United States District Court, E.D. Wisconsin
RONDO TYUS, DAVID GEBHARDT, and TIMOTHY PLETSCHER, individually and as representatives of the Classes, Plaintiffs,
UNITED STATES POSTAL SERVICE, Defendant.
ORDER ON DEFENDANT'S MOTION TO DISMISS
WILLIAM E. DUFFIN U.S. Magistrate Judge
October 28, 2015, plaintiff Rondo Tyus filed a complaint in
Wisconsin state court alleging that defendant United States
Postal Service (“USPS”) violated several
provisions of the Fair Credit Reporting Act
(“FCRA”). (ECF No. 1.) After USPS removed the
case to federal court on December 9, 2015, all parties
consented to proceed before a magistrate judge. (ECF Nos. 2
and 4.) On February 15, 2016, an amended complaint was filed,
adding plaintiffs David Gebhardt and Timothy Pletscher as
parties. (ECF No. 12.) The new plaintiffs also consented to
proceed before a magistrate judge. (ECF No. 13.)
April 1, 2016, the parties filed a joint motion to stay the
case pending the Supreme Court's decision in Spokeo,
Inc. v. Robins, 742 F.3d 409 (9th Cir. 2014), cert.
granted, 135 S.Ct. 1892 (2015). After the Supreme Court
issued its decision, Spokeo v. Robins, 136 S.Ct.
1540 (2016), USPS filed a motion to dismiss on June 13, 2016.
(ECF No. 21.) The motion is fully briefed and ready for
Congress enacted the FCRA upon the recognition of the
increasingly important role played by consumer reporting
agencies in the economy. Congress found “a need to
insure that consumer reporting agencies exercise their grave
responsibilities with fairness, impartiality, and a respect
for the consumer's right to privacy.” 15 U.S.C.
§ 1681(a)(4). The stated purpose of the FCRA was to
“require that consumer reporting agencies adopt
reasonable procedures” to ensure “the
confidentiality, accuracy, relevancy, and proper utilization
of consumer reports.” 15 U.S.C. § 1681(b).
furtherance of these goals, Congress enacted a variety of
mandates regarding the creation and use of consumer reports.
Of particular importance to Congress were those consumer
reports used for employment purposes. See 15 U.S.C.
§ 1681b(b). At issue here are two FCRA provisions that
impose procedures to be followed by any person who procures a
consumer report for employment purposes. The first, referred
to by the parties as the “stand-alone disclosure”
(2) Disclosure to consumer. (A) In general.
Except as provided in subparagraph
(B), a person may not procure a consumer report, or cause a
consumer report to be procured, for employment purposes with
respect to any consumer, unless-
(i) A clear and conspicuous disclosure has been made in
writing to the consumer at any time before the report is
procured or caused to be procured, in a document that
consists solely of the disclosure, that a consumer report may
be obtained for employment purposes;
15 U.S.C. § 1681b(b)(2)(A)(i). The second provision, the
“pre-adverse action notice requirements, ”
(3) Conditions on use for adverse actions.
(A) In general. Except as provided in subparagraph (B), 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 right of the consumer
under this title as prescribed by the Federal Trade
Commission under section 609(c)(3).
15 U.S.C. § 1681b(b).
amended complaint contains two counts of alleged FCRA
violations. Count I is asserted on behalf of all three
plaintiffs and concerns the “stand alone
disclosure” provision of the FCRA. 15 U.S.C. §
1681b(b)(2)(A)(i). Count II is asserted only on behalf of
Tyus and concerns the “pre-adverse action notice
requirements” of the FCRA. 15 U.S.C. §
to the amended complaint, Tyus was an employee of the
security firm ABM in September 2014. (ECF No. 12,
¶¶ 24-25.) USPS contracted with ABM to provide
security guard services, and Tyus applied for a security
clearance to work as a security guard at USPS. (Id.)
USPS contracted with General Information Services, Inc.
(“GIS”) to perform criminal background checks on
“job seekers.” (ECF No. 12, ¶ 27.) In
October 2014 USPS procured a criminal background report from
GIS regarding Tyus. (ECF No. 12, ¶ 30.) Before procuring
Tyus's GIS report, USPS had Tyus execute Form 2181-C,
titled, “Authorization and Release-Background
Investigation.” (ECF No. 12, ¶ 33, Ex. A.)
first claim contends that Form 2181-C is not a stand-alone
disclosure as required by the FCRA because it contains
extraneous information, including: a) a liability release
clause; b) a “Privacy Act Statement” that sets
forth all of the entities to whom and for which purposes the
personal identifying information in the form may be
disclosed; and c) a provision acknowledging that USPS would
take measures to protect Tyus's information against
unauthorized disclosures. (ECF No. 12, ¶¶ 35-37.)
The amended complaint does not allege that
2181-C's extraneous provisions undermined Tyus's
consent or authorization for GIS to release his criminal
background report to USPS. Nor does the amended complaint
allege that the presence of the additional information
confused Tyus or adversely affected his understanding of the
authorization and release.
October 27, 2014, Tyus received a copy of his criminal
background report in a letter from USPS stating, if
“you believe the report to be inaccurate or incomplete,
please fax the completed disclosure/ dispute from [sic] to
GIS within five (5) business days from the date of this
letter.” (ECF No. 12, ¶ 38.) Only three days
later, in a letter dated October 30, 2014, USPS informed Tyus
that his request for a security clearance had been denied
based on the criminal background report, resulting in Tyus
not being eligible for the job as a security guard at USPS.
(ECF No. 12, ¶ 39.)
second claim asserts that, by failing to provide him with the
promised five days to dispute his criminal background report,
USPS failed to give him “a reasonable and real
opportunity to dispute the results of the report, and
therefore violated the FCRA's pre-adverse action notice
requirements[ ]” under 15 U.S.C. § 1681b(b)(3).
(ECF No. 12, ¶ 43.) Tyus further alleges that,
“[a]s a result of USPS's violations of the FCRA,
[he] has suffered emotional distress, financial loss, and has
been deprived of information to which he is entitled under
the FCRA.” (ECF No. 12, ¶ 44.)