AMENDED OPINION AND ORDER
This diversity action arises out of the withdrawal of an employment offer to plaintiff Abel Obabueki (“plaintiff’) by defendant International Business Machines Corp. (“IBM”). Plaintiff alleges that IBM improperly considered his dismissed misdemeanor conviction in making its decision to withdraw the offer, and failed to properly inform plaintiff of its intent to withdraw the offer, in violation of the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 296(15), 296(16) (“Sections 296(15) and 296(16)”), and the Fair Credit Reporting Act (“FCRA” or “the Act”), 15 U.S.C. §§ 1681 et seq. Plaintiff asserts claims against defendant Choice-point, Inc. (“Choicepoint”) under the FCRA and Section 349 of the New York General Business Law as a result of Choicepoint’s allegedly improper provision of information related to the conviction to IBM. Currently before the Court are cross-motions for summary judgment on plaintiffs claims against each defendant, and plaintiffs motions to strike certain of each defendant’s affirmative defenses. For the reasons set forth below, the motions are granted in part and denied in part.
1. Factual Background 1
A. The Parties and Plaintiffs 1995 Conviction
Plaintiff, a citizen of Connecticut, has a Ph. D. in Materials Science and Engineering and a Master of Business Administration (“MBA”) from Stanford University. (IBM’s Statement of Undisputed Material Facts (“IBM 56.1”) ¶ 1; Plaintiffs Rule 56.1 Counter Statement on IBM Claims (“PI. 56.1 Resp. IBM”) ¶ 1.) IBM is a corporation organized and existing under the laws of Delaware with its principal place of business in Armonk, New York. (Amended Complaint (“Compl.”) ¶ 3.) Choicepoint
2
, a
In 1995, plaintiff was arrested and charged with fraud in obtaining welfare aid.
3
He entered a plea of nolo contende-re, was ordered to pay restitution for the amount he illegally obtained, was fined $100, served 13 days in jail, and was placed on two years’ probation. (IBM 56.1 ¶ 3; PL 56.1 Resp. IBM ¶ 3; Declaration of Gregory Antollino dated July 4, 2000 in Support of Plaintiffs Motion for Summary Judgment Against Choicepoint (“Antollino Choicepoint Decl.”), Ex. E.) On January 27, 1997, plaintiffs conviction was “vacated” and “dismissed” pursuant to California Penal Code § 1203.4 (“Section 1203.4”).
4
The Order disposing of his case (the “California Order”) stated that plaintiff was convicted of a misdemeanor offense, and was discharged from probation prior to the termination of the designated period. (Declaration of Gregory Antollino dated July 18, 2000 in Support of Plaintiffs Motion for Summary Judgment Against IBM (“Antollino IBM Decl.”), Ex. 3.) The California Order further directed that “the
“[Plaintiff] is advised that this Order does not reheve him/her of the obligation to disclose the above referenced conviction in response to any direct question contained in any questionnaire or application for public office or for licensure by any State or local agency, or for contracting with the California State Lottery.”
(Id.; IBM 56.1 ¶5; Pl. 56.1 Resp. IBM ¶ 5; see also Section 1203.4.) The record of the conviction was not sealed. 5 (IBM 56.1 ¶ 7; Pl. 56.1 Resp. IBM ¶ 7.)
Subsequently, plaintiff engaged the services of a private detective to determine what a prospective employer could learn about his conviction by performing a background check. (IBM 56.1 ¶ 8; Pl. 56.1 Resp. IBM ¶ 8; Pl. Dep., Ex. B to Lauri Aff., at 176-82, 461-67.) The detective advised plaintiff that his record was clear and contained no convictions. (IBM 56.1 ¶ 9; Pl. 56.1 Resp. IBM ¶ 9.) Plaintiff claims that he conducted a similar investigation on his own, and was unable to locate information containing his conviction. (Pl. Dep. at 176-82, 461-67.)
B. Plaintiffs Application for Employment at IBM
At IBM, once a decision is made to make a conditional offer of employment to a candidate, the individual is asked to complete an application form. (IBM 56.1 ¶ 18; Pl. 56.1 Resp. IBM ¶ 18.) An applicant must also complete a Security Data Sheet (“SDS”), which requests,
inter alia,
that he identify whether he has pleaded guilty or “no contest” to a crime or other offense within the last seven years.
6
However, the applicant is expressly requested not to include “arrests without convictions” or “convictions or incarcerations for which a record has been sealed or expunged.” (IBM 56.1 ¶ 19; Pl. 56.1 Resp. IBM ¶ 19; Ex. M to Lauri Aff.) Both the application form and SDS provide that “any misrepresentation or deliberate omission of a fact ... will justify terminating consideration” of the application for employment. (IBM 56.1 ¶ 20; Pl. 56.1 Resp. IBM ¶ 20.) Further, IBM policy states that the mere identification of a conviction on the SDS will
In April 1999, Olwyn Spencer (“Spencer”), IBM’s Program Director for Market Management, identified the need for a marketing manager position for the company’s JAVA Company Software group. Spencer, who is also the Hiring Manager for that group, initially posted the position notice on the IBM website for IBM employees. (IBM 56.1 ¶ 24; Pl. 56.1 Resp. IBM ¶ 24.) By August 1999, no internal candidates had emerged. James Bailey (“Bailey”), an IBM recruiter, then sought outside candidates for the position. 7 At a certain point, Bailey received plaintiffs resume from another IBM recruiter, and sent it to Kathy Brown (“Brown”), the IBM Account Manager for the JAVA position, who in turn forwarded it to Spencer for consideration. (IBM 56.1 ¶¶ 25-26; Pl. 56.1 Resp. IBM ¶¶ 25-26.)
