United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE
Johnathan Rodriguez brings this action under the Fair Credit
Reporting Act or FCRA. Mr. Rodriguez contends that General
Information Services inaccurately reported criminal history
on a background report, causing him to lose a job opportunity
and suffer severe emotional distress. (Doc. 1, pp. 1,
3-4). Pursuant to Rule 56 of the Federal Rules
of Civil Procedure, GIS has asked the Court to enter judgment
in the company's favor on Mr. Rodriguez's FCRA
claims. (Doc. 52). For the reasons set forth below, the Court
denies GIS's motion for summary judgment.
STANDARD OF REVIEW
court shall grant summary judgment if the movant shows that
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). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary
judgment, a party opposing a motion for summary judgment must
cite “to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
FED. R. CIV. P. 56(c)(1)(A). In evaluating a motion for
summary judgment motion, a district court must view the
evidence in the record in the light most favorable to the
non-moving party and draw reasonable inferences from the
evidence in the non-movant's favor. Asalde v. First
Class Parking Sys. LLC, 898 F.3d 1136, 1138 (11th Cir.
2018). “The court need consider only the cited
materials, but it may consider other materials in the
record.” Fed.R.Civ.P. 56(c)(3).
litigant's self-serving statements based on personal
knowledge or observation can defeat summary judgment.”
United States v. Stein, 881 F.3d 853, 857 (11th Cir.
2018); see Feliciano v. City of Miami Beach, 707
F.3d 1244, 1253 (11th Cir. 2013) (“To be sure,
Feliciano's sworn statements are self-serving, but that
alone does not permit us to disregard them at the summary
judgment stage.”). A district court may not make
credibility determinations; that is the work of jurors.
Feliciano, 707 F.3d at 1252 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). But
conclusory statements in a declaration cannot by themselves
create a genuine issue of material fact. See Stein,
881 F.3d at 857 (citing Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888 (1990)).
these standards, in this opinion, the Court presents the
summary judgment evidence in the light most favorable to Mr.
GIS is a consumer reporting agency. GIS provides credit and
background reports to companies to help companies evaluate
job applicants. Over a period of three years, GIS prepared
three background reports on Mr. Rodriguez: a June 2013 report
for Kroger; a March 2016 report for Dollar General; and a May
2016 report for Kroger. (See Doc. 47-13, pp. 2-9
(June 2013 report); Doc. 47-16, pp. 2-6 (March 2016 report);
Doc. 52-2, pp. 22-27 (May 2016 report)). In July of 2016, GIS
reinvestigated the May 2016 report. (Doc. 47-17, pp. 9-14).
The May 2016 report and July 2016 reinvestigation form the
basis of Mr. Rodriguez's FCRA claim against GIS. (Doc.
47, pp. 8-9). To provide background and context, the Court
first describes the June 2013 report and the March 2016
GIS 2013 report for Kroger
of 2013, Mr. Rodriguez applied for a position as a dairy
clerk with a Kroger grocery store in Huntsville, Alabama.
(Doc. 52-5, p. 3, tp. 23). At Kroger's request, GIS
prepared a background report on Mr. Rodriguez. (Doc. 52-5,
pp. 33-41). The report indicates that Mr. Rodriguez has an
extensive criminal history that includes multiple felony
convictions in New Jersey for drug offenses. (Doc. 52-5, pp.
35-40). That information is false; Mr. Rodriguez has not been
charged with or convicted of a crime. (Doc. 47-3, p. 2,
¶¶ 7-8; Doc. 47-4, p. 2).
report states that Mr. Rodriguez was “not clear for
hire.” (Doc. 52-5, p. 33). Kroger did not hire Mr.
Rodriguez. (Doc. 52-5, p. 10, tp. 59). Mr. Rodriguez received
a copy of the background report in the mail in 2013. (Doc.
