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Brown v. Lowe's Companies, Inc.

United States District Court, W.D. North Carolina, Statesville Division

September 30, 2014

JASON DAVID BROWN, LASZLO BOZSO, and MERIS DUDZIC, Individually and on behalf of all others similarly situated, Plaintiffs,
v.
LOWE'S COMPANIES, INC., and LEXISNEXIS SCREENING SOLUTIONS, INC., Defendants

Decided: September 29, 2014.

Page 750

For Jason David Brown, Plaintiff: Anthony Rocco Pecora, Matthew Anderson Dooley, LEAD ATTORNEYS, PRO HAC VICE, O'Toole McLaughlin Dooley & Pecora Co. LPA, Sheffield Village, OH; Craig Carley Marchiando, Cynthia B. Chapman, Michael A. Caddell, LEAD ATTORNEYS, PRO HAC VICE, Caddell & Chapman, Houston, TX; Leonard Anthony Bennett, LEAD ATTORNEY, Consumer Litigation Associates, Newport News, VA; Brett E. Dressler, Sellers, Hinshaw, Ayers, Dortch & Lyons, PA, Charlotte, NC.

For Laszlo Bozso, Plaintiff: Anthony Rocco Pecora, Matthew Anderson Dooley, LEAD ATTORNEY, PRO HAC VICE, O'Toole McLaughlin Dooley & Pecora Co. LPA, Sheffield Village, OH; Brett E. Dressler, Sellers, Hinshaw, Ayers, Dortch & Lyons, PA, Charlotte, NC; Craig Carley Marchiando, Cynthia B. Chapman, Michael A. Caddell, LEAD ATTORNEY, PRO HAC VICE, Caddell & Chapman, Houston, TX.

For Meris Dudzic, Plaintiff: Anthony Rocco Pecora, Matthew Anderson Dooley, LEAD ATTORNEY, PRO HAC VICE, O'Toole McLaughlin Dooley & Pecora Co. LPA, Sheffield Village, OH; Brett E. Dressler, Sellers, Hinshaw, Ayers, Dortch & Lyons, PA, Charlotte, NC; Craig Carley Marchiando, Cynthia B. Chapman, Michael A. Caddell, LEAD ATTORNEY, PRO HAC VICE, Caddell & Chapman, Houston, TX; Ian B Lyngklip, LEAD ATTORNEY, PRO HAC VICE, Lyngklip & Associates Consumer Law Center, PLC, Southfield, MI.

For Lowe's Companies, Inc., Defendant: Brent Alan Rosser, LEAD ATTORNEY, Hunton & Williams, Charlotte, NC; Kevin James White, LEAD ATTORNEY, PRO HAC VICE, Hunton & Williams LLP, Washington, DC; Robert T. Quackenboss, LEAD ATTORNEY, PRO HAC VICE, Hunton & Williams, LLP, Washington, DC.

For LexisNexis Screening Solutions, Inc., Defendant: C. Knox Withers, Henry R. Chalmers, LEAD ATTORNEY, PRO HAC VICE, Arnall Golden Gregory, LLP, Atlanta, GA; Jeffrey S. Jacobovitz, LEAD ATTORNEY, PRO HAC VICE, Arnall Golden Gregory, LLP, Washington, DC; Pearlynn Gilleece Houck, Robert Walker Fuller, III, LEAD ATTORNEY, Robinson, Bradshaw & Hinson, P.A., Charlotte, NC.

Page 751

MEMORANDUM & ORDER

Richard L. Voorhees, United States District Judge.

THIS MATTER is before the Court on Defendants' respective motions to dismiss for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docs. 31 34). For the reasons stated herein, the Defendants' motions will be denied.

I. BACKGROUND

This lawsuit stems fro Plaintiffs' allegations that Defendants Lowe's Companies, Inc. (" Lowes" ) and LexisNexis Screening Solutions, Inc. (" LexisNexis" ) violate aspects of the Fair Credit Reporting Act (" FCRA" ), 15 U.S.C. § § 1681, et seq., via the hiring process and practices implemented by Lowe's. Lowe's contracts with LexisNexis, who provides consumer reports concerning applicants pursuing employment with Lowe's. The information provided by LexisNexis is relied upon by Lowe's in rendering employment decisions. The named Plaintiffs are individuals who each sought employment with Lowe's between 2008 and 2011 but were not selected for hire.

The facts recited are as alleged in the Complaint.

i. Facts Specific To Plaintiff Jason Brown

Jason D. Brown personally applied for an Assistant Store Manager position in the Denton, Texas Lowe's store on May 16, 2011. (Doc. 1, 6 9). On May 16, 2011, Mr. Brown provided Lowe's with his Texas Driver's License and his Social Security number. (Doc. 1, 6 ¶ 25).

