Gates v. The Grier Foundation et al

Filing 27

MEMORANDUM (Order to follow as separate docket entry) re 19 Amended Complaint filed by Jacob Gates, 20 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim filed by Geoffrey Grier, The Grier Foundation. Signed by Chief Judge Matthew W. Brann on 3/27/2024. (ea)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JACOB GATES,

No. 4:23-CV-01443

Plaintiff,

(Chief Judge Brann)

v.
THE GRIER FOUNDATION and
GEOFFREY GRIER,
Defendants.
MEMORANDUM OPINION
MARCH 27, 2024
Before the Court is Defendants The Grier Foundation’s and Geoffrey Grier’s
Motion to Dismiss Plaintiff Jacob Gates’ Amended Complaint.1 For the reasons below,
the Court will grant Defendants’ Motion.
I.

BACKGROUND2
On June 13, 2023, Jacob Gates accepted an offer of employment for a position

as a History Teacher with The Grier Foundation (the “Grier School”).3 Gates tentatively
accepted the offer, which included an annual salary and faculty housing and food, on
June 15, 2023.4 Before Gates could formally accept the offer of employment, the Grier
School was obliged under Pennsylvania law to require Gates to obtain Pennsylvania

1
2
3
4

Mot. to Dismiss Am. Compl., Doc. 20.
The Court accepts as true all
Complaint. Infra Section II.
Am. Compl., Doc. 19 ¶ 11.
Id. ¶¶ 14-15.

well-pleaded

allegations

in

the

Amended

and FBI criminal history background checks.5 For FBI background checks, the
Commonwealth of Pennsylvania contracts with IDEMIA, an entity which regularly
engages in the practice of assembling or evaluating such reports.6 As part of this
process, Gates was required to register with and have his fingerprints taken by
IDEMIA.7 On July 12, 2023, the same day he provided fingerprints, he received an
email from the “Commonwealth of Pennsylvania PASafeCheck system” notifying him
that his criminal background results were ready to be viewed and providing him with
an unofficial copy.8 Gates downloaded the Report, which included a cover page
purporting to be from the Pennsylvania Department of Education School Services Unit,
and forwarded it to Gates School Human Resources Officer Lea Crofcheck.9 The Report
also included a UEID which allowed the Grier School to receive the official report
online.10
Upon receipt of the Report, Grier School Director Geoffrey Grier and Head of
School Kara Lawler called Gates to rescind the offer of employment.11 The Report
showed that, in 2009, Gates pleaded guilty to two misdemeanor counts of trespassing.12
The convictions arose from an incident in which Gates, then 17 years old, entered and

5
6
7
8
9
10
11
12

Id. ¶¶ 18-23.
Id. ¶¶ 24-25.
Id. ¶¶ 26, 30.
Id. ¶ 31.
Id. ¶¶ 32-34.
Id. ¶¶ 29, 33-34.
Id. ¶ 37.
Id. ¶¶ 35-36.
2

took a beer from the open garage of a neighbor.13 Grier accused Gates of being
“dishonest,” a “felon,” and having acted in “bad faith.”14 Gates explained that the
convictions had been expunged in 2020 and both he and his attorney Sally Slipian sent
Lawler and Crofcheck records confirming as much.15 Neither Lawler or Crofcheck
responded, nor did anybody at the Grier School inform Gates of his right under the Fair
Credit Reporting Act to dispute the accuracy of the Report with IDEMIA.16 On July 20,
2023, Gates received a letter from an attorney representing the Grier School stating that,
after “carefully review[ing]” the expungement documents, it had decided to uphold the
recission of Gates’ employment offer.17
Gates then initiated this litigation on August 20, 2023 with the filing of a
Complaint alleging violations of the Fair Credit Reporting Act18 and the Pennsylvania
Criminal History Record Information Act.19 Defendants previously moved to dismiss
the Complaint, which the Court denied as to the Pennsylvania CHRIA claim, and
granted as to the FCRA claim.20 Gates filed an Amended Complaint on January 31,
2024 and Defendants filed a Motion to Dismiss the Amended Complaint for Failure to

