Frazier v. Vintage Stock Inc

Filing 103

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Honorable Timothy D. DeGiusti on 11/28/16. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DONALD EUGENE FRAZIER, JR.,
Plaintiff,
v.
VINTAGE STOCK, INC.,
Defendant.

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Case No. CIV-15-550-D

FINDINGS OF FACT AND CONCLUSIONS OF LAW
On October 26 and 27, 2016, the Court conducted a bench trial of the issues presented
for decision in the Final Pretrial Report [Doc. No. 82]. Plaintiff Donald Eugene Frazier, Jr.
appeared pro se; Defendant Vintage Stock, Inc. appeared through attorneys Dillon Curran
and Chris Warzecha, and corporate representative Paula Lawless. Upon consideration of the
evidence, the case record, and the parties’ arguments, the Court finds and rules as follows.
Findings of Fact
1.

This action under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.

§§ 1681-1681x, concerns Defendant’s decision not to hire Plaintiff for an employment
position due to negative information obtained through a criminal background check.
2.

Defendant operates retail stores that sell, buy, and trade movies, music, video

games, comic books, trading cards and other collectibles. The stores often engage in cash
transactions.
3.

Plaintiff has previous work experience in retail sales in stores similar to

Defendant’s. He also has received education and training as a legal assistant; he lacks one

course needed to obtain a paralegal certificate. In one retail job, Plaintiff was supervised by
Jay Hanlan, a store manager who now works in that capacity for Defendant at a store located
in Oklahoma City. Plaintiff approached Mr. Hanlan at work in 2014 about possible
employment. Mr. Hanlan informed Plaintiff there were no job openings in his store but there
might be an available sales position at Defendant’s store in Moore, Oklahoma, which was
managed by Ronnie Von Hemel.
4.

Plaintiff submitted a completed application for employment at the Moore store

dated August 21, 2014. On the first page of the form, Plaintiff answered “no” to questions
asking whether he had been convicted of a felony in the past ten years or a misdemeanor in
the past five years. These answers were truthful. However, Plaintiff did have a felony
conviction and misdemeanor convictions outside these time periods. In 2001, Plaintiff
pleaded guilty to unauthorized use of a motor vehicle, breaking and entering, and
unauthorized use of a computer.
5.

The second page of the application form contained six paragraphs of

information in smaller but legible text immediately above the signature line for the applicant.
The first paragraph stated as follows:
I understand that Vintage Stock performs background checks on all potential
employees and it requires my full name . . . and date of birth. I also
understand that employment is contingent on results. By signing this
application, I give my consent for a background check to be performed.
The third paragraph stated as follows:
I give Vintage Stock the right to investigate all references and to secure
additional information about me, if job related. I hereby release from liability
Vintage Stock, Inc. and its representatives for seeking such information and
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all other persons, corporations, or organizations for furnishing such
information.
6.

Mr. Von Hemel reviewed Plaintiff’s application, received a recommendation

from Mr. Hanlan, and interviewed Plaintiff in September 2014 for the job opening in his
store. The available position was a part-time job as a sales clerk or customer service
representative in which the employee would work a maximum of 28 hours per week and be
paid a minimum wage of $7.25 per hour, without any additional employee benefits. All new
employees were subject to a 90-day probationary period during which they would receive
no raise or promotion.
7.

After a positive interview, Mr. Von Hemel decided to request a criminal

background check regarding Plaintiff as part of Defendant’s standard hiring procedure. Due
to the nature of Defendant’s business in which theft is frequently an issue, Defendant
conducted a background check on all applicants for employment. Defendant had a firm
policy that any applicant with a felony conviction or a misdemeanor conviction for a crime
involving dishonesty, was not eligible for employment with Defendant.
8.

At some point during the application process, Plaintiff signed a separate

document authorizing Defendant to conduct a criminal background check in connection with
his application for employment. Defendant could not locate a copy of this document during
discovery, and it was not produced. Although both sides acknowledged the document’s
existence, no evidence concerning its specific contents was introduced.
9.

