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Tiffanie Branch v. Government Employees Insurance Co.

United States District Court, E.D. Virginia, Richmond Division

January 10, 2018

TIFFANIE BRANCH, individually and on behalf of all others similarly situated, Plaintiff,
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         This 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.

         BACKGROUND

         A. Procedural Background

         On 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 title.

         Branch then filed an Amended Class Action Complaint on April 11, 2017, which is the operative complaint here. ECF No. 23.

         GEICO 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.

         Also on 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.

         As a 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.

         B. Factual Background

         1. Branch's Application to GEICO

         Branch 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.

         On 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"[1] because of a "CRIMl" code.[2]

         Later 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.

         On 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 Letter") .

         2. GEICO's Job Application Process

         GEICO's 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.[3]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 Information Form.

         As in 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.

         GIS 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.

         During the class period, GEICO assigned a "Fail" grade based on criminal history to the background reports of 426 applicants.[4] 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.

         C. The Proposed Class

         Branch 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 "FAIL" result.

         Branch 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.

         DISCUSSION

         I. ...


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