United States District Court, W.D. Pennsylvania
OPINION AND ORDER RE: ECF NO. 80
MAUREJEN P. KELLY UNITED STATES MAGISTRATE JUDGE
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.
before the Court is Representative Plaintiffs Motion for
Class Certification. ECF No. 80. For the reasons set forth
below, the motion will be denied.
FACTUAL AND PROCEDURAL BACKGROUND
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
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.
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.
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. §
ECF No. 80 ¶ 4.
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.
Curtiss-Wright's standardized recruitment
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.
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.
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.
reports from Sterling are returned with a
"consider" notation. 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.
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.
Schenck's application process
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.
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.
Standard of Review for ...