A District Court judge in Illinois has granted summary judgment in favor of a credit reporting agency in a Fair Credit Reporting Act case brought by a job applicant who was erroneously reported as deceased, after the judge found the plaintiff’s sole piece of supporting evidence was inadmissible at trial.
The background: The plaintiff applied for a job with a major retailer in April 2022. As part of the onboarding process, a third-party background check firm ran a Social Security verification query against a database maintained by the defendant, which returned an erroneous deceased notation traceable to a Social Security Administration recordkeeping error.
- The retailer rejected the plaintiff’s application.
- The plaintiff disputed the error with both the background check firm and the defendant, and at the defendant’s request, obtained a letter from an SSA office confirming no date of death existed in its records. The plaintiff declined, however, to upload that documentation to the defendant’s website, later testifying that he did not want to give the defendant any more of his information.
- The plaintiff filed suit against both companies alleging two violations of the FCRA: that the defendant failed to maintain reasonable procedures to ensure accuracy, and that it failed to conduct a reasonable reinvestigation after being notified of the error. The background check firm settled and was dismissed from the case.
The ruling: Judge Rebecca R. Pallmeyer of the District Court for the Northern District of Illinois had previously granted the defendant summary judgment on the reasonable procedures claim, finding that its reliance on Social Security Administration data was reasonable as a matter of law given the agency’s status as a reliable source.
- The reinvestigation claim survived that first round, however, because the record left open the question of whether the background check firm had forwarded the plaintiff’s identifying documents to the defendant when it filed a dispute on his behalf.
- On the renewed motion, Judge Pallmeyer found the plaintiff’s only evidence on that point was the deposition testimony of a corporate representative from the background check firm, who testified that a colleague told him she had emailed the documents to the defendant outside the company’s portal. No copy of the email existed in the record, and the colleague never provided her own affidavit or testimony. Judge Pallmeyer ruled the testimony inadmissible on two independent grounds.
- First, the colleague’s statement constituted hearsay — and because the background check firm was no longer a party to the case, the party opponent exception did not apply. The judge also rejected the argument that the witness’s role as a corporate representative cured the hearsay problem, noting that such a witness can speak to company policies and procedures but cannot substitute for a specific employee’s firsthand account of a specific act on a specific day. Second, Judge Pallmeyer held that the best evidence rule required the actual email to be produced in order to prove its contents — testimony about what the email contained would not suffice.
- With no admissible evidence that the documents were ever transmitted to the defendant, the reinvestigation claim could not survive.
