Reardon v. Closetmaid Corp., 2:08-cv-01730
| Decision Date | 02 December 2013 |
| Docket Number | 2:08-cv-01730 |
| Parties | R. CATHY REARDON, on behalf of herself and all similarly situated individuals, Plaintiffs, v. CLOSETMAID CORPORATION, Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
OPINION
This is a civil action brought pursuant to the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (the "FCRA"). Plaintiff Cathy Reardon, on behalf of herself and all similarly situated individuals, alleges that the Defendant, ClosetMaid Corporation ("ClosetMaid"), disqualified applicants for employment on the basis of consumer reports in a manner violative of the FCRA. Specifically, Plaintiffs allege that ClosetMaid obtained and relied upon consumer reports without obtaining the appropriate disclosures specifically required by 15 U.S.C. § 1681b(b)(2)(A) (the '"Disclosure Claim"). Plaintiffs further allege that ClosetMaid failed to provide applicants for employment a reasonable amount of time to dispute the information contained in the consumer reports, and requisite statutory notice of adverse action, prior to refusing to hire them based on such reports, in violation of 15 U.S.C. § 1681b(b)(3) (the "Pre-Adverse Action Claim"). Plaintiffs seek statutory and punitive damages and attorneys' fees.
This case is currently set for trial beginning January 6, 2014.1 The parties have filed cross-motions for summary judgment, ECF Nos. 90, 94. In addition, ClosetMaid has moved to decertify the Pre-Adverse Action Sub-Class, ECF No. 98, and Plaintiffs have moved to strike the declarations submitted by three ClosetMaid Human Resource Representatives (the "Declarations"), ECF No. 108. For the following reasons, both the Plaintiffs' Motions for Summary Judgment and ClosetMaid's Motions will be granted in part and denied in part. Specifically, with respect to the Disclosure Claim, Plaintiffs' Motion for Summary Judgment as to liability and willfulness as to certain members of the Disclosure Class is granted and is denied in all other respects. With respect to the Pre-Adverse Action Claim, ClosetMaid's Motion for Summary Judgment as to the 22 members of that Sub-Class who experienced no adverse employment action at all, and as to the 3 members who were provided with pre-adverse action notices sufficiently in advance of ClosetMaid's adverse action against them to fulfill the applicable statutory requirements is granted, and is denied in all other respects. ClosetMaid's Motion to Decertify and Plaintiffs' Motion to Strike are also both denied, but without prejudice.
On December 13, 2006, Ms. Reardon applied for a job as a Territory Supervisor for ClosetMaid. As part of the employment application, ClosetMaid provided Ms. Reardon with a document entitled, "Authorization to Obtain a Consumer Credit Report and Release of Information for Employment Purposes" (the "Authorization Form"), as well as a second document entitled, "Notice of Intent to Obtain a Consumer Credit Report" (the "Notice Form").See ECF No. 97-6 at 3-9. The Authorization Form provides that "[p]ursuant to [the FCRA], I hereby authorize ClosetMaid . . . to conduct a comprehensive review of my background through a consumer report and/or investigative consumer report." Id. at 5. The Authorization Form also contains a waiver of rights provision, which states that "I hereby release ClosetMaid . . . from any and all liability for damages of whatever kind, which may at any time, result to me . . . because of compliance with this authorization and request to release." Id. The Notice Form provides that "as a condition of my consideration for employment with ClosetMaid, [. . .] ClosetMaid may obtain a consumer report." Id. at 3. The Notice Form further provides that "pursuant to the [FCRA], if any adverse action is to be taken based upon [a] consumer report, a copy of the report and summary of the consumer's rights will be provided to me if requested." Id. Ms. Reardon signed both documents and returned them to ClosetMaid along with her employment application.
During the time period between Ms. Reardon's application date and July 1, 2009, when ClosetMaid began using different notice and authorization forms altogether, ClosetMaid included an Authorization Form as part of every employment application provided to applicants whom ClosetMaid was interested in pursuing. ECF No. 95; ClosetMaid Concise Statement of Material Facts ("ClosetMaid SOF") ¶ 13. ClosetMaid did not, however, always include a Notice Form. ECF No. 93-3 at 16; Reardon Responsive Concise Statement of Material Facts ("Plaintiffs RSOF") ¶ 13 (). In fact, the Notice Form was discontinued at some point for purposes of "simplification." Id.
