United States District Court, E.D. Virginia, Richmond Division
TIFFANIE BRANCH, individually and on behalf of all others similarly situated, Plaintiff,
GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant.
E. Payne Senior United States District Judge
matter is before the Court on GEICO'S MOTION FOR SUMMARY
JUDGMENT (ECF No. 39). For the reasons set forth below, the
motion will be denied.
A. Procedural Background
December 30, 2016, Tiffanie Branch ("Branch") filed
a Class Action Complaint on behalf of herself and all others
similarly situated, alleging that Government Employees
Insurance Company ("GEICO") violated Section 1681b
(b) (3) (A) of the Fair Credit Reporting Act
("FCRA"). ECF No. 1. Branch then filed an Amended
Class Action Complaint on April 11, 2017, which is the
operative complaint here. ECF No. 23.
parties' initial briefing on GEICO's motion concerned
the class that Branch originally proposed, composed of
individuals who were assigned a "Fail" grade by
GEICO because of any deficiency in their background reports.
Id. ¶ 56. However, at oral argument,
Branch's counsel indicated that Branch would narrow the
class to those individuals who were assigned a
"Fail" grade by GEICO specifically because of the
criminal history in their background reports. October 3, 2017
Transcript (ECF No. 60) at 42:16-20; September 27, 2017
Transcript (ECF No. 56) at 5:21-6:5. As a result, the parties
filed supplemental briefs addressing the summary judgment
issues in the context of the narrowed class, ECF No. 65, and
this opinion addresses only that class.
Branch's Application to GEICO
applied for employment with GEICO, and, on August 26, 2016,
Branch accepted GEICO's offer to join the company as a
Liability Claims Representative, which was contingent on a
background check. Around the same time, Branch also completed
GEICO's Supplemental Information Form for use in
connection with the background check. On that form, Branch
listed, as her only criminal conviction a December 2015
conviction for petit larceny.
September 2, GEICO requested a background check on Branch
from a consumer reporting agency, General Information
Services ("GIS"). GIS completed Branch's
background report ("the Report") and sent it to
GEICO on September 21. The Report indicated that Branch had
two criminal convictions on her record: the December 2015
misdemeanor petit larceny conviction, as well as,
inaccurately, a 2011 felony petit larceny conviction. Camacho
Decl. (ECF No. 40-4), Ex. 2 at 10. On September 21, after
reviewing the Report, a GEICO employee, Brit Collins,
assigned it a preliminary grade of
that day, another GEICO employee, Latoria Parker
("Parker"), called Branch regarding the contents of
the Report. The exact details of the conversation are
disputed. Branch said that Parker told her that GEICO's
job offer was rescinded because of the 2011 felony conviction
in the Report. Parker, on the other hand, testified that she
informed Branch that she would receive a letter from GIS
about the Report because GEICO had concluded that
Branch's criminal history would preclude her from
employment at GEICO, and that she could dispute the accuracy
of the Report. The parties agree, however, that Branch told
Parker that the 2011 conviction was a misdemeanor petit
larceny conviction, not a felony. That night, Branch e-mailed
Parker, further explaining that she had been charged with
felony grand larceny but that she had pled guilty to a
reduced misdemeanor charge.
September 22, 2016, on GEICO's behalf, GIS sent Branch a
letter containing the Report and a summary of Branch's
FCRA rights ("the Pre-Adverse Action Letter").
Branch could not recall whether she ever initiated a dispute
with GIS about the accuracy of her Report. But, the record is
that, by October 3, neither GIS nor GEICO had heard from
Branch, so GIS sent Branch a letter stating that GEICO would
not be hiring her based on the contents of the Report
("the Adverse Action Letter").
GEICO's Job Application Process
background check process is described in its Adjudication
Process for Background Checks ("the Adjudication
Process"), Camacho Decl., Ex. 1, which was GEICO's
official policy for the use of background reports during the
class period, Camacho Decl. ¶ 4. Once GEICO extends a
conditional job offer to an applicant, the applicant must
complete a Supplemental Information Form, which contains
information that a GEICO employee enters into GIS's
system. Adjudication Process at 3-5. GIS then generates a
background report and marks each portion of the report as
either "Pass" or "Review, " depending on
whether that part satisfies GEICO's employment
eligibility requirements. Once GIS completes the background
report, a GEICO employee reviews it and assigns it a grade of
"Pass" or "Fail, " based on whether the
report meets GEICO's eligibility
requirements. Adjudication Process at 6. This review
occurs in all cases, even if GIS has given the report a
notation of "Pass." GEICO's "Fail"
grade may be appropriate if the report contains felony
convictions or certain misdemeanor convictions, or if the
report shows a conviction that was not disclosed on the
Supplemental Information Form.