52-5, p. 10, tp. 60). He testified that he was not sure what to
do about the incorrect report. (Doc. 52-5, p. 11, tp. 65). He
stated: “I had no way to even know how to start getting
this cleared up.” (Doc. 52-5, p. 12, tp. 69).
on the 2013 report, Mr. Rodriguez suspected that he might be
the victim of identity theft. (Doc. 52-5, p. 12, tp. 66). He
conducted research online and discovered that he could
contact the Federal Trade Commission and file a police
report. (Doc. 52-5, p. 12, tp. 66). In August of 2013, Mr.
Rodriguez filed a police report in Madison County, Alabama.
(Doc. 52-5, p. 16, tpp. 82-83; Doc. 52-6, pp. 2-6). Mr.
Rodriguez did not contact GIS in 2013 to dispute the
background report. He testified that he did not know that he
could dispute it. (Doc. 52-5, pp. 18-19, tp. 93-94).
Mr. Rodriguez contacts GIS in March 2016
March of 2016, Mr. Rodriguez called GIS to request a copy of
his background report. GIS's internal call logs describe
Mr. Rodriguez's communications as a
“dispute.” (See Doc. 47-15, p. 2).
GIS's records contain the following entries:
3/16/2016 Received dispute from applicant on 03/16/2016.
3/21/2016 Received dispute from applicant; Unsure as to
nature of dispute.
3/21/2016 Sent email for contact information.
3/22/2016 Awaiting contact information for the applicant.
3/23/2016 Awaiting contact information for the applicant.
3/24/2016 Awaiting contact information for the applicant.
3/28/2016 Re-sent e-mail for update on contact information.
3/28/2016 After several attempts this case is being closed
due to no contact information available for applicant.
(Doc. 47-15, p. 2).
call log indicates that Mr. Rodriguez contacted GIS again by
telephone on April 5, 2016 to request a copy of his
background report. (Doc. 52-5, p. 34). The notes for this
call indicate that Mr. Rodriguez provided updated contact
information to GIS and that GIS mailed Mr. Rodriguez a copy
of his background report. (Doc. 52-5, p. 34). Mr. Rodriguez
received a copy of his report by mail a few days later. (Doc.
52-5, p. 26, tp. 131). Mr. Rodriguez did not contact GIS to
dispute the criminal history information in the report. (Doc.
52-5, p. 26, tp. 132; Doc. 47-2, p. 17, tp. 153). Mr.
Rodriguez testified, “No, I did not [dispute the
report]. . . . I figured there was really nothing I could do
. . . . [My attorneys] had already been helping me.”
(Doc. 52-5, p. 26, tp. 132).
Dollar General Application and March 2016 GIS Report
the end of March of 2016, Mr. Rodriguez applied for a job at
a Dollar General store in Huntsville, Alabama. (Doc. 52-5, p.
19, tpp. 94-95). GIS conducted a background search for Dollar
General in connection with Mr. Rodriguez's application.
GIS's Vice President of Compliance, Jamie Floyd Pelchat,
testified that when GIS created the 2016 report for Dollar
General, GIS used identifiers, including first and last name
and date of birth, identical to the information that GIS used
to search for criminal background data concerning Mr.
Rodriguez for the 2013 report for Kroger. (Doc. 47-5, pp.
10-11, tp. 36-38).
completed the Dollar General report on March 28, 2016. (Doc.
47-16, p. 2). The report contains no criminal history and
reflects a grade of “Pass.” (Doc. 47-16, pp.
2-6). Dollar General hired Mr. Rodriguez. (Doc. 52-5, p. 19,
tp. 95). Mr. Rodriguez worked for Dollar General for
approximately one week. (Doc. 52-5, p. 19, tp. 95). He left
over a disagreement with management about his duties in the
store. (Doc. 52-5, p. 19, tpp. 95-96).
GIS's May 2016 report for Kroger
11, 2016, Mr. Rodriguez applied for a job with Kroger. (Doc.
