Wilson v. First Advantage Background Servs. Corp.
| Decision Date | 30 September 2020 |
| Docket Number | Civil No. 3:19-cv-1756 (AWT) |
| Citation | 490 F.Supp.3d 506 |
| Court | U.S. District Court — District of Connecticut |
| Parties | Rashauna Lynn WILSON, Plaintiff, v. FIRST ADVANTAGE BACKGROUND SERVICES CORP. and United Parcel Service, Defendants. |
Joseph L. Gentilcore, Edward Skipton, James A. Francis, John Soumilas, Lauren Kw Brennan, Francis Mailman Soumilas, P.C., Philadelphia, PA, Sarah Poriss, Sarah Poriss Attorney at Law, LLC, Hartford, CT, for Plaintiff.
Esther Slater McDonald, Frederick T. Smith, Seyfarth Shaw LLP, Atlanta, GA, Gina R. Merrill, Seyfarth Shaw, New York, NY, for Defendant First Advantage Background Services Corp.
Brett Eric Coburn, Brooks A. Suttle, Alston & Bird LLP, Atlanta, GA, James I. Glasser, Wiggin & Dana, New Haven, CT, Robyn E. Gallagher, Wiggin & Dana, Hartford, CT, for Defendant United Parcel Service, Inc.
RULING ON MOTION TO DISMISS
Plaintiff Rashauna Lynn Wilson brings a claim against defendants First Advantage Background Services Corp. ("First Advantage") and a putative class-action claim against United Parcel Service ("UPS") for violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681 et seq. UPS moves to dismiss the putative class claim against it pursuant to Federal Rule of Civil Procedure 12(b)(6).1 For the reasons set forth below, the motion is being granted in part and denied in part.
In or around November 2017, Wilson applied for a position with UPS. As part of that application, she signed a document authorizing UPS to obtain a consumer report for employment purposes. After an in-person interview, Wilson was given a conditional offer of employment, contingent on her passing a background check. UPS requested a consumer report from First Advantage and First Advantage agreed to sell a report on Wilson to UPS on November 8, 2017. First Advantage eventually completed the report on or around December 15, 2017. The completed report included inaccurate statements and information about Wilson and her criminal history. The report included three criminal offenses that are actually attributable to a different individual.
First Advantage conducts background checks for UPS for hiring purposes. Wilson alleges that First Advantage offers a service in which it acts as an agent of the employer to execute all decisions regarding hiring eligibility based on criteria provided by the employer in advance. First Advantage then takes the information discovered during the background check, applies the employer's predetermined criteria, and reviews the applicant's eligibility for employment, making an "adjudication." First Advantage also commonly contracts with prospective employers to send pre-adverse action notices to consumers it has adjudicated on behalf of the employer. Wilson alleges that First Advantage sends those notices after it has already applied the employer's criteria to adjudicate the prospective employee's eligibility for employment. She alleges that by the time First Advantage sends the pre-adverse action notice, "the consumer has already been disqualified from employment, promotion, or retention." (First Am. Compl. ("FAC") ¶ 23, ECF No. 13.) She alleges that UPS has contracted with First Advantage to engage in such a practice.
On or about December 19, 2017, First Advantage reviewed the report and determined that Wilson was "ineligible" for employment with UPS. (Id. ¶ 36.) On December 20, 2017, First Advantage mailed to Wilson on behalf of UPS "a purported ‘pre-adverse action notice’ " and a copy of the report that First Advantage had prepared and delivered to UPS. (Id. ¶ 37.) Wilson claims that prior to sending the purported pre-adverse action notice, UPS had already taken an adverse action against her, as defined by the FCRA. She alleges that UPS adopted First Advantage's adjudication as its own "without any further process being provided to [her]." (Id. ¶ 39.) She alleges that in reality by December 19, 2017, and prior to the mailing of any notice to her, UPS had removed her from consideration for employment based on the consumer report prepared by First Advantage and the determination by First Advantage that, based on UPS's criteria, Wilson was ineligible for employment. So by the time Wilson received the purported pre-adverse action notice, she had already been removed from the hiring pool for the job for which she applied.
When deciding a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Although a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted).
However, the plaintiff must plead "only enough facts to state a claim to relief that is plausible on its face." Id. at 568, 127 S.Ct. 1955. "The function of a motion to dismiss is ‘merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.’ " Mytych v. May Dep't Store Co., 34 F. Supp. 2d 130, 131 (D. Conn. 1999) (quoting Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) ). "The issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims." United States v. Yale New Haven Hosp., 727 F. Supp. 784, 786 (D. Conn. 1990) (citing Scheuer, 416 U.S. at 232, 94 S.Ct. 1683 ).
In its review of a motion to dismiss for failure to state a claim, the court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken." Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993). Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) ).
UPS moves to dismiss on the grounds that Wilson fails to state a claim for violation of the FCRA by it, and that if she does state a claim, she also fails to state a claim that UPS's violation of the FCRA was willful. The court denies the motion to dismiss as to the underlying FCRA claim and concludes that Wilson states a claim against UPS under the FCRA. However, the court grants the motion to dismiss as to the claim that UPS willfully violated the FCRA.
The FCRA was enacted "to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy." Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). The FCRA broadly covers consumer reports, including background checks used for various purposes, including employment purposes. The Supreme Court has read the FCRA's provisions cognizant of the "ambitious objective set out in the Act's statement of purpose, which uses expansive terms to describe the adverse effects of unfair and inaccurate credit reporting and the responsibilities of consumer reporting agencies." Id. at 62, 127 S.Ct. 2201.
Among its many requirements, the FCRA requires that persons intending to take adverse action for employment purposes against a consumer based on information obtained in the consumer report provide that consumer with a pre-adverse action notice. It provides in relevant part that:
in using a consumer report for employment purposes, before taking any adverse action in part on the report, the person intending to take such adverse action shall provide to the consumer to whom the report relates ... a copy of the report; and ... a description in writing of the rights of the consumer....
15 U.S.C. § 1681b(b)(3)(A). This provision does not prohibit an employer from taking adverse action based on the report. Rather, the pre-adverse action requirement merely slows down the process and "afford[s] employees time to ‘discuss reports with employers or otherwise respond before adverse action is taken.’ " Goode v. LexisNexis Risk & Info. Analytics Grp., Inc., 848 F. Supp. 2d 532, 537 (E.D. Pa. 2012) (quoting Lynne B. Barr & Barbara J. Ellis, The New FCRA: An Assessment of the First Year, 54 Bus. Law. 1343, 1348 (1999) ). The FCRA defines "adverse action," in relevant part, as:
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