United States District Court, E.D. Pennsylvania
E.K. PRATTER, United States District Judge
Wright initiated this action against Lincoln Property Company
following Lincoln's revocation of an offer of employment.
After extending a conditional offer of employment to Mr.
Wright, Lincoln discovered through a background check that
Mr. Wright's criminal history included two felony
convictions and revoked its offer. Mr. Wright filed suit
under the Fair Credit Reporting Act, 15 U.S.C. §§
1681-1681(x) (“FCRA”), which requires employers
using background checks to adhere to a specific set of
procedures aimed at protecting applicants. Mr. Wright alleges
that Lincoln violated the FCRA by failing to notify him of
the first or second background checks upon which Lincoln
relied to revoke its offer. Mr. Wright also alleges that
Lincoln violated Pennsylvania's Criminal History Record
Information Act, 18 Pa. C.S. § 9101 et seq.
(“CHRIA”) by using his criminal history in an
the Court are cross-motions for summary judgment. Lincoln
moved for summary judgment as to all of Mr. Wright's
claims, as well as punitive damages, and Mr. Wright moved for
summary judgment as to his FCRA claim. The Court will grant
summary judgment for Lincoln with respect to Mr. Wright's
CHRIA claim. It will deny summary judgment for both parties
with respect to Mr. Wright's FCRA claim, and any punitive
damages associated with the FCRA claim.
Wright applied for a position as a maintenance technician at
Mt. Laurel Crossing Apartments-one of Lincoln's
residential communities in Mt. Laurel, New Jersey-on May 28,
2013. Nancy Mossman, Lincoln's Business Manager at Mt.
Laurel Crossing Apartments, and William Bennet, Lincoln's
Lead Service Technician at the complex, interviewed him for
the position. Ms. Mossman and Mr. Bennet testified that the
job for which Mr. Wright was interviewed was for upgrading
apartments and providing other service technician roles,
including being “on-call” during nights and
weekends and assisting in after-hours emergencies.
Mr. Wright signed the application, he acknowledged that
“any subsequent offer will be contingent upon the
satisfactory completion of a more extensive background check
occurring post offer, ” and authorized Lincoln to
conduct further investigation including a post-offer drug
screen, criminal background check, and credit check. Lincoln
gave Mr. Wright a conditional offer of employment shortly
after his interview, contingent on the results of a criminal
background report and drug screen.
Clatterbuck, Lincoln's Regional Payroll Coordinator,
ordered a criminal background check concerning Mr. Wright on
June 5, 2013. Lincoln enlisted First Advantage (f/k/a
LexisNexis Screening Solutions, Inc.) to provide a background
check on Mr. Wright. Records from First Advantage show that
on July 6, 2013 (“the June 6th report”), it sent
(1) a cover letter, (2) an in-progress or partial copy of the
June 5, 2013 report, and (3) a summary of rights under the
FCRA to Mr. Wright. The June 6th report showed that Mr.
Wright had been found guilty of a misdemeanor for driving
under the influence in October 2008, and that he had been
found guilty of two drug-related felonies in February 2001.
Mr. Wright testified that he was convicted of selling crack
cocaine, and he pled guilty to possession and conspiracy.
record includes another background report on Mr. Wright,
which was issued by First Advantage on June 13, 2013
(“the June 13th report”). That report shows that
while it was ordered on June 5, 2013, it was most recently
updated on June 13th. The June 13th report is more
comprehensive than the June 6th report, but it included the
same substantive criminal information.
Clatterbuck typically receives only one criminal background
report for each applicant and testified that if an
applicant's report contains criminal history, she sends
an email with an attachment of the problematic sections of
the report and types into the email the same information from
the report. On June 14, 2013, Ms. Clatterbuck emailed a copy
of Mr. Wright's criminal background report to Ms. Mossman
and William Biles, Lincoln's Regional Property Manager.
Mr. Biles testified that he was the one who made the decision
not to hire Mr. Wright. Ms. Mossman notified Mr. Wright that
he would not have a position at Lincoln on or about June 19,
Standard of Review
judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show 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). An issue of fact is “genuine . . . if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual
dispute is “material” if it might affect the
outcome of the case under governing law. Id.
evaluating a summary judgment motion, the court “must
view the facts in the light most favorable to the non-moving
party” and make every reasonable inference in that
party's favor. Hugh v. Butler Cty. Family YMCA,
418 F.3d 265, 267 (3d Cir. 2005). A party seeking summary
judgment bears the initial responsibility of informing the
district court of the basis for the motion and identifying
those portions of the record that demonstrate the absence of
a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Where the non-moving
party bears the burden of proof on a particular issue at
trial, the moving party's initial burden may be met by
“pointing out to the district court that there is an
absence of evidence to support the non-moving party's
case.” Id. at 325. Once the moving party has
met its initial burden, “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.” Fed.R.Civ.P. 56(e).
Specifically, the non-moving party must raise more than
“some metaphysical doubt” as to a material fact.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Summary judgment is
proper if the non-moving party fails to rebut by making a
factual showing “sufficient to establish the existence
of an element essential to that party's case, and on
which that party will bear the burden of proof at
trial.” Celotex, 477 U.S. at 322.
parties move for summary judgment as to Mr. Wright's FCRA
claim. Mr. Wright alleges that Lincoln violated the FCRA
“by taking adverse employment action against [him]
based on a consumer report, without first providing [him]
with a copy of the pertinent consumer report and a written
description of his rights under the FCRA” and by
failing to provide Mr. Wright with pre-adverse action notice
before taking adverse action against him. Compl. ¶ 22-
FCRA is “undeniably a remedial statute that must be
read in a liberal manner in order to effectuate the
congressional intent underlying it.” Cortez v.
Trans Union, LLC, 617 F.3d 688, 722 (3d Cir. 2010). It
is assumed, and Lincoln does not dispute, that Lincoln is a
person under the Act, 15 U.S.C. § 1681a(b), and Mr.
Wright is a consumer, § 1681a(c). First Advantage is a
consumer reporting agency under § 1681a(f), and a
criminal background report is considered a “consumer
report, ” § 1681a(d). There is also no dispute
over whether Mr. Wright authorized Lincoln to run the report.
Kelchner v. Sycamore Manor Health Ctr., 135 F.