In September 1999, plaintiff interviewed with Spencer for the marketing manager position. Spencer rated plaintiff an outstanding candidate for the job, and he was given a conditional offer of employment subject to a background check. 8 Plaintiff then completed the IBM application form and SDS. (IBM 56.1 ¶¶ 27-29; Pl. 56.1 Resp. IBM ¶¶ 27-29; Pl. 56.1 IBM ¶¶ 14-15; IBM 56.1 Resp. ¶¶ 14-15; Ex. A. to Compl.) In response to the question regarding prior convictions that were neither “expunged” nor “sealed,” plaintiff checked “no.” (IBM 56.1 ¶ 30; Pl. 56.1 Resp. IBM ¶ 30.)
IBM retained Choicepoint to perform the background check on plaintiff, pursuant to a longstanding agreement (the “IBM-Choicepoint Agreement”) whereby Choicepoint renders “background Verification Services” to IBM.
9
(Pl. 56.1 IBM ¶¶ 21-22; IBM 56.1 Resp. ¶¶ 21-22; Agreement for IBM and Equifax Services, Inc., Ex. 0 to Antollino Choicepoint Decl.)
10
On September 28, 1999, an individual working for Inquest, one of Choice-point’s contractors, was sent to the state courthouse in Santa Clara County, California to check for criminal convictions of plaintiff. (Choicepoint’s Statement Pursuant to Local Civil Rule 56.1 (“Choicepoint 56.1”) ¶ 12; Pl. 56.1 Resp. Choicepoint ¶ 12.) The contractor identified plaintiffs former conviction for welfare fraud and reported it to Choicepoint. (Choicepoint 56.1 ¶ 13; Pl. 56.1 Resp. Choicepoint ¶ 13;
On or about October 5, 1999, IBM received a report from Choicepoint, apparently based on the information Choicepoint had obtained from Inquest, which reflected plaintiffs welfare fraud conviction (the “First Report”). 11 However, the report failed to mention the dismissal of the conviction pursuant to Section 1203.4. (IBM 56.1¶ 31; Pl. 56.1 Resp. IBM ¶ 31; Pl. 56.1Choicepoint ¶¶ 39410; Choicepoint 56.1Resp. ¶¶ 39-40; Ex. B. to Compl.) Upon receiving the First Report, Brown contacted plaintiff and advised him of its contents. 12 Plaintiff responded that the conviction had been vacated and the case dismissed, and provided Brown with a copy of the California Order. (IBM 56.1 ¶¶ 33-34; Pl. 56.1 Resp. IBM ¶¶ 33-34; Pl. Dep. at 236-37, 279-80.) However, plaintiff did not explicitly state that the conviction had been “expunged” or “sealed.” (IBM 56.1 ¶ 35; Pl. 56.1 Resp. IBM ¶ 35; Pl. Dep. at 236-37, 279-80; Brown Dep., Ex. E to Lauri Aff., at 63-64.)
Several IBM employees then reviewed plaintiffs candidacy in light of the First Report and the California Order. Each of them concluded that plaintiff should have disclosed his conviction on the SDS. (IBM 56.1¶¶ 36-45; Pl. 56.1 Resp. IBM ¶¶ 36-45.) These individuals were (i) Brown, (ii) Dick Carson (“Carson”), the Policies and Practices Manager, and (iii) Ketzel. (Id.) On October 11, 1999, Ketzel met with Spencer and advised her that plaintiff had lied on his application because he failed to reveal the conviction. (IBM 56.1 ¶ 44; Pl. 56.1Resp. IBM ¶ 44.) On the basis of Ketzel’s representations, Spencer determined that the trust necessary to initiate an employment relationship did not exist, and decided to withdraw plaintiffs conditional offer as a result of his alleged misrepresentation on the SDS. (IBM 56.1 ¶ 45; Pl. 56.1 Resp. IBM ¶45.) Joseph Damassa, an IBM vice president, approved Spencer’s decision. (Pl. 56.1 IBM ¶¶ 65-66; IBM 56.1 Resp. ¶¶ 65-66; Spencer Dep., Ex 4 to Antollino IBM Decl., at 94-97.) The underlying facts concerning plaintiffs former conviction were not discussed or factored into the decision; IBM contends that the job offer was withdrawn because plaintiff lied on his employment application. (Pl. 56.1 IBM ¶ 63; IBM 56.1 Resp. ¶ 63.)