In keeping with Defendant’s customary practice, Mr. Von Hemel sent an email

to Defendant’s human resources (“HR”) manager, Paula Lawless, on September 18, 2014,
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providing Plaintiff’s full name and birth date and asking her to conduct a background check.
This was a regular duty of Ms. Lawless’s job, and she had established an account for
Defendant with an internet-based reporting service, Inteligator, for this purpose.
10.

Ms. Lawless conducted a criminal background check the same day that

Mr. Von Hemel requested it by performing an online search using Inteligator’s website. She
did so by logging into Defendant’s account with Inteligator, inputting the necessary
information regarding Plaintiff, and reviewing the online results of her computer search.
Ms. Lawless did not print a full report but printed only a screenshot containing a list of cases
associated with Plaintiff’s identifying information. She investigated some of the cases by
clicking on a link and reviewing additional information regarding a specific case. On the
print of the screenshot, she noted the type of criminal case, either felony or misdemeanor.
During discovery in this case, Ms. Lawless printed and produced copies of the information
she looked at during her online investigation of individual cases. See Pl.’s Exs. 26-32.
11. After satisfying herself that Plaintiff was not eligible for employment with
Defendant due to a felony conviction and misdemeanor convictions for crimes of dishonesty,
Ms. Lawless responded to Mr. Von Hemel’s email by simply stating, “no.” She did not share
the report with anyone, and did not provide any information to Mr. Von Hemel to explain her
negative response.
12.

On September 18, 2014, Mr. Von Hemel sent an email to Plaintiff regarding

employment with Defendant, stating: “I regret to inform you that the Background Check
from HR came back negative and I will be unable to hire you due to this.” See Pl.’s Ex. 1.
4

13.

After receiving this information, Plaintiff contacted Mr. Von Hemel to discuss

the negative background check. Mr. Von Hemel referred Plaintiff’s questions to Defendant’s
HR department by providing contact information for Ms. Lawless.
14.

Plaintiff attempted unsuccessfully to reach Ms. Lawless by telephone. He then

sent an email to her on September 22, 2014, requesting a copy of the background check that
had been obtained for him and “information for [a] direct contact to clear the matter.” See
Pl.’s Ex. 3; Pl.’s Ex. 20, p.6 (unnumbered, bearing handwritten note: “Email #05”). Ms.
Lawless responded the same day, stating:
We use http://inteligator.com if you would like to contact them. Vintage Stock
does not provide background checks to the applicants. Thank you for your
interest in our company.
Pl.’s Ex. 4; Pl.’s Ex. 20, p.6 (handwritten note: “Email #06”).
15.

Plaintiff sent Ms. Lawless a second email on September 22, 2014, stating he

had requested a copy of the background check from Inteligator but asking her in the
meantime to “please state the disqualifying reason(s) for a negative response. This matter
is of importance to me for accuracy due to an anticipated hire for the company.” He also
stated that “there are options of resolution in regards to disputed background reports under
state and federal guidelines for employment purposes.” Pl.’s Ex. 5; Pl.’s Ex. 20, pp.7-8
(handwritten note: “#07”).
16.

On September 23, 2014, the following exchange of email messages occurred

between Plaintiff and Ms. Lawless. First, Ms. Lawless stated:

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Due to the nature of your felony/misdemeanor convictions and the type of
business we are, we have made a decision not to employ you. We appreciate
your interest in our company and wish you the best in your job search.
Pl.’s Ex. 6; Pl.’s Ex. 20, p.7 (handwritten note: “#08”). Plaintiff responded as follows:
The information presented appears vague and does not specify what violations
were considered and the date of the alleged incidents. I would like “equal
consideration” as an applicant in the fairness of receiving unbiased explanation
for a disputed background check. The uniform application specifically ask[ed]
if a felony has occurred in the past 10yrs or a misdeameanor in the past 5yrs,
none of which I received. I have requested a copy of the background check
according to regulation and have not received the said report. This prevents
me from an opportunity to respond and refute incorrect information.
Pl.’s Ex. 7; Pl.’s Ex. 20, p.7 (handwritten note: “#09”).

