Maiteki v. Marten Transportation Ltd
Filing
259
ORDER GRANTING 220 Marten's Motion for Summary Judgment; GRANTING IN PART and DENYING IN PART 221 Voyager's Motion for Summary Judgment; DENYING AS MOOT 239 Maiteki's Motion to Strike. The Court sua sponte SHORTENS the trial setting from five days to three days, by Judge William J. Martinez on 10/15/2015.(cthom, ) Modified to correct spelling on 10/15/2015 (cthom, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-2021-WJM-CBS
RONALD MUKASA MAITEKI,
Plaintiff,
v.
MARTEN TRANSPORT LTD, and
VOYAGER EXPRESS INC.,
Defendants.
ORDER GRANTING MARTEN’S MOTION FOR SUMMARY JUDGMENT, GRANTING
IN PART AND DENYING IN PART VOYAGER’S MOTION FOR SUMMARY
JUDGMENT, AND DENYING AS MOOT MAITEKI’S MOTION TO STRIKE
Plaintiff Ronald Maiteki (“Maiteki”) sues Defendant Marten Transport Ltd.
(“Marten”) and Defendant Voyager Express Inc. (“Voyager”) for alleged violations of the
Fair Credit Reporting Act (“FCRA”) and related claims. (ECF No. 157.) Currently
before the Court are three motions: Marten’s Motion for Summary Judgment (ECF No.
220), Voyager’s Motion for Summary Judgment (ECF No. 221), and Maiteki’s Motion to
Strike or for Leave to File a Surreply (ECF No. 239). For the reasons explained below,
the Court will grant Marten’s motion in full, grant Voyager’s motion as to all claims
except an alleged violation of 15 U.S.C. § 1681b(b)(3)(A), and deny Maiteki’s motion as
moot.
I. FACTS: MARTEN
A.
Admittedly Undisputed Facts
Both sides agree that the following facts are undisputed.
Marten is a trucking company. (ECF No. 220 at 4, ¶ 1.) 1 When trucking
companies consider hiring a new driver, they frequently request a “Drive-A-Check”
report from HireRight. (Id. at 4–5, ¶¶ 3–4.) HireRight is a data aggregator similar to a
credit bureau, and its Drive-A-Check reports are akin to credit reports, except that they
focus on a commercial vehicle operator’s driving safety record. (Id. ¶¶ 2–3.)2
Marten employed Maiteki as an over-the-road truck driver from March to
December 2011. (Id. at 5, ¶ 5.) Shortly after Maiteki resigned, Marten reported his
employment history to HireRight, as it was required to do by contract. (Id. at 8,
¶¶ 19–20.) Among other things, Marten reported an “Unsatisfactory Safety Record.”
(ECF No. 1 at 31.)
Maiteki claims that he was denied several job opportunities based on Marten’s
contribution to his Drive-A-Check report. (ECF No. 157 at 32, ¶¶ 160–62.) He
therefore filed a dispute with HireRight on March 7, 2012. (Id. ¶ 163.)
By letter dated March 8, 2012, HireRight informed Marten that Maiteki was
challenging Marten’s report. (ECF No. 220-11 at 1.) In relevant part, the letter stated:
The Fair Credit Reporting Act . . . requires a reinvestigation
of an employment history provided for your company
[regarding Maiteki].
***
Consumer states that “Unsatisfactory Safety Record” on
1
All ECF page citations are to the page number in the ECF header, which does not
always match the document’s internal pagination.
2
Drive-A-Check reports are treated as credit reports for FCRA purposes and motor
carriers furnishing information for such reports are subject to FRCA under the enforcement
authority of the Surface Transportation Board. See 15 U.S.C. § 1681s(b)(1)(C).
2
the work record is incorrect due to the consumer has
[sic] no accidents/incidents listed on the report.
HireRight requests Marten send in details/documents to
support the disputed information.
Please check your records to determine if an error has been
made on the information. . . .
***
Your response date: 4/6/2012
(Id. (formatting in original).)
By letter dated March 22, 2012, Marten employee Ann Konsela responded to
HireRight (in relevant part) as follows:
I have reviewed Mr. Maiteki’s record and conclude the
information is correct.
On 7/21/2011 Mr. Maiteki was placed on a Written Warning
due to a speeding citation issued in the State of Illinois on
7/16/2011.
On 10/5/2011 a Serious W arning was issued based on
numerous recorded speed incidents where Mr. Maiteki was
driving over the posted speed limit.
Therefore, Work Record (938) Unsatisfactory Safety Record
is accurate.
(ECF No. 220-12.)
B.
The Illinois Citation & the Warning Letter
Maiteki claims that Marten’s reinvestigation was inadequate and that the details
reported in Konsela’s March 22, 2012 letter were false. (ECF No. 229 at 19, ¶ 38.) The
Court will discuss this claim as it relates to the Illinois citation in this Part, and will
discuss the “numerous recorded speed incidents” below in Part I.C.
3
Maiteki challenges the Illinois citations on numerous grounds. As explained
below, however, none of these challenges establish a genuine factual dispute over the
existence or nature of this Illinois speeding incident, nor a genuine factual dispute over
whether Konsela considered this incident as part of her reinvestigation.
1.
The Illinois Citation
Konsela says that the HireRight dispute letter prompted her to inspect Maiteki’s
driving record with Marten, which included a “Driver/Vehicle Examination Report” from
the Commercial Vehicle Section of the Illinois State Police. (ECF No. 220 at 10 ¶ 32;
see also ECF No. 220-8 at 1.) Under the heading “Violations,” the report lists
“Speeding 6 to 10 miles per hour over the speed limit.” (ECF No. 220-8 at 1.) The
report’s source for that violation was “Citation #WW6799614.” (Id.)
Also in the Maiteki’s file was the citation itself, an Illinois State Police “Stop Card
and Written Warning,” with the serial number of 6799614 at the top. (Id. at 2.) The
stop card, dated July 16, 2011, contains an “X” in the box next to “Speeding ___ MPH
in a ___ MPH Zone,” but the blanks are not f illed in. (Id.)
Maiteki disputes that he was cited for speeding on this occasion “because when
he was inspected by Illinois State Police, a usual routine examination, his truck was
parked, [and] all he received was a stop card which did not show him as having been
speeding between six (6) and ten (10) miles.” (ECF No. 229 at 5–6, ¶ 11.) This is more
of an evasion than a dispute. Maiteki’s explanation implicitly admits that the Illinois
State Police indeed stopped him on this occasion. Moreover, the fact that “his truck
was parked” is irrelevant—police officers do not issue citations on the fly. Finally, the
fact that the patrol officer did not fill in the blanks for the actual miles-per-hour figures
4
does not alter the fact that the officer put an “X” in the box next to “Speeding” and that
Maiteki’s official driving record specifies the miles-per-hour figures.
Maiteki also challenges this speeding citation because, he says, “Wendy,
Sobotta, [Marten’s] Fleet Manager[,] admitted that Maiteki never had any speeding
citations or incidents,” citing to certain deposition testimony. (ECF No. 229 at 5–6,
¶ 11.) Maiteki misrepresents the deposition testimony, which was as follows:
Q.
Okay. Did Mr. Maiteki have any citations, speeding
citations?
A.
Not that I’m aware of.
Q.
Okay. So you didn’t look at any citations—okay,
there were no citations, like you said?
A.
Not that I’m aware of.
(ECF No. 232-7 at 16.) The fact that Sobotta was not aware of any speeding citations
is not an admission by Marten that Maiteki had no speeding citations.
Maiteki also asserts that “Marten never investigated this incident at all because
Marten[,] as a policy[,] does not investigate such incidents or use it [sic] to discipline
drivers.” (ECF No. 229 at 5–6, ¶ 11.) In support, Maiteki cites an interrog atory in which
he asked Marten to describe its “policies and procedures related to inv estigating
transportation incidents.” Marten responded, in pertinent part,
Generally speaking, Marten does not conduct internal
investigations relating to incidents in which a driver was
determined to be violating an applicable speed limit or one
or more other traffic laws. However, any driver who receives
a moving violation in the course of his [or her] employment
may contest that violation through the judicial system of the
state in which he or she received the citation. In the event
that a driver successfully contests such a violation through
the judicial system, Marten will remove any negative
5
reference relating thereto from the driver’s employment
driving history.
(ECF No. 230-4 at 3.) This does not support an assertion that “Marten never
investigated this incident at all because Marten[,] as a policy[,] does not investigate
such incidents or use it [sic] to discipline drivers.” (ECF No. 229 at 5–6, ¶ 11.) Also,
whether Marten investigated this incident, as a matter of policy or otherwise, is
immaterial to whether the incident occurred.
Given the foregoing, Maiteki has failed to establish a genuine dispute that he
was cited for speeding in Illinois in July 2011. Furthermore, Maiteki does not dispute
that Marten’s driving record for Maiteki contained the documentary evidence of that
citation. (Compare ECF No. 220 at 6, ¶ 11 with ECF No. 229 at 5, ¶ 11.)
Maiteki, however, does dispute that Konsela actually looked at the documentary
evidence during her reinvestigation. (ECF No. 229 at 17, ¶ 32.) In support, Maiteki
cites an e-mail between Konsela and Sobotta, as well as Marten’s responses to certain
requests for admission. (Id.) These materials relate solely to an October 2011 “serious
warning,” discussed below at Part I.C, allegedly issued to Maiteki on account of later
speeding incidents. They are not relevant to whether Konsela viewed the Illinois driver
report or stop card. Consequently, Maiteki has failed to establish a genuine dispute
that Konsela actually looked at those documents as part of the reinvestigation.
