Employment Law Daily Timing bars applicant's claim that reporting agency wrongfully disseminated his criminal background report
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Monday, February 22, 2016

Timing bars applicant's claim that reporting agency wrongfully disseminated his criminal background report

By Ronald Miller, J.D. Finding that the Fair Credit Reporting Act’s (FCRA) two-year statute of limitations barred a job applicant’s lawsuit, the Sixth Circuit affirmed a district court’s grant of summary judgment against the plaintiff’s suit alleging an employer wrongfully obtained a background report on him, and that a consumer reporting agency wrongfully disseminated the report. Because the plaintiff had not contested the accuracy of his credit report, the dispute process contained in 15 U.S.C. Sec.1681s-2(b) had no relevance to his claim and did not affect the applicable statute of limitations (Rocheleau v. Elder Living Construction, LLC, February 18, 2016, Siler, E.). Consumer report. The plaintiff filed suit under the FCRA alleging that Elder Living Construction wrongfully obtained a background report on him, and that First Advantage, the consumer reporting agency, wrongfully disseminated the report. After he submitted an application for employment, Elder ordered a background report on him. The search by First Advantage disclosed four criminal convictions that matched the plaintiff’s name and date of birth. Thereafter, First Advantage notified the plaintiff by mail that it was reporting information derived from his public record to Elder. The notice advised the plaintiff of his right to dispute information contained in the report, and included a copy of the report. Adverse action. Three days later, First Advantage mailed a second notice to the plaintiff advising him that information in his background check might adversely affect his employment status with Lowe’s, another employer. Another copy of the report was included. Subsequently, the agency advised the plaintiff that Lowe’s had decided not to hire him due, at least in part, to the contents of the background report. Throughout September 2011, the plaintiff contacted the reporting agency to complain that he had not authorized the release of his background report. He did not dispute the report’s accuracy. More than two years later, the plaintiff initiated this action alleging that Elder and First Advantage had violated the FCRA. He asserted that Elder obtained the background report without first obtaining his permission or notifying him that adverse action may result. He further alleged that neither First Advantage nor Elder issued certain certifications mandated by statute. Finally, he contended that First Advantage failed to adhere to the required “strict procedures” in releasing his information. The district court granted summary judgment in favor of both defendants, finding that the applicable statute of limitations rendered his claims time-barred. Statute of limitations. The FCRA’s statute of limitations requires claims to be commenced no later than two years after the date of discovery of the violation that is the basis of liability, or five years after the date on which the violation occurs—whichever date falls earlier. Here, the plaintiff did not dispute that the alleged violations occurred in September 2011, and that he discovered them upon receipt of the notices—no later than the end of September 2011. While the Sixth Circuit has not yet confronted this issue, it found that the Fifth Circuit’s conclusion in Mack v. Equable Ascent Financial, L.L.C., was instructive. In Mack, the Fifth Circuit explained, “[T]he plain language of [§ 1681p] states that the relevant discovery is that of the violation that is the basis for liability.” Thus, in Mack, the appeals court concluded that the limitations period commenced when the plaintiff discovered that the consumer reporting agency had obtained his credit report without his consent. Here, the Sixth Circuit concluded that those same principles governed the plaintiff’s action. The plaintiff argued that his claims survived Section 1681p’s two-year limitations period, and pointed to a different provision of the FCRA: 15 U.S.C. Sec.1681s-2(b), which establishes a mandatory three-step dispute resolution process. However, because he had not contested the accuracy of his credit report, the dispute process had no relevance to his claim and did not affect the applicable statute of limitations, concluded the appeals court. Accordingly, his claims were time-barred.

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