Ms. Lawless replied on

September 24, 2014:
First, I would like to point out there was nothing wrong with your application.
Second, we followed the company policy and normal process of all applicants.
I would encourage you to follow up with Inteligator on your copy request.
Our decision is final and this matter is closed. Again, I would like to thank
you and wish you well.
Pl.’s Ex. 8.
17.

Plaintiff did not pursue the matter further with Defendant after September 24,

2014, but he did pursue administrative remedies, which included filing an EEOC charge.
Ms. Lawless submitted a written response regarding Plaintiff’s EEOC charge with attached
documentation (including the email messages quoted above) to explain Defendant’s decision
not to hire Plaintiff. Ms. Lawless included a document she had obtained from the internet
regarding Oklahoma law on employers’ use of criminal records. The document bears a date
showing it was printed on September 23, 2014, and bears her handwritten notes. It contains
information about federal laws, including the FCRA, and plainly states an employer’s
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obligations to give an applicant notice of an intent to disqualify him based on the contents
of a criminal background report, and to provide a copy of the report. See Pl.’s Ex. 20, p.10.
18.

Ms. Lawless testified that she was responsible for Defendant’s decision to

institute a criminal background check policy for all applicants. She did so after assuming the
position of HR manager in 2012 and attending a training session at which background checks
were discussed. After Defendant’s management approved the policy, Ms. Lawless changed
the employment application to include the provision authorizing background checks. She
selected Inteligator as the service provider after doing internet research regarding websites
that can be used to do criminal background checks. Defendant has continuously used
criminal background checks to screen applicants for employment since 2012, and always
uses Inteligator, which charges a monthly fee. Ms. Lawless performs criminal background
checks on a weekly basis, and Defendant has denied employment to other applicants based
on a negative Inteligator report.1
19.

In her current position, Ms. Lawless is responsible for all Defendant’s HR

matters and serves as the HR department. She reports directly to the owners of the company.
Although Ms. Lawless had prior experience as a supervisor and manager of other employees
before taking the position, she had no HR education or training. She received some training

1

At trial, Ms. Lawless also testified regarding changes she made to Defendant’s
employment application after this lawsuit was filed. Defendant objected to certain testimony
as inadmissible under Fed. R. Evid. 407 as evidence of subsequent remedial measures, and
the Court received the evidence subject to a later ruling. Upon consideration, the objection
is overruled. Ms. Lawless’ testimony was not considered by the Court to show any culpable
conduct by Defendant. But it did bolster her testimony that Defendant’s hiring policy never
included any time limits on the consideration of an applicant’s prior criminal convictions.
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regarding HR issues when she took the job, but additional training has been limited to what
she has time to accomplish, primarily through online courses.
20.

Ms. Lawless testified that she was unaware of FCRA’s requirements regarding

an employer’s use of consumer reports until this lawsuit was filed, and still does not fully
understand what it requires. The Court finds this testimony was contradicted, at least in part,
by other evidence. The evidence shows that information regarding FCRA’s requirements
was available to Ms. Lawless and actually read by her (as shown by her checkmarks on a list
of FCRA requirements) before she informed Plaintiff that Defendant’s hiring decision was
final.

The information was provided in terms understandable by a lay person, and

conspicuously set forth with bullet points stating “obligations of employers who request
criminal background checks.” See Pl.’s Ex. 20, p.10.
21.

Plaintiff presented no evidence to effectively suggest he suffered emotional

distress as a result of Defendant’s decision not to hire him, other than the sort of
disappointment normally associated with such an event. But he did testify that the manner
in which Defendant handled the decision left him in “limbo” and that the application with
Defendant was then his best job prospect. He also expended time and effort doing legal
research, learning about his rights, and pursuing available remedies.
22.

