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Freckleton v. Target Corporation

United States District Court, D. Maryland, Northern Division

June 23, 2015

CHARMAINE FRECKLETON, on behalf of herself and others similarly situated, Plaintiffs,
v.
TARGET CORPORATION, et al., Defendants.

MEMORANDUM OPINION

WILLIAM D. QUARLES, Jr., District Judge.

Charmaine Freckleton (the "Plaintiff") sued Target Corporation ("Target") and First Advantage LNS Screening Solutions, Inc. ("First Advantage")[1] for violations of the Fair Credit Reporting Act ("FCRA").[2] Pending is First Advantage's motion to dismiss the amended complaint. No hearing is necessary. Local Rule 105.6 (D. Md. 2011). For the following reasons, the motion will be denied.

I. Background[3]

A. Target's Relationship with First Advantage

First Advantage "is among the biggest of this nation's employment background screening companies." ECF No. 45 at ¶ 14. First Advantage "enters into form contracts ("Agreement of Service") with its employer customers, whereby, for a price, [First Advantage] agrees to provide consumer reports for employment purposes within the meaning of section 1681b(b) of the FCRA."[4] Id. at ¶ 15.

First Advantage's customers, through the Agreement of Service, "acknowledge and agree that the information it will provide in connection with a background check is regulated FCRA consumer report information." Id. The customers must also agree to "follow FCRA procedures and safeguards that apply to the use of consumer reports." Id. For each background check ordered, the client must "have disclosed in writing to the job applicant its intent to procure a consumer report' as part of the application and the applicant will have provided the customer with a written consent to such procurement." Id. at ¶ 17.

When a client requires a background check, it sends a request to First Advantage. Id. at ¶ 19. Using proprietary software, First Advantage will gather information about the prospective employee. Id. "For an additional fee, [First Advantage] offers a scoring service' which, in addition to providing a background report' about the applicant, will score the applicant in accordance with an adjudication matrix' negotiated between the two companies." Id. at ¶ 20. The adjudication matrix assigns the applicant one of three classifications: in-eligible for hire, eligible, or "decisional' (meaning that the customer needs to decide itself." Id.

Target was one of First Advantage's "employer customers." Id. at ¶ 16. In addition to using First Advantage's background checks, Target also contracted to use the scoring service, and specified the factors that would make a candidate "in-eligible for hire" when adjudicated. Id. at ¶ 20-23. "Target has used this background screening service by [First Advantage] as a way to manage its vast pool of job applicants, filtering out those applicants scored by [First Advantage] as In-Eligible for Hire.'" Id. at ¶ 23.

"As part of its agreement with Target, one of the databases [First Advantage] used to adjudicate Target job applicants... was its proprietary database known [] as Esteem.'" Id. at ¶ 25. "The data maintained in the Esteem database consisted primarily of purported admissions of theft procured by a former employer and contributed to the Esteem system. This data is separate from criminal records information, which tends to be contained in separate databases...."[5] Id. at ¶ 26. Target specified a "screening protocol" for prospective employees that "included, after a drug test, a Social Security number validation; then, at the next stage, an Esteem search; and then, if no Esteem match[es] were found, searches of [First Advantage's] National Criminal Record File and its OFAC' database." Id. at ¶¶ 28-29.

B. The Plaintiff's Contacts with the Defendants

In early 2012, the Plaintiff applied for a job at Target. ECF No. 45 at ¶ 31. During the application process, "Target required [the] Plaintiff to consent to the procurement by Target of consumer reports' about her." Id. "In the consent documents that Target made [the] Plaintiff sign, Target asserted that it would be obtaining an FCRA consumer report." Id.

On or about March 23, 2012, Target requested that First Advantage complete a background screening on the Plaintiff.[6] Id. at ¶ 32. "[A]fter validating [the] Plaintiff's Social Security number, [First Advantage] conducted a search of the consumer report about [the] Plaintiff in its Esteem database and discovered a match." Id. at ¶ 34. First Advantage adjudicated the Plaintiff in-eligible for hire, and reported to Target that she had been involved in a theft on December 2, 2011 while working at a CVS. Id. at ¶¶ 34-35, 64.[7]

According to the Plaintiff's recollection of the December 2, 2011 incident, the CVS loss prevention agent "directed [her] to a back room" and "subjected her to a prolonged investigation about an incident that occurred sometime the previous month while [the] Plaintiff was performing her duties as a cashier." ECF No. 45 at ¶ 65. The Plaintiff did not remember the incident, but told the loss prevention officer that if items left the store that were not scanned and paid for, then it was the result of a mistake. Id. The Plaintiff alleges that she was not permitted to leave the back room until she admitted her guilt, even though she had not stolen from the store. Id. Finally, "[t]he agent instructed her [on] what to write and she wrote and signed the [admission] papers as she was instructed." Id. "In her mind, she had no choice but to cooperate." Id. CVS reported the incident and uploaded the admission statement to the First Advantage's database. Id.

When First Advantage completed the background check of the Plaintiff, it informed Target that it had a "verified admission statement" incident.[8] ECF No. 1, Ex. A at 5. However, the only information used by First Advantage in the Plaintiff's screening was CVS's report and the admission statement contained in its system; First Advantage did not take any action to "verify" the statement.[9] See ECF No. 45 at ¶¶ 19, 69. The background check and screening ...


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