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 PLAINTIFF'S RENEWED MOTION
FOR CLASS CERTIFICATION (ECF No. 66). For the reasons set
forth below, the motion will be denied.
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. That provision requires that:
In using a consumer report for employment purposes, before
taking any adverse action based in whole or in part on the
report, the person intending to take such adverse action
shall provide to the consumer to whom the report relates: (i)
a copy of the report; and (ii) a description in writing of
the rights of the consumer under this subchapter, as
presented by the Bureau under section I68lg(c)(3) of this
then filed an Amended Class Action Complaint on April 11,
2017, which is the operative complaint here. ECF No. 23.
moved for summary judgment on August 18, 2017. ECF No. 39.
The Court denied that motion on December 18, 2017, ECF No.
74, finding that a genuine dispute of material fact existed
as to whether GEICO had complied with Section 1681b(b)(3)(A)
when interacting with Branch specifically. Memorandum Opinion
(ECF No. 73) ("Summary Judgment Op.") at 32-33.
August 18, 2017, Branch initially moved for class
certification. ECF No. 41. The briefing on that motion
concerned a proposed class of individuals who were assigned a
"Fail" grade by GEICO because of any
deficiency in their background reports. ECF No. 4 2 at
9. However, at oral argument on GEICO's summary judgment
motion, Branch's counsel stated that Branch would narrow
the class to those individuals assigned a "Fail"
grade specifically because of the criminal histories
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.
result, Branch filed a renewed motion for class certification
on October 16, 2017. ECF No. 66. GEICO has opposed the
motion. ECF No. 71. Branch has replied. ECF No. 72. Thus, the
matter is now ripe.
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. The offer was contingent on
the results of 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 reflected that Branch had
two criminal convictions on her record: the December 2015
misdemeanor petit larceny conviction (that Branch reported),
as well as a 2011 felony petit larceny conviction (that
Branch did not report). Camacho Decl. (ECF No. 71-4), Ex. 2
at 10. The Report erroneously characterized the 2011
conviction as a felony. On September 21, after reviewing the
Report, a GEICO employee, Brit Collins, assigned it a
preliminary grade of "Fail" because of a
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, 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
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 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. This
review occurs in all cases, even if GIS has given the report
a notation of "Pass." The employee must also enter
one or more codes noting the reason for the "Fail"
grade.Adjudication Process at 6. That 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
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. 71-8) ¶ 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.
The Proposed Class
seeks to certify one class. That class is defined as:
All natural persons residing in the United States (including
all territories and other political subdivisions of the
United States) (a) who submitted an employment application or
other request for placement to GEICO and received a
conditional job offer; (b) who were the subject of a GIS
consumer report which was used by GEICO to make an employment
decision from December 29, 2014 to the present; (c) about
whom GEICO inserted a "FAIL" adjudication in the
GIS system based on a coding of CRIM1, CRIM2, or CRIM3; and
(d) to whom GEICO did not provide a copy of the consumer
report and summary of rights as required by 15 U.S.C. §
l68lb(b)(3) at least five business days before the date the
consumer's report at GIS was first graded with the
further asserts that a class should be certified even if the
Court concludes that those proposed class members who were
eventually hired by GEICO or withdrew from the application
process before the end of the cure period suffered no adverse
action. In that case, Branch argues, the Court should simply
modify the class definition to exclude the proposed class
members who were hired by GEICO or withdrew.