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Black v. General Information Services, Inc.

United States District Court, N.D. Ohio, Eastern Division

February 26, 2018

THOMAS BLACK, on behalf of himself and all others similarly situated, Plaintiff,


          DONALD C. NUGENT, United States District Judge.

         This matter is before the Court on Defendant, General Information Solutions LLC's Motion for Summary Judgment. (ECF # 50, 75). Plaintiff, Thomas Black filed an Opposition to the Defendant's motion, and Defendant filed a Reply in support of its request. (ECF #59, 60, 70, 71). The Defendant also filed a Motion to Strike the Expert Report and Testimony of Evan Hendricks, which was opposed by Plaintiff. (ECF # 67, 76, 77). Plaintiff's Motion for Class Certification is also before the Court. (ECF # 54, 55). Defendant filed an Opposition to that Motion, and Plaintiff filed a Reply in Support of his position. (ECF #61, 72). The Court heard oral arguments on the pending motions on February 9, 2018. (ECF #87).

         Facts and Procedural History[1]

         In 2002, Plaintiff, Mr. Black was arrested for robbery. His case was bound over from Cuyahoga County Municipal Court to the Cuyahoga Court of Common Pleas, where a grand jury returned a “no bill” and his case was dismissed. (ECF #60-1, Ex. 12: Jones Report, p. 1). The Cuyahoga Court of Common Pleas entered an Order expunging Plaintiff's arrest record on May 27, 2010.

         In September of 2014, Mr. Black, applied for a job through the staffing company Robert Half International, Inc. (“RHI”). RHI hired Defendant, General Information Solutions, LLC (“GIS”) to do an initial criminal background check which correctly identified that Mr. Black had no felony convictions. This report did not include a search of the Cuyahoga County Municipal Court. (ECF #62-1: 1st Pelchat Dec. ¶ 18). In January of 2015, Plaintiff attempted to obtain a new placement through RHI with Nationwide Mutual Insurance Company (“Nationwide”). RHI told Mr. Black that Nationwide would “move forward” with him but they needed him to “go online and do the background report” and drug testing. (ECF #85: Black Depo. at 43:6-10).[2]

         On February 2, 2015, RHI hired GIS to do a background check on Mr. Black, and GIS, in turn, assigned this check to one of its vendors, Wholesale Screening Solutions (“WSS”). A WSS researcher located a Municipal Court record belonging to Mr. Black which showed a 2002 felony robbery charge.[3] (ECF #85: Black Depo. 48:22-49:1; ECF #60-1, Ex. 12: Jones Report p. 1). The record showed that the Municipal Court found probable cause for the charges and bound the case over to the Court of Common Pleas. (ECF #60-1, Ex. 12: Jones Report, p. 2). The WSS researcher reviewing the record erroneously reported the record as a conviction. This error could have been prevented if she had followed WSS's policy of reviewing the entire docket and confirming the outcome in the transferee court, which showed no record of conviction.[4](ECF #75-4, Ex. A: Agee Depo. 93, 94-95, 97).

         On February 6, 2015, GIS completed the report. Sometime before February 8, RHI became aware of Mr. Black's robbery arrest. By February 8, 2015, Mr. Black had faxed documentation of the “no bill” and expungement of the robbery charge to RHI; Lindsey, from RHI indicated that she received the documentation; and, Nationwide was “aware of the situation” and was “okay with it.” (ECF #85: Black Dep. 49-50).[5] Around 7:00 p.m. on February 9, 2015, Mr. Black received a phone call from RHI informing him that it would not be placing him in the job with Nationwide, and that they were marking him as “unplaceable.” RHI was not specific about why he had been marked as unplaceable. (ECF #85: Black Depo. at 50).