According to Jennifer Boring, a Human Resources Representative at ClosetMaid, ClosetMaid's employment application and hiring procedures were position-specific and are "not necessarily a linear process." ECF No. 93-4 (Deposition of Jennifer Boring ("Boring Dep.")) at51:17-18. Catherine Beal, ClosetMaid's Vice President of Human Resources, testified that Closet Maid's procurement and review of an applicant's consumer report occurred towards the end of the recruiting process and only for applicants whom ClosetMaid has "selected to hire." ECF No. 93-3, ClosetMaid Dep. at 49:10-50:12. However, according to Ms. Beal the review of an applicant's consumer report was not necessarily the absolutely, positively final step in the application process. Id. at 66:19-67:08. For example, ClosetMaid also might have subjected applicants to some additional pre-hire processes, such as drug testing. Id.
After receiving Ms. Reardon's employment application, ClosetMaid obtained a consumer report about her from LexisNexis. That report contained negative information, which Ms. Reardon contends is incorrect. On December 18, 2006, ClosetMaid sent a letter to Ms. Reardon enclosing the consumer report and a summary of rights under the FCRA (the "Pre-Adverse Action Notice"). ECF. No. 97-10 at 2. In that letter, ClosetMaid stated that it would wait "five business days from the date of this letter before it makes a decision on your application." On December 22, 2006, four business days later, ClosetMaid sent Ms. Reardon a second letter (the "Adverse Action Notice") stating that "[t]he Company has now decided not to offer you the position you applied for based in whole or in part upon" the consumer report. ECF No. 97-11 at 2.
Plaintiffs contend that from December 1, 2006 to June 30, 2009, ClosetMaid obtained consumer reports as to 1,829 job applicants, 1,494 of whom were hired, and 299 who were not hired. Plaintiffs RSOF ¶ 45 (citing Beal Dep. Ex. 9). According to Plaintiffs, ClosetMaid has sent to only 3 individuals, not including Ms. Reardon, a copy of his or her consumer report and a summary of rights under the FCRA. Plaintiffs RSOF ¶ 44. In each of those 3 instances, ClosetMaid sent the pre-adverse action notice on May 1, 2008, and the adverse action notice on May 13, 2008, 8 business days later. See ECF, No. 93-11 at Exhibit A.
This action was originally filed on December 19, 2008.2 In the First Amended Class Action Complaint ("FAC") filed on April 16, 2009, Ms. Reardon sought to represent individuals who executed forms permitting ClosetMaid to obtain a consumer report as part of an employment application (the "Disclosure Class") and, within that class, a sub-class of individuals whom ClosetMaid did not hire based in whole or in part upon information contained in the consumer report (the "Pre-Adverse Action Sub-Class"). FAC ¶ 44, ECF No. 16. On April 27, 2011, the Court entered an order granting class certification noting that "[i]f it becomes clear that most [hiring] decisions were not made in a centralized fashion, ClosetMaid should move for decertification of, at a minimum, the subclass." ECF No. 51 at 17; 2011 WL 1628041 (W.D. Pa. Apr. 27, 2011). The Disclosure Class purportedly consists of approximately 1,800 individuals and the Pre-Adverse Action Sub-Class consists of approximately 77 individuals.
On May 24, 2013, Plaintiffs filed a Motion for Partial Summary Judgment As to Liability seeking summary judgment as to (1) all individuals in the Disclosure Class who signed a disclosure/consent form containing a waiver of rights provision, and (2) all individuals in the Pre-Adverse Action Sub-Class. Plaintiffs properly excluded from their motion all individuals who submitted Exclusion Requests pursuant to the September 28, 2012 Notice of Class Action.3 ECF No. 90 Ex. 1. On the same day, ClosetMaid filed its Motion for Summary Judgment against Plaintiffs as to all claims, ECF No. 94, and its Motion to Decertify the Pre-Adverse Action Sub-Class, ECF No. 98. On June 25, 2013, Plaintiffs filed a Motion to Strike theDeclarations of ClosetMaid Human Resources Representatives Jennifer Boring, Patricia Dameron, and Merlyn Hemandez-Opio, ECF No. 108.
Oral argument was held on July 19, 2013. On August 2, 2013, the parties, at the Court's request, submitted supplemental briefing to address the factual issue of how and when in the hiring process ClosetMaid used an applicant's consumer report to assess the applicant's qualifications, and to identify the record evidence relating to this issue. ECF Nos. 125-126.
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp., v. Catrett, 477 U.S. 317, 322-23 (1986). The parties must support their position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ...
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