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Solimen v. Morton College

United States District Court, Seventh Circuit

September 9, 2013

RED SOLIMEN, Plaintiff,
v.
MORTON COLLEGE, Defendant.

MEMORANDUM OPINION AND ORDER

ROBERT W. GETTLEMAN, District Judge.

Plaintiff Red Solimen brought a one count complaint against defendant Morton College for allegedly violating the Fair Credit Reporting Act, 15 U.S.C. § 1681 et. seq. ("FCRA"). Defendant has moved to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons discussed below, the motion to dismiss is denied.

BACKGROUND[1]

On or about August 2012, plaintiff applied for a position as a safety officer with defendant, who offered him the job subject to his successful completion of a criminal background check and training. Defendant later rescinded the job offer, informing plaintiff that its decision was based on the results of the criminal background check. Plaintiff alleges that defendant, in accordance with its employment policy and practice, failed to give him advance copies of the report or any notice before taking this "adverse action." Additionally, defendant did not provide him copies of his rights under the FCRA or any information about the consumer reporting agency which furnished the report. Plaintiff further alleges that defendant willfully or recklessly disregarded plaintiff's rights under the FCRA. He seeks actual, statutory, and punitive damages, as well as reasonable attorney's fees, pursuant to 15 U.S.C. § 1681n, or in the alternative, actual damages for a negligent violation pursuant to 15 U.S.C. § 1681o. While plaintiff has not pled actual damages, he requests he be allowed to amend his complaint to include these after conducting discovery.

LEGAL STANDARD

A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. Gibson v. City of Chicago , 910 F.2d 1510, 1520 (7th Cir. 1990). In evaluating a motion to dismiss, the court accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the plaintiff's favor. Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007). To provide the defendants with "fair notice of what the claim is and the grounds upon which it rests, " the complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Id. at 555 (quoting Fed.R.Civ.P. 8(a)(2)). In addition, the complaint's allegations must plausibly suggest that the plaintiff has a right to relief and raise that possibility above the "speculative level." Twombly , 550 U.S. at 555.

DISCUSSION

One of the purposes of the FCRA is to protect consumers from the ill effects of erroneous credit reporting. Dornhecker v. Ameritech Corp. , 99 F.Supp.2d 918, 927 (N.D. Ill. 2000). To this end, the FCRA regulates the usage of "consumer reports" provided by "consumer reporting agencies." The FCRA defines a "consumer reporting agency" as "any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports." 15 U.S.C. § 1681a(f). A "consumer report" is generally defined as meaning "any... communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living" which is used, among other things, for employment purposes. § 1681a(d)(1).

Persons using consumer reports who wish to take any "adverse action" against an individual on the basis of information contained in the report must abide by certain regulations. An "adverse action" can include "a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee." § 1681a(k)(1)(B)(ii). Before taking the action, the user of the report must do the following:

(1) provide... notice of the adverse action to the consumer;
(2) provide to the consumer...
(A) the name, address, and telephone number of the consumer reporting agency... that furnished the report to the person; and
(B) a statement that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide the consumer the specific ...

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