52-5, p. 27, tp. 137; Doc. 52-10, p. 2, ¶ 4). Kroger
offered Mr. Rodriguez a job in the meat and seafood
department, contingent on Mr. Rodriguez passing a drug test
and a background check. (Doc. 52-5, pp. 27-28, tpp. 137, 138;
Doc. 52-10, pp. 2-3, ¶ 4). Mr. Rodriguez testified that
his wife worked at Kroger. Because he did not have a
driver's license, he wanted to work at the store so that
he could ride to work with his wife. (Doc. 52-5, p. 12, tp.
performed a background check on Mr. Rodriguez in connection
with his application to Kroger. (Doc. 52-12, pp. 11-16). On
May 19, 2016, GIS reported to Kroger that Mr. Rodriguez has
multiple felony convictions for drug offenses, including the
felony convictions that appear in GIS's 2013 background
report for Mr. Rodriguez, and pending charges for first
degree murder, aggravated assault, and weapons possession.
(Doc. 52-12, pp. 11-16). That criminal history actually
belongs to an individual named Jonathan Rodriguez who was
charged with crimes in New Jersey. That individual spells his
first name “Jonathan.” Mr. Rodriguez testified
that he spells his first name “Johnathan.” (Doc.
52-5, p. 27, tp. 135; Doc. 47-3, p. 2, ¶ 3). GIS
contends that Mr. Rodriguez has used an alias or accepted an
alternate spelling of his first name. (Doc. 52, p. 9; Doc.
52-5, p. 22, tp. 113). GIS points to Mr. Rodriguez's
Alabama non-driver identification card which contains the
name “Jonathan Rodriguez.” (Doc. 52-7). GIS also
notes that the police report that Mr. Rodriguez filed in 2013
contains the name “Jonathan Rodriguez.” (Doc.
52-6, p. 2).
matching the criminal history of New Jersey's Jonathan
Rodriguez to Alabama's Johnathan Rodriguez, GIS used two
search identifiers: name and date of birth. (Doc. 52-12, pp.
13-15) (see line entry beginning with
“Public Case #” and ending with
“Identifiers”) (emphasis in
report). GIS indicated in the May 2016 report that it
searched records in New Jersey for information concerning
“Johnathan Rodriguez.” (Doc. 52-12, p. 12)
(see “JURISDICTION SEARCHED” and
“NAME SEARCHED” at the bottom of the page). The
reported criminal history information, according to the
report itself, concerns “Jonathan Rodriguez.”
(Doc. 52-12, pp. 13-15) (see entry under
“Name on Record”) (emphasis in
report). The report contains a space for “Additional
Information” next to each listed criminal offense. The
“Additional Information” provided states:
“PLEASE NOTE THE SPELLING OF FIRST NAME.” (Doc.
52-12, pp. 13-16). Although the GIS report contained Mr.
Rodriguez's social security number, Ms. Pelchat stated
that GIS was not able to confirm whether Mr. Rodriguez's
social security number matched the criminal records from New
Jersey because “the [offender's] Social Security
number was not returned or provided on the court
record.” (Doc. 47-5, p. 16, tp. 83).
16, 2016, Sandra White, a Kroger employee, graded Mr.
Rodriguez as “ineligible for hire” based on the
results of the background check. (Doc. 52-12, p. 3, ¶
May 17 to May 19, 2016, Mr. Rodriguez attended new hire
orientation at Kroger. (Doc. 52-5, p. 28, tpp. 140-41; Doc.
36-9, ¶ 6). Mr. Rodriguez stated that he was given a
schedule “[a]nd when the schedule ended, [he]
didn't know what else to do, so [he] waited for a
call.” (Doc. 55, p. 1, tp. 142). Eventually, Ms.
Lockett called Mr. Rodriguez to report to work, but he could
not report because he had to pick up his son from school.
(Doc. 52-5, p. 29, tp. 148; Doc. 55, p. 1, tp. 143).
According to Mr. Rodriguez, Ms. Lockett called him the
following day to inform ...