Dolison v. Savaseniorcare Admin. Servs., LLC

• Decision Date: 12 February 2019
• Docket Number: CIVIL ACTION NO. 15-3135
• Parties: TANYA DOLISON, Individually and as a Representative of the Class, Plaintiff, v. SAVASENIORCARE ADMINISTRATIVE SERVICES, LLC, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

TANYA DOLISON, Individually and as a Representative of the Class, Plaintiff, v. SAVASENIORCARE ADMINISTRATIVE SERVICES, LLC, Defendant.

CIVIL ACTION NO. 15-3135

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

February 12, 2019

DuBois, J.

MEMORANDUM

I. INTRODUCTION

In this putative class action, plaintiff Tanya Dolison asserts, on behalf of herself and similarly situated individuals, that defendant SavaSeniorCare Administrative Services, LLC ("Sava") violated the stand-alone disclosure requirement of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. The putative class members are any individuals whose consumer report was procured by Sava for employment purposes in the period beginning two years prior to the filing of the Complaint and continuing through the date the class list is prepared for class certification. Presently before the Court is Plaintiff's Motion for Class Certification (Document No. 45) and defendant Sava's Motion to Dismiss Plaintiff's Claim for Lack of Standing (Document No. 47) pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons that follow, the Court grants Sava's Motion to Dismiss and denies plaintiff's Motion for Class Certification.

II. BACKGROUND¹

Plaintiff worked as a Dietary Assistant at the Broomall Rehabilitation and Nursing Center ("Broomall Center") in Broomall, Pennsylvania, from approximately November 1998 throughApril 2014. Sec. Am. Compl. ¶ 26. The Broomall Center is a nursing facility that provides care and rehabilitation services to its residents. Def. Mot. Dismiss 3. In 2014, defendant, Sava, acquired control of the Broomall Center through Broomall Operating Company LP. Pl. Resp. Mot. Dismiss 3. As a part of the change in operations, all the employees at the Broomall Center were required to participate in a "re-application" process. Def. Mot. Dismiss 3. During this re-application process all employees were given, and asked to complete, documents contained in an Employee Documents Book ("EDB"). Id.

The central allegation in this case is that defendant, Sava, failed to provide a consumer report disclosure that complied with the dictates of the FCRA. The FCRA provides that:

a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer, unless—

(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and

(ii) the consumer has authorized in writing . . . the procurement of the report by that person.

15 U.S.C. § 1681b(b)(2)(A). Plaintiff asserts that her consumer report was procured through a disclosure contained in a booklet, the EDB, as opposed to in a document consisting solely of the disclosure and that the disclosure inappropriately contained a liability waiver, releasing defendant of any and all liability. Pl. Resp. Mot. Dismiss 2-3; Sec. Am. Compl. ¶¶ 12-13.

The EDB consisted of approximately sixty pages. Of those pages, thirty-five contained printed information and twenty-five of the pages were blank. Sec. Am. Compl. ¶¶ 11-12. In the thirty-five pages with text, the EDB contained forms relating to a wide-range of topics including data collection, credit checks, background checks, FCRA, taxes, drug-testing and substance abuse, employee timekeeping and payroll, meal periods, time off, the Family Medical Leave Act, workers compensation, affirmative action, treatment of residents, treatment of defendant'sproprietary and confidential information, and cell-phone usage. Id. at ¶ 13. Appearing as a one-page document in the EDB was the form at issue in this case, a document entitled "Notice/Authorization and Release for Background Check," hereinafter referred to as the "Consent Form." Sec. Am. Compl. ¶ 13. In relevant part, the Consent Form states:

I, the undersigned consumer, do hereby authorize the Facility by and through its independent contractor, Kroll Background America, Inc. (KBA) located at 100 Centerview Drive, Suite 300, Nashville, TN 37214 to procure a consumer report and/or investigative consumer report on me.

These above-mentioned reports may include, but are not limited to, information as to my character, general reputation, personal characteristics, and mode of living discerned through employment and education verifications; . . . criminal and civil history/records; and any other public records.

I understand that I am entitled to a complete and accurate disclosure of the nature and scope of any investigative consumer report of which I am the subject upon my written request to KBA, if such is made within a reasonable time after the date hereof. I also understand that I may receive a written summary of my rights under 15 U.S.C. § 1681 et seq.