13
14
15
16

17
18
19
20

Id.
Id. ¶¶ 38-39.
Id. ¶¶ 40-42.
Id. ¶¶ 43-44. Defendants note that the letter from the Grier School’s attorney stated that “the
School cannot proceed with retaining your services as a teacher,” not that the decision to revoke
the offer was upheld. Reply Br., Doc. 26 at 6-7 (quoting Reply Ex. A, Doc. 26-1). This strikes
the Court as a distinction without a difference and, in any event, does not alter the outcome.
Id. ¶ 45.
Id. Count II.
Id. Count I.
Jan. 17, 2024 Mem. Op. and Ord., Docs. 17-18.
3

State a Claim and for Lack of Jurisdiction which is now fully briefed and ripe for
disposition.21
II.

LAW
“Under Article III, a case or controversy can exist only if a plaintiff has standing

to sue.”22 “To establish Article III standing, a plaintiff bears the burden of showing three
‘irreducible’ elements.”23 “He ‘must have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.’”24 “Injury in fact is ‘‘the invasion of a
concrete and particularized legally protected interest’ resulting in harm ‘that is actual
or imminent, not conjectural or hypothetical.’’”25 “‘An injury is ‘concrete’ if it is ‘real,
or distinct and palpable, as opposed to merely abstract.’”26
“A motion to dismiss for want of standing is . . . properly brought pursuant to
[Federal Rule of Civil Procedure] 12(b)(1), because standing is a jurisdictional
matter.”27 Where a movant raises a facial challenge to standing—whether the

21
22
23

24
25

26
27

Supp. Br., Doc. 22; Opp’n. Br., Doc. 25; Reply Br., Doc. 26.
United States v. Texas, 599 U.S. 670, 675 (2023).
Associated Builders & Contractors W. Pennsylvania v. Cmty. Coll. of Allegheny Cnty., 81
F.4th 279, 287 (3d Cir. 2023) (citing In re Schering Plough Corp. Intron/Temodar Consumer
Class Action, 678 F.3d 235, 244 (3d Cir. 2012); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992)).
Id. (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)).
Long v. Se. Pennsylvania Transportation Auth., 903 F.3d 312 (3d Cir. 2018)
(quoting Finkelman v. Nat'l Football League, 810 F.3d 187, 193 (3d Cir. 2016); Blunt v. Lower
Merion Sch. Dist., 767 F.3d 247, 278 (3d Cir. 2014)).
Id. (quoting Finkelman, 810 F.3d at 193; N.J. Physicians, Inc. v. President of the U.S., 653
F.3d 234, 238 (3d Cir. 2011)).
Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007).
4

Complaint alleges facts sufficient to establish constitutional standing—courts “apply
the same standard as on review of a motion to dismiss under Rule 12(b)(6).”28
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal for “failure to state
a claim upon which relief can be granted.” The United States Court of Appeals for the
Third Circuit has instructed that, under the standard established by the Supreme Court
of the United States in Bell Atlantic Corp. v. Twombly29 and Ashcroft v. Iqbal,30 a court
reviewing the sufficiency of a pleading must take three steps: (1) “take note of the
elements the plaintiff must plead to state a claim”; (2) “identify allegations that, because
they are no more than conclusions, are not entitled to the assumption of truth”; and (3)
“assume the[] veracity” of all “well-pleaded factual allegations” and then “determine
whether they give rise to an entitlement to relief.”31
III.

ANALYSIS
The Fair Credit Reporting Act32 imposes certain duties on users of consumer

reports, including that:
[A]ny person [who] takes any adverse action with respect to any consumer
that is based in whole or in part on any information contained in a
consumer report . . . shall . . . provide to the consumer an oral, written, or
electronic notice of the consumer's right . . . to dispute, under [15 U.S.C.
§ 1681i], with a consumer reporting agency the accuracy or completeness
of any information in a consumer report furnished by the agency.33
28
29
30
31
32
33

In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 632-33 (3d Cir. 2017).
550 U.S. 544 (2007).
556 U.S. 662 (2009).
Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations and
citations omitted).
15 U.S.C. § 1681 et seq.
15 U.S.C. § 1681m(a)(4)(B).
5