On or about October 13, 1999, Brown called plaintiff and told him that IBM intended to withdraw its conditional offer of employment.
13
(IBM 56.1 ¶ 46; Pl. 56.1 Resp. IBM ¶ 46; Pl. Dep. at 279-81.) By letter dated October 13, 1999, IBM informed plaintiff that it “intend[ed] not to employ [him] based in part on information contained in [the First Report].” Attached to the letter was a copy of the First Report and a written description of plaintiffs rights under the FCRA.
14
(Letter
According to IBM, on or about October 11, 1999, IBM made the decision to reduce the staff of its marketing department. At a certain point, Spencer purportedly determined that the marketing manager position for which plaintiff had applied would not be filled and the job posting was deleted on October 26, 1999. Plaintiffs name purportedly remains in IBM’s computer resume database, and IBM states that he has been considered for other positions, most recently in January 2000. (IBM 56.1 ¶¶ 50-52.)
Following the withdrawal of the employment offer, and as a result of plaintiffs complaint to Choicepoint, Choicepoint obtained his California court file, and, upon review of the file, issued an amended report to IBM (the “Second Report”). (Pl. 56.1 IBM ¶¶ 75-76; IBM 56.1 Resp. ¶¶ 75-76.) The Second Report, which IBM received on October 20, 1999, contains no mention of plaintiffs conviction, and reflects a clear record. (Ex. C to Compl.) Certain of IBM’s Human Resources staff who had considered the First Report, including Brown, Bailey and Carson, received and examined the Second Report. (Pl. 56.1 IBM ¶¶ 79-81; IBM 56.1 Resp. ¶¶ 79-81; Exs. 10, 16 to Antollino IBM Deck) However, IBM did not re-offer the marketing manager position to plaintiff. (Pl. 56.1 IBM ¶ 78; IBM 56.1 Resp. ¶ 78.) Spencer testified that she finds it difficult to imagine a circumstance where she would hire plaintiff, because he failed to reveal the vacated conviction. (Pl. 56.1 IBM ¶ 83; IBM 56.1 Resp. ¶ 83.)
C. Instant Action
Plaintiff filed an action against IBM and Choicepoint, Inc. on November 12, 1999, and an Amended Complaint on December 2, 1999. Plaintiff filed an action against two of Choicepoint’s subsidiaries, Choice-point Services, Inc. and Choicepoint Business and Government Services, Inc., on December 29, 1999. The two cases were consolidated on April 14, 2000.
Plaintiff alleges that IBM violated Sections 296(15) and 296(16) of the NYSHRL on the ground that IBM withdrew its offer of employment based on plaintiffs conviction. He also alleges that IBM violated the FCRA, 15 U.S.C. §§ 1681b(b)(l)(A), 1681b(b)(3) (“Sections 1681b(b)(l)(A) and 1681b(b)(3)”) because it took adverse action against plaintiff without properly giving him notice that it was taking such action, and without properly certifying to Choicepoint that, inter alia, it would provide such notice. IBM now moves for summary judgment on each of plaintiffs claims; plaintiff cross-moves for summary judgment solely as to his Section 296(16) and FCRA claims. Plaintiff also moves to strike IBM’s affirmative defense of unclean hands. 15
II. Discussion
A. Summary Judgment Standard
A district court may grant summary judgment only if it is satisfied that “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.”
Anderson v. Liberty Lobby, Inc.,
If the moving party meets its burden, the opposing party must produce eviden-tiary proof in admissible form sufficient to raise a material question of fact to defeat the motion for summary judgment, or in the alternative, demonstrate an acceptable excuse for its failure to meet this requirement.
AGV Prods., Inc. v. Metro-Goldwyn-Mayer, Inc.,
The Supreme Court has noted that summary judgment is inappropriate when a case will turn on credibility determinations.
Anderson,
B. NYSHRL Claims Against IBM
1. Section 296(15)
Section 296(15) prohibits a private employer from discriminating against an individual applicant, through denial of employment, on the basis of prior criminal convictions or the perception of such convictions.
16
The legal framework governing burdens of proof in an employment discrimination action is well settled, and was recently clarified by the Second Circuit in
James v. New York Racing Assoc.,
Evidence that the employer’s proffered explanation is false “may or may not be sufficient to sustain a finding of discrimination.”
James,
Here, IBM concedes, for the purposes of its motion, that plaintiff has stated a prima facie case with regard to IBM’s withdrawal of plaintiffs conditional employment offer, 17 (IBM’s Memorandum of Law in Support of its Motion for Summary Judgment (“IBM Mem.”) at 12.) IBM then proffers a non-discriminatory reason for its action, namely, that plaintiff lied on his employment application. Thus, the Court’s analysis properly centers on plaintiffs ability to present evidence that would allow a reasonable jury to conclude that the withdrawal of his offer resulted from prohibited discrimination, i.e. IBM’s consideration of the fact and/or details of the conviction itself.
“It is well settled that a misstatement of a material fact on an employment application is a sufficient non-discriminatory ground for an employer’s refusal to hire.”
