Maiteki v. Marten Transport, et al

Filing

[10387804] Affirmed. Terminated on the merits after submissions without oral hearing. Written, signed, published. Judges Hartz, author; Holmes and McHugh. Mandate to issue. [15-1429]

Appellate Case: 15-1429

Document: 01019656034

Date Filed: 07/13/2016

PUBLISH

Page: 1
FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

July 13, 2016

FOR THE TENTH CIRCUIT
_________________________________

Elisabeth A. Shumaker
Clerk of Court

RONALD MUKASA MAITEKI,
Plaintiff - Appellant,
v.

No. 15-1429

MARTEN TRANSPORT LTD.,
Defendant - Appellee,
and
VOYAGER EXPRESS, INC.,
Defendant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:12-CV-02021-WJM-CBS)
_________________________________
Submitted on the briefs:*
Andrew Nyombi, Emejuru & Nyombi, L.L.C., Silver Spring, Maryland, for
Plaintiff-Appellant.
Stephen A. DiTullio and John C. Gardner, DeWitt Ross & Stevens, S.C., Madison,
Wisconsin, for Defendant-Appellee.
_________________________________

*

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

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Before HARTZ, HOLMES, and McHUGH, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
Ronald Maiteki appeals the district court’s grant of summary judgment to his
former employer, Marten Transport Ltd., on his claim that Marten violated the
reinvestigation provision of the Fair Credit Reporting Act (FCRA), 15 U.S.C.
§ 1681s-2(b)(1). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Marten is a transportation company that employed Mr. Maiteki as an
over-the-road truck driver from March to December 2011. Marten has a duty under
federal regulations to conduct background checks on drivers. It therefore receives
information from and provides information to HireRight, a consumer reporting
agency (CRA) that publishes “Drive-A-Check” (DAC) reports on truck drivers’
driving records. When describing Mr. Maiteki’s work record to HireRight after his
employment ended, Marten used code 938, which stands for “Unsatisfactory Safety
Record,” meaning that the driver did not meet the company’s safety standards.
Aplee. Supp. App. at 176.
Mr. Maiteki alleges that other companies declined to employ him after
Marten’s information appeared on his DAC report. He disputed the information,
telling HireRight that “Unsatisfactory Safety Record” was incorrect because he “has
no accidents/incidents listed on the report.” Aplee. Supp. App. at 84. HireRight

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asked Marten to send support for its statement and to check its records to determine if
it had made an error.
Ann Konsela, an employee in Marten’s human resources department,
conducted the investigation. She reviewed the information sent by HireRight,
Mr. Maiteki’s personnel file, and the company’s computer data, including
information in its Human Resources Image Screen (HRIS) records.
Ms. Konsela saw that Mr. Maiteki’s file contained a July 16, 2011
Driver/Vehicle Examination Report by the Illinois State Police stating that
Mr. Maiteki had traveled between six and ten miles per hour over the speed limit;
accompanying the report was a contemporaneous written police warning indicating
he had been speeding. In addition, the file included a “Written Warning” from
Marten placing Mr. Maiteki on a six-month probation for this incident.
In HRIS, Ms. Konsela also saw comments dated October 5, 2011, regarding
data gathered on Mr. Maiteki’s driving speeds. During the period it employed
Mr. Maiteki, Marten contracted with a company called SpeedGauge to install
speed-monitoring devices on Marten’s trucks. HRIS showed that SpeedGauge had
recorded Mr. Maiteki’s truck traveling 12 miles per hour over the speed limit in
Connecticut in October 2011 and had recorded him as having 13 incidents of driving
at least four miles per hour over the speed limit in a seven-day period in
September/October 2011. There was a notation that fleet manager Wendy Sobotta
had issued Mr. Maiteki a “Serious Warning” based on this SpeedGauge data.

