Miller v. Johnson & Johnson, Janssen Pharmaceuticals, and Yale Associates, Inc., 2015 U.S. Dist. LEXIS 4448 (M.D. Fl. Jan. 14, 2015)

Facts:

In May 2011, Plaintiff applied for employment with Johnson & Johnson and Janssen Pharmaceuticals (collectively "J&J") and received an offer of employment on June 28, 2011. That offer was contingent on Plaintiff's successful completion of a background check. Yale, a background check company, conducted the background check and notified J&J of the results on July 6, 2011. Based on the report, J&J flagged Plaintiff's application for further review and by July 12, 2011, had formally rescinded his offer of employment due to the information contained in the background report. J&J never sent a pre-adverse action letter to Plaintiff. Plaintiff then filed suit alleging that Defendants violated the FCRA by failing to provide him with a pre-adverse action disclosure and a pre-adverse action opportunity to dispute the accuracy of the background report provided to J&J. Plaintiff also sued Yale for failure to conduct a reasonable reinvestigation of Plaintiff's dispute. J&J, Yale, and Plaintiff all moved for summary judgment. The Court found that J&J violated the FCRA by failing to provide a pre-adverse action notice to Plaintiff, that Plaintiff's willfulness claim survived summary judgment, that Plaintiff's claim for lost wages survived summary judgment, and that Yale had conducted a reasonable reinvestigation of Plaintiff's dispute.

 

  • Pre-Adverse Action.

    The FCRA requires an employer to provide a current or prospective employee with a pre-adverse action notice which contains a copy of the background report relied upon and a statutory summary of rights prior to taking any adverse action on that employee's current on prospective employment. Adverse action is defined as an "adverse action" to include a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee.

 

  • Pre-Adverse Action.

    J&J argued that it never took adverse action against Plaintiff prior to Yale sending him the pre-adverse package on July 18, 2011. Specifically, J&J argued that it only made an internal decision to revoke Plaintiff's offer of employment, which does not constitute an adverse action under the FCRA. However, the Court found, based on testimony from Plaintiff and a J&J employee, as well as internal emails from J&J, that a final decision to withdraw Plaintiff's offer occurred on or before July 18, 2011, thus denying Plaintiff any opportunity to dispute inaccurate information in the background report in violation of the FCRA.

 

  • Willfulness.

    Because J&J were found to have not complied with the FCRA, a genuine dispute exists as to whether J&J acted negligently or willfully when it violated the FCRA. The Court, therefore, ordered the parties to proceed to trial on that issue.

 

  • Damages.

    Plaintiff provided ample evidence through his testimony to support his damages claim. He testified that the J&J position would have paid more than any position which he has held since J&J declined to offer him a job. The Court held that lost wages caused by a violation of the FCRA are actual damages and that the parties were to proceed to trial on that issue.

 

  • Reinvestigation.

    Plaintiff did not dispute the fact that Yale conducted a reinvestigation, removed the inaccurate information, and forwarded a corrected background report to J&J in compliance with the FCRA. Therefore, the Court granted Yale's Motion and would not consider Plaintiff's last ditch effort to try and assert a § 1681e(b) claim for failing to follow reasonable procedures in preparing a consumer report for Plaintiff. In the Complaint, Plaintiff only asserted a § 1681i claim and it was not until the summary judgment stage that he tried to assert § 1681e(b) claim. Therefore, the Court found this argument was improper because in the Eleventh Circuit a plaintiff may not amend his complaint through a brief opposing summary judgment.

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