2.
The Warning Letter
As part of the reinvestigation, Konsela says she also looked at a July 21, 2011
warning letter from a Maiteki supervisor to Maiteki, which reads in relevant part
(somewhat ungrammatically) as follows: “Due to the violation of company policy
6
regarding, neglecting job duties and responsibilities and FMCSR 392.25 [3] regarding
recent speeding violation, [Marten] is placing you on a Warning. The Warning will be in
place for six months.” (ECF No. 220-9 at 1 (boldface in original).)
Maiteki disputes that his driving record contains this warning letter. In support,
he argues that “Marten never investigates or disciplines its drivers for such incidents,”
citing the same interrogatory response quoted above. (ECF No. 229 at 6, ¶ 12.) That
response only states that Marten, “[g]enerally speaking, . . . does not conduct internal
investigations” into speeding incidents. (ECF No. 230-4 at 3.) It does not say that
Marten never disciplines its drivers for speeding.
Maiteki also cites the Sobotta deposition testimony about her unawareness of
any speeding citations for Maiteki. (ECF No. 229 at 6, ¶ 12.) As already explained, that
testimony does not undermine the existence of the speeding citation, and has no
relevance to whether Marten issued a warning letter in response to the citation.
Thus, Maiteki has not established a genuine dispute about the existence of the
warning letter. He nonetheless disputes whether Konsela ever looked at it during her
reinvestigation, citing an e-mail from Konsela to Sobotta and a response to a req uest
for admission regarding that e-mail. (Id. at 17, ¶ 32.) As already noted, this evidence
pertains to a different warning, one given in October 2011 allegedly in response to
additional speeding incidents. This evidence says nothing about the July 2011 warning
3
This presumably refers to 49 C.F.R. § 392.25, a regulation promulgated by the Federal
Motor Carrier Safety Administration. The regulation prohibits “the use of any flame-producing
emergency signal for protecting any commercial motor vehicle transporting” certain explosive
and flammable cargo. Marten nowhere explains this alleged violation and does not rely upon it
as a justification for reporting an unsatisfactory safety record to HireRight.
7
letter. Thus, Maiteki has failed to establish a genuine dispute that Konsela viewed the
July 2011 warning letter as part of the reinvestigation.
C.
Additional Speeding Incidents
In addition to the Illinois speeding incident, Konsela’s response letter to HireRight
justified Marten’s adverse safety report because a “Serious Warning was issued based
on numerous recorded speed incidents where Mr. Maiteki was driving over the posted
speed limit.” (ECF No. 220-12.) As with the Illinois citation, Maiteki challenges this
assertion on numerous grounds, and his Motion to Strike specifically relates to certain
evidence Marten offers in its reply brief to bolster the assertion. As the following
analysis demonstrates, however, Maiteki has failed to raise a genuine issue of material
fact as to these additional incidents. This is so even without considering the evidence
Maiteki seeks to strike (see ECF No. 239), which the Court has not considered and will
not discuss below.
1.
Marten’s Story
Marten says that the “numerous recorded speed incidents where Mr. Maiteki was
driving over the posted speed limit” were documented through information provided by
a company named SpeedGauge, Inc. (ECF No. 220 at 5, ¶ 6.) Maiteki argues that
“SpeedGauge is a recent façade of Marten’s imagination.” (ECF No. 229 at 4, ¶ 8.)
Determining whether this presents a genuine factual dispute requires an extended
discussion of SpeedGauge, its alleged use at Marten, and Marten’s record-keeping
procedures with respect to it.
SpeedGauge is the name of a company, and it is also the name by which Marten
referred to the company’s service, i.e., a system by which speedometer readings are
8
correlated with posted speed limits and then sent to Marten for review. (ECF No. 220-3
at 2–3; ECF No. 245-6 at 3–4.) Marten claims that it began using SpeedGauge in
December 2010. (ECF No. 220 at 5, ¶ 6.) Marten further claims that it would “address
the matter directly” with any driver shown “to have traveled at speeds significantly in
excess of posted speed limits,” and would also “place an entry regarding [such]
incidents in a Human Resources Image Screen (‘HRIS’) record.” (Id. at 5–6, ¶ 8.)
Marten’s HRIS record for Maiteki contains an entry made by “WLS” on October
5, 2011. (ECF No. 220-7 at 2.) Sobotta testif ied at her deposition that her initials are
WLS and that she made the October 5 entry. (ECF No. 220-5 at 7.) The October 5
entry is categorized as “WARNING(SERIOUS),” and the narrative portion states that
SpeedGauge had logged Maiteki driving 12 miles per hour over the speed limit in
Connecticut. (ECF No. 220-7 at 2.) The narrative continues, “Told him date and
place[.] He said they didn[’]t go that fast. The point is we told him to slow down but 13
incidents in 7[ ]days.” (Id. (capitalization normalized).) Marten claims that these
thirteen incidents in seven days referred to thirteen incidents of driving four or more
miles per hour over the posted speed limit. (ECF No. 220 at 6–7, ¶ 13; ECF No. 220-5
at 3.) Konsela says that this HRIS entry was the basis for her statement in her
response letter to HireRight that a “Serious Warning was issued based on numerous
recorded speed incidents where Mr. Maiteki was driving over the posted speed limit.”
(ECF No. 220-12.)
2.
Maiteki’s Response
Maiteki attacks most aspects of Marten’s story, essentially accusing Marten of
fabricating it. The Court will address all attacks in turn.
9
a.
Reliability of HRIS Records
In various forms, Maiteki objects that the original SpeedGauge records no longer
exist. (See, e.g., ECF No. 229 at 4–13, ¶¶ 8, 13, 16, 22, 27.) Marten adm its as much,
asserting that it “does not keep speed-monitoring data pertaining to a driver after he or
she separates from the Company.” (ECF No. 220-6 ¶ 14 n.1.) Marten also ended its
relationship with SpeedGauge at some point after Maiteki’s departure. (ECF No. 220 at
11, ¶ 36.) Nonetheless, Sobotta testified that she created the HRIS entry on October 5,
2011, drawing on contemporaneous SpeedGauge reports. (ECF No. 220-5 at 2, 7–8.)
Maiteki does not object that the HRIS entry is inadmissible (e.g., as failing to meet the
requirements of the business records hearsay exception, Fed. R. Evid. 803(6)). Thus,
competent evidence exists to show that the SpeedGauge reports were real and
contained the information noted by Sobotta on the October 5, 2011 HRIS entry.
Maiteki persists, however, that “Marten has a practice and pattern of falsifying
incidents [it] put[s] on [its] internal records for drivers.” (ECF No. 229 at 7–8, ¶ 16.) In
support, Maiteki cites information obtained from a FOIA request to the Federal Trade
Commission (FTC). (ECF No. 230-7.) Maiteki requested “all investigative and
consumer complaints regarding Marten,” and FTC sent back the record of a single
complaint from 2007 or 2008, accusing Marten of
reporting inaccurate information on the consumer[’]s work
history report. The consumer states that the company is
reporting that the consumer struck another employee with
her tractor trailer, and the consumer states that she didn’t.
The consumer has documentation from a judge stating a
ruling in her favor, but the company will not remove it.
(Id. at 1, 2.) “However,” the FTC said, “we were not able to locate any investigative
10
records [relating to this complaint].” (Id. at 1.) This information falls well short of raising
a triable issue of fact whether Marten regularly falsifies data on its drivers’ employment
records.
Marten further asserts that “Marten’s HRIS portal is severely error prone.” (ECF
No. 229 at 10–11, ¶ 22.) In support, Maiteki cites som e fairly opaque testimony from
Konsela’s deposition:
Q.
You understand what a Drive-a-Check report is?
A.
Yes.
Q.
Okay. Do you understand what DOT recordable
accidents are?
A.
Yes.
Q.
Do you understand what non-DOT recordable
accidents are?
A.
Yes.
Q.
Why weren’t the accidents that were in the [HRIS] file
inserted into the [Drive-A-Check] report as a DOT or
non-DOT recordable accident?
A.
If it was an incident, it was not reported.
Q.
Are you suggesting that it’s an incident and not an
accident, even—
A.
Possibly.
Q.
—though the HRIS file says preventable accidents?
So the HRIS file is in error, it’s—it’s an
erroneous document?
[Form objection.]
Q.
The HRIS file has issues with the language?
11
[Form objection.]
A.
Yes.
(ECF No. 232-5 at 14–15.) 4 Maiteki provides no context for this exchange—the
deposition transcript pages leading up to it are not in the record. As best the Court can
discern, Maiteki’s counsel and Konsela are discussing whether the HRIS’s input fields
correspond to certain DOT categories. Or perhaps they are discussing whether Marten,
when reporting information for Drive-A-Check purposes, properly reports on certain
types of accidents. In any event, nothing here suggests that “Marten’s HRIS portal is
severely error prone.” (ECF No. 229 at 10–11, ¶ 22.)
Similar to the foregoing, Maiteki further asserts that “Konsela testified that she
has had to make corrections and clarifications [to Marten’s records] on several
[reinvestigation] occasions,” but by way of example, Maiteki states only that “[t]here are
often errors in descriptions of accidents that [Konsela] has encountered.” (ECF No. 229
at 29.) In support, he cites the following deposition excerpt:
Q.
