Wirt v. Bon-Ton Stores, Inc.

134 F. Supp. 3d 852, 2015 U.S. Dist. LEXIS 135694, 2015 WL 5738006
CourtDistrict Court, M.D. Pennsylvania
DecidedOctober 1, 2015
Docket1:14-cv-1755
StatusPublished
Cited by17 cases

This text of 134 F. Supp. 3d 852 (Wirt v. Bon-Ton Stores, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wirt v. Bon-Ton Stores, Inc., 134 F. Supp. 3d 852, 2015 U.S. Dist. LEXIS 135694, 2015 WL 5738006 (M.D. Pa. 2015).

Opinion

MEMORANDUM & ORDER

John E. Jones III, United States District Judge

Plaintiff Carrie E. Wirt brings this consumer class action under the Fair Credit Reporting Act, 15 U.S.C. Section 1681 et seq. (“FCRA”) on behalf of herself and others similarly situated, and against Defendant Bon-Ton Stores, Inc. Presently pending before this Court is Defendant’s Motion to Dismiss or in the Alternative to Strike, pertaining to Count I of Plaintiffs Amended Complaint. (Doc. 33). For the reasons that follow, the Motion shall be denied.

I. FACTUAL BACKGROUND

On or around the end of August 2012, Carrie E. Wirt (‘Wirt”) applied for the position of sales associate at Bon-Ton Stores, Inc. (“Bon-Ton”). (Doc. 26, ¶23). Pursuant to Bon-Ton’s standard hiring practices, Wirt signed a document entitled “Application for Employment.” (Id. ¶24, see Doc. 37, Exhibit A). Wirt alleges that this standardized form document was not a “clear and conspicuous disclosure ... in a document that consists solely of the disclosure” as required by Section 1681b(b)(2)(A)(i) of the FCRA. (Doc. 26, ¶ 24). The first page of the document contained blanks for Wirt’s personal information. (Doc. 37, Exhibit A, pg.' 1). At the bottom of the second page and the top of the third, several paragraphs outlined Bon-Ton’s background check procedure. (Id. pgs.2-3). Also on the third page, a space was available for Wirt to affirm the statement, “I have read and agree with this policy.” (Id. pg.3). Further down on the third page, an “Acknowledgments and Agreement” section authorized Bon-Ton to verify all of the information provided in the application, including Wirt’s criminal background information. (Id.). The section also indemnified Bon-Ton and any company providing such verification information from suit by Wirt. (Id.).

Wirt was hired and began working at a Bon-Ton retail store on September 2, 2012. (Doc. 26, ¶ 34). On October 1, 2012, Bon-Ton requested a background report on Wirt from HireRight, one of the largest employment background screening companies in America. (Id. ¶¶ 12, 37, 39). On October 15, 2012, Bon-Ton informed Liberty House, a vocational services program that assists Wirt, that the background report it received indicated that Wirt had stolen money from her previous employer, Kmart. (Id. ¶ 35). An employee from Liberty House, Wirt, Bon-Ton’s Human Resources Manager and Bon-Ton’s Store Manager later met to discuss the situation. (Id. ¶36). Wirt explained that she had been wrongfully accused of stealing money from Kmart in December of 2010. (Id. 1Í1Í19, 36). She further explained that, [855]*855although she was charged in connection with these allegations, the charges against her were subsequently dismissed for lack of evidence. (Id. ¶¶ 21, 36).

At the same meeting, Bon-Ton provided Wirt with a “Notification of Adverse Employment Action” and a copy of the Hire-Right background report, dated October 15, 2012. (Id. ¶ 37). The Bon-Ton managers informed Wirt that she was being placed on suspension. (Id. ¶ 41). Allegedly, at no point was Wirt provided with pre-adverse action notice as required by the FCRA. (Id.). Two days later Bon-Ton reinstated Wirt, and she remained in Bon-Ton’s employ until January 12, 2013. (Id., ¶¶ 43, 44).

II. PROCEDURAL HISTORY

Wirt commenced this action with the filing of a complaint on September 9, 2014. (Doc. 1). The complaint asserted a single Count under § 1681b(b)(3) of the FCRA on behalf of a class of similarly situated persons. The Count alleged that Bon-Ton failed to give Wirt and others “pre-adverse action notice,” as § 1681b(b)(3) requires, before making adverse employment decisions (referred to below as the “Adverse Action Claim”). (Doc. 1, ¶¶ 43-50). In her original complaint, Wirt defined the class as:

All employees or applicants for employment of Defendant Bon-Ton ... who, within two years prior to the filing of this action and continuing through the final resolution of this case, were the subject of a background report obtained from HireRight that was used by Bon-Ton to make an adverse employment decision ... and for whom Bon-Ton failed to provide the employee or applicant a copy of their consumer report or a copy of the FCRA summary of rights at least five business days before it took such adverse action.

(Doc. 1, ¶ 37). Bon-Ton filed an answer to the complaint on October 14, 2014 (Doc. 11), and soon thereafter, deadlines for class certification and discovery were set. (Doc. 15). A March 31, 2015 deadline was also set for amendments to the pleadings. (Doc. 15, ¶ 6).

On or about January 27, 2015, Bon-Ton produced sixty-five pages of discovery, including Wirt’s Employment Application. On February 20th, allegedly in response to new information revealed by the discovery, Wirt filed an amended class action complaint. (Doc. 18). Bon-Ton moved to strike the amended complaint on March 10th. (Doc. 20). Subsequently, the parties agreed to a jointly proposed Scheduling Order, and withdrew both the amended complaint and the motion to strike.

Pursuant to the Scheduling Order, Wirt filed the operative Amended Complaint on April 15, 2015. (Doc. 26). The operative Amended Complaint sets forth two Counts. The first Count, also asserted on behalf of a class of similarly situated persons, alleges that Bon-Ton “willfully or negligently violated] Section 1681b(b)(2) of the FCRA by procuring or causing to be procured a consumer report for employment purposes without first providing a clear and conspicuous disclosure ... in a document that consists solely of the disclosure.... ” (Id. ¶ 55). The second Count is identical to that in the original complaint. In her Amended Complaint, Wirt includes the same class definition as that which appears in her original complaint. She also outlines a second category of persons, described as:

[A]ll natural persons residing within the United States and its territories, regarding whole, within two years prior to the filing of this action and extending through the resolution of this action, the Defendant procured or caused to be procured a consumer report for employ[856]*856ment purposes using a written disclosure containing language substantually similar in form to the forms provided to Ms. Wirt ....

(Id. ¶ 46(a)). Wirt seeks an order certifying the two groups of persons as a single class under Rule 23 and appointing Wirt and her counsel to represent the same. (Id. If 63). Wirt also seeks an award of actual, statutory and punitive damages for herself and the class, as well as pre- and post-judgment interest, attorneys fees and costs. (Id.).

On May 1, 2015, Bon-Ton submitted the instant Motion to Dismiss or in the Alternative to Strike, in regards to Count I. (Doc. 33). The Motion has been fully briefed (Docs.34, 37, 38) and is ripe for disposition.1

III. STANDARDS OF REVIEW

A. Motion to Dismiss

A motion to dismiss pursuant to Rule 12(b)(6) contends that the complaint has failed to assert a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).

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Cite This Page — Counsel Stack

Bluebook (online)
134 F. Supp. 3d 852, 2015 U.S. Dist. LEXIS 135694, 2015 WL 5738006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wirt-v-bon-ton-stores-inc-pamd-2015.