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Ms. Konsela contacted Ms. Sobotta and confirmed that the October 5 HRIS
entry was correct. Ms. Sobotta informed Ms. Konsela that she had seen the
SpeedGauge records, told Mr. Maiteki that she was issuing him a Serious Warning,
and entered the information into HRIS. At the time of Ms. Konsela’s investigation,
however, Marten no longer had access to the underlying SpeedGauge records.
Marten considers speeds more than four miles per hour over a posted speed
limit to be an unsafe driving practice. In light of the Illinois incident and the
SpeedGauge data, Ms. Konsela concluded that the information submitted to
HireRight was correct. Marten therefore informed HireRight that “Work Record
(938) Unsatisfactory Safety Record is accurate.” Aplee. Supp. App. at 85. Although
the response cited both the Written Warning for the Illinois incident and the Serious
Warning based on the SpeedGauge data, Marten believed that the Illinois incident
alone would support its report to HireRight.
Mr. Maiteki sued, alleging, among other claims, that Marten’s reinvestigation
was inadequate and the response was false, in violation of the FCRA, 15 U.S.C.
§ 1681s-2(b)(1). Marten moved for summary judgment on the FCRA claim, which
the district court granted. Mr. Maiteki appeals.1
II. DISCUSSION
“We review a district court’s decision to grant summary judgment de novo,
applying the same standard as the district court.” Llewellyn v. Allstate Home Loans,

1

This appeal concerns only the FCRA claim against Marten. Mr. Maiteki has
not appealed from the judgment on any other claims.
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Inc., 711 F.3d 1173, 1178 (10th Cir. 2013) (internal quotation marks omitted).
“Summary judgment is appropriate if ‘there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting
Fed. R. Civ. P. 56(a)).
Under § 1681s-2(b), when a CRA notifies an information furnisher of a
dispute, the furnisher must take the following steps:
(1) investigate the disputed information; (2) review all relevant information
provided by the CRA; (3) report the results of the investigation to the CRA;
(4) report the results of the investigation to all other CRAs if the
investigation reveals that the information is incomplete or inaccurate; and
(5) modify, delete, or permanently block the reporting of the disputed
information if it is determined to be inaccurate, incomplete, or unverifiable.
Llewellyn, 711 F.3d at 1178 (internal quotation marks omitted). “[T]he investigation
an information furnisher undertakes must be a reasonable one.” Boggio v. USAA
Fed. Sav. Bank, 696 F.3d 611, 616 (6th Cir. 2012) (collecting cases).
A “reasonable” investigation “is one that a reasonably prudent person would
undertake under the circumstances.” Seamans v. Temple Univ., 744 F.3d 853, 864
(3d Cir. 2014) (internal quotation marks omitted). “[H]ow thorough an investigation
must be to be ‘reasonable’ turns on what relevant information was provided to a
furnisher by the CRA giving notice of a dispute.” Boggio, 696 F.3d at 617; see
Chiang v. Verizon New England Inc., 595 F.3d 26, 38 (1st Cir. 2010) (“[A] more
limited investigation may be appropriate when CRAs provide the furnisher with
vague or cursory information about a consumer’s dispute.”); Gorman v. Wolpoff &
Abramson, LLP, 584 F.3d 1147, 1160 (9th Cir. 2009) (“Congress could not have

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intended to place a burden on furnishers continually to reinvestigate a particular
transaction, without any new information or other reason to doubt the result of the
earlier investigation . . . .”). “[T]he reasonableness of the investigation is to be
determined by an objective standard,” and “[t]he burden of showing the investigation
was unreasonable is on the plaintiff.” Chiang, 595 F.3d at 37.
Mr. Maiteki first argues that summary judgment is improper because the
reasonableness of an investigation is a question of fact that can be decided only by a
factfinder. He is wrong. “Whether a defendant’s investigation is reasonable is a
factual question normally reserved for trial; however, summary judgment is proper if
the reasonableness of the defendant’s procedures is beyond question.” Westra v.
Credit Control of Pinellas, 409 F.3d 825, 827 (7th Cir. 2005). Accordingly, circuit
courts have affirmed summary judgments on § 1681s-2(b) claims in appropriate
circumstances. See Chiang, 595 F.3d at 38-39; Gorman, 584 F.3d at 1161; Westra,
409 F.3d at 827.
Mr. Maiteki next argues that there is sufficient evidence for a factfinder to
conclude that Marten’s investigation was unreasonable. For support, he relies on the
same 20 points he raised in the district court. The district court ably explained why
these points did not demonstrate a genuine issue of material fact as to the
reasonableness of Marten’s investigation. Rather than discussing each point, we
address only a few and reject the remaining arguments for substantially the reasons
discussed by the district court.

