Rodriguez v. General Information Services

          MEMORANDUM OPINION AND ORDER

          MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE

         Plaintiff 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).^[1] 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.

         I. STANDARD OF REVIEW

         “The 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).

         “A 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)).

         Applying these standards, in this opinion, the Court presents the summary judgment evidence in the light most favorable to Mr. Rodriguez.

         II. FACTUAL BACKGROUND

         Defendant 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 report.

         A. GIS 2013 report for Kroger

         In June 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).

         The 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).^[2] 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).

         Based 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).

         B. Mr. Rodriguez contacts GIS in March 2016

          In 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).

         Another 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).^[3]

         C. Dollar General Application and March 2016 GIS Report

         Toward 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).

         GIS 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).

         D. GIS's May 2016 report for Kroger

         On May 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. 68).^[4]

         GIS 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).

         In 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).^[5]

         On May 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, ¶ 6).

         From 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 ...