence involving only boarding and alighting from a stationary motor vehicle" or "only the loading or unloading of cargo." Id.
These FMCSR requirements establish a minimum standard for the evaluation of driver qualifications. The regulations also provide that trucking companies may enforce "more stringent requirements relating to safety of operation" than the general requirements found in the federal motor carrier safety regulations, 49 C.F.R. 390.3(d) (2000), and may require driver applicants to provide information in addition to that required to be disclosed by the regulations. 49 C.F.R. 391.21(c) (2000).
As often is the case, the federal regulation of one commercial activity gave birth to another new business opportunity--in this case, the gathering and reporting of drivers' records and employment histories for a fee. DAC was formed in 1981 to exploit that opportunity, first by building a database of truck driver employment histories. Beginning in 1983, DAC offered employment histories, employee driving records, and other reports to its trucking industry members nationwide, augmenting its database with information reported by its participating employers.
In its own words, DAC acts as a "file cabinet," storing employment histories on terminated drivers for over 2,500 truck lines and private carriers from across the country. Participating member employers can access the DAC database, which currently contains over four million records, to gather key employment history information. DAC advertises that its employment history files comply with the federal regulations and are accepted by the United States Department of Transportation to satisfy Section 391.23(c) of the Federal Motor Carrier Safety Regulations, governing investigations of driver applicants' employment history.
Joseph L. Cassara worked as a truck driver for Watkins Shepard Trucking, Inc. ("WST") from March to October 1994, and then for Trism Specialized Carriers ("Trism") from December 1994 through December 1996. After Cassara left employment with these companies, each company made reports to DAC concerning Cassara's driving record and employment history. DAC compiled this information into a report. It then furnished the report to other companies inquiring about Cassara.
WST initially reported two accidents involving Cassara.3 According to WST, on June 28, 1994, Cassara struck another truck while trying to back his equipment into a customer's dock, causing $1,942.26 in damage to the other truck. (Aplee. App. vol. II, at 358.) The WST Safety Department reviewed the accident and determined it to be preventable. (Id.) On October 19, 1994, Cassara damaged a ladder while backing at a customer's place of business, an accident which WST's Safety Department determined also to be preventable. (Id. at 359.)
Based on the WST information, DAC's report on Cassara read as follows:
OTHER
Similarly, DAC reported the following accident data based upon information submitted by Trism:4
(Id. at 442.) At Cassara's request, Trism provided him with a list of the six reported accidents in a letter dated August 26, 1997:
On 8-26-95 backing out of the tractor shop at NIE Maryland terminal right side of tractor hit a parked trailer. $889.90 posted as collision damage.
On 3-1-96 near Laural, Montana, hit a deer, $604.40 posted as damage.
On 8-6-96 near Cleveland, Tennessee, turning around on parking lot damaging surface of parking lot. To date no claim for damage has...
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