As part of the hiring process, Lowe's purchased a consumer report from LexisNexis for Mr. Brown on or about May 18, 2011. (Doc. 1, 6 ¶ 26). Unbeknownst to Mr. Brown, the report that LexisNexis furnished Lowe's contained several entries of criminal-history information that belonged to a different Jason Brown. (Doc. 1, 7, ¶ 28). On May 20, 2011, Mr. Brown was informed by Lowe's via telephone that he was no longer being considered for the position. (Doc. 1, 7, ¶ 26). On May 23, 2011, Mr. Brown received separate mailings from Lowe's and LexisNexis containing his consumer report and Summary of Rights under the FCRA. (Doc. 1, 7 ¶ ¶ 28, 30). Mr. Brown did not learn of the contents of the report until three days after Lowe's informed Mr. Brown that he was no longer being considered for employment. (Doc. 1, 7 ¶ 30).

Mr. Brown subsequently petitioned LexisNexis for a reinvestigation of the consumer report. (Doc. 1, 8 ¶ 33). LexisNexis advised Mr. Brown that he would need to fax LexisNexis a copy of his driver's license before it would begin any reinvestigation. (Doc. 1, 8 ¶ 33). There is also reference to a request that Mr. Brown complete a " proprietary form" supplied by LexisNexis. (Doc. 1, 19, ¶ 98). Mr. Brown reportedly followed the instructions provided by LexisNexis. (Doc. 1, 8 ¶ 34). LexisNexis would not begin the reinvestigation until Mr. Brown supplied LexisNexis with the requested materials, including a copy of his driver's license, which resulted in delay. (Doc. 1, 8 ¶ 34). Mr. Brown is the only individual or putative representative Class Plaintiff that sought reinvestigation from LexisNexis. (Doc. 1, 4, ¶ 10; 19, ¶ 98).

ii. Facts Specific To Plaintiff Laszlo Bozso

Laszlo Boszo applied for a Sales position with Lowe's on June 15, 2011 using an

Page 752

Internet-based application procedure. (Doc. 1, 8 ¶ 35). As part of the hiring process, Lowe's ordered a background report for Mr. Bozso from LexisNexis on June 15, 2011. (Doc. 1, 8 ¶ 36). In Mr. Bozso's case, the LexisNexis report indicated that Mr. Bozso had been convicted of a felony in the state of Ohio in 1999, but it failed to include that the conviction was overturned on appeal in 2000. (Doc. 1, 8, ¶ 40). Lowe's was provided with a copy of the background report by LexisNexis on June 20, 2011. (Doc. 1, 8 ¶ 37). LexisNexis did not provide Mr. Bozso notice that the background report was being given to Lowe's. (Doc. 1, 8 ¶ 41). Neither LexisNexis nor Lowe's provided Mr. Bozso with a copy of the report used during the hiring process. (Doc. 1, 8).

iii. Facts Specific To Plaintiff Meris Dudzic

Meris Dudzic applied for an unidentified position with Lowe's in May of 2008. (Doc. 1, 9 ¶ 43). The Complaint does not make clear whether Ms. Dudzic sought employment in person or whether she submitted her application online. (Doc. 1, ). Lowe's accessed and relied upon a background check provided by LexisNexis for Ms. Dudzic on May 21, 2008. (Doc. 1, 9 ¶ 44). Ms. Dudzic does not allege that any inaccuracies existed in her consumer report. (Doc. 1, 9). However, Ms. Dudzic does allege that Lowe's failed to provide a copy of the report furnished by LexisNexis until " several days after" Lowe's refused to offer her employment. (Doc. 1, 9 ).

iv. Facts Common To All Three Individual Plaintiffs

After reviewing all three reports and background checks, Lowe's took " adverse employment actions" by refusing to hire any of the three named Plaintiffs. Moreover, Lowe's, either directly or through LexisNexis, did not provide Plaintiffs with a copy of the reports, background check, or a written summary of the information obtained through the reports until after Plaintiffs employment applications were denied. (Doc. 1, 7, ¶ ¶ 27, 30; 9, ¶ ¶ 42, 47, 48).

Plaintiffs allege that the adverse action taken against them " occurred almost immediately" upon the communication of Plaintiffs' information to Lowe's. (Doc. 1,, 31; 8, ¶ 39; 9, ¶ 46). With respect to the actual decision making, Plaintiffs allege that " LexisNexis itself was tasked with the " adjudication" of whether or not to disqualify an applicant based on the content of the report based upon predefined Lowe's criteria." (Doc. 1, 7, ¶ 31; 8, ¶ 39; 9, ¶ 46). Plaintiffs contend that " [s]uch process is automated and involves limited, if any, human discretion, and for most similarly situated customers, no discretion by Lowe's." (Doc. 1,, 31; 8, ¶ 39; 9, ¶ 46). In addition to hiring LexisNexis as a consumer reporting agency to help screen employee applications, Plaintiffs allege that Lowe's, by way of its policies and procedures, has effectively delegated the role of employer (decision maker) to LexisNexis. (Doc. 1, 2).

According to Plaintiffs, as a result of Lowe's hiring process, applicants are deprived of the protections afforded by the FCRA in that individuals are not provided an opportunity to identify inaccurate ...


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