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Schenck v. Curtiss-Wright Corp.

United States District Court, W.D. Pennsylvania

November 1, 2019

JUSTIN SCHENCK, Plaintiff,
v.
CURTISS-WRIGHT CORPORATION, Defendant.

          OPINION AND ORDER RE: ECF NO. 80

          MAUREJEN P. KELLY UNITED STATES MAGISTRATE JUDGE

         This is a proposed class action brought pursuant to the Fair Credit Reporting Act, 15 U.S.C. § 1681 ("FCRA"). Plaintiff Justin Schenck ("Schenck") alleges that Defendant Curtiss-Wright Corporation ("Curtiss-Wright") violated the FCRA by failing to provide candidates for employment with copies of their background reports and a written summary of FCRA rights.

         Presently before the Court is Representative Plaintiffs Motion for Class Certification. ECF No. 80. For the reasons set forth below, the motion will be denied.[1]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Procedural History

         Schenck originally filed a Class Action Complaint against Curtiss-Wright in the Allegheny County Court of Common Pleas, Pennsylvania ("State Court"), on December 29, 2017. ECF No. 1-2. Curtiss-Wright removed the action to this Court on February 5, 2018. ECF No. 1. Schenck subsequently filed a First Amended Complaint, ECF No. 38, asserting seven claims against Curtiss-Wright.

         In Counts One through Three of the First Amended Complaint, Schenck asserts claims pursuant to 15 U.S.C. §§ 1681b(b)(2) and 1681(d) of the FCRA. In Counts Four and Five, he asserts claims under 15 U.S.C. §§ 1681b(b)(3). In Counts Six and Seven, he asserts claims under the Pennsylvania Criminal History Records Information Act.

         Based on the parties' Joint Stipulation to Sever and Remand Counts One to Three filed on December 6, 2018, ECF No. 74, the Court severed and remanded Counts One to Three to State Court on December 7, 2018, ECF No. 75. The Court retained jurisdiction over Counts Four through Seven. In the instant Motion for Class Certification, however, Schenck only seeks class certification of Counts Four and Five pursuant to Section 1681b(b)(3). See ECF No. 81 at 2 n. 1.

         With respect to these two claims, Schenck proposes certification of the following class:

All natural persons residing in the United States (including territories and other political subdivisions): (1) who applied for employment with [Curtiss-Wright] or any of its subsidiaries; (2) about whom [Curtiss-Wright] obtained a consumer report for employment purposes from Sterling InfoSystems, Inc. from September 2015 to May 2018; (3) where the consumer report contained a score of "Complete Report-Consider" at the top; and (4) [Curtiss-Wright] did not send a notice as provided in 15 U.S.C. § 1681b(b)(3).

ECF No. 80 ¶ 4.

         The parties conducted discovery relevant to class certification. After discovery closed, on April 18, 2019, Schenck filed the instant Motion for Class Certification and Brief in Support. ECF No. 80, 81. Curtiss-Wright filed a Briefin Opposition on May 28, 2019, ECF No. 86, and Schenck filed a Reply Brief on June 11, 2019, ECF No. 89. A hearing for argument relative to the Motion for Class Certification was held on July 30, 2019. ECF Nos. 92, 93. Accordingly, the Motion for Class Certification is now ripe for disposition.

         B. Factual Background

         1. Curtiss-Wright's standardized recruitment process

         Curtiss-Wright is a global company that delivers highly engineered, critical function products and services to the commercial, defense, energy, and industrial markets. ECF No. 81-3. In order to provide a centralized, standardized process for recruitment, Curtiss-Wright created what is now referred to as the Talent Acquisition Team ("TAT"). ECF No. 86 at 2. The TAT, which is based out of Canada, oversees the recruitment process and makes hiring recommendations for Curtiss-Wright's various divisions and subsidiaries. Id.; ECF No. 81 at 12-13. Hiring decisions are retained at the local level. ECF No. 86 at 2.

         Curtiss-Wright utilizes background screenings in connection with its post-offer/pre-employment process. Id. The background screenings are conducted by an outside vendor, Sterling Infosystems, Inc. ("Sterling"). Id. Sterling provides and maintains a software program for background checks, which Curtiss-Wright employees can log into to initiate background checks and review candidates' reports. Id. After a candidate accepts a contingent offer of employment, the candidate is informed that he will receive a link from Sterling to complete his background report. Id. at 3. A TAT member then logs onto the Sterling portal and initiates the background check process. Id. At this point, the candidate is told how to obtain a copy of his report from Sterling. Id.; ECF No. 86-1 at 43:23-44:4. The candidate provides her employment history, education verification of highest level completed, address history and other items. ECF No. 86 at 3. Curtiss-Wright also informs the candidate that her offer is contingent upon completion of a successful background report. ECF No. 81 at 14.

         When a report comes from Sterling, a TAT member reviews the report. ECF No. 86 at 3. If Sterling's report states "clear" at the top, indicating there is nothing requiring further review, the hiring manager and human resources are notified that the candidate has satisfied the background check requirements. Id.

         Some reports from Sterling are returned with a "consider" notation.[2] Id., The "consider" notation, which is generated by Sterling, alerts the TAT that there is a discrepancy in the report. The "clear" versus "consider" notation is used by Sterling to notify Curtiss-Wright of information in the report that does not match what the candidate inputted into Sterling's system during the initiation process, which can include, for example, discrepancies in a graduation year or a candidate's dates of employment. Id., If the report is marked "consider," TAT's role is to review the report and address any areas requiring attention. Id., It may, at this time, require the candidate to provide supplemental information to the TAT to finalize the report. Id., Although Curtiss-Wright often emailed its candidates portions of the report in order to resolve specific discrepancies, candidates were not provided with a complete copy of the background report unless the candidates requested it directly from Sterling. ECF No. 81 at 9-10.

         Once a decision is made to rescind or potentially rescind an offer, TAT notifies the candidate orally. ECF No. 86 at 4. Thereafter, the TAT follows up with the candidate in writing to rescind the offer. Id., Of the 1, 112 candidates in Schenck's proposed class whose background reports were returned by Sterling with a "consider" notation, only 7 were not hired by Curtiss-Wright. ECF No. 86 at 7. The remaining 1, 105 candidates were hired. Id.

         2. Schenck's application process

         Schenck applied for a machinist position at Curtiss-Wright. ECF No. 81 at 18. After his interview, Curtiss-Wright extended him an offer of employment, contingent upon the completion of "a satisfactory background investigation." Id. Thereafter, Schenck accessed Sterling's website to enter his prior employment and education information in order for Sterling to provide a background report to Curtiss-Wright. Id. In January 2017, Sterling provided Curtiss-Wright with Schenck's completed background report. Id. Sterling marked Schenck's report with a "consider" notation under the County Criminal Record section. Id. This section reported a prior violation of 35 Pa. Stat. § 780-113(a)(3), which had occurred sixteen years prior to Schenck's application with Curtiss-Wright. Id. The report also flagged Schenck's prior employment verification status with a "consider" notation. Id. at 19.

         After receiving the report, a Curtiss-Wright employee contacted Schenck to inform him that there was a problem with his background report, and that Curtiss-Wright was rescinding his offer of employment. Id. Curtiss-Wright did not provide Schenck with a copy of his background report. Id. Schenck requested and received a copy of his report from Sterling. Id.

         II. LEGAL STANDARD

         A. Standard of Review for ...


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