Kravit,
First, it is undisputed that plaintiffs conviction was “vacated” and “dismissed” under Section 1203.4, a California statute. When IBM informed him that it intended to withdraw the conditional job offer based on that conviction, plaintiff related what the California Order stated: that his conviction was vacated and the charges dismissed. IBM’s Human Resources staff subsequently came to the conclusion that plaintiff had lied on the SDS based, in part, on plaintiffs comments to Brown and, specifically, the fact that “plaintiff did not advise Ms. Brown that the conviction had been ‘expunged’ or ‘sealed.’ ” (IBM 56.1 ¶ 35.) While there is no possibility of ambiguity as to whether plaintiffs conviction was sealed' — the relevant court records, after all, were freely disclosed to Choicepoint’s contractor (see Declaration of Eric Jon Taylor dated Aug. 14, 2000 (“Taylor Decl.”), Ex. E) — the issue of whether his conviction was “expunged” under California law is far from clear. While the California Supreme Court has not directly ruled on the issue, numerous California courts have stated, both directly and indirectly, before and after the events in this case occurred, that a dismissal under Section 1203.4 amounts to the “expungement” of a conviction.
See, e.g., Stephens v. Toomey,
Second, IBM argues that the California Order itself required plaintiff to disclose the conviction. Each of the employees who was involved in the decision on plaintiffs application examined the Order, and at least two of them, Carson and Ketzel, affirmatively concluded that the Order’s language requiring plaintiff to “disclose the above-referenced conviction to any direct question contained in any
questionnaire
” applied to the SDS. (Carson Dep., Ex C to Lauri Aff., at 38^12; Ketzel Dep., Ex. G to Lauri Aff., at 37-38) (emphasis added). This conclusion appears to conflict with the plain meaning of Section 1203.4. In particular, (i) from a grammatical point of view, it ignores the remainder of the relevant phrase and the sentence of which it is part, and (ii) the result it produces contrasts with the policy goals of Section 1203.4. Section 1203.4 states that dismissal under its auspices “does not relieve ... the obligation to disclose the conviction in response to any direct question contained in any
questionnaire or application for public office,
for licensure by any state or local agency, or for contracting with the California State Lottery.”
Third, the deposition testimony of those employees involved in the decision to withdraw plaintiffs offer further raises a question as to IBM’s rationale for the withdrawal. Such testimony, introduced by plaintiff, reveals that certain of the employees who concluded plaintiff had lied on his application were not entirely familiar with the legal concepts necessary to make that decision. Specifically, Brown testified that because the Order did not use the word “expunged” that the conviction was not expunged. (Brown Dep., Ex. 18 to Antollino IBM Decl., at 30.) However, in an e-mail expressing her concerns to Carson, Brown stated that while plaintiff told her that the charges had been dropped completely, the Order “[did] not state that he was given complete
forgiveness.”
(Ex. 14 to Antollino IBM Decl.) (emphasis added). She also defined “expunged” to mean that “your record is clear,” and “that it is sealed,” but stated she did not know if expunged meant “sealed and expunged.” (Brown Dep. at 30, 66.) By contrast, she defined “dismissed” to mean that “[the conviction] would still show.”
(Id.
at 30, 67.) Finally, she equated “forgiveness” to
Carson testified that he had dealt with differences in legal terminology from different states on approximately five or six occasions since beginning his work for the company’s Policies and Practice Division in 1993. (Carson Dep., Ex. 6 to Antollino IBM Decl., at 43-44; PI. 56.1 IBM ¶ 31; IBM 56.1 Resp. ¶ 31.) He testified that he is aware of such differences pertaining to a situation where a court has sealed or otherwise disposed of a criminal record. (PI. 56.1 IBM ¶ 31; IBM 56.1 Resp. ¶31.) However, he stated that he did not know what the California Order meant when it said that “the finding of guilty [was] set aside and the Court dismissed the action”; yet he concluded, without relying on the advice of any attorney, that plaintiffs conviction had not been expunged. (Carson Dep. at 41-42, 47-48; IBM 56.1 Resp. ¶ 42-43.) He further testified that if he were asked to consider the reversal of a conviction on appeal arising in any jurisdiction, he would consult with IBM’s attorneys to determine how to proceed in evaluating the applicant. (Carson Dep. at 46-47; PL 56.1 IBM ¶41; IBM 56.1 Resp. ¶ 41.)