Branch's case, after GEICO assigns a "Fail"
grade, GIS sends the Pre-Adverse Action Letter, initiating a
seven-business-day "cure period" during which the
applicant can address the deficiency in the report that led
to the "Fail" grade. When the "Fail"
grade relates to the report's criminal history, the
applicant must contact GIS directly to dispute the
report's accuracy. Nonetheless, a GEICO employee must
review the GIS system throughout the cure period to see if
the applicant has addressed with GIS the deficiency leading
to the "Fail" grade. If the applicant has done so,
that employee is required to change the grade from
"Fail" to "Pass." Id. at 7.
then mails an Adverse Action Letter to any applicant whose
background report still has a "Fail" grade at the
end of the cure period, either because the applicant could
not, or failed to, cure the inaccuracy. After GIS sends that
letter, a GEICO employee informs the applicant that GEICO has
rescinded the offer. The Adjudication Process precludes
informing the applicant of the rescission before that point.
Id. at 7-8.
the class period, GEICO assigned a "Fail" grade
based on criminal history to the background reports of 426
applicants. The final grades for the reports of 96
individuals were eventually changed to "Pass." In
addition, the final grades for the reports of 14 applicants
were eventually changed to "No Grade." Suppl.
Camacho Decl. (ECF No. 68-1) ¶ 8.a-.b. This change would
have occurred because the applicant did not proceed with the
application process for reasons unrelated to the background
report, such as failing the drug screening or withdrawing
from consideration for a position. Adjudication Process at 8.
Finally, the final grades for the reports of 316 applicants
from the putative class remained "Fail" at the end
of the cure period. Suppl. Camacho Decl. ¶ 8.b.
Fed.R.Civ.P. 56, a court "shall grant summary judgment
if 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). In Celotex Corp.
v. Catrett, 477 U.S. 317 (1986), the Supreme Court
stated that Rule 56 requires the entry of summary judgment
"after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial." Id. at 322. To enter
summary judgment, "there can be no genuine issue as to
any material fact, since a complete failure of proof
concerning an essential element of the nonmoving party's
case renders all other facts immaterial." Id.
at 323 (internal quotations omitted).
reviewing a motion for summary judgment, a court must
interpret the facts and any inferences drawn therefrom in the
light most favorable to the nonmoving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Lee v. Town of Seaboard, 863
F.3d 323, 327 (4th Cir. 2017). To successfully oppose a
motion for summary judgment, the nonmoving party must
demonstrate to the court that there are specific facts that
would create a genuine issue for trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). However,
"* [c]onclusory or speculative allegations do not
suffice' to oppose a properly supported motion for
summary judgment, Anor does a mere scintilla of
evidence.'" Matherly, 859 F.3d at 280
(quoting Thompson v. Potomac Elec. Power Co., 312
F.3d 645, 649 (4th Cir. 2002)). "Where . . . the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, disposition by summary
judgment is appropriate." United States v. Lee,
943 F.2d 366, 368 (4th Cir. 1991).
Admissibility of Information from GEICO's
first necessary to address Branch's argument that, in
deciding GEICO's motion, the Court cannot consider
certain information provided by GEICO about the applicants
whose reports received a "Fail" grade during the
relevant time period because that information is inadmissible
limits the type of evidence that can be considered on a
motion for summary judgment. Under that rule,
"[a] party asserting that a fact cannot be . .
. genuinely disputed must support the assertion by . . .
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers, or other materials."
Fed.R.Civ.P. 56(c)(1)(A). However, "[a] party may object
that the material cited to support ... a fact cannot be
presented in a form that would be admissible in
evidence." Id. 56(c)(2). For the non-objecting
party to then have that evidence considered, that party must
“identif[y] facts that could be put in
admissible form." Jones v. W. Tidwater Reg'1
Jail, 187 F.Supp.3d 648, 654 (E.D. Va. 2016) (internal
quotations omitted) (emphasis in original).
paragraphs 25-30 of its Statement of Material Undisputed
Facts, GEICO presented information from a spreadsheet that it
produced to Branch, which contained details about all
individuals whose background reports were assigned a
"Fail" grade at any time during the hiring process
between December 29, 2014 and January 15, 2017. GEICO did not
include the spreadsheet as an exhibit, but a GEICO employee,
Karen Camacho ("Camacho"), provided a declaration
with details from the spreadsheet. Camacho Decl. ¶¶
11-12. Camacho has given similar information for the
individuals in the narrowed class in a supplemental
declaration, and the corresponding spreadsheet is attached
thereto. Suppl. Camacho Decl. ¶ 8. GEICO relies on this
evidence to show that applicants assigned a "Fail"
grade have a meaningful opportunity to change that grade
during the subsequent cure period.
contends that the spreadsheet is hearsay that the Court
cannot consider here. Camacho's statements based on the
spreadsheet are therefore also hearsay. GEICO concedes that
the spreadsheet is hearsay, but asserts that it can be
presented in an admissible form at trial through Fed.R.Evid.
803(6) or 1006, thereby satisfying Rule