         On February 10, 2015, GIS sent Plaintiff a pre-adverse action letter, together with a copy of their report, a summary of Plaintiff's rights under the Fair Credit Reporting Act (“FCRA”), a form to initiate a dispute of the record, and a form to request that RHI perform an individualized assessment of the reported information. (ECF #75-2, Ex. B). Mr. Black faxed a copy of his expungement order, request for individualized assessment, and written dispute form to GIS on February 18, 2015. However, he faxed the dispute letter intended for GIS to the fax number given for the submission of forms requesting an individualized assessment by RHI.[6] (ECF #85: Black Depo. 67:5-68:7, 71-72, 77-78; ECF #62-1: 1st Pelchat Dec. ¶ 23). This number is assigned to RHI for RHI's exclusive use in completing the individualized assessment process and is not monitored by GIS. (Id.). Therefore, GIS did not receive the dispute form. On February 25, 2015, GIS sent a letter to Mr. Black on behalf of RHI informing him that he would not be employed through RHI based “in whole, or in part, on the consumer report received from” GIS. (ECF #55-4, p. 6).

         Mr. Black did not contact RHI or GIS again until April 7, 2015 when he faxed the dispute form to the proper fax number, on April 7, 2015. (ECF #85: Black Depo. 77-78). Upon receipt of the dispute form, GIS investigated and within seven days had deleted Mr. Black's report and issued a corrected report to both RHI and Mr. Black. (ECF #85: Black Depo. 79, 86-87). Upon receipt of the new report, RHI was still placing candidates with Nationwide and RHI's representative testified that Mr. Black would have been considered for placement at that time if he had completed his references as requested. Because he did not complete the required references, RHI found him ineligible for placement with Nationwide. (ECF #53-4: Russell Dec. ¶ 11-13).[7] Mr. Black alleges that he was denied placement solely because of the erroneous background report, however, he offers no evidence to contradict the claim that he did not properly file a dispute over the report for well over a month, or that he would nonetheless have been placed following the correction of his report if he had provided the necessary verifiable references.

         Summary Judgment Standard

         Summary judgment is appropriate when the court is satisfied “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.P. 56(c). The burden of showing the absence of any such “genuine issue” rests with the moving party:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, ' which it believes demonstrates the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing Fed.R.Civ.P. 56(c)). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards. The court will view the summary judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence presented is “merely colorable” and not “significantly probative, ” the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). In most civil cases involving summary judgment, the court must decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Id. at 252. However, if the non-moving party faces a heightened burden of proof, such as clear and convincing evidence, it must show that it can produce evidence which, if believed, will meet the higher standard. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

         Once the moving party has satisfied its burden of proof, the burden then shifts to the non- mover. The non-moving party may not simply rely on its pleadings, but must “produce evidence that results in a conflict of material fact to be solved by a jury.” Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 149 (6th Cir. 1995). Fed.R.Civ.P. 56(e) states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

         The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as an automatic grant of summary judgment, where otherwise appropriate. Id.

         Though parties must produce evidence in support of and in opposition to a motion for summary judgment, not all types of evidence are permissible. The Sixth Circuit has concurred with the Ninth Circuit that “‘it is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.'” Wiley v. United States, 20 F.3d 222, 225-26 (6th Cir. 1994) (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). Fed.R.Civ.P. 56(e) also has certain, more specific requirements:

[Rule 56(e)] requires that affidavits used for summary judgment purposes be made on the basis of personal knowledge, set forth admissible evidence, and show that the affiant is competent to testify. Rule 56(e) further requires the party to attach sworn or certified copies to all documents referred to in the affidavit. Furthermore, hearsay evidence cannot be considered on a motion for summary judgment.

Wiley, 20 F.3d at 225-26 (citations omitted). However, evidence not meeting this standard may be considered by the district court unless the opposing party affirmatively raises the issue of the defect.

If a party fails to object before the district court to the affidavits or evidentiary materials submitted by the other party in support of its position on summary judgment, any objections to the district court's consideration of such materials are deemed to have been waived, and [the Sixth Circuit] will review such objections only to avoid a gross miscarriage of justice.

Id. at 226 (citations omitted).

         As a general matter, the district judge considering a motion for summary judgment is to examine “[o]nly disputes over facts that might affect the outcome of the suit under governing law.” Anderson, 477 U.S. at 248. The court will not consider non-material facts, nor will it weigh material evidence to determine the truth of the matter. Id. at 249. The judge's sole function is to determine whether there is a genuine factual issue for trial; this does not ...

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