Ketzel stated that plaintiff lied on his employment application because “[h]e said he has not been convicted and he has.” (Ketzel Dep., Ex. 5 to Antollino IBM Decl., at 20.) Ketzel acknowledged that if plaintiff had a conviction that was “expunged” and he answered “no” to the question regarding prior convictions, he would have been telling the truth. (Id. at 20.) Ketzel concluded that the conviction was not “expunged,” and that plaintiff lied, on the basis of “input from [Brown],” the First Report, and the California Order. 22 (Id. at 21-22; PI. 56.1 IBM ¶ 51; IBM 56.1 ¶ 51.) However, he testified that he was unsure what “vacated” means, in the context of the Order’s dismissal of plaintiffs conviction, and that he does not know what “expunged” means. (Ketzel Dep. at 22, 26, 36.) Nevertheless, Ketzel expressed his view and that of the Human Resources staff regarding withdrawal of the offer to Spencer, and in turn to Damassa. Spencer apparently understood from Ketzel that plaintiff had been convicted of a crime which he should have reported on his SDS. (IBM 56.1 Resp. ¶ 54, Spencer Dep., Ex. 4 to Antollino IBM Decl., at 88.) She testified that she did not “understand the legalities, the fine details of a vacated conviction versus a non-vacated conviction.” (Id. at 43.) Yet, relying on the advice of Ketzel and without reviewing any document, she decided that plaintiff had lied on the application and that “the trust necessary to initiate an employment relationship did not exist.” (Id. at 47-48, 54, 86, 88; IBM 56.1 Resp. ¶ 55.)
Fourth, following plaintiffs complaint to Choicepoint concerning the alleged inaccuracies in the First Report, Choicepoint provided a Second Report to IBM that reflected that plaintiffs record was clear. Seeking to minimize the importance of the Second Report, IBM points out that the Report was not received until October 20, 1999, after IBM had withdrawn plaintiffs offer of employment, and therefore “had no bearing upon IBM’s conclusion that plaintiff lied ....” (IBM 56.1 ¶78.) This argument ignores the possibility of IBM’s reconsideration of the withdrawal and re-extension of the offer. Such disregard of the contents of the Second Report is probative of the falsity of IBM’s explanation
Examining the entire record, construing the facts implicated by the four points above in the light most favorable to plaintiff, and resolving all inferences and ambiguities in his favor, plaintiff has raised questions with regard to the truth of IBM’s proffered explanation. However, contrary to plaintiffs suggestion, he need not only allege a prima facie case and “a question as to whether IBM actually believed that plaintiff lied” in order to demonstrate the pretext necessary to survive a motion for summary judgment on his Section 296(15) claim. (PI. Mem. at 28-29.) Plaintiff must make a substantial showing that IBM’s explanation was false.
See Reeves,
Moreover, plaintiff has not set forth any additional facts that would raise an inference of discrimination. Nothing in the record indicates that IBM’s rationale for withdrawing the employment offer was based on the fact of plaintiffs conviction, rather than the fact that he lied on his application, or another reason. In fact, the nature of IBM’s established policy concerning its consideration of convictions in the employment process, which
is
in the record, suggests an alternative reason. As noted
supra,
that policy tracks Section 296(15), incorporating New York Correc
Having considered “the strength of the plaintiffs prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports [or undermines] the employer’s case,”
Reeves,
2. Section 296(16)
Section 296(16) prohibits an employer from making an inquiry into or taking an adverse action with respect to the arrest or criminal accusation of an individual which was terminated in the individual’s favor. 27 IBM contends that plaintiffs Section 296(16) claim must be dismissed because the criminal proceedings against plaintiff were not “terminated in his favor.” (IBM Mem. Fur. Supp. at 12-20.) The Court agrees.
According to Section 296(16), whether a criminal proceeding was terminated in an individual’s favor is governed by Section 160.50 of the New York Criminal Procedure Law (“Section 160.50”). This section lists several instances where a criminal action shall be considered terminated in favor of the accused.
See
Section 160.50(3).. The New York Court of Appeals has found that such list “encompasses an expansive class of dispositions, including acquittal and various specified dismissals and vacaturs, regardless of whether premised on grounds unrelated [sic] to guilt or innocence.”
Matter of Hynes,
Plaintiff asserts that his conviction was “terminated in his favor” because it was vacated and dismissed pursuant to Section 1203.4. (PI. Mem. IBM at 23-25.) No court has determined whether a disposition under Section 1203.4 is “terminated in favor” of the accused within the meaning of Section 160.50. Noting that under New York Executive Law § 300, the provisions of the NYSHRL “must be liberally construed to accomplish the purposes of the statute,”
Cahill v. Rosa,
The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt. No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.
Section 170.55(8). In contrast, Section 1203.4 dismissals apply to existing convictions effected by a plea of guilty before trial or a finding of guilt by a jury, and are only entered after a specified period of probation. The charges are not automatically dismissed, but the accused must petition the Court before any action is taken. Once the plea or verdict of guilty is withdrawn and the charges dismissed, plaintiff is not released from all penalties and disabilities resulting from the conviction; as noted
supra,
at a minimum, individuals may still prevented from being considered for certain forms of public sector or state-sanctioned employment. The statute itself requires individuals to report their conviction in certain public settings, and, “in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.” Section 1203.4. Finally, while the charges are dismissed, they are not sealed. The conviction remains in the public record, such that an employer, or a consumer reporting agency, may discover
Plaintiff also compares Section 1203.4 relief to a dismissal in the “interest (or furtherance) of justice,” which is one of the favorable terminations specified under New York Criminal Procedure Law § 170.30 (“Section 170.30”). The remedy itself is detailed in New York Criminal Procedure Law § 170.40 (“Section 170.40”). Like an ACD, this form of relief is neither an acquittal nor a determination on the merits; it leaves the question of guilt or innocence unanswered.
