Meuse v. Nat'l P.I. Servs.

1

GERALD MEUSE, Plaintiff, v. NATIONAL P.I. SERVICES, LLC, and JOHN DOES 1-10, Defendants.

Civil Action No. 21-cv-11533-ADB

United States District Court, D. Massachusetts

September 13, 2024

MEMORANDUM & ORDER

ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

Gerald Meuse (“Plaintiff”) alleges that National P.I Services, LLC (“Defendant”), a consumer reporting agency (“CRA”) that prepares background screening reports at the request of different companies, violated various provisions of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x (“FCRA”), and Massachusetts General Laws chapter 151B, § 4(9) by providing reports that contained prohibited details about Plaintiff's criminal record, as well as other false or misleading statements.

Presently before the Court are the parties' cross motions for summary judgment, [ECF Nos. 37, 46]. For the reasons set forth below, Defendant's motion is DENIED on all counts. Plaintiff's motion is DENIED as to Counts I and III and GRANTED as to Count II.

I. Background

a. Material Facts^[1]

On or about August 29, 2019, Plaintiff applied for a firefighter position with the Everett Fire Department (the “Fire Department”) in Everett, Massachusetts. [ECF No. 49-1 ¶ 1; ECF No. 50-1 at 1]. In that application, Plaintiff disclosed several pieces of information relevant to the Court's analysis, including: 1) that he faced an assault charge in 2011, resulting from an argument with a former girlfriend (Beatrice Mays or “Ms. Mays”), and that the charge was “dismissed,” [ECF No. 47-3 at 9]; 2) that at the time of his application, he was employed by the U.S. Army National Guard, Encore Casino, and Lyft, [id. at 10]; and, 3) that he lived at 225 Main Street in Everett from 2015-2018, [id. at 20]. He also provided three references, including a friend named Kyle North (or “Mr. North”) and Ms. Mays, [id. at 12].

As part of the application process, the Fire Department procured a background screening report (“the Report”) regarding Plaintiff from Defendant. [ECF No. 49-1 ¶ 1]. Mr. Frank Santin (“Mr. Santin”), Defendant's owner, authored the Report and signed it. [id. ¶ 12]. In conducting Plaintiff's background check, Defendant was acting as an agent of the Fire Department. [id. ¶ 4]

In the Report, Defendant disclosed that, on November 25, 2011, Plaintiff was arrested and charged by the Norfolk Virginia Police with assaulting Ms. Mays and for violating a restraining order. [ECF No. 49-1 ¶¶ 2, 8; ECF No. 47-2 at 5; ECF No. 50-1 at 11-12]. The charges against Plaintiff were ultimately dismissed and, therefore, did not result in a conviction. [ECF No. 49-1 ¶ 3]. As part of compiling the Report, an investigator working for Defendant spoke with Ms. Mays on September 19, 2019, and asked her if she could recount “the situation that resulted in Gerald being charged in 2011,” which she did. [ECF No. 50-1 at 11-12].

On September 24, 2019, Defendant interviewed Plaintiff at a home visit. [ECF No. 47-2 at 9; ECF No. 50-1 at 12]. During that interview, Defendant “inquired about the issue that involved Norfolk Police and [Plaintiff's] ex-girlfriend.” [ECF No. 47-2 at 9; ECF No. 47-1 at 28]. According to the Report, Plaintiff responded that he was never arrested. [ECF No. 47-2 at 9].

In summarizing Plaintiff's home visit interview, the Report also included information regarding Plaintiff's residence, job history, and professional training and certifications. See [ECF No. 47-2 at 9]. In relevant part, the Report included the following language:

• [Plaintiff] claims that . . . between 2015-2018 [he] resided at 225 Main St. Everett address . . . with a friend ‘Kyle North' who owned the property . . . I ran an inquiry through voter's registration in order to tie [Plaintiff] physically to that address and learned that he was not a registered voter.

• [Plaintiff's] job history before and after his military service is hard to verify. He makes his money as a Lyft driver and he occasionally works for Encore Casino as a Security Officer. He informed us that his work references will be hard to contact.

• [Plaintiff] has gone to school for psychology however he never bothered to take any classes in fire science or get certified as an EMT which would indicate that he is not entirely vested in a career with Everett Fire.

[Id.]