In November 2014, approximately six weeks after Defendant did not hire him,

Plaintiff obtained a job with a company called True Blue. Although Plaintiff’s rate of pay
varied, his hourly wage ranged from $7.25 to $10.00, and he worked from 26 to 30 hours per
week.
8

Conclusions of Law
Plaintiff asserts four claims under the FCRA, which are within the jurisdiction of this
Court pursuant to 28 U.S.C. § 1331. To prevail on a FCRA claim, Plaintiff must prove:
(1) Defendant failed to comply with a requirement imposed by the Act; and
(2) either Defendant’s conduct in failing to comply was negligent and resulted
in actual damages sustained by Plaintiff, or Defendant’s conduct in failing to
comply was willful.
See 15 U.S.C. §§ 1681n(a), 1681o. If Plaintiff proves a willful violation of the Act, he may
recover: (1) either actual damages sustained as a result of the failure, or statutory damages
between $100 and $1,000; and (2) punitive damages. See id. § 1681n(a)(1)(A) and (a)(2).
In Claim I, Plaintiff asserts that Defendant violated § 1681b(b)(3)(A)(i) by failing to
provide Plaintiff with a copy of the criminal background report that it procured about him
before taking an adverse action on his employment application. In Claim II, Plaintiff asserts
that Defendant violated § 1681b(b)(3)(A)(ii) by failing to provide Plaintiff with written
notice of his FCRA rights before it used the background report to take an adverse action on
his employment application. Section 1681b(b)(3)(A) provides:
[I]n using a consumer report for employment purposes, before taking any
adverse action based in whole or in part on the report, the person intending to
take such adverse action shall provide to the consumer 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.
Upon consideration of the facts established by the evidence, the Court finds that
Plaintiff has proven that Defendant failed to comply with the requirements of
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§ 1681b(b)(3)(A)(i) and (ii), as alleged. Defendant took an adverse action on Plaintiff’s
employment application, at the latest, on September 24, 2014, when Ms. Lawless informed
Plaintiff that Defendant’s decision not to employ him was final. At no time before that date
did Defendant provide Plaintiff with a copy of the background report that Ms. Lawless
obtained through Inteligator, nor did Defendant provide written notice to Plaintiff of his
rights to dispute the information in the report.
In Claim III, Plaintiff alleges that Defendant violated § 1681b(b)(1)(A) by failing to
certify compliance with FCRA, and so obtained a background report that the consumer
reporting agency would not have provided if it had known Defendant was using the report
for employment purposes. Section 1681b(b)(1) provides:
A consumer reporting agency may furnish a consumer report for employment
purposes only if–
(A) the person who obtains such report from the agency certifies to the agency
that–
(i) the person has complied with paragraph (2) [requiring a written
disclosure to the consumer and the consumer’s written authorization]
with respect to the consumer report, and the person will comply with
paragraph (3) [imposing conditions on the use for adverse employment
actions] with respect to the consumer report if paragraph (3) becomes
applicable; and
(ii) information from the consumer report will not be used in violation
of any applicable Federal or State equal employment opportunity law
or regulation; and
(B) the consumer reporting agency provides with the report, or has previously
provided, a summary of the consumer’s rights under this subchapter.

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Upon consideration of the facts established by the evidence, the Court finds that
Plaintiff has not proven that Defendant failed to comply with the requirements of
§ 1681b(b)(1), as alleged. This provision imposes conditions under which a consumer
reporting agency may furnish a consumer report for employment purposes. If the provision
is violated, the consumer reporting agency may be held liable for resulting damages, but it
provides no basis for liability of the user of a consumer report. See Obabueki v. Int’l Bus.
Mach. Corp., 145 F. Supp. 2d 371, 393-94 (S.D.N.Y. 2001), aff’d, 319 F.3d 87 (2d Cir.
2003). Plaintiff does not contend, and has not shown, that Defendant obtained the consumer
report about him under false pretenses or knowingly obtained it without a permissible
purpose, in violation of § 1681n(b).2
In Claim IV, Plaintiff asserts that Defendant violated § 1681b(b)(2)(A) by obtaining
Plaintiff’s consent to the background report using an authorization form that did not comply
with the FCRA’s disclosure requirements in that it also contained a liability waiver.
Section 1681b(b)(2) provides:
[A] person 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
consumer at any time before the report is procured or caused to be procured,
in a document that consists solely of the disclosure, that a consumer report
may be obtained for employment purposes; and

