Figueroa v. BayCare Health System, Inc.

Filing 25

ORDER denying 14 motion to dismiss. Defendant shall file an answer to the first amended complaint within fourteen (14) days of this Order. Signed by Judge James S. Moody, Jr on 10/17/2017. (JG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ELAYNE FIGUEROA, on her own behalf and
all similarly situated individuals,
Plaintiff,
v.

CASE NO: 8:17-cv-1780-T-30JSS

BAYCARE HEALTH SYSTEM, INC.,
Defendant.
____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendant’s Motion to Dismiss First
Amended Class Action Complaint with Prejudice (Dkt. 14) and Plaintiff’s Response in
Opposition (Dkt. 23). The Court, having reviewed the motion, response, and being otherwise
advised in the premises, concludes that the motion should be denied.
BACKGROUND
This is a putative class action brought under the Fair Credit Reporting Act (“FCRA”).
According to the first amended complaint, on May 14, 2015, Plaintiff Elayne Figueroa
applied for employment with Defendant Baycare Health System, Inc. as a Patient Care
Technician. At the time that she applied, Plaintiff received Defendant’s “Authorization of
Background Investigation.” (Dkt. 10 at Ex. A). Plaintiff alleges that the document is not a
“stand-alone” FCRA disclosure document. Plaintiff contends that the document contains “an
entire paragraph consisting of a blanket authorization that violates the FCRA.” For example,

Plaintiff alleges that the document seeks the following unlimited “blanket” authorization and
release of information “from every applicant,” including the following:
•
•
•
•
•
•
•
•
•

law enforcement and all other federal, state and local agencies;
learning institutions (including public and private schools, colleges and
universities);
testing agencies and information service bureaus;
credit bureaus and record/data repositories;
courts (federal, state and local);
motor vehicle records agencies;
past or present employers;
the military; and
“all other individuals and sources with any information about or concerning
me.”

(Dkt. 10) (quoting Ex. A thereto).
Plaintiff alleges that the disclosure document also required her to promise “that if the
Company hires me or contracts for my services, my consent will apply, and the Company
may, as allowed by law, obtain additional background reports pertaining to me, without
asking for my authorization again, throughout my employment or contract period from
HireRight and/or other consumer reporting agencies.” Id. (emphasis in original).
Plaintiff avers that she “never would have consented to the requirements contained
in Defendant’s form had she realized the extent to which it purported to allow Defendant to
invade her privacy.” Id. at ¶19.
Plaintiff further alleges that the disclosure document contained inappropriate
“extraneous items of information.” For example, the document included a statement that
applicants received an “attached summary of rights under the Fair Credit Reporting Act,”
which was never attached or provided. Id. at ¶20.

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According to Plaintiff, Defendant “knowingly and recklessly disregarded the plain
meaning of [the FCRA]” because it knew that it had an obligation to provide a stand-alone
disclosure before procuring a consumer report. Defendant “repeatedly used the same form
to procure background reports on numerous other applicants and employees.” Id. at ¶¶26,
29.
Based on these alleged violations, Plaintiff asserts two FCRA claims against
Defendant on behalf of herself and a single putative class of Defendant’s employees and
prospective employees. Count I alleges that the disclosure Plaintiff and each member of the
putative class executed to authorize Defendant to obtain a background report as part of the
employment process failed to comply with 15 U.S.C. § 1681b(b)(2)(A)(i)’s requirement of
a stand-alone disclosure.1 Count II alleges that because Defendant obtained consumer reports
related to Plaintiff and other members of the putative class without proper authorization
under the FCRA, Defendant also violated 15 U.S.C. § 1681b(b)(2)(A)(ii).
Defendant’s motion to dismiss argues that Counts I and II of the first amended
complaint are subject to dismissal with prejudice because: (1) Plaintiff cannot state a claim
as a matter of law; and (2) even if Plaintiff could state an actionable claim, Defendant’s
actions were not objectively unreasonable, i.e., willful.