And what’s the result usually [of a reinvestigation]? Is
what you have on file accurate? Have you ever
corrected any inaccuracies—
A.
With HireRight?
Q.
—based on your experience?
A.
If new information comes to light, yes, there’s been
clarifications.
Q.
Okay.
4
Maiteki also cites another passage of deposition testimony, but it has no discernible
relevance to the reliability of the HRIS system. (See ECF No. 232-5 at 12:7–10.)
12
A.
There—there could possibly be descriptions. I see
that more in accident descriptions of an accident that
have been corrected or adjusted.
(ECF No. 232-6 at 4–5.) This testimony does not support an assertion that “Konsela
testified that she has had to make corrections and clarifications on several occasions.”
It says nothing about the quantity of corrections, only that when corrections happen,
they are usually to accident descriptions. This is, at best, only a scintilla of evidence
that the negative information in Maiteki’s record (which was not accident-related) was
entered in error. It does not create a genuine factual dispute. See Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 678 n.5 (10th Cir. 1998) (“Genuine issues of fact must be
supported by more than a mere scintilla of evidence.”).
b.
The Konsela-Sobotta E-mail Exchange
Closely related to the foregoing, Maiteki makes much of an e-mail exchange
between Konsela and Sobotta on March 22, 2012. ( See, e.g., ECF No. 229 at 7, ¶ 15.)
That e-mail exchange began with Konsela emailing Sobotta at 11:07 a.m., stating as
follows:
Wendy,
I am responding to a [Drive-A-Check] Rebuttal [from Maiteki]
and need your help.
Could you look at the HRIS Comment you added to this
driver’s file on 10/5/11? I do not find where a Serious
Warning letter was ever written—[neither] Alexa nor I have
an email from you asking for a letter on this driver and the
comments added do not match the Driver Review Que[ue].
I do not find 13 incidents in 7 days prior to 10/5/11 or that he
was in [Connecticut] gauged at 12 mph over. But let me
know if I am not [sic]
Could have this [sic] comment been entered under this
13
driver in error? I would like to remove it if you agree or
would you have an e-mail from 10/5/11 to Stacy Gray, Alexa
for myself regarding this driver?
Let me know what you think.
(ECF No. 230-1 at 1–2.) At 11:14 a.m., Sobotta responded (quoting verbatim), “No it
his sorry not sure why u didn’t get the info on it? so now what?” (Id. at 1.) The next
entry on the e-mail chain comes from 11:44 a.m., where Konsela says to Sobotta,
“Thanks for the quick school on the Driver Review Queue,” to which Sobotta replies,
“No problem sorry on the letter thing.” (Id.)
Both Konsela and Sobotta testified at their depositions that they spoke on the
phone in the gap between the 11:14 and 11:44 e-mails. Konsela testified that she
learned from Sobotta about how SpeedGauge worked, and that Sobotta confirmed the
accuracy of her HRIS entry—apparently from memory, because the underlying
SpeedGauge records no longer existed. (ECF No. 232-5 at 4–5.) Sobotta recalled
explaining the SpeedGauge system to Konsela. (ECF No. 220-5 at 3; see also id. at
7–8; ECF No. 232-7 at 22–23.) Thus, as it relates to SpeedGauge, the KonselaSobotta e-mail exchange is simply additional evidence that SpeedGauge records no
longer existed to backup Sobotta’s HRIS entry. It is not evidence of fabrication.
Maiteki also makes much of the fact that Konsela could not find a letter
documenting the Serious Warning. (ECF No. 229 at 7–8, ¶ 16.) Maiteki appears to
assume that the Serious Warning should have generated a letter, but the relevant HRIS
entry documents a conversation. It does not mention a written warning—in contrast to
the HRIS entry for July 21, 2011, documenting Maiteki’s Illinois speeding citation. (See
14
ECF No. 220-7 at 2.) 5 Thus, Konsela’s e-mail exchange with Sobotta does not raise a
genuine dispute of fact regarding the existence of SpeedGauge data generally or
specifically as to Maiteki.
c.
Ability to Request SpeedGauge Data
Maiteki claims that “Marten testified that ‘SpeedGauge’ speeding data
concerning Maiteki can still be accessed today,” hoping to create an inference that
Marten’s failure to access it and produce it in this lawsuit shows that it is hiding
something, or at least that its investigation was unreasonable for failure to check the
original data. (ECF No. 229 at 18, ¶ 36.) Maiteki relies on the f ollowing excerpt from
Konsela’s deposition:
Q.
Okay. So Marten enacted a SpeedGauge from in
trucks?
A.
It’s a report.
Q.
It’s a report. The gauge is a report or the gauge is—
Marten enacted a SpeedGauge after this—can you
clarify what you just said? I don’t understand what
you said, I’m sorry.
A.
Marten Transport put a program together to be able
to manage—to be able to view speed of trucks in
given areas, any area, in an effort to be able to, you
know, identify, counsel, advise drivers of speed.
Q.
Do they—do you still use the gauge today?
A.
We still have access to it, yes.
Q.
You still have access to SpeedGauge?
5
As for the “driver review queue” mentioned in the e-mail exchange, the parties do not
elaborate on it or its significance.
15
A.
Yes.
(ECF No. 232-5 at 7.) But this deposition exchange continues, including on to the next
page of the deposition transcript, which Maiteki omitted from his summary judgment
papers but Marten has supplied:
Q.
Okay. Can I go back to the letter, Exhibit 1? Let me
go back for a second.
If—are you able to access that—the
SpeedGauge today?
A.
Yes. Could I clarify, though? SpeedGauge was a
name of a company.
Q.
Okay.
A.
SpeedGauge is what employees of Marten Transport
refer to when they’re speaking of the speed of the
truck, of a driver.
Q.
And you can still access it today?
A.
Yes.
(ECF No. 220-3 at 2–3.) Viewing the entire passage, it is clear that Konsela testified
that Marten still tracks driver speed, not that it has access to historical information from
the company named SpeedGauge. Thus, contrary to Maiteki’s assertion, Marten has
never admitted that it has continuing access to historical SpeedGauge data.
d.
Ability to Subpoena SpeedGauge
Similar to the foregoing argument, Maiteki draws an inference from the fact that
Marten never, as part of this lawsuit, subpoenaed Maiteki’s driving information from
SpeedGauge. (ECF No. 229 at 18, ¶ 36.) Marten retorts that Maiteki, “who has the
burden of proof in this matter, could have subpoenaed records from SpeedGauge but
16
apparently found it unnecessary to do so.” (ECF No. 236 at 7, ¶ 36.)
Regardless of who bears the burden, a jury in a civil case may usually draw
inferences against a defendant for failing to offer evidence in its own defense. Marten’s
failure to subpoena Maiteki’s SpeedGauge records—assuming they still exist
(something no party addresses)—could therefore be the basis of a jury’s adverse
inference.
Even so, the range of permissible inferences would be limited. Maiteki’s two
remaining claims against Marten are for unreasonable reinvestigation under FRCA and
for defamation. (See Part II, infra.) There could be no relevant adverse inference
concerning the FCRA unreasonable investigation claim because the failure to
subpoena SpeedGauge records in this lawsuit has nothing to do with whether Marten
failed to reasonably investigate in March 2012.
As for the defamation claim, SpeedGauge records could help to prove that the
supposedly defamatory statement was true, and Marten’s failure to obtain those
records could support an inference that Marten is at least uncertain what it would find,
in turn supporting an inference that the alleged defamatory statement was false (or at
least that Marten was reckless about its truth or falsity). In the context of the evidence
as a whole, however, this would at best rise to the level of a “mere scintilla,” which is not
enough to defeat summary judgment. See Adler, 144 F.3d at 678 n.5. Consequently,
the lack of a subpoena from Marten to SpeedGauge does not create a triable issue of
fact.
e.
Marten Company Policy
In a further attempt to raise a triable dispute about whether Marten ever used
17
SpeedGauge, Maiteki claims “[i]t is undisputed that Marten as a Company policy does
not use or even condone the use of Speed tracking-technology,” citing testimony from
the Sobotta deposition. (ECF No. 229 at 4–5, ¶ 8.) T his again misrepresents
deposition testimony. Referring to “The Official Guidebook of the Marten Driver,”
counsel for Maiteki read the following passage to Sobotta: “Marten Transport complies
with all state and federal laws and DOT requirements. Marten Transport does not
condone the use of . . . radar detectors, laser detectors, scanners, or police receivers.”
(ECF No. 232-7 at 8.) Counsel then engaged Sobotta in the following exchange:
Q.
. . . Would you consider the SpeedGauge a radar
detector?
A.
No.
Q.
Would you consider it a scanner?
A.
No.
Q.
You wouldn’t. But does it do the same function as
a—
A.
It was used as a safety tool, not as—not as one of
these devices.
Q.
Okay. But they—they do the same thing, right? They
gauge speed?
A.
Correct.
Q.
So the result is the same, but the purpose for which
you’re employing them is different, correct?
A.
Correct.
Q.
Okay. But you understand that Marten Transport
says they do not condone—condone the use of radar
detectors?
18
A.
Right.
Q.
So most likely they wouldn’t agree to use a radar
detectors [sic]?
A.
Right.
Q.
