A District Court judge in Maryland has denied a defendant’s motion to dismiss claims it violated the Fair Credit Reporting Act over information that was included in a background check that led to a delay in the plaintiff being hired for a new job.
The background: The plaintiff, Dustin Thomas Smith, applied for a job with an employer and authorized a background check. The defendant, a consumer reporting agency, produced a “National Criminal and Offense Report” that identified the applicant as the plaintiff and included his date of birth and partial Social Security number. The report then listed 15 criminal convictions for an individual named “Dustin M” or “Dustin Michael Smith” from Champaign County, Ohio. None of those records included a matching date of birth or Social Security number, and the plaintiff contends he has no criminal history at all.
- The issues with the background check led the prospective employer to delay hiring the plaintiff for several weeks while it attempted to sort out the discrepancy, according to the complaint.
- The plaintiff alleges the inaccuracies stemmed from the defendant’s failure to check obvious inconsistencies such as the difference in middle names and the mismatch between his Kentucky residence and the location of the convictions. He sued under Section 1681e(b) of the FCRA, which requires consumer reporting agencies to “follow reasonable procedures to assure maximum possible accuracy” when preparing a report.
The ruling: Judge Deborah L. Boardman of the District Court for the District of Maryland rejected the defendant’s argument that the information in the report was technically accurate because it merely identified convictions belonging to someone with a similar name. Even if technically correct, the judge noted, a report may still be “misleading in such a way and to such an extent that it can be expected to have an adverse effect.”
- Judge Boardman found it plausible that the employer could have concluded the listed convictions belonged to the plaintiff because the report’s heading tied the data to his date of birth and Social Security number and did not clearly warn that the records might belong to a different person.
- The judge emphasized that “this Court is not persuaded that the report cannot be misleading,” noting that the defendant’s brief advisories to “PLEASE NOTE MIDDLE NAME ON RECORD” may read less like a safeguard and more like an attempt to “caveat [its] way out of liability for an affirmatively misleading report,” quoting the Eleventh Circuit’s caution from Erickson.
- As for the claim that the defendant used unreasonable procedures, Judge Boardman held the plaintiff had plausibly alleged that “any rudimentary inspection of the public record” would have shown the records did not match his identifying information.