Ryan v. New York Tel. Co.,
C. FCRA Claims Against IBM
Plaintiff alleges that IBM violated the FCRA, in particular 15 U.S.C. §§ 1681b(b)(l)(A), 1681b(b)(3), by (i) withdrawing plaintiffs conditional offer of employment without first providing him with a copy of the First Report and a description of rights under the Act, and (ii) failing to properly certify to Choicepoint that it would provide such forms of notice and use the information in the report for the proper purpose under the Act. As far as this Court can tell, no court has addressed claims brought under either of the above sections. The Court addresses the claims in reverse order.
Section 1681b(b)(3) requires that, “in 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 (A) a copy of the report; and (b) a description in writing of the rights of the consumer under this subchapter, as prescribed by the Federal Trade Commission .... ” Plaintiff claims that such procedures were not properly followed because IBM had already “taken adverse action” by October 13, 1999, the day plaintiff received the letter from IBM’s Human Resources department stating that the company intended to withdraw its conditional offer of employment. Plaintiff points to facts, discussed supra, indicating that IBM’s internal decision-making process had been completed by October 12, the date when Ketzel met with Spencer and subsequently sent an e-mail to Damas-sa concerning the staffs recommendation that IBM rescind the offer. He therefore concludes that “[t]here is not a shred of evidence indicating that IBM made any decision — or intended to make any deci sion — after it sent the letter on October 13,” (PI. Mem. IBM at 26), and that “[t]he sending of the second letter [on October 18] was not a decision- — it was merely a notification that a decision had been made,” (Plaintiffs Reply Memorandum of Law in Further Support of His Motion for Partial Summary Judgment Against IBM (“Pl.Rep.IBM”) at 14.)
Because plaintiff misinterprets the statute and misconstrues the underlying purpose of its requirements, his contention is unavailing. An internal decision to rescind an offer is not an adverse action. The FCRA defines “adverse action,”
inter alia,
as the
“denial of employment
or any other
After receipt of the intent letter, plaintiff could have come forward with information responding to the First Report that showed he had not lied on his application. He attempted to do so by asking Choice-point to reexamine his records. Such opportunity to discuss and dispute the report is exactly the scenario envisioned by the FCRA. See Lynne B. Barr, “The New FCRA: An Assessment of the First Year,” 54 Bus. Law. 1343, 1348 (1999) (citing Letter from FTC to Employers Association of New Jersey dated Dec. 18, 1997) (stating that the “clear purpose” of the FCRA is “to allow consumers to discuss reports with employers or otherwise respond before adverse action is taken”). Because plaintiffs position that forming an intent to withdraw an employment offer is an adverse action is legally unsupportable, the Court denies his motion, and grants IBM’s motion for summary judgment as to his FCRA claim under Section 1681b(b)(3).
Plaintiff also argues that IBM violated the FCRA because “before using a report, IBM must certify to Choicepoint that it will comply with the FCRA and the State Human Rights Laws.” (PI. Mem. at 27.) Plaintiffs claim is grounded in IBM’s alleged failure to provide evidence of such certification during discovery. (Id.) Section 1681b(b)(l)(A) provides:
(1) Certification from user. 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) with respect to the consumer report, 33 and the person will comply with paragraph (3) with respect to the consumer report if paragraph (3) becomes applicable; 34 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, as prescribed by the Federal Trade Commission ....
IBM argues, based on the plain language of the statutory provision, that only the consumer reporting agency may be held liable under this subsection, not the user of the reports. The Court agrees. “In construing the terms of a statute, we look first to the language itself.”
Washington v. Schriver,
Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent .... The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.
Id.
(quoting
Robinson v. Shell Oil Co.,
Section 1681b(b)(l) sets forth the “[e]on-ditions for furnishing and using consumer reports for employment purposes.” The section contains three subsections that set forth certain obligations for consumer reporting agencies and users such as employers. However, contrary to plaintiffs suggestion, (PL Rep. IBM at 14), each of the subsections need not, and does not, prescribe obligations for both agencies and users. The second and third subsections both affect users.
See
15 U.S.C. §§ 1681b(b)(2), b(b)(3) (setting forth certain conditions for the procurement of and use of consumer reports). On the other hand, the first subsection, at issue here, sets forth obligations that an agency must satisfy before furnishing a consumer re
Every consumer reporting agency shall maintain reasonable procedures designed to ... limit the furnishing of consumer reports to the purposes listed under section 1681b of this title. These procedures shall require that prospective users of the information identify themselves, certify the purposes for which the information is sought, and certify that the information will be used for no other purpose.
Section 1681e(a) (emphasis added);
see Ippolito v. WNS, Inc.,
D. FCRA Claims Against Choice-point 35
1. Section 1681b(b)(l)(A)
Plaintiff alleges that Choicepoint violated 15 U.S.C. § 1681b(b)(l)(A) because it furnished a credit report to IBM concerning plaintiff without first obtaining the required certification. Choicepoint argues that this claim must be dismissed because such certification was provided to IBM.