But they would agree to the use of SpeedGauge—
SpeedGauge in the trucks?
A.
Yes, I answered.
(Id. at 8–9.) Thus, Marten disapproves of radar detectors, laser detectors, scanners,
and police receivers. But Maiteki points to nothing in the Official Guidebook or
elsewhere stating that Marten disapproves of “Speed tracking-technology”—a category
that Maiteki’s counsel appears to have invented during the deposition (i.e., devices that
“gauge speed”) in hopes of leading Sobotta into some sort of admission that
SpeedGauge would be contrary to company policy.
Counsel obtained no such admission, obviously. Counsel therefore had no good
faith basis to represent to this Court “that Marten as a Com pany policy does not use or
even condone the use of Speed tracking-technology.” (ECF No. 229 at 4–5, ¶ 8.)
Indeed, the word choice demonstrates an attempt to be technically true (because
Marten does not condone “Speed tracking-technology,” if that refers to technology such
as radar detectors) but intentionally misleading (because “Speed tracking-technology,”
on its face, appears to be a category that would encompass SpeedGauge, although, for
Marten, it does not).
f.
Speed Governors on Marten Trucks
Maiteki additionally claims that “[a] Marten vehicle cannot speed past the posted
speed limit anywhere,” citing testimony from his own deposition. (ECF No. 229 at 6–7,
19
¶ 14.) But that is not what Maiteki stated in his deposition. Rather, he testif ied that
Marten’s “vehicles are governed, so there is no way a driver can speed in an area which
has a speed limit which is over the speed—the governed speed limit.” (ECF No. 232-4
at 4.) Thus, Maiteki’s counsel cannot truthfully represent that “[a] Marten vehicle cannot
speed past the posted speed limit anywhere” (emphasis added). At best, a Marten
vehicle cannot speed in an area where the posted speed limit matches the governor’s
speed limit.6 This fails to raise a genuine dispute about the existence of SpeedGauge.
D.
Summary
Having reviewed the evidence thoroughly, the Court concludes that Maiteki fails
to raise any genuine dispute of material fact regarding the information backing up
Konsela’s March 22, 2012 response letter to HireRight.
II. ANALYSIS: MARTEN
A.
Claim 7: Unreasonable Investigation (FCRA)
1.
Reasonable Investigation Standard
Under FCRA, when a furnisher of credit information is notified by a credit
reporting agency that the accuracy of information it supplied has been contested, the
furnisher is required to
(A) conduct an investigation with respect to the disputed
information;
(B) review all relevant information provided by the consumer
reporting agency pursuant to section 1681i(a)(2) of this title;
(C) report the results of the investigation to the consumer
6
Marten claims that its trucks are governed at 65 mph, and that limit can be surpassed
on a sharp descending grade. (ECF No. 236 at 4, ¶ 14.)
20
reporting agency;
(D) if the investigation finds that the information is
incomplete or inaccurate, report those results to all other
consumer reporting agencies to which the person furnished
the information and that compile and maintain files on
consumers on a nationwide basis; and
(E) if an item of information disputed by a consumer is found
to be inaccurate or incomplete or cannot be verified after . . .
reinvestigation . . . , for purposes of reporting to a consumer
reporting agency only, as appropriate, based on the results
of the reinvestigation promptly—
(i) modify that item of information;
(ii) delete that item of information; or
(iii) permanently block the reporting of that item of
information.
15 U.S.C. § 1681s-2(b)(1). “Courts have implied a reasonableness requirement to this
investigation.” Maiteki v. Marten Transp. Ltd., 4 F. Supp. 3d 1249, 1252 (D. Colo.
2013); see also Westra v. Credit Control of Pinellas, 409 F.3d 825, 827 (7th Cir. 2005);
Johnson v. MBNA Am. Bank, 357 F.3d 426, 426 n.2 (4th Cir. 2004). Moreover, “the
requirement that furnishers investigate consumer disputes is procedural. An
investigation is not necessarily unreasonable because it results in a substantive
conclusion unfavorable to the consumer, even if that conclusion turns out to be
inaccurate.” Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1161 (9th Cir.
2009). “The burden of showing the investigation was unreasonable is on the plaintiff.”
Chiang v. Verizon New England Inc., 595 F.3d 26, 37 (1st Cir. 2010).
2.
Marten’s Investigation
Here, it is beyond genuine dispute that:
21
•
Marten received HireRight’s March 8, 2012 letter conveying Maiteki’s
complaint that “‘Unsatisfactory Safety Record’ on the work record is
incorrect due to [Maiteki having] no accidents/incidents listed on the
report”;
•
Konsela handled the reinvestigation;
•
Konsela consulted at least the HRIS, the otherwise unexplained Driver
Review Queue, and the portion of Maiteki’s file containing documentation
of the Illinois citation;
•
Konsela found no documents underlying the HRIS entries regarding
speeding, was prepared to delete those entries if not confirmable, and
consulted with source of that information—Sobotta—regarding their
accuracy;
•
Sobotta told Konsela that the HRIS information was correct; and
•
Konsela timely wrote back to HireRight with details regarding Maiteki’s
“Unsatisfactory Safety Record” (i.e., dates and descriptions of the various
speeding incidents).
In response, Maiteki asserts no less than twenty reasons why Marten’s
reinvestigation was unreasonable:
1.
“Marten has no written policies and procedures for investigation of
disputes and has no plans to draft any at all.”
2.
“Marten does not review or update its unwritten policies and procedures.”
3.
“Nonexistence of supervisory oversight or monitoring during
investigations.”
22
4.
“Absence of exclusive department or office dedicated to investigating
disputes.”
5.
“Key employees are not aware about the FCRA accuracy requirements
during investigations.”
6.
“Failure to set aside a budget to ensure accuracy during investigations.”
7.
“Marten’s dispute investigation procedure is repeatedly error prone.”
8.
“[Lack of] On-the-Job training for employees investigating disputes.”
9.
“Lack of official company Policy to train employees on their FCRA duties.”
10.
“Key employees lack knowledge about the industry and Marten’s coding
practices.”
11.
“Marten engaged in the infamous data conformity charade without any
substantive investigation.”
12.
“Marten’s investigation of Maiteki’s dispute was incomplete.”
13.
“Mismatch between Maiteki’s actual dispute and what Marten responded
[to].”
14.
“Marten cabined the scope of the investigation.”
15.
“Marten lacked a legally competent driver qualification file for Maiteki
pursuant to FMCSA 49 C.F.R.§ 391.51.”
16.
“Marten never reviewed alleged third party records.”
17.
“The Company never reviewed original account records to verify
accuracy.”
18.
“Marten has deficient document retention policies.”
19.
“Marten Failed to report the results of their investigation.”
23
20.
“Marten failed to ‘modify,’ ‘delete’ or ‘permanently block the information.’”
(ECF No. 229 at 26–35.) Many of these arguments overlap, so the Court will address
them below in related blocks.
a.
General Policy and Procedure
Arguments 1–4, 6, and 18 accuse Marten of generally failing to have a
sufficiently formal reinvestigation system. Marten disputes some of these accusations
but the Court finds the dispute immaterial under the circumstances. Although lack of
formal reinvestigation policies and procedures may have a role in some FCRA disputes,
the Court finds that it has no relevance to the present dispute given the scope of the
reinvestigation required in this case, as discussed in Part II.A.2.d below.
b.
Employee Training
Arguments 5 and 8–10 all relate to supposed def iciencies in employee FCRA
training. The only insufficiently trained employees Maiteki refers to, however, are
Sobotta and another employee named Alexa Sax, who was “involved in generating
disciplinary warnings to drivers.” (ECF No. 229 at 29.) Maiteki does not attack
Konsela’s FCRA training, and Konsela was the investigator in this instance. 7 To be
sure, Maiteki claims that Konsela was forced to “engage[] in on-the-job training during
the investigation of Maiteki’s dispute,” but this refers to Konsela’s knowledge of how the
Driver Review Queue works (as evidenced by the Konsela-Sobotta e-mail exchange),
not Konsela’s knowledge of FCRA requirements. The fact that Konsela asked for help
with a particular data source shows that she takes her FCRA responsibilities seriously,
7
Konsela testified that she receives ongoing FCRA training and education. (ECF No.
236-3 at 7–8.)
24
not that she was insufficiently trained to perform a FCRA investigation. Thus, these
arguments provide no shield against summary judgment.
c.
Propensity for Error
Argument 7 again accuses Marten of having an error-prone record system. The
Court has already found that Maiteki’s evidence fails to raise a genuine factual dispute
on this matter. (See Part I.C.2.a, supra.)
d.
Scope of Investigation
Arguments 11, 13, and 14 accuse Marten of performing a perfunctory
investigation. However, “[t]he wording of the notice of dispute, as the furnisher receives
it from the CRA [here, HireRight], constrains the investigation: the furnisher need only
respond to the specific dispute, as it is received. Thus, a limited investigation may
suffice for a limited dispute.” Collins v. BAC Home Loans Servicing LP, 912 F. Supp.
2d 997, 1011 (D. Colo. 2012) (citations omitted); see also Chiang, 595 F.3d at 38 (“a
more limited investigation may be appropriate when CRAs provide the furnisher with
vague or cursory information about a consumer’s dispute”).
