Joiner v. Revco Discount Drug Centers, Inc.

• Decision Date: 12 December 2006
• Docket Number: Civil No. 1:05CV321.
• Citation: 467 F.Supp.2d 508
• Court: U.S. District Court — Western District of North Carolina
• Parties: Katrina JOINER, Plaintiff, v. REVCO DISCOUNT DRUG CENTERS, INC., d/b/a CVS, Defendant.

467 F.Supp.2d 508

Katrina JOINER, Plaintiff, v. REVCO DISCOUNT DRUG CENTERS, INC., d/b/a CVS, Defendant.

Civil No. 1:05CV321.

United States District Court, W.D. North Carolina, Asheville Division.

December 12, 2006.

COPYRIGHT MATERIAL OMITTED

Glen C. Shults, Linda E. Vespereny, Law Offices of Glen C. Shults, Asheville, NC, for Plaintiff.

Albert L. Sneed, Jr., Van Winkle, Buck, Wall, Starnes & Davis, P. A., Asheville, NC, Gregory M. Davis, Pamela Q. Devata, Seyfarth Shaw LLP, Chicago, IL, Fred Wilson Suggs, Jr., Homer Bernard Tisdale, III, Peter B. Murphy, Ogletree, Deakins, Nash, Smoak & Stewart, Greenville, SC, for Defendants.

MEMORANDUM AND ORDER

THORNBURG, District Judge.

THIS MATTER is before the Court on Defendant Revco/CVS's (CVS) motion to compel discovery of Plaintiffs settlement with ChoicePoint Services and its motion for summary judgment.¹ The parties have filed extensive briefs and, exhibits in support of their respective positions and the matter is now ripe for ruling.

I. BACKGROUND

The Plaintiff (or Joiner) was hired by CVS as a cashier in one of its stores in Asheville, North Carolina, in September 1997. Plaintiffs Memorandum in Opposition to Defendant's Motion for Summary Judgment, filed October 30, 2006, at 7. On September 22, 2004, Joiner picked up a prescription for her father from the CVS pharmacy and left the store without paying the $5.00 co-pay for the prescription. Defendant's Memorandum in Support of Motion for Summary Judgment, filed October 13, 2006, at 5; Plaintiffs Memorandum, supra. CVS investigated the incident by interviewing witnesses including Joiner, which ultimately produced a voluntarily written statement by Joiner admitting to taking the prescription out of the store without paying for it. Despite Joiner's insistence that she did not intend to take the prescription without paying for it, and that the incident occurred due to a cashier's error, CVS terminated her employment on October 29, 2004. Defendant's Memorandum, at 5-8; Plaintiffs Memorandum, at 8-11; see also, Defendant's Exhibit 14, CVS Voluntary Statement by Plaintiff Joiner, dated October 28, 2004, attached to Deposition of Katrina Joiner.

CVS is a contributor to ChoicePoint Services' database, commonly known as "the Esteem Database," which provides numerous retailers and potential employers with information about individuals who have been discharged by previous employers for theft. Defendant's Memorandum, at 8-9. Following Joiner's termination from employment, CVS filed a report with Choice-Point detailing the reasons for Joiner's discharge. Id. at 10-11. Specifically, CVS detailed its termination of Joiner's employment as a result of a "policy violation" in the CVS internal employee database. Id. at. 8. In its report to ChoicePoint, CVS stated Joiner's employment was terminated due to "other fraud," and CVS included a copy of Joiner's written admission statement with the report. Id. at 11. At some point, the reason for discharge listed `in the ChoicePoint report regarding Joiner was changed from "other fraud" to "theft of drugs." Id. at 12; see also Defendant's Exhibit 33, Esteem Inquiry Maintenance Form, attached to Joiner Deposition (showing an unknown individual crossed out the words "other fraud" under the category "Theft Type" and, replaced them with the written word "drugs" on the report). CVS contends this change was made by a ChoicePoint employee, and not by a CVS employee, which Joiner does not dispute.² Id.; see also, Plaintiffs Memorandum, at 12; Joiner Deposition at 206-10, 212-13. Additionally, CVS states that ChoicePoint does not request the employer to provide an explanation of the employee's state of mind while committing the theft. Id. at 11.