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Mr. Maiteki claims that Marten’s investigation was perfunctory and “cabined.”
Aplt. Br. at 56. As stated above, however, the scope of a reasonable investigation
turns on the information about the dispute that the furnisher has received.
Mr. Maiteki’s notice of dispute said simply that the use of Code 938, Unsatisfactory
Safety Record, was “incorrect due to [Maiteki] has no accidents/incidents listed on
the report.” Aplee. Supp. App. at 84. Hence, it was not unreasonable for Marten to
focus on whether there were incidents of record that supported its report to
HireRight. Although Mr. Maiteki believes that Marten should have undertaken
additional investigation and reviewed other sources of information (which
purportedly would have more positively reflected his driving record), such additional
investigation would not negate the Illinois warning and the SpeedGauge data that
caused Ms. Konsela to conclude that Code 938 was accurate.
Mr. Maiteki asserts that he never received the Written Warning or the Serious
Warning. But entries in HRIS are to the contrary; and given the terse nature of
Mr. Maiteki’s notice of dispute, Ms. Konsela had no reason to know that Mr. Maiteki
was challenging those entries.
Mr. Maiteki also complains that Ms. Konsela failed to review the original
SpeedGauge reports underlying Ms. Sobotta’s October 5, 2011 HRIS entry and failed
to contact either the Illinois State Police or SpeedGauge to verify the information in
Marten’s files. But as for the Illinois documents, there does not appear to be any
reason to doubt their authenticity. Marten received them from the U.S. Department
of Transportation. In district court Mr. Maiteki apparently did not dispute that
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Marten’s file contained these documents, and before this court he concedes that he
was issued the warning, see Aplt. Br. at 56 (“Aside from the Illinois State Police
warning of July 16, 2011, Maiteki never had any speeding tickets or incidents nor
accidents while working for Marten.”). Because she had no reason to question the
documents, Ms. Konsela’s failure to contact the Illinois State Police does not cast
doubt on the reasonableness of the investigation. See Gorman, 584 F.3d at 1160
(information furnisher not required to perform additional procedures or inquiries
when notice of dispute gave no reason to doubt the veracity of the initial
investigation).
Regarding the SpeedGauge data, it is undisputed that Marten no longer had
access to the SpeedGauge reports underlying the HRIS entry by the time of
Ms. Konsela’s investigation. Ms. Konsela would have had to contact SpeedGauge in
an attempt to review that information.2 But an investigation does not have to be
exhaustive to be reasonable; an information furnisher may balance the costs and
benefits of engaging in additional procedures. See Seamans, 744 F.3d at 865;
Johnson v. MBNA Am. Bank, NA, 357 F.3d 426, 432-33 (4th Cir. 2004). If the
circumstances warrant, a company may rely on its own records. See Gorman,
584 F.3d at 1159-60; Westra, 409 F.3d at 827. We recognize that the Fourth Circuit
has held that a jury could find unreasonable a procedure requiring agents to rely
solely on computer data and “never consult underlying documents” for verification.
2

Neither party submitted the underlying SpeedGauge records to the court.
Thus, it is not clear which party such records might support or whether they even
would be available.
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Johnson, 357 F.3d at 431. In this case, however, instead of relying on the bare HRIS
data, Ms. Konsela followed up with Ms. Sobotta, who confirmed that she had
reviewed the underlying SpeedGauge reports and that the HRIS information was
accurate. It was reasonable for Ms. Konsela to rely on Ms. Sobotta’s confirmation.
Further, the record evidence shows that Marten believed Code 938 was appropriate
even if the Illinois incident were the only incident. In these circumstances,
Ms. Konsela could properly decide not to reach out to SpeedGauge.
Mr. Maiteki raised certain additional arguments in his reply brief, but
arguments not made in the opening brief are waived. See Reedy v. Werholtz,
660 F.3d 1270, 1274 (10th Cir. 2011).
In short, Mr. Maiteki has not carried his burden to show that a reasonable
factfinder could conclude that Marten’s reinvestigation was unreasonable. The
district court appropriately granted summary judgment to Marten on Mr. Maiteki’s
FCRA claim.
III. CONCLUSION
Marten’s request that Mr. Maiteki pay fees and costs for filing a frivolous
appeal, made in its response brief, is denied. Fed. R. App. P. 38 requires such a
request to be made in a separate filing. The district court’s judgment is affirmed.

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