36
It suggests that the certification is reflected in a document sent to Choicepoint by IBM, but acknowledges that it has not been able to locate such document. (Choicepoint Mem. at 18;
see
Choicepoint’s Response to Plaintiffs First Combined Demand, Ex. K to Antollino Choicepoint Deck, Resp. to No. 5 (stating that Choice-point “will produce non-privileged, relevant documents which are responsive to this Request [for evidence of certification]”).)
The Court also notes that, in the papers in support of its motion for summary judgment, IBM asserts that such certification was provided in an eight-page, internal policy document in which the company outlines the 1996 amendments to the FCRA, which included Section 1681b(b)(l)(A). However, the document merely outlines the amendments to the Act, and states that Carson would “coordinate with Choicepoint to ensure they have received appropriate certification.” (Ex. X to Lauri Decl. at 88-89.) Notably, IBM never asserts that Carson provided such certification; moreover, neither IBM nor Choice-point offers testimony to that effect by anyone at IBM. 37 (IBM Mem. Fur. Supp. at 24-25.)
The Court need not decide whether oral certification is sufficient under the FCRA in order to dispose of the motions on plaintiffs claim.
Cf. Black’s Law Dictionary
220 (7th ed.1997) (defining “certify” as “1. To authenticate or verify in writing. 2. To attest as being true or as meeting certain criteria.”);
Webster’s II New Riverside University Dictionary
244 (1994) (defining “certify” as “[t]o confirm formally as true, accurate, or genuine, esp. in writing”). Given (i) the absence of any documentary evidence regarding certification, despite Choicepoint’s assertion and IBM’s implication that such document exists, (ii) the vague and inadmissible statements of Choicepoint’s National Account Manager concerning the oral provision of certification, and (iii) IBM’s apparent attempt to avoid the issue on the basis of a document that clearly does not support its point, the Court finds that Choicepoint has failed to demonstrate that there is any issue of material fact as to their failure to obtain the required certification before providing the First Report to IBM. The Court finds that such failure constitutes
2. Section 1681k
15 U.S.C. § 1681k sets forth public record obligations which apply specifically in the employment context. This section requires a credit reporting agency furnishing information that is a matter of public record and which is likely to have an adverse impact on the applicant, to either (1) notify the applicant of the fact that public record information is being reported along with the name and address of the person who requested the report, or (2) maintain “strict procedures” designed to insure that any such reported information is “complete and up to date.” 15 U.S.C. § 1681k (emphasis added). For purposes of the section, “items of public record relating to arrests, indictments, convictions, suits, tax liens, and outstanding judgments shall be considered up to date if the current public record status of the item at the time of the report is reported.” Id. In this case, the threshold requirements for the application of this section are clearly met, as the information concerning plaintiff was reported for employment purposes, was a matter of public record, and was certainly likely to have an adverse impact on him. In addition, it is undisputed that Choice-point did not notify plaintiff that his criminal record information was being reported to IBM.
Accordingly, plaintiff alleges that Choicepoint violated Section 1681k because the information that it provided to IBM was neither complete nor up to date, and Choicepoint “has no procedures — let alone strict procedures — designed to ensure that such information is complete and up to date.” (PL Mem. Choicepoint at 6.) As far as this Court can tell, no court has had occasion to analyze the provisions of Section 1681k in the context of a claim brought pursuant to that section. The logical starting point for an analysis of Section 1681k is whether the information provided was complete and up to date. If this is so, then an inquiry into the agency’s procedures is unnecessary.
Cf. Boothe v. TRW Credit Data,
Nevertheless, on the current record, the Court declines to find that Choicepoint failed to “maintain strict procedures” designed to insure that the information concerning plaintiff was complete and up to date, thereby making Choicepoint liable for a violation of Section 1681k as a matter of law. Likewise, the Court cannot find that Choicepoint clearly maintained such strict procedures, in order to warrant an award of summary judgment to Choicepoint. Rather, there are issues of fact related to Choicepoint’s investigatory procedures which would affect the determination of whether Choicepoint violated Section 1681k in the conduct of their investigations. The deposition testimony of Choicepoint’s record manager, Andrew Klaer, reflects that, generally: (i) Choice-point contracts with various “suppliers” to conduct searches, who are either “researchers,” internal Choicepoint employees, or independent contractors; (ii) Choicepoint selects the low cost supplier if multiple suppliers are available; (iii) Choicepoint assumes the accuracy of the search performed by the supplier; (iv) if
Based on this information and on the limited facts in the record surrounding the contractor’s search and Choicepoint’s report in this case, the Court concludes that there are questions of fact relating to the specifics of, and hence the reasonableness of, the (i) procedures used to select individuals to perform searches, (ii) the policies under which such suppliers operate and by which Choicepoint reports the final results to the employer, and (iii) the policies under which amendments to initial reports are made. Moreover, assuming that such procedures would not meet the standard for strictness required under Section 1681k, there, are questions as to whether, based on the procedures used to investigate plaintiffs criminal record in this case, Choicepoint intentionally maintained substandard procedures, or knew or should have known that its procedures would not meet the standard.