2

Further, the FCRA provides for liability of a “natural person” who obtains a
consumer report under false pretenses or without a permissible purpose. See 15 U.S.C.
§ 1681n(a)(1)(B). It does not authorize liability of a corporate entity such as Defendant. See
Burghy v. Dayton Racquet Club, Inc., 695 F. Supp. 2d 689, 706 (S.D. Ohio 2010).
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(ii) the consumer has authorized in writing (which authorization may be made
on the document referred to in clause (i)) the procurement of the report by that
person.
Upon consideration of the facts established by the evidence, the Court finds that Plaintiff has
not proven that Defendant violated § 1681b(b)(2), as alleged.
The focus of Plaintiff’s argument with respect to this claim is the fact that Defendant’s
written disclosure and his written authorization to obtain a consumer report for employment
purposes were contained within the employment application and were combined with other
provisions, including a liability waiver. Some courts have found this practice to be
impermissible under the FCRA because it does not satisfy the requirement that the disclosure
be made in a document that consists solely of the disclosure. See Milbourne v. JRK
Residential Am., LLC, 92 F. Supp. 3d 425, 432-33 (E.D. Va. 2015); see also Avila v. NOW
Health Group, Inc., No. 14 C 1551, 2014 WL 3537825, *2 (N.D. Ill. May 27, 2015)
(unpublished, citing cases).3 However, Plaintiff testified unequivocally that he signed a
written authorization form that was a separate document, apart from the employment
application. Although a copy of this document was not produced in discovery or introduced
at trial, Plaintiff has not produced any evidence to suggest that this second disclosure and
authorization form was insufficient to satisfy § 1681b(b)(2). Thus, Plaintiff has not met his
burden to prove that Defendant failed to comply with the requirements of this subsection.

3

But see Burghy v. Dayton Racquet Club, Inc., 695 F. Supp. 2d 689, 696, 698-700
(S.D. Ohio 2010) (FCRA disclosure included in an employment application may be clear and
conspicuous, depending on its appearance and placement in the context of the document; the
satisfaction of this requirement is a question of law to be decided by the court).
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Having found that Defendant violated § 1681b(b)(3)(A), the Court must determine
whether Defendant’s conduct was negligent or “willful” within the meaning of § 1681n(a).
According to the Supreme Court, 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; see Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173, 1183-84 (10th Cir. 2013);
Birmingham v. Experian Info. Sols., Inc., 633 F.3d 1006, 1009 (10th Cir. 2011). In
determining whether a defendant’s reading of the FCRA was reckless, district courts are
called to examine the text of the statute, case law that existed at the time of the alleged
violation, and any agency interpretations. Safeco, 551 U.S. at 69-70.
“To take advantage of the ‘objectively reasonable interpretation’ safe harbor, Safeco
requires that the defendant have ‘adopt[ed]’ and acted on an interpretation of the statute.”
Milbourne v. JRK Residential Am., LLC, No. 3:12cv861, 2016 WL 4265741, *6 (E.D. Va.
Aug. 11, 2016) (to be published) (quoting Safeco, 551 U.S. at 70 n.20) (alteration in
Milbourne). Absent evidence that Defendant acted in reliance on an interpretation of the
relevant provision of the FCRA or that Defendant’s conduct might be acceptable under the
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statute, the “objectively reasonable” analysis of Safeco does not apply, and a finding of a
willful violation is justified. See id. A defendant “does not lose the potential protection of
the ‘reasonable interpretation’ defense, even if it never actually interpreted FCRA prior to
the commencement of the lawsuit.” Fuges v. Southwest Fin. Servs., Ltd., 707 F.3d 241, 251
(3d Cir. 2012). But Safeco requires that the defendant advance an objectively reasonable
interpretation of the FCRA. Id. A finding of subjective bad faith is not required. See
Milbourne, 2016 WL 4265741 at *7.
Upon consideration of the evidence and the factual circumstances set forth above, the
Court finds that Defendant’s violations of § 1681b(b)(3)(A) were “willful” in that Defendant
acted with reckless disregard of its duties under the FCRA. Defendant makes no effort to
justify its conduct based on a reasonable interpretation of the statute but, instead, defends its
noncompliance solely with Ms. Lawless’s testimony regarding her ignorance of the FCRA
and her lack of intent to violate the Act. However, even accepting her testimony (which the
Court found to have been contradicted), there can be no question that Ms. Lawless recklessly
disregarded Defendant’s obligations to provide Plaintiff with a copy of the background report
that she used, and to provide advance notice of Plaintiff’s rights under the Act before making
a final decision. Clearly, compliance with the Act would not have altered Defendant’s nonhiring decision regarding Plaintiff, given its hiring policy and his convictions for crimes
involving dishonesty. However, Defendant acted in reckless disregard of the FCRA by
adopting and continuing to use a non-compliant hiring practice.

