United States District Court, D. Kansas
JOSHUA COROZZO, individually and on behalf of all others, Plaintiff,
J.C. PENNEY COMPANY, INC., Defendant.
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
Plaintiff Joshua Corozzo filed his complaint on behalf of a class on February 20, 2014, alleging defendant J.C. Penney Company, Inc. violated the Fair Credit Reporting Act in taking an adverse employment action against him and members of the class. J.C. Penney filed its Motion to Dismiss (Dkt. 8) on April 16, 2014. Corozzo did not file a timely response. The court is prepared to rule on the motion.
Corozzo applied for work through Staffmark, a staffing agency in Overland Park, Kansas. Staffmark placed Corozzo at J.C. Penney, where he began temporary work in October 2013. On January 16, 2014, J.C Penney invited Corozzo to consider becoming an official J.C. Penney employee. A supervisor at J.C. Penney told Corozzo to apply online, and he did. As part of Corozzo's application process, J.C. Penney ordered a consumer report, commonly referred to as a background check. Corozzo alleges that Staffmark called him on January 17, 2014, to tell him he could not work at J.C. Penney anymore because of information in the consumer report generated in connection with his employment application.
Corozzo attached three letters to his complaint. In the first letter, dated January 16, 2014, Accurate Background, Inc. notified Corozzo that it had generated a consumer report about him in connection with his application for employment with J.C. Penney. The letter enclosed a copy of Corozzo's consumer report and provided contact information for disputing the report's finding. The second letter, dated January 17, 2014, came from J.C. Penney and provided a copy of the report and a Summary of Your Rights document that referenced the Fair Credit Reporting Act (FCRA). The third letter, dated January 24, 2014 and sent by J.C. Penney, notified Corozzo that the company was rejecting his employment application. The letter referenced the consumer report and once again gave contact information for Accurate Background, Inc. for disputing the report's accuracy.
Corozzo claims J.C. Penney violated 15 U.S.C. § 1681b(b)(3)(A), a section of the FCRA, by failing to provide him with a copy of the consumer report and a written description of his rights prior to taking an adverse employment action and failing to provide him with a reasonable time to cure any inaccuracies within the report. Corozzo brings his claim on behalf of a class of employees or prospective employees of J.C. Penney who have suffered an adverse employment action based on similar facts.
J.C. Penney seeks dismissal of the complaint, arguing that Corozzo has failed to plead an FCRA violation. J.C. Penney filed its motion over seven weeks ago, and Corozzo did not file a response.
II. Legal Standard: Motion to Dismiss for Failure to State a Claim
Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The complaint must give the defendant adequate notice of what the plaintiff's claim is and the grounds of that claim. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
"In reviewing a motion to dismiss, this court must look for plausibility in the complaint.... Under this standard, a complaint must include enough facts to state a claim to relief that is plausible on its face.'" Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223-24 (10th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (clarifying and affirming Twombly 's probability standard). Allegations that raise the specter of mere speculation are not enough. Corder, 566 F.3d at 1223-24. The court must assume that all allegations in the complaint are true. Twombly, 550 U.S. at 589. "The issue in resolving a motion such as this is not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.'" Bean v. Norman, No. 008-2422, 2010 WL 420057, at *2, (D. Kan. Jan. 29, 2010) (quoting Swierkiewicz, 534 U.S. at 511).
Corozzo alleges that J.C. Penney violated the FCRA when it obtained a consumer report about him and used it to take an adverse employment action without providing him with a copy of the report, a written description of his rights, and reasonable time to cure inaccuracies in the report. The section of the FCRA Corozzo relies upon states:
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 ...