1

Under the FCRA, an employer must disclose to a job seeker that “a consumer report
may be obtained for employment purposes” and must obtain authorization from a consumer
before procuring her consumer report. See 15 U.S.C. § 1681b(b)(2). To ensure that prospective
employees are adequately informed about their rights concerning these consumer reports, the
FCRA requires that this information be provided “in a document that consists solely of the
disclosure.” Id. at § 1681b(b)(2)(A). This is commonly known as the “stand-alone disclosure
requirement.”
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STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for
failure to state a claim upon which relief can be granted. When reviewing a motion to
dismiss, a court must accept all factual allegations contained in the complaint as true, and
view the facts in a light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89,
93-94 (2007).

However, unlike factual allegations, conclusions in a pleading “are not

entitled to the assumption of truth.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). On the
contrary, legal conclusions “must be supported by factual allegations.” Id. Indeed,
“conclusory allegations, unwarranted factual deductions or legal conclusions masquerading
as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185
(11th Cir. 2003).
DISCUSSION
Defendant first argues that Plaintiff’s claims fail as a matter of law because the
disclosure document (attached as Ex. A to the first amended complaint) did not violate the
FCRA as a matter of law. At this juncture, the Court disagrees. As this Court previously
held in Graham v. Pyramid Healthcare Solutions, Inc., the FCRA’s disclosure requirement
gives “statutorily-created rights under the FCRA to receive a clear and conspicuous standalone disclosure.” No. 8:16-CV-1324-T-30AAS, 2016 WL 6248309, at *2 (M.D. Fla. Oct.
26, 2017) (emphasis added); see also Moody v. Ascenda USA, Inc., No. 16-cv-60364-WPD,
2016 WL 5900216, at *3 (S.D. Fla. Oct. 5, 2016) (“Plaintiffs suffered a concrete
informational injury because Defendant failed to provide Plaintiffs with information to which
they were entitled to by statute, namely a stand-alone FCRA disclosure form.”).
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Plaintiff alleges that the subject disclosure form contained extraneous information that
on its face violated the plain language of the FCRA, which mandates a stand-alone disclosure
form. Plaintiff delineates the extraneous information in the first amended complaint. And
Plaintiff avers that the disclosure form was not clear because it contained superfluous
information that was confusing. At this stage, this is sufficient.
Defendant next argues that, even if the subject disclosure did not comply with the
FCRA, Defendant’s actions were not willful. See 15 U.S.C. § 1681n(a) (“Any person who
willfully fails to comply with any requirement imposed under this subchapter with respect
to any consumer is liable to that consumer . . .” An FCRA violation is “willful” if it is either
intentional or committed in reckless disregard of the defendant’s duties under the Act. See
Safeco Ins. Co. v. Burr, 551 U.S. 47, 57-58 (2007). Recklessness is measured by an
objective standard; a defendant’s conduct is reckless if it “entail[s] an unjustifiably high risk
of harm that is either known or so obvious that it should be known.” Id. at 68. A defendant
does not act in reckless disregard of the FCRA “unless the action is not only a violation
under a reasonable reading of the statute’s terms, but shows that the company ran a risk of
violating the law substantially greater than the risk associated with a reading that was merely
careless.” Id. at 69.
With respect to the issue of willfulness, Defendant’s motion reads like a motion for
summary judgment and is premature at this juncture because the Court cannot determine
whether Defendant’s actions were willful until the Court is presented with record evidence
about what actions Defendant took to comply with the FCRA. For example, the Court would
need to know whether Defendant researched the FCRA and/or attempted to interpret the
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FCRA prior to utilizing the subject disclosure form. Defendant may ultimately prevail on
this ground, but not at the motion to dismiss stage. Indeed, in Graham, this Court noted that
“[w]illfullness is typically a question of fact for the jury.” Graham v. Pyramid Healthcare
Solutions, Inc., No. 8:16-CV-1324-T-30AAS, 2017 WL 2799928, at *3 (M.D. Fla. June 28,
2017) (citing Hargrett v. Amazon.com DEDC LLC, No. 8:15-CV-2456-T-26EAJ, 2017 WL
416427, at *6 (M.D. Fla. Jan. 30, 2017)).
It is therefore ORDERED AND ADJUDGED that:
1.

Defendant’s Motion to Dismiss First Amended Class Action Complaint with
Prejudice (Dkt. 14) is DENIED.

2.

Defendant shall file an answer to the first amended complaint within fourteen
(14) days of this Order.

DONE and ORDERED in Tampa, Florida on October 17, 2017.

Copies furnished to:
Counsel/Parties of Record

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