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Turning then to the issue of damages, the Court finds that Plaintiff has not proven any
actual damages directly caused by Defendant’s violations of the Act.4 The Court further
finds, however, that Plaintiff should receive an award of statutory damages in the amount of
$2,000.00. This amount represents the maximum amount of statutory damages for each
violation of the Act by Defendant. The Court finds this amount is appropriate due to
Defendant’s cavalier use of consumer reports for employment purposes.
It is undisputed that Defendant adopted a new hiring practice of obtaining criminal
background reports in 2012 without any research or legal advice regarding applicable laws
or limits on the use of such reports for employment purposes. Defendant, acting through
Ms. Lawless, signed up for an online service to obtain criminal background checks for use
in screening job applicants, again without investigating legal limits. Ms. Lawless was aware
generally that legal requirements existed because she changed Defendant’s employment
application to include an authorization for background checks. Defendant repeatedly used
Inteligator to access consumer reports on job applicants for at least two years, without any
regard for applicants’ rights or the potential consequences of its conduct, until Plaintiff’s
complaint alerted Ms. Lawless to the problem. The evidence shows that when she looked,
Ms. Lawless located readily available information regarding the FCRA’s requirements and
consumers’ rights in the employment context. The Court finds that a significant award of

4

Some reference was made during trial to Plaintiff’s search for alternative
employment. Indeed, Plaintiff obtained substantially equivalent employment within six
weeks of Defendant’s denial of employment, and presented no persuasive evidence that
Defendant’s conduct delayed or interfered with his employment search in any significant
way.
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damages is warranted to impress on Defendant the legal protections afforded by the FCRA
to job applicants and employees, and to deter future violations. See Bateman v. Am. MultiCinema, Inc., 623 F.3d 708, 718 (9th Cir. 2010) (FCRA statutory damages serve deterrent
purpose); Yohay v. City of Alexandria Emp. Credit Union, Inc., 827 F.2d 967, 972 (4th Cir.
1987) (award of punitive damages without actual damages serves FCRA’s deterrent
purpose).
Although the Court finds that Defendant’s reckless conduct warrants the maximum
amount of statutory damages under the circumstances, the Court finds that an additional
award of punitive damages is not warranted. The FCRA authorizes “such amount of punitive
damages as the court may allow.” See 15 U.S.C. § 1681o(a)(2). Under federal law, punitive
damages serve purposes of “deterrence and punishment over and above that provided by
compensatory awards.” See Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1308-09 (10th Cir.
2003) (internal quotations omitted). Given the Court’s substantial award of damages to
Plaintiff, an additional award of punitive damages is not needed to deter future FCRA
violations by Defendant or other employers. Further, there is no contention or proof that
Defendant’s violations of the FCRA were the result of something more than recklessness, or
that Defendant acted in bad faith or with malice toward Plaintiff. Therefore, the Court finds
an award of damages to punish Defendant for wrongful conduct is not necessary or
appropriate.

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Conclusion
In summary, upon consideration of all facts and circumstances shown by the record,
the Court finds that Plaintiff has proven by the preponderance of the evidence that Defendant
willfully violated the FCRA and that an award of damages in the amount of $2,000.00 should
be made.
IT IS THEREFORE ORDERED that Plaintiff is entitled to a judgment against
Defendant for a statutory award of damages in the amount of $2,000.00. A separate
judgment shall be entered accordingly.
IT IS SO ORDERED this 28th day of November, 2016.

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