Dahy v. Fedex Ground Package Sys., Inc.
| Decision Date | 03 August 2018 |
| Docket Number | Civil Action No. 17-1633 |
| Parties | 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. |
| Court | U.S. District Court — Western District of Pennsylvania |
It is respectfully recommended that the Motion to Dismiss Count II filed by Defendant FedEx Ground Package System, Inc. (ECF No. 20) be granted and Count II as asserted against FedEx be dismissed without prejudice. It is further recommended that Mr. Dahy be granted leave to file an amended complaint, if he chooses, in accordance with this Report and Recommendation.
This class action lawsuit is brought under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681a-1681x, by Plaintiff Sidi Mohamed Abderrahmane Dahy against Defendants FedEx Ground Package System, Inc. ("FedEx") and First Advantage Background Services Corp. ("First Advantage"). Mr. Dahy initially filed a complaint in the Court of Common Pleas of Allegheny County, Pennsylvania on November 17, 2017. FedEx timely removed the 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, 28 U.S.C. § 1331. ECF No. 1. Mr. Dahy's two-count Complaint alleges violations of 15 U.S.C. § 1681b(b)(2)(A) in Count I, and 15 U.S.C. § 1681b(b)(3)(A) in Count II. ECF No. 1-1. FedEx moves 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.
On November 8, 2015, Mr. Dahy applied for employment with FedEx by submitting a preliminary application. Compl. ¶¶ 21-22. On November 19, 2015, Mr. Dahy appeared in person at a FedEx location in Virginia, where he completed an application, and met with a FedEx representative about a full-time driver position paying $20 per hour. Compl. ¶ 22. On the same day, Mr. Dahy spoke with two representatives of FedEx. Compl. ¶ 23. Mr. Dahy also passed FedEx's required drug screen and medical examination. Compl. ¶¶ 24 & 25. When Mr. Dahy turned in his medical report on November 19, 2017, the FedEx representative congratulated him on passing the examination and indicated that Mr. Dahy was likely to obtain employment with FedEx. Compl. ¶ 25.
On November 20, 2015, FedEx ordered a background check on Mr. Dahy from First Advantage that included a "'Social Security Number Validation.'" Compl. ¶ 26. First Advantage "complies and maintains files on consumers," and "sells this information as consumer reports to various customers who access the First Advantage reports in order to make employment decisions, including whether to hire, terminate, transfer, or promote an employee or prospective employee." Compl. ¶ 8. "Based upon the hiring criteria developed or designated by FedEx Ground, First Advantage adjudicates FedEx Ground applicants' background reports bydeeming the applicant 'Eligible for Hire' or 'In-Eligible for Hire.'" Compl. ¶ 27.
On November 23, 2015, First Advantage completed Mr. Dahy's Background Report;, electronically delivered the report to FedEx; and, on behalf of FedEx, mailed a letter and copy of the Background Report to Mr. Dahy. Compl. ¶¶ 28 & 33 (Ex. A to Complaint (ECF No. 1-1, at 32-38) ("material portion" of Letter and Background Report). First Advantage's Background Report adjudicated Mr. Dahy as "Ineligible" for hire. Compl. ¶ 30; Ex. A. at 5, 7 (ECF No. 1-1, at 36, 38).
The November 23, 2015 letter sent to Mr. Dahy included a copy of the Background Report, a summary of rights under the FCRA and state law, and a rehabilitation questionnaire (Form XF-400). Compl. ¶ 34; Ex. A. at 1 (ECF No. 1-1, at 32). The November 23, 2015 letter was the first opportunity Mr. Dahy was given to review the Background Report. Compl. ¶ 36. The Background Report also stated as follows:
Ex. A. at 1 (ECF No. 1-1, at 32). There is no allegation in the Complaint that Mr. Dahy completed the Rehabilitation Questionnaire (Form XF-400) or contacted FedEx or First Advantage to discuss inaccurate or incomplete information. Mr. Dahy alleges that FedEx adopted First Advantage's adjudication of Ineligible for Hire "without any further process being provided to [Mr. Dahy] and took adverse action against [him] based upon that adjudication." Compl. ¶ 31.
Mr. Dahy states that the adjudication of Ineligible was based on First Advantage's inability to "verify" Mr. Dahy's Social Security number. Compl. ¶ 30; see Ex. A. at 7 ( ). The Background Report, in a section titled "Social Security Verification" states "Record Judged" at "20/Nov/2015 04:07:25 PM." Compl. ¶ 39. Mr. Dahy alleges that the Background Report "was not accurate" in reporting to FedEx that First Advantage could not verify that Mr. Dahy's Social Security number belonged to him. Compl. ¶ 29. Mr. Dahy alleges that this statement is "incorrect" and that the Social Security number provided by Mr. Dahy belongs to Mr. Dahy. Compl. ¶ 29.
Mr. Dahy alleges that FedEx violated 15 U.S.C. § 1681b(b)(3)(A). Section 1681b(b)(3)(A) sets forth requirements for furnishing consumer reports for employment purposes to persons before an adverse action is taken against them. Compl. ¶ 60 (quoting 15 U.S.C. § 1681b(b)(3)(A)). Mr. Dahy alleges that the "purpose of § 1681b(b)(3)(A) is to provide a prospective or current employee a sufficient amount of time to review the consumer report, correct any inaccuracies, to notify the prospective employer of these inaccuracies before an adverse action is taken and generally to discuss the contents of the report with the prospective employer." Compl. ¶ 61.
Mr. Dahy alleges that the November 23, 2015 letter with attachments sent to Mr. Dahy by First Advantage on behalf of FedEx, was a "notice intended to comply with 15 U.S.C. § 1681b(b)(3)." Compl. § 32. Mr. Dahy further alleges that "he had already been adjudicated 'In-Eligible for Hire' by FedEx Ground based upon" the Background Report by the time he receivedthe November 23, 2015 letter. Compl. ¶ 35. Mr. Dahy alleges that the Background Report's adjudication of "Ineligible," was adopted by FedEx on November 20, 2015 at 4:07:25 PM, when First Advantage issued a "Record Judged" statement on Mr. Dahy's Social Security Verification. Compl. ¶ 39. Mr. Dahy alleges that "[a]t that point, an 'adverse action' had been taken by FedEx Ground" resulting in an "effective final decision to bar [Mr. Dahy] from employment." Compl. ¶ 40. Mr. Dahy explains his allegation as follows:
Thus, the date of the 'adverse action' against Plaintiff was the date that First Advantage first created and instantly 'adjudicated' his application. First Advantage stated on Plaintiff's report 'In-Eligible for Hire.' See Exhibit A. FedEx Ground accepts and follows the First Advantage eligibility determination without any independent investigation or exercise of discretion. The adjudication is, in effect, FedEx Ground's final hiring decision, and it takes place before any notice is provided under Section 1681b(b)(3).
Compl. ¶ 41.
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).
FedEx moves for dismissal of Count II as a matter of law arguing that Mr. Dahy has failed to state a claim of a violation of section 1681b(b)(3). Mr. Dahy argues that he has stated a claim of a violation of Section 1681b(b)(3) based on his allegations that FedEx failed to provide him with the required statutory notice before FedEx took an adverse action against him. Pl. Br. Supp. at 9.
Section 1681b of Title 15 is titled "Permissible purposes of consumer reports" and the relevant portion of the statute Mr. Dahy sues under states as follows:
To continue reading
Request your trial