United States District Court, N.D. Texas, Dallas Division
JUSTIN LEWIS, on behalf of himself and all others similarly situated, Plaintiff,
SOUTHWEST AIRLINES CO., Defendant.
MEMORANDUM OPINION AND ORDER
BARBARA M.G. LYNN CHIEF JUDGE.
the Court is a Motion for Summary Judgment [ECF #55], filed
by Defendant Southwest Airlines Co.
(“Southwest”). For the following reasons, the
Court GRANTS the Motion.
January 2015, Plaintiff Justin Lewis applied for a job with
Southwest as a part-time ramp agent at LAX airport in Los
Angeles, California. In connection with his application,
Plaintiff executed a two-page “Consent to Request
Consumer Report & Investigative Consumer Report
Information” (the “Consent Form”), pursuant
to which Plaintiff authorized Southwest to engage Sterling
Infosystems Inc. (“Sterling”) to obtain
information regarding Plaintiff's “character,
general reputation, personal characteristics and standard of
living, driving record and criminal record” and to
prepare an investigative consumer report for employment
purposes. See Def. MSJ App. [ECF #57], Ex. 1C at 38.
The next month, Sterling procured the report authorized by
Plaintiff. See id., Ex. 1E. Southwest later hired
Plaintiff, but terminated him shortly thereafter for reasons
unrelated to the investigative consumer report prepared by
subsequently filed this putative class action lawsuit against
Southwest for allegedly violating the Fair Credit Reporting
Act (“FCRA”), 15 U.S.C. § 1681 et
seq., the California Investigative Consumer Reporting
Agencies Act (“CICRAA”), California Civil Code
§1780, et seq., and the California Consumer
Credit Reporting Agencies Act (“CCCRAA”),
California Civil Code §1875, et seq. More
specifically, Plaintiff contends that Southwest violated the
FCRA and the California consumer protection statutes by
failing to provide him with certain statutorily-required
disclosures in a stand-alone document before it procured the
investigative consumer report from Sterling. See
Rem. Not. [ECF #1], Ex. 1 at ¶¶26-33, 42-44, 55-57,
73. Plaintiff further contends that the Consent Form
contained impermissible, extraneous material, including
“a functional equivalent of” a liability release.
Pl. MSJ Resp. Br. [ECF #59] at 5. On March 16, 2017, the
Court granted, in part, Southwest's motion for judgment
on the pleadings, and dismissed Plaintiff's claim for
negligent violation of the FCRA and his CCCRAA claim.
See Mem. Opn. & Order [ECF #49]. Plaintiff's
only remaining claims are his claim for willful violation of
the FCRA and his CICRAA claim. Southwest now moves for
summary judgement as to those claims.
judgment is appropriate if the pleadings, affidavits, and
other summary judgment evidence show that no genuine issue of
material fact exists and that the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A
dispute of a material fact is genuine if a reasonable jury
viewing the evidence could reach a verdict in favor of the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The movant bears the initial burden of
showing the absence of evidence to support the no
movant's claims. Celotex, 477 U.S. at 325. Once
the movant satisfies this initial burden, the burden shifts
to the nonmovant to show summary judgment is not proper.
Fields v. City of S. Houston, 922 F.2d 1183, 1187
(5th Cir. 1991). To carry this burden, the nonmovant must
designate specific facts in the record to show the existence
of a genuine issue of material fact. Celotex, 477
U.S. at 325. All evidence and inferences must be viewed in
the light most favorable to the nonmovant. Boudreaux v.
Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir.
FCRA limits the use of consumer reports in the employment
context. See 15 U.S.C. §1681b. Among other
things, the FCRA provides that a person may not procure a
consumer report for employment purposes 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 (ii) the consumer
has authorized the report in writing. 15 U.S.C.
§1681b(b)(2)(A) (emphasis added). The italicized
provision is sometimes referred to as the
“stand-alone” requirement. The FCRA does not
define the word “disclosure, ” but section
1681d(a)(1) requires that the disclosure:
clearly and accurately disclose[ ] to the consumer that an
investigative consumer report including information as to his
character, general reputation, personal characteristics, and
mode of living, whichever are applicable, may be made, and
such disclosure (A) is made in a writing mailed, or otherwise
delivered, to the consumer, not later than three days after
the date on which the report was first requested, and (B)
includes a statement informing the consumer of his right to
request the additional disclosures provided for under
subsection (b) of this section and the written summary of the
rights of the consumer prepared pursuant to section 1681g(c)
of this title.
1681g(c) summarizes consumer rights to obtain and dispute
information in consumer reports and to obtain credit scores,
(i) the right of a consumer to obtain a copy of a consumer
report from each consumer reporting agency;
(ii) the frequency and circumstances under which a consumer
is entitled to receive a consumer report without ...