In this case, HireRight’s March 8, 2012 letter stated that Maiteki disputed the
“Unsatisfactory Safety Record” notation on his Drive-A-Check report due to having “no
accidents/incidents listed on the report.” (ECF No. 220-11.) T he question for Marten,
then, was whether any “accidents/incidents” justified reporting an “Unsatisfactory Safety
Record” to HireRight. Under the circumstances, and particularly considering that
HireRight’s letter provided only this vague assertion, the Court holds as a matter of law
that Marten reasonably limited the scope of its investigation to confirming that its
25
internal records supported the claim of an “Unsatisfactory Safety Record.”8
Maiteki nonetheless appears to dispute whether Marten fulfilled its duty to
“review all relevant information provided by the consumer reporting agency.” 15 U.S.C.
§ 1681s-2(b)(1)(B). Specifically, Maiteki notes that the March 8, 2012 letter from
HireRight to Marten states that it is enclosing “photocopies of the employment history
you provided [about Maiteki] and the rebuttal statem ent provided by [Maiteki]” (ECF No.
220-11), but (a) “Konsela testified that HireRight only sends a standard letter stating
what a driver disputes with no mention of attachments,” and (b) “Konsela quickly went
straight to looking at the computer summary Driver Review Queue and HRIS screen for
comments entered on Maiteki.” (ECF No. 229 at 16, ¶ 30.)
For reasons that no party explains, the enclosures themselves are not in the
record. Regardless, Maiteki’s arguments are baseless. The first statement (“Konsela
testified that HireRight only sends a standard letter stating what a driver disputes with
no mention of attachments.”) is worded to convey the impression that Konsela testified
to a lack of attachments. She did not. When asked, “[W]hat [does HireRight] send to
you in particular?”, Konsela responded, “It’s a standard letter that w ould state the
driver’s name[,] his dates he was employed by Marten, [and] what he disputes.” (ECF
No. 232-5 at 8 (irrelevant verbal interjection omitted).) This answer responds to a
question about HireRight letters generally, not the letter about Maiteki specifically; and
8
Maiteki challenges Marten’s assertion that it considers speeding violations to be a
violation of company safety standards. (ECF No. 229 at 11, ¶ 24.) “Indeed,” says Maiteki, “this
is another fantastical notion by Marten.” (Id.) To the contrary, it would be fantastical if a
trucking company such as Marten did not consider speeding to be a violation of its safety
standards.
26
Konsela was never asked about attachments.
As for the second statement (“Konsela quickly went straight to looking at the
computer summary Driver Review Queue and HRIS screen for comments entered on
Maiteki.”), Maiteki cites three items of evidence. The first is a particular page of
Konsela’s deposition testimony that Maiteki does not put in the record. (See ECF No.
229 at 16, ¶ 30 (citing “p.20” of ECF No. 232-5, which does not exist).) The second is
to a Konsela deposition excerpt that has no apparent relevance to the issue. (Id. (citing
“p.29:19-25” of ECF No. 232-6, which is a discussion of the number of HireRight
reinvestigation letters Marten receives every year).) The third is a Sobotta deposition
excerpt in which Maiteki’s counsel asks a confusing series of questions conflating
Sobotta’s use of the Driver Review Queue when she is evaluating disciplinary measures
and her use of that same data source when asked by Konsela to confirm its accuracy.
(See ECF No. 232-7 at 12–14.) This says nothing about whether Konsela consulted
the enclosures accompanying HireRight’s March 8, 2012 letter.
Furthermore, Maiteki has not explained what might have been in those
enclosures that would have given Konsela more direction, thereby altering the scope of
a reasonable investigation under the circumstances. For all these reasons, the Court
rejects Maiteki’s attempt to raise a factual dispute on proper scope of Marten’s
reinvestigation.
e.
Completeness of Marten’s Reinvestigation
Arguments 12, 16, and 17 all claim that Marten could not perform a competent
investigation without the original records underlying the HRIS speeding notations. But
Marten did possess original records for the Illinois citation. As for SpeedGauge, Marten
27
certainly could have made this case easier on itself had it retained those records, but
their absence does not raise a genuine dispute regarding the reasonableness of the
investigation. To the contrary, Konsela was ready to delete the SpeedGauge-prompted
HRIS entry if she could not confirm it, and so she reached out to another inf ormation
source, Sobotta, who was responsible for the HRIS entry in the first place. Other than
his already-rejected claims about the alleged general inaccuracy of Marten’s records,
Maiteki provides no reason why Konsela could not reasonably rely on Sobotta’s
recollection of her own HRIS entry. Consequently, the completeness of Marten’s
reinvestigation raises no question needing resolution by a jury.
f.
Driver Qualification File
Argument 15 invokes 49 C.F.R. § 391.51, requiring each motor carrier to
“maintain a driver qualification file” which “must include” various items, such as the
driver’s employment application, a copy of the driver’s road test, and the medical
certificate attesting that the driver is fit to drive. Id. § 391.51(a)–(b). Maiteki claims that
Marten’s file on him “was perfunctory and legally incompetent [such] that it was virtually
impossible to conduct a reasonable inquiry into his dispute.” (ECF No. 229 at 33.)
Marten disputes that its driver qualification file is legally deficient (ECF No. 236
at 5, ¶ 22), but that dispute is immaterial because Maiteki has not explained how it
would change the outcome here. Maiteki asserts that “Marten’s employees never
looked at [his] medical examiners certificate, certificate of driver’s road test, [his]
application for employment, [or] a note relating to the annual review of [his] driving
record.” (ECF No. 229 at 33.) Maiteki fails to explain the relevance of any of these
documents to the question of whether he in fact was speeding as the HRIS entry
28
indicated. Consequently, Marten’s maintenance of or reference to Maiteki’s driver
qualification file raises no genuine factual dispute about the reasonableness of its
reinvestigation.
g.
Failure to Inform HireRight About Purge of SpeedGauge Data
Argument 19 claims that Marten failed to “report the results of the investigation to
the consumer reporting agency,” 15 U.S.C. § 1681s-2(b)(1)(C), because it “failed to
report the fact that [it] could not find the alleged underlying speeding data on Maiteki.”
(ECF No. 229 at 34.) Maiteki’s only supporting legal authority is Boggio v. USAA
Federal Savings Bank, 696 F.3d 611, 617 (6th Cir. 2012), where the Sixth Circuit
generically described the § 1681s-2(b)(1)(C) requirements as follows:
After conducting its reasonable investigation and reviewing
all relevant information provided by a CRA, a furnisher must
report back its findings about a customer’s information to the
CRA that originally provided notice of the dispute. . . . [T]his
reporting duty requires a furnisher to respond to a CRA
regarding the results of the furnisher’s investigation,
irrespective of the outcome of its investigation.
This passage does not require a furnisher to explain all the records it could and could
not find. Circumstances may exist when this sort of information might be necessary for
the credit reporting agency to accurately convey the results of the reinvestigation back
to the consumer. Maiteki, however, has not explained how this case fits into that
category. Thus, there is no genuine dispute to send to a jury.
h.
Failure to Modify, Delete, or Block Information
Argument 20 claims that Marten failed in its duty under 15 U.S.C.
§ 1681s-2(b)(1)(E) to modify, delete, or block inaccurate or unverifiable information.
(ECF No. 229 at 34–35.) This begs the question. Marten did not find its information
29
inaccurate or unverifiable, and therefore had no such duty.
3.
Disposition
Maiteki’s numerous arguments fail to raise a genuine issue of material fact.
Summary judgment will be granted to Marten on Maiteki’s FCRA claim. Given that the
Court reaches this disposition without reliance on the alleged untimely disclosed
evidence that Maiteki attacks in his Motion to Strike (ECF No. 239), that m otion is
denied as moot.
B.
Claim 8: Defamation
Maiteki claims that Marten’s original report of an “Unsatisfactory Safety Record”
to HireRight defamed him and caused him to lose job opportunities. (ECF No. 157 at
36, ¶¶ 186–87.) However, FCRA preempts “any action or proceeding in the nature of
defamation, invasion of privacy, or negligence with respect to the reporting of
information against . . . any person who furnishes information to a consumer reporting
agency . . . except as to false information furnished with malice or willful intent to injure
such consumer.” 15 U.S.C. § 1681h(e). 9 Marten argues that Maiteki cannot establish
malice or willful intent. (ECF No. 220 at 18–19.) The Court agrees and therefore need
not address Marten’s alternative argument that its statements were true. (Id. at 19–22.)
Courts evaluating malice in this context have borrowed the Supreme Court’s
definition of “actual malice” in New York Times v. Sullivan, 376 U.S. 254, 279–80
(1964). See, e.g., Greenwood Trust Co. v. Conley, 938 P.2d 1141, 1149 (Colo. 1997)
(adopting New York Times standard). Thus, “malice” requires “knowledge that a
9
This provision contains exceptions other than for malice or willful intent, but Maiteki
does not argue that those exceptions apply here.
30
statement is false or reckless disregard for whether a statement is false or not.” Id. at
1149.
Assuming arguendo that Marten’s original report to HireRight regarding Maiteki
was false, Maiteki has presented no evidence from which a jury could reasonably infer
that Marten knew that it was false. Indeed, Maiteki does not argue that Marten actually
knew the report was false.
As for “reckless disregard,” that phrase has been defined as requiring “a high
degree of awareness of probable falsity” or at least entertaining “serious doubts as to
the truth of [the] publication.” Beuster v. Equifax Info. Servs., 435 F. Supp. 2d 471, 477
(D. Md. 2006) (internal quotation marks omitted). Again, Maiteki has raised no triable
issue of fact.