Following her employment with CVS, Joiner applied for positions at Home Depot and Lowe's Home Center. Plaintiffs Memorandum, at 12-13. Both Lowe's and Home Depot refused to hire Joiner, basing their decisions in part on the information contained in the ChoicePoint report regarding her previous "theft" incident at CVS. Id. at 13. Five months after first learning of the content of the ChoicePoint report (as a result of being denied employment by Lowe's), Joiner contacted ChoicePoint to dispute the information contained in her report. Id. at 13. ChoicePoint then contacted CVS regarding Joiner's objection to the information provided by CVS in its original report regarding Joiner. Defendant's Memorandum, at 13-14. A CVS employee reviewed Joiner's file and concluded that Joiner's admission statement did not contain the elements necessary to justify a report being sent to ChoicePoint. Id. at 14. Accordingly, CVS withdrew its original report regarding Joiner from the ChoicePoint database. Id.

Joiner filed the present action against Defendants ChoicePoint and CVS on October 27, 2005, for damages arising from Joiner's termination of employment from CVS and its subsequent reporting of her termination to ChoicePoint Services. Specifically, Joiner is suing CVS on claims of libel/slander, tortious interference with prospective economic advantage, blacklisting, and unfair and deceptive trade practices. Amended Complaint, at 8-13. The parties have conducted extensive discovery, and CVS now moves for summary judgment on all claims brought against them.

II. STANDARD OF REVIEW

A motion for summary judgment "shall be rendered . . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.R. 56(c). "Summary judgment is proper `unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4 th Cir.2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of the . . . pleading[s], but [must] . . ., by affidavits or as otherwise provided in [Rule 56], . . . set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Moreover, in considering the facts for the purposes of this motion, the Court will view the pleadings and material presented in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III. ANALYSIS

A. The Fair Credit Reporting Act

The Fair Credit Reporting Act, 15 U.S.C. § 1681 (FCRA), was enacted to ensure privacy and accuracy with regards to credit reporting and contains two clauses which preempt individuals from bringing certain actions against consumer reporting agencies (such as ChoicePoint Services, see 15 U.S.C. § 1681 a(f)), those who furnish consumer credit information (such as CVS, see 15 U.S.C. § 1681s-2(a)), and/or users of such consumer credit information. See 15 U.S.C. §§ 1681h(e), 1681t. Section 1681 h(e) provides,

no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to section 1681g, 1681h, or 1681m of this title .. . based in whole or in part on the report except as to false information furnished with malice or willful intent to injure such consumer.

15 U.S.C. § 1681 h(e). The FCRA's other preemption clause, found in section 1681t, provides in pertinent part, "[n]o requirement or prohibition may be imposed under the laws of any State—(1) with respect to any subject matter regulated under — . . . section 1681s-2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies . . . ." 15 U.S.C. § 4681t(b)(1)(F).

District courts throughout the country have interpreted these preemption clauses in different ways. See generally, Barnhill v. Bank of America, NA, 378 F.Supp.2d 696 (D.S.C.2005) (addressing the three common interpretations of the FCRA's preemption clauses). For example, one view holds that the language of § 1681t reflects an intent by Congress to repeal the language of § 1681h(e), thus empowering § 1681 t to preempt "all state laws which affect the duties of furnishers of information to credit reporting agencies." Id. at 700 (citing Hasvold v. First USA Bank, 194 F.Supp.2d 1228, 1238-39 (D.Wyo.2002)), The Fourth Circuit has not expressly ruled on how the two preemption clauses are to be interpreted, but the general trend among the district courts of the Fourth Circuit is to read § 1681 h(e) as preempting certain state common law claims, while § 1681t preempts all related state statutory claims. Id. at 703; Jeffery v. Trans Union, LLC, 273 F.Supp.2d 725, 727-28 (E.D.Va.2003). Further, § 1681t has been interpreted to preempt all state statutory claims and not merely statutory claims specifically relating to credit reporting. See Jaramillo v. Experian Info. Solutions, Inc., 155 F.Supp.2d 356, 362 (E.D.Pa.2001) ("To allow causes of action under state statutes that do not specifically refer to credit reporting, but to bar those that do, would defy the Congressional rationale for the elimination of state causes of action."). Accordingly, this Court will also interpret the FCRA's preemption clauses — 15 U.S.C. § 1681 h(e) and 15 U.S.C. § 1681t — as applying separately and respectively to common law and statutory claims.

B. Libel/Slander

Joiner's first cause of action against CVS is for libel and/or slander. Amended Complaint, at 8. Specifically, Joiner alleges that the report filed by CVS with ChoicePoint...