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Lewis v. Southwest Airlines Co.

United States District Court, N.D. Texas, Dallas Division

January 11, 2018

JUSTIN LEWIS, on behalf of himself and all others similarly situated, Plaintiff,



         Before 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.


         In 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 Sterling.

         Plaintiff 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.

         Legal Standard

         Summary 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. 2005).


         The 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.

         Section 1681g(c) summarizes consumer rights to obtain and dispute information in consumer reports and to obtain credit scores, including:

(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 ...

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