I authorize any person, business entity, or governmental agency who may have information relevant to the above to disclose the same to the Facility by and through KBA, including, but not limited to any and all courts, public agencies, law enforcement agencies, and credit bureaus, regardless of whether such person, business entity, or governmental agency compiled the information itself or received it from other sources.

I hereby release the Facility, KBA, and any and all persons, business entities and governmental agencies, whether public or private, from any and all liability, claims, and/or demands, by me, my heairs [sic], or others making such claim or demand on my behalf, for providing a consumer report and/or investigative consumer report hereby authorized. I understand that this Notice/Authorization and Release form shall remain in effect for the duration of my employment.

. . . .

See Def. Mot to Dismiss, Ex. 3. The final paragraph of the Consent Form excerpt above includes the contested liability waiver language. The remainder of the form asks for information and a signature.

Plaintiff filled out the form in November of 2013. Id. She included her name, address, date of birth, social security number, and, in response to "Have you ever been convicted of or plead guilty to a crime (felony or misdemeanor) other than a minor traffic violation?" plaintiff checked the "yes" box, indicating that she had. Id. At the bottom of the form, plaintiff's signature appears next to the date, November 29, 2013. Id. Plaintiff does not dispute that the signature on the Consent Form is hers; however, in her deposition she testified that she does not recall completing the Consent Form. Pl. Resp. Mot. Dismiss 4; Dolison Dep. at 78:7-10, 96:5-16. In fact, plaintiff's first, and only, recollection of receiving an EDB was at a training session in March of 2014.²

In addition to the Consent Form, plaintiff's signature appears on eighteen other forms included in the EDB in November of 2013. Pl. Resp. Mot. Dismiss 4. Although Sava conducted training sessions as part of the change in Broomall Center operations, it did not provide instruction regarding the re-application process or the completion of paperwork contained in the EDB. Id. Plaintiff testified that she did not recall being confused about the Consent Form or raising any questions or concerns about it. Dolison Dep. at 68:16-69:14. Plaintiff also testified that she typically reads documents before signing them. Dolison Dep. at 22:12.

On January 16, 2014, in response to defendant Sava's instructions, Kroll Background America requested that the Pennsylvania State Police run a criminal record check on plaintiff. Pl. Resp. Mot. Dismiss 5. On January 23, 2014, the Pennsylvania State Police provided Kroll with a document which stated that plaintiff had been convicted in 1999 for violating "Pennsylvania criminal offense code CS13A30," which prohibits the possession and/or manufacture of controlled substances with intent to deliver. Sec. Am. Compl. ¶¶ 29-36. Thisdocument also included plaintiff's arrest date and detailed plaintiff's criminal history. Pl. Resp. Mot. Dismiss 5. On or around April 16, 2014, Sava notified plaintiff that her 1999 conviction was a disqualifying offense and that as a result her employment at the Broomall Center was terminated. Id.

Plaintiff filed this action on June 5, 2015, on behalf of herself and other putative class members. Plaintiff filed an Amended Complaint on August 19, 2015, and a Second Amended Complaint on June 29, 2016. Plaintiff's Second Amended Complaint asserts two claims for relief: first, that defendant had procured consumer reports without making proper disclosures in violation of 15 U.S.C. § 1681b(b)(2)(A)(i), and second, that defendant took adverse action without providing a proper description of FCRA rights in violation of 15 U.S.C. § 1681b(b)(3)(A)(ii). On July 5, 2017, Defendant filed a Motion to Dismiss Count Two of Plaintiff's Second Amended Complaint (Document No. 33). Plaintiff filed a response which stated that plaintiff "does not oppose [d]efendant's Motion" (Document No. 35, filed July 19, 2017). On July 20, 2017, the Court dismissed the second claim for relief in plaintiff's Second Amended Complaint with prejudice.

Thus, only one claim for relief is at issue in the present case: plaintiff's claim that defendant procured consumer reports without first making proper disclosures in violation of 15 U.S.C. § 1681b(b)(2)(A)(i). The crux of this argument is that plaintiff's consumer report was procured without a disclosure made "in a document consist[ing] solely of the disclosure," also known as the FCRA's stand-alone disclosure requirement, and that the disclosure contained an inappropriate liability waiver.

There are currently two motions pending before the Court: (1) plaintiff's Motion for Class Certification (Document No. 45, filed March 16, 2018), and (2) defendant's Motion toDismiss Plaintiff's Claim for Lack of Standing under Rule 12(b)(1) (Document No. 47, filed March 23, 2018).

In plaintiff's Motion for Class...