Some of his arguments in this regard go back to Marten’s reinvestigation
procedures and results (see ECF No. 229 at 36–37), which are not relevant to reckless
disregard at the time of the original report to HireRight. In terms of potentially relevant
evidence, Maiteki claims that Marten furnished its report “without even reviewing his
work record.” (Id.) In support, however, Maiteki cites only his own deposition, where he
speculates that Marten could not have reviewed his entire file because he resigned on
December 1, 2011 (a Thursday) and the HireRight report indicates that HireRight
received information on Maiteki on December 5, 2011 (the following Monday). (ECF
No. 232-4 at 14; see also ECF No. 230-9 at 8.) Maiteki believes that this timeframe
was somehow too short, considering the intervening weekend.
It is undisputed, however, that Marten’s contract with HireRight requires reporting
31
on a driver within one business day after the driver’s termination or resignation. (ECF
No. 220 at 8, ¶ 19.) In any event, even viewed in the light most favorable to Maiteki, his
speculation is not enough to raise a triable issue of fact. No reasonable jury could infer
that Maiteki’s nine-month employment with Marten generated a personnel file so large
that it would require several days to review.
Maiteki’s only other specific evidence of potential recklessness has to do with
Drive-A-Check termination codes, which are numeric codes specified by HireRight that
categorize the reason for a driver’s termination. (ECF No. 229 at 38.) Apparently up
until September 2011, Marten often used more than one termination code to describe
the same conduct. For example, if an employee was terminated for failure to keep
proper logs, Marten would report termination code 926 (regarding improper log-keeping)
and termination code 935 (generic company policy violation). (See ECF No. 230-2.)
On September 21, 2011, however, Marten human resources manager Jaclynn Peterson
e-mailed various Marten HR employees and instructed them to discontinue this practice
because HireRight “believe[d] . . . [Marten was] essentially ‘double dinging’ the driver.”
(Id.) Thus, HR employees should only use code 935 when no more-specific code was
available. (Id.) Peterson provided the following as an example: “In the past we used to
use 935/938 for an accident term. Now we will use 938 only.” (Id.)
From this, Maiteki constructs a chain of inferences. First, he assumes that code
938 must refer exclusively to accident-related terminations. Maiteki then correlates this
with Marten’s March 22, 2012 response letter to HireRight, which concludes by stating,
“Work Record (938) Unsatisfactory Safety Record is accurate.” (ECF No. 220-12.)
Maiteki therefore infers that Marten used code 938 when reporting Maiteki’s termination
32
to HireRight, which would have been inaccurate because he had no accidents w hile at
Marten. (ECF No. 229 at 8, ¶ 21.) This, says Maiteki, is evidence of reckless
falsehood.
This argument is somewhat confusing because Maiteki’s Drive-A-Check report
nowhere contains a reference to code 938, nor does it say that Maiteki was terminated
because of an accident. Rather, the “Reason for Leaving” line says “Resigned/Quit or
Driver Terminated Lease.” (ECF No. 230-9 at 8.) Thus, assuming arguendo that
Marten used an inaccurate termination code, Maiteki does not show any connection to
the defamation he allegedly suffered.
Moreover, the assumption that Marten used an inaccurate termination code lacks
evidentiary support. Maiteki’s only evidence in this regard is Peterson’s e-mail in which
she uses code 938 as an example of the single code to use when a driver is terminated
based on an accident. Peterson’s e-mail does not establish that code 938 refers
exclusively to accidents. In fact, HireRight defines code 938 as “Unsatisfactory Safety
Records: Driver did not meet company safety standards.” (ECF No. 236-8 at 2.)
For all these reasons, the Court finds no genuine dispute over any fact from
which a reasonable jury could conclude that Marten furnished information recklessly
(and therefore maliciously).10 Summary judgment is appropriate on Maiteki’s
defamation claim. Moreover, because the parties have stipulated to dismiss all of
10
FCRA allows a defamation claim where the plaintiff can prove “malice or willful intent
to injure such consumer.” 15 U.S.C. § 1681h(e) (emphasis added). Maiteki notes that this
phrase is “disjunctive” (ECF No. 229 at 35) but provides no standards for judging “willful intent,”
nor does he present evidence of such intent other than the same evidence on which he bases
his claim of recklessness. The Court therefore finds no triable issue of fact regarding willful
intent.
33
Maiteki’s causes of action against Marten other than his FCRA reinvestigation claim
and his defamation claim (ECF No. 212), final judgment in favor of Marten is
appropriate and will be entered at the close of the case.
III. FACTS: VOYAGER
A.
Maiteki’s Application to Voyager
The parties agree that Maiteki unsuccessfully applied to be a truck driver with
Voyager in July 2012. (ECF No. 221 at 2, 4, ¶¶ 1, 14; ECF No 231 at 2, ¶ 1; see also
ECF No. 157 at 14, ¶¶ 72–75.) Maiteki claims, and Voyager does not specifically
contest, that he applied in person (i.e., by handing a written application to a Voyager
employee) rather than through the mail or online. (ECF No. 231 at 2–3, ¶ 2(a).) 11
Voyager has placed in the record a July 19, 2012 employment application
appearing to be from Maiteki. (ECF No. 222-2 at 34–37.) Maiteki, however, denies that
the application is actually his because “Voyager Express, in response to a federal
subpoena, stated under oath that Plaintif f’s application had been, ‘purged and
destroyed after one year from the date of his application.’” (ECF No. 231 at 2, ¶ 1.)
Thus, from the outset, the Court must evaluate a bizarre factual dispute to determine if
it raises a genuine issue for trial.
This dispute begins before Maiteki sued Voyager. Maiteki subpoenaed Voyager
in May 2014, requesting Maiteki’s employment application (presumably in hopes of
proving that Maiteki had indeed been denied job opportunities based on Driv e-A-Check
information furnished by the other defendants). (See ECF No. 233-1.) By letter dated
11
This detail matters for Maiteki’s FCRA claim. (See Part IV.A, infra.)
34
May 27, 2014, Voyager informed Maiteki’s counsel that “we have no information to
provide. Voyager Express destroys all applications one year from the application date if
the individual is not hired. . . . As Mr. Maiteki was not hired[,] his file was purged and
destroyed after one year from the date of his application.” (Id.)
Voyager subsequently discussed the subpoena with Angela Lindeen, who had
been Voyager’s Safety Manager and was the person who reviewed Maiteki’s application
in July 2012, but who was no longer employed by Voyager at the time of the subpoena.
(See ECF No. 241-4 at 1; see also ECF No. 231 at 2–3, ¶ 2(a).) W hatever Lindeen
said, it prompted Voyager to realize that it had not destroyed Maiteki’s application.
(ECF No. 241-4 at 1.) On August 12, 2014, Voyager’s counsel turned over the
application and related documents to Maiteki’s counsel. (Id. at 1–31.)
On July 11, 2014—in between Voyager’s original and supplemental subpoena
responses—Maiteki sued Voyager. (See Maiteki v. Voyager Express, No. 14-cv-1939,
ECF No. 1 (D. Colo., filed July 11, 2014).) This Court subsequently consolidated that
lawsuit into this one. (ECF No. 153.) Voyager and the other defendants then deposed
Maiteki over two days in December 2014. (See ECF No. 221-1 at 1, 6.)
On the first deposition day, counsel for HireRight handed deposition Exhibit 17 to
Maiteki. (Id. at 4.) Deposition Exhibit 17 is identical to the first four pages of the Maiteki
application materials that Voyager’s counsel sent to Maiteki’s counsel in August 2014.
(Compare ECF No. 222-2 at 34–46 with ECF No. 241-4 at 2–5.) Those first four pages
consist of the main application itself, and were allegedly followed by additional
disclosures and releases that Maiteki was required to sign (which the Court will address
35
shortly). Regarding Exhibit 17, Maiteki testified as follows:
Q.
. . . Is Document 17—is that the application you
submitted to Voyager?
A.
Yeah, this is the application.
Q.
Okay. And do you see on the first page it has, kind of
in the middle of the page, a space for a signature?
A.
Yeah.
Q.
And is that your signature?
A.
Yeah.
(ECF No. 222-1 at 4.) This is the referenced signature:
(Id. at 34.) The Court also notes how Maiteki printed his name at the top of the
application, which will soon become important:
(Id.)
On the second deposition day, Voyager’s counsel handed deposition Exhibit 17
to Maiteki. (Id. at 7.) When asked several times whether he recognized Exhibit 17 from
the previous day, Maiteki surprisingly testified, “I don’t recall.” (Id.)
Voyager’s counsel later introduced deposition Exhibit 53 (see id. at 15; see also
ECF 241-5 at 4), which reproduces the first four pages of Exhibit 17, but also includes
36
three additional pages (see ECF No. 222-2 at 38–44). One of those additional pages is
titled “FAIR CREDIT REPORTING ACT DISCLOSURE STATEMENT.” (Id. at 42.) This
disclosure statement informs the applicant “that reports verifying your previous
employment, previous drug and alcohol test results, and your driving record may be
obtained on you for employment purposes.” (Id.) Below the disclosure paragraph is the
following signature block:
(Id.)