Even if the Court assumes Gates’ Amended Complaint is sufficient to state a
claim that Defendants violated FCRA’s notice requirement, that alone does not
establish standing. “Article III standing requires a concrete injury even in the context
of a statutory violation.”34 Gates cannot “allege a bare procedural violation, divorced
from any concrete harm, and satisfy the injury-in-fact requirement of Article III.”35
That is precisely what he has done. Previously, Defendants directed the Court to
the Third Circuit’s opinion in Long v. SEPTA,36 arguing that it compelled dismissal for
the “mere procedural violation” of failing to provide Gates notice of his FCRA rights.37
The Court did not read Long so broadly, and permitted Gates to amend his Complaint
if he could “allege facts sufficient to show that, if he were aware of his right to contest
the accuracy of the Report with IDEMIA, it would have had an impact on his pending
job offer.”38 Given a second bite at the apple, Gates alleges that, if he had been “given
the reasonable time allotted under FCRA” to contest the Report, the “job offer would
not have been withdrawn immediately.”39
FCRA provides that an employer, “before taking any adverse action based in
whole or in part on [a consumer] report . . . 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

34
35
36
37
38
39

Spokeo, 587 U.S. at 341.
Id. (citing Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009); Lujan, 504 U.S. at 572).
903 F.3d 312 (3d Cir. 2018).
Jan. 17 Mem. Op. 6.
Id. at 7.
Am. Compl. ¶¶ 49-50.
6

consumer.”40 To the extent that FCRA entitles an employee to a “pre-adverse-action
notice and review period,”41 it is to provide “the opportunity to review the report and
tell [the employer] if it is correct.”42 Gates concedes that he had the opportunity to
review the Report prior to sending it to Defendants.43 Thus, he also had the opportunity
to inform Defendants that it was inaccurate. Then, when Grier called to rescind the
employment offer, Gates explained that the convictions were expunged and provided
the relevant records.44 When the Grier School’s attorney informed Gates a week later
that the School had upheld its decision, it had all of the information that it would have
had if Gates had the opportunity to dispute the Report with IDEMIA.
Whether the School considered that information may be relevant to Gates’ state
law claims, but it is of no significance under FCRA. Significantly, though FCRA
requires employers to inform employees of their right to dispute the accuracy of a report
with the reporting agency, it does not require the employer to wait until any such dispute
is resolved before taking any adverse action.45 Rather, any such dispute may occur in
parallel to similar discussions with the employer.

40
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42

43
44
45

15 U.S.C. § 1681b(3)(A).
Cf. Opp’n. 11.
Using Consumer Reports: What Employers Need to Know, Fed. Trade. Comm’n (Oct. 2016),
available at https://www.ftc.gov/business-guidance/resources/using-consumer-reports-whatemployers-need-know. Cf. Opp’n. 11 n.1 (citing Using Consumer Reports).
Am. Compl. ¶¶ 31-35.
Id. ¶¶ 40-42.
Williams v. First Advantage LNS Screening Sols., Inc., 155 F. Supp. 3d 1233, 1247 (N.D. Fla.
2015).
7

Gates’ argument that Defendants nevertheless did not allow sufficient time for
such discussions is not well taken. As noted above, Defendants had the same
information available to it as it would have if Gates had been able to successfully
dispute the Report with IDEMIA. FCRA does not obligate Defendants to afford Gates
the opportunity to argue that recission of the job offer would violate a separate state
law.46 Whether Defendants violated CHRIA is an issue distinct from any FCRA
violation.47
IV.

CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is granted as to Gates’

FCRA claim for lack of standing. Accordingly, the Court lacks subject matter
jurisdiction over Gates’ remaining claim, brought under Pennsylvania law. Therefore,
Defendants’ Motion is granted in its entirety.
An appropriate Order follows.
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

46

47

Cf. Opp’n. 12 (suggesting that, if “[g]iven adequate notice, [Gates] might have engaged an
attorney who could have argued that an expunged offense cannot be considered under
CHRIA”). In any event, that Defendants have maintained that the rescission of the offer did
not violate CHRIA suggests any such argument would have fallen on deaf ears.
See Jan. 17 Mem. Op. 19 (holding that Gates stated a claim for a violation of CHRIA regardless
of whether the convictions are expunged).
8