As part of assembling the Report, Defendant also utilized a research tool that it uses in its regular course of business (“TLO Report”). [ECF No. 47-2 at 10; ECF No. 49-1 ¶ 16]. The TLO Report listed 225 Main Street as Plaintiff's address between July 13, 2015, and September 18, 2019. [ECF No. 47-2 at 10]. It also listed Lyft as a possible employer. [Id.].^[2] There are few facts in the record as to what, outside of running the TLO Report and checking voter registration, Defendants did to verify Plaintiff's job history, prior residences, and professional certifications. Regarding Plaintiff's job history, there is no evidence in the record that Defendant attempted to contact the U.S. Army National Guard, although the Report does include a contact phone number for the National Guard. See [ECF No. 47-2 at 7]. Mr. Santin testified at deposition that he does not know how many times Encore was contacted to verify Plaintiff's employment, although he believes it “unlikely” that it would be only once. [ECF No. 49-1 ¶ 18]. There is no evidence that any of the investigators from Defendant's company requested any pay stub or pay record information in conducting the background check. [Id. ¶ 17]. There is also no evidence that Defendant asked Plaintiff about his job history. [Id. ¶ 193]. Regarding the EMT certification, Mr. Santin testified that he never spoke to Plaintiff, including to ask him whether he received an EMT certification, nor does he know whether any of his investigators asked Plaintiff about his EMT certification. [Id. ¶¶ 13-14].^[3]

On March 11, 2021 the Fire Department, in the exercise of its discretion, determined that Plaintiff was not a suitable candidate for employment and listed four reasons for the decision: 1) Defendant's “report states [Plaintiff's] job history before and after he left the military is hard to verify,” 2) Defendant “found no proof that [Plaintiff] lived” at 225 Main Street, 3) Plaintiff “claimed he was never arrested for an assault, but was in fact arrested,” and 4) Plaintiff “claimed he was never arrested for a violation of restraining order, but was in fact arrested.” [ECF No. 501 at 15].

On March 30, 2021, Plaintiff filed an appeal with the Civil Service Commission, contesting the decision of the Fire Department to bypass him for employment. [ECF No. 50-1 at 15-16]. On July 14, 2022, the Civil Service Commission reversed the bypass order. [Id. at 19]. On May 8, 2023, the Fire Department sent Plaintiff a “formal offer to participate in the Everett Fire Department's hiring process.” [Id. at 19-20 (emphasis omitted)]. The parties dispute whether this constitutes an offer for employment. [Id.].

b. Procedural Background

On September 19, 2021, Plaintiff filed a three-count complaint alleging three FCRA violations: (1) 15 U.S.C. § 1681e(b) (Count I); (2) 15 U.S.C. § 1681k(b) (Count II); and (3) 15 U.S.C. § 1681c(a)(2) (Count III). [ECF No. 1 ¶¶ 31-43]. Between November 2021 and February 2022, Defendant filed a motion to dismiss, [ECF No. 6], and Plaintiff moved to amend the complaint to, among other things, add a claim for violation of Massachusetts General Laws ch. 151B, § 4(9). [ECF No. 14]. On July 7, 2022, the Court granted Defendant's motion to dismiss in part and denied it in part, and also granted Plaintiff's motion to amend the then-operative amended complaint. [ECF No. 22 at 19]. The Court dismissed two of the three FCRA claims, Count I (15 U.S.C. § 1681e(b)) and Count II (15 U.S.C. § 1681k(b)), for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). [Id. at 7-10].

On June 27, 2023, Plaintiff filed a second motion to amend the complaint to add back a claim under 15 U.S.C. § 1681e(b) in light of facts learned during discovery. [ECF No. 30; ECF No. 31 at 2]. Defendant opposed on July 10, 2023. [ECF No. 33]. The Court granted the second motion to amend the complaint on October 20, 2023.

Plaintiff filed the operative, second amended complaint (“SAC”) on October 24, 2023, alleging violations of the FCRA and Massachusetts state law. Specifically, the Complaint consists of three counts: (1) 15 U.S.C. § 1681c(a) (Count I), (2) Mass. Gen. Laws ch. 151B § 4(9) (Count II), and (3) § 1681e(b) (Count III). [ECF No. 35]. Defendant answered the Complaint on October 27, 2023. [ECF No. 36]. After a discovery period, both parties moved for summary judgment as to all counts on February 15, 2024.^[4] [ECF Nos. 37, 46].

II. Legal Standard

Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue is considered “genuine” when “the evidence of record permits a rational factfinder to resolve it in favor of either party.” Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4-5 (1st Cir. 2010) (citing Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). A fact is considered “material” when “its existence or nonexistence has the potential to change the outcome of the suit.” Id. at 5 (citing Martinez v. Colon, 54 F.3d 980, 984 (1st Cir. 1995)).

“To succeed in showing that there is no genuine dispute of material fact, the moving party must direct [the Court] to specific evidence in the record that would be admissible at trial.” Ocasio-Hernandez v. Fortuno-Burset, 777 F.3d 1, 4 (1st Cir. 2015). “That is, it must ‘affirmatively produce evidence that negates an essential element of the non-moving party...