When asked if he recognized Exhibit 53, Maiteki answered,
It looks like an application; but Voyager say[s] that they
didn’t have anything about me. They never—they said they
did not have any information about me, that I’d never done
any—any business with them, and all the information I filled
[sic; ‘filed’?] with them was destroyed. So I don’t—I don't
believe that this is true because they already admitted that
they didn’t have anything about me.
(ECF No. 241-5 at 4.) Later, Maiteki and Voyager’s counsel had the following
exchange:
Q.
(BY MR. CONVERSE [Voyager’s counsel]) Well,
you’ve had an opportunity to look over the document
that's been marked Deposition Exhibit 53. There’s
handwriting throughout that deposition [sic]. Do you
see that?
A.
Yeah.
37
Q.
Do you recognize any of that handwriting anywhere
on that document to be your own handwriting?
MR. NYOMBI [Maiteki’s counsel]: Objection for the
record. Calls for speculation.
A.
I cannot admit because you say that I didn’t have—
that Voyager did not have any information about me.
So I don’t know where this one came from.
MR. CONVERSE: Move to strike as nonresponsive.
Would you please read back the question[?]
(The question was read back as follows: “Do you
recognize any of that handwriting anywhere on that
document to be your own handwriting?”)
MR. NYOMBI: Objection for the record; lacks
foundation. Objection for the record; confusing. Objection;
asked and answered.
A.
I don’t know.
Q.
(BY MR. CONVERSE) Can you recognize your own
handwriting, Mr. Maiteki?
MR. NYOMBI: Objection. Asked and answered.
A.
I don’t know. I don’t know because I’m not an expert
in analyzing handwritings.
Q.
(BY MR. CONVERSE) No, I’m not asking for an
expert opinion. I’m just asking you, are you capable
of recognizing your own handwriting when you see it
written on a piece of paper?
A.
I don’t know.
Q.
Are you capable of recognizing your signature when
you see it on a piece of paper?
MR. NYOMBI: Objection. Confusing.
A.
I don’t know.
38
(Id. at 4–5.)12 The remainder of Maiteki’s transcript contains similarly absurd attempts
to avoid answering straightforward questions. (See ECF No. 222-1 at 7–26; ECF No.
241-5 at 4–10.)
Returning to the question that prompted this long evidentiary excursion: is there
a genuine dispute of material fact over the authenticity or genuineness of the document
Voyager proffers as Maiteki’s July 2012 employment application (including the FCRA
disclosure page)? The answer is no. As to the first four pages, Maiteki affirmed to
HireRight’s counsel that it was his application—even though he stated the very next day
that he did not know if he could recognize his own signature. As to the FCRA
disclosure page, no reasonable jury examining the handwriting and signatures
throughout the application materials could conclude that the handwriting and signature
on the FCRA page is not Maiteki’s.
Accordingly, to the extent based on a continuing insistence that Maiteki’s
application to Voyager no longer exists, Maiteki’s objections to Voyager’s statement of
material facts are rejected as unsupported. (See ECF No. 231 at 2–8.) Maiteki’s
answers on his second deposition day were not good faith denials, but unquestionably
motivated by his desire to avoid admitting that he gave consent to have his Drive-ACheck report pulled (which is a crucial question in some of his causes of action, as
discussed in Part IV, below). The Court notes that if Maiteki’s counsel coached Maiteki
to respond as he did on the second deposition day , Maiteki’s counsel should be subject
12
The Court notes that Mr. Nyombi’s objections are inappropriate, at times ridiculous,
and an abuse of the right to object under Federal Rule of Civil Procedure 30(c)(2).
Unfortunately, this is not an isolated lapse. All of the Maiteki deposition excerpts submitted to
the Court display the same pervasive abuse.
39
to bar discipline. But the Court need not inquire that far. Even if Maiteki developed
conveniently obstructive amnesia entirely on his own, Maiteki’s counsel could not in
good faith rely on Maiteki’s nonsensical insistence that his own application—which he
authenticated the day before—no longer exists because Voyager at one point
mistakenly asserted that it had been destroyed.
B.
Lindeen’s Contact With Maiteki on July 31, 2012
The next major factual dispute arises from the events of July 31, 2012.
According to Lindeen, she spoke with Maiteki over the phone on that date to inform him
that he was not qualified for the available openings at Voyager. (ECF No. 222-3 at 18;
ECF No. 222-4 at 22–23.) Lindeen’s daily work journal for July 31, 2012 also contains
an entry for “Ronald Maiteki 30 min.” (ECF No. 222-7 at 28.) Lindeen claims that she
denied Maiteki’s application because it was incomplete and contained inaccuracies,
and because Maiteki performed poorly during a personal interview. (ECF No. 221 at 4,
¶ 14.)
At his deposition, Maiteki denied that anyone at Voyager had called him to tell
him that his application had been rejected. (ECF No. 233-8 at 11.) In support of that
denial, he claims he sent an e-mail to Lindeen on October 8, 2012, asking about the
status of his application—the inference being that he would not have needed to e-mail
Lindeen if she had already rejected him over two months earlier. (ECF No. 231 at 12,
¶ 16.)
Maiteki does not attach that e-mail. He instead attaches a May 20, 2014 letter
from one of his attorneys, Mr. Emejuru, to Voyager’s custodian of records, encouraging
Voyager to respond to the then-pending subpoena. (ECF No. 233-4.) Apparently
40
because it would “enable [Voyager to] effectively respond to the subpoena” (id. at 1),
Mr. Emejuru pasted what he claimed to be the text of Maiteki’s e-mail after his own
signature block, as follows:
(Id. at 2.) This appears to be Maiteki’s only evidence of the e-mail.
Relying on such evidence raises serious concerns. Assuming Maiteki intends to
introduce this at trial (as a prior consistent statement, for example), Mr. Emejuru would
probably need to take the stand to authenticate it, thus becom ing a witness in his own
client’s case. Moreover, Voyager would almost certainly question Mr. Emejuru
regarding why he would ever cut and paste a portion of the e-mail into his letter rather
than producing a print-out of the original, and Mr. Emejuru would almost certainly refuse
to answer based on attorney-client privilege or work product protection, thus bogging
down the trial in thorny evidentiary questions.
41
But Voyager has thus far not made any such objections, so the Court need not
address them yet. Voyager instead points out that, by its terms, Maiteki addressed the
e-mail to whereas Voyager’s actual domain name is
. (ECF No. 241 at 8, ¶ 16.) Thus, says Voyager, Lindeen never
received the e-mail. (Id.)
Voyager’s explanation makes sense, but the question in this context is not
whether Voyager received the e-mail. It is whether Maiteki sent it, or at least attempted
to send it, because doing so is evidence from which a jury could conclude that Lindeen
did not speak with Maiteki on July 31, 2012. Mr. Emejuru’s letter is potential evidence,
however problematic, that Maiteki attempted to send the e-mail.
The Court accordingly finds a genuine dispute of fact regarding whether Lindeen
actually spoke with Maiteki on July 31, 2012, or at least whether Lindeen told Maiteki on
that date that his application had been rejected. W hether this dispute is material to the
outcome depends on the issues the Court turns to next.
C.
Reliance on the Drive-A-Check Report
The parties agree that on July 31, 2012, Lindeen at least requested Maiteki’s
Drive-A-Check report. (Compare ECF No. 221 at 4, ¶ 11 with ECF No. 231 at 8, ¶ 11.)
Lindeen claims that she did not receive Maiteki’s Drive-A-Check report until the
following day, by which time she had already decided not to hire Maiteki and told him as
much. (ECF No. 221 at 4, ¶¶ 12–15.) Maiteki counters that Lindeen both req uested
and received the Drive-A-Check report on July 31, meaning that she may have
considered the report as part of her decision. (ECF No. 231 at 11, ¶ 15.) As will be
explained in Part IV.A.2, below, the timing matters because FCRA imposes certain
42
requirements on entities that intend to make an adverse decision based on what they
learn in reports such as the Drive-A-Check, and Voyager admits it did not fulfill those
requirements. (ECF No. 231 at 12–13, ¶¶ 2–5.)
In support of his claim that Lindeen received the Drive-A-Check report on July
31, Maiteki cites to an “Inquiry History Report” showing a July 31 “Request Submitted”
date for Maiteki’s Drive-A-Check history, among other things. (ECF No. 233-5.)
Without more (e.g., testimony about the length of time it takes for HireRight to fill
orders), this is not evidence that Lindeen received the report on July 31.
However, Maiteki also points to certain of Voyager’s written discovery responses.
For example, Voyager responded “[a]dmitted” when asked to “[a]dmit that Voyager
Express requested and accessed Plaintiff’s . . . Drive-A-Check . . . report on July 31,
2012.” (ECF No. 233-2 at 3 (emphasis added).) Furthermore, when asked to “[a]dmit
that Voyager Express relied on Plaintiff’s [Drive-A-Check] report provided by HireRight
when determining Plaintiff’s employment fate with Voyager Express,” Voyager
responded that it “admits [it] takes into consideration the contents of a [Drive-A-Check]
report when determining whether to hire an applicant.” (Id.)
Voyager attempts to explain this through an affidavit from Stacy Lee, Voyager’s
vice president and chief financial officer, who “assisted in responding to” the requests
for admission. (ECF No. 241-2 ¶¶ 1, 6.) Lee states that her assistance w as “based
upon [her] knowledge and belief at the time,” but “facts which have been made known
to [her] during the discovery process” have made her “aware that, despite [her] best
efforts to accurately and fully respond . . . on behalf of Voyager, some of the
Responses are either incomplete or incorrect.” (Id. ¶¶ 6, 7.)
43
Lee claims “no personal knowledge concerning Mr. Maiteki’s application process
with Voyager, including Ms. Lindeen’s decision to deny Mr. Maiteki employment with
Voyager.” (Id. ¶ 12.) Moreover, “Ms. Lindeen did not assist in compiling the
Responses.” (Id. ¶ 10.) Instead, Lee based her “Responses concerning Mr. Maiteki’s
Application . . . upon Voyager’s policies, procedures and ordinary course of conduct
when screening applicants for over-the-road driver positions.” (Id. ¶ 14.)
Considering all of the evidence, a reasonable jury could accept Lindeen’s story
(somewhat bolstered by her work journal) that she made her decision on July 31 before
receiving Maiteki’s Drive-A-Check report, and informed Maiteki of her decision the same
day. On the other hand, (i) a jury could conclude that Maiteki at least attempted to send
an e-mail over two months later inquiring about his application status, suggesting that
he had not heard from Lindeen earlier; (ii) Voyager received Maiteki’s Drive-A-Check
report at least by August 1; and (iii) Lee’s affidavit establishes that consulting the DriveA-Check report is part of Voyager’s ordinary course of conduct when screening
applicants. See Fed. R. Evid. 406 (“Evidence of . . . an organization’s routine practice
may be admitted to prove that on a particular occasion the . . . organization acted in
accordance with the . . . routine practice.”). Taking all of this together, a reasonable jury
could conclude that Lindeen made her decision sometime after receiving, and in part
based on, the Drive-A-Check report. Consequently, a genuine dispute exists regarding
the material fact of when and on what basis Voyager decided to reject Maiteki’s
employment application.
44
IV. ANALYSIS: VOYAGER
A.
FCRA (Claims 10 & 11)
Maiteki contends that Voyager’s alleged conduct violated two FCRA provisions.
The Court will discuss each in turn.
1.
Authorization to Obtain Consumer Report (15 U.S.C. § 1681b(b)(2)(A))
FCRA provides that, when an applicant applies in person for a job, the
prospective employer
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 [applicant] at any time before the report is
procured or caused to be procured, in a docum ent that
consists solely of the disclosure, that a consumer report may
be obtained for employment purposes; and
(ii) the [applicant] has authorized in writing (which
authorization may be made on the document referred to in
clause (i)) the procurement of the report by that [prospective
employer].
15 U.S.C. § 1681b(b)(2)(A). No reasonable jury could conclude that Voyager’s FCRA
disclosure statement was anything other than “clear and conspicuous,” or that it f ailed
to inform that a consumer report would be obtained for employment purposes. (See
ECF No. 222-2 at 42.) In addition, as determined in Part III.A, above, no reasonable
jury could conclude that Voyager failed to give this disclosure to Maiteki or that he failed
to sign it. The Court will therefore grant summary judgment on Maiteki’s Claims 10 and
11 to the extent Maiteki alleges a violation of 15 U.S.C. § 1681b(b)(2)(A).
45
2.
Proper Notice Before Adverse Actions (15 U.S.C. § 1681b(b)(3)(A))
FCRA further provides that, when an applicant applies in person for a job, the
prospective employer must,
before taking any adverse action based in whole or in part
on the report, . . . provide to the [applicant] to whom the
report relates—
(i) a copy of the report; and
(ii) a description in writing of the rights of the
consumer under this subchapter, as prescribed by . . .
section 1681g(c)(3) of this title.
15 U.S.C. § 1681b(b)(3)(A). Maiteki claims, and Voyager does not contest, that FCRA
also requires additional notices after the adverse action has been taken. See 15 U.S.C.
§ 1681m.
Voyager admits that it never sent any of these notices. (ECF No. 231 at 12–13,
¶¶ 2–5.) Voyager maintains it never had a duty to send such notices because Lindeen
made her decision not to hire Maiteki before she saw his Drive-A-Check report. (ECF
No. 221 at 6–7.) The Court has already concluded that a reasonable jury could
conclude otherwise. (See Part III.C, supra.) Voyager offers no argument that it could
somehow be excused from the notice requirements even assuming that Lindeen relied
on the Drive-A-Check report when making her decision. Accordingly, summary
judgment must be denied on Maiteki’s Claims 10 and 11 to the extent Maiteki alleges a
violation of 15 U.S.C. § 1681b(b)(3)(A).
B.
Invasion of Privacy (Claim 12)
Maiteki’s invasion of privacy claim rests on the allegation that Voyager “illegally
accessed his Drive-A-Check report surreptitiously without his knowledge.” (ECF No.
46
157 at 44, ¶ 7.) Again, however, no reasonable jury could conclude other than that
Maiteki gave his written consent for Voyager to access his Drive-A-Check report. The
Court will grant summary judgment to Voyager on Maiteki’s Claim 12.
C.
Negligent Hiring & Supervision (Claim 13)
Maiteki claims that Voyager was negligent in hiring and supervising Lindeen,
thereby leading to the alleged FCRA violation. (ECF No. 157 at 45.) “Negligent hiring
cases . . . involve the employer’s responsibility for the dangerous propensities of the
employee, which were known or should have been known by the employer at the time
of hiring, gauged in relation to the duties of the job for which the employer hires the
employee.” Raleigh v. Performance Plumbing & Heating, 130 P.3d 1011, 1016 (Colo.
2006) (emphasis added). And, “in a claim for negligent supervision against an
employer the plaintiff must prove that the defendant knew his employee posed a risk of
harm to the plaintiff and that the harm that occurred was a foreseeable manifestation of
that risk.” Keller v. Koca, 111 P.3d 445, 446 (Colo. 2005) (emphasis added). Thus,
both negligent hiring and negligent supervision are closely tied to the employer’s
knowledge of the specific employee’s potentially dangerous propensities.
Assuming Lindeen decided not to hire Maiteki based in part on his Driv e-ACheck report, Maiteki has offered no evidence that Voyager had any knowledge or
reason to know, either at the time of hiring or later, that Lindeen might have a
propensity to fail to provide the required FCRA notices. Maiteki claims that Voyager
had insufficient policies, procedures, and training to ensure FCRA compliance, but
Maiteki points to no authority converting such alleged corporate laxity into a claim of
47
negligently hiring or supervising a specific employee. (ECF No. 231 at 28–32.) Thus,
summary judgment in Voyager’s favor on Claim 13 is appropriate. Cf. Showler v.
Harper’s Magazine Found., 222 F. App’x 755, 766 (10th Cir. 2007) (summary judgment
was appropriate on Oklahoma negligent supervision claim where plaintiffs failed to
“point to any evidence of prior knowledge by [the employer] of any propensity by [the
employee] to commit any of the torts alleged”).
D.
Intentional Infliction of Emotional Distress (Claim 14)
Finally, Maiteki claims that Voyager engaged in “outrageous conduct” by failing
to give the required FCRA notices. (ECF No. 157 at 46; ECF No 231 at 33–36.) T his
Court has previously noted the elements of intentional infliction of emotional distress
(“IIED”) under Colorado law: “(1) the defendant engaged in extreme and outrageous
conduct; (2) recklessly or with the intent of causing the plaintiff severe emotional
distress; (3) causing the plaintiff to suffer severe emotional distress.” Maiteki, 4 F.
Supp. 3d at 1256 (quoting Han Ye Lee v. Colo. Times, Inc., 222 P.3d 957, 966–67
(Colo. Ct. App. 2009)). The Court has further noted that “the level of outrageousness
required to create liability is extremely high.” Id. (quoting Pearson v. Kancilia, 70 P.3d
594, 597 (Colo. Ct. App. 2003)). Finally, this Court previously held that “alleg[ations]
[of] knowingly and repeatedly report[ing] false information to HireRight . . . fall far short
of meeting the exacting standard required to state a claim for [IIED].” Id. Maiteki’s IIED
theory against Voyager is even less compelling than that. It therefore fails as a matter
of law, and summary judgment will be granted for Voyager on Maiteki’s Claim 14.
48
V. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.
Marten’s Motion for Summary Judgment (ECF No. 220) is GRANTED;
2.
Voyager’s Motion for Summary Judgment (ECF No. 221) is GRANTED as to
Maiteki’s Claims 12, 13, and 14, and as to Claims 10 and 11 to the extent they
allege a violation of 15 U.S.C. § 1681b(b)(2)(A), but DENIED as to Claims 10
and 11 to the extent they allege a violation of 15 U.S.C. § 1681b(b)(3)(A);
3.
Maiteki’s Motion to Strike or for Leave to File a Surreply (ECF No. 239) is
DENIED AS MOOT;
4.
As between Maiteki and Voyager, this matter REMAINS SET for a jury trial
beginning on March 7, 2016, with a Final Trial Preparation Conference on
February 19, 2016 at 2:00 p.m. in Courtroom A801—however, given the limited
portion of this case that remains for trial, the Court sua sponte SHORTENS the
trial setting from five days to three days; and
5.
Further considering the limited portion of this case that remains for trial, Maiteki
and Voyager are strongly encouraged to consider moving this Court for approval
of a settlement conference to be scheduled before the assigned Magistrate
Judge.
49
Dated this 15th day of October, 2015.
BY THE COURT:
William J. Martínez
United States District Judge
50
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