40
Accordingly, the Court declines to grant summary judgment to either party on this claim.
Cf. Wiggins v. Equifax Servs., Inc.,
3. Section 1681e(b)
15 U.S.C. § 1681e(b) requires that “[wjhenever a consumer reporting agency prepares a consumer report
it shall follow reasonable procedures to assure maximum possible accuracy
of the information concerning the individual about whom the report relates.” 15 U.S.C. § 1681e(b) (emphasis added). Plaintiff alleges that Choicepoint violated this section because it neither provided “maximally accurate” information to IBM nor has “reasonable procedures” designed to ensure such accuracy. (PI. Mem. Choicepoint at 7.) Similar to Section 1681k, and in accordance with one of the FCRA’s central purposes, Section 1681e(b) is intended to ensure the accuracy
E. Section 349 Claim Against Choice-point
Plaintiff alleges that Choicepoint violated New York’s consumer protection law,' New York General Business Law § 349 (“Section 349”), by “mislead[ing] IBM into believing that it would exercise reasonable care in supervising and overseeing its third-party contractors.” (PL Mem. Choicepoint at 19.) Section 349 “was designed to protect consumers from various forms of consumer fraud and deception.”
Smith v. Triad Mfg. Group, Inc., 255
A.D.2d 962,
Plaintiffs claim is insufficient as a matter of law for three reasons. First, the deception plaintiff alleges arises directly out of the IBM-Choicepoint Agreement, which sets forth the terms under which Choicepoint agreed to subcontract its work. (PI. Mem. at 19.) By all indications, Choicepoint’s conduct could only trigger a private contract dispute between the two defendants in this case, which does not “have a broader impact on consumers at large,”
Oswego,
F. Choicepoint’s Affirmative Defenses 43
1. Unclean Hands
Plaintiff moves to strike Choicepoint’s third affirmative defense of “unclean hands.” This defense states that “Plaintiffs Complaint is barred, in whole or in part, by the doctrine of unclean hands.” (Choicepoint Answer, Ex. C to Antollino Choicepoint Deck, at 10.) “The ‘unclean hands’ doctrine “closes the door of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant.” ”
ABF Freight Sys., Inc. v. NLRB,
Pleading the words “unclean hands” without more, as Choicepoint has done, is not a sufficient statement of such defense.
See DS Am. (East) Inc. v. Chromagrafx Imaging Sys., Inc.,
2. Third Party Liability
Choicepoint’s sixth affirmative defense states that:
“[P]laintiffs complaint is barred, in whole or in part, because some of the damages allegedly suffered by plaintiff did not result from any act or omission of [Choicepoint], but such damages resulted from the acts or omissions of persons other than [Choicepoint], for which acts or. omissions [Choicepoint] is in no way liable.”
(Choicepoint Answer at 10.) Plaintiff moves to strike this defense “insofar as it pertains to ‘Inquest,’ the third party contractor hired by Choicepoint.” (Notice of Motion on Choicepoint Claims ¶ 4; PL Mem. Choicepoint at 21-23.) He points out,
inter alia,
that under the terms of the IBM-Choicepoint Agreement, Choicepoint assumed “all liability for subcontracts issued hereunder and the work or services
III. Conclusion
For the foregoing reasons, the Court (i) grants IBM’s motion for summary judgment as to plaintiffs Section 296(15) claim; (ii) grants IBM’s motion and denies plaintiffs cross-motion for summary judgment as to plaintiffs Section 296(16) claim; (iii) grants IBM’s motion and denies plaintiffs cross-motion for summary judgment as to each of plaintiffs FCRA claims against IBM; (iv) grants plaintiffs motion, and denies Choicepoint’s motion for summary judgment on plaintiffs Section 1681b(b)(l)(A) claim; (v) denies plaintiffs motion and Choicepoint’s cross-motion for summary judgment as to plaintiffs Section 1681k and 1681e(b) claims; (vi) grants Choicepoint’s motion for summary judgment as to plaintiffs Section 349 claim; and (vii) denies plaintiffs motion to strike IBM’s affirmative defense of unclean hands as moot; and (viii) grants plaintiffs motion to strike (a) Choicepoint’s affirmative defense of unclean hands with leave to replead by April 26, 2001, and (b) Choice-point’s third party liability defense insofar as it pertains to its contractor in this case. SO ORDERED.
Notes
. The following facts are undisputed, unless otherwise noted.
. For the purpose of the instant motions, Choicepoint refers to defendants Choicepoint, Inc. and Choicepoint Services, Inc.
(See
Plain
. According to plaintiff, his wife had been receiving welfare benefits under the federal Aid to Families with Dependent Children program ("AFDC”). (ComplA 10.) Plaintiff’s conviction apparently arose out of his failure to properly report a change in income status to the government when he was a paid summer intern between his first and second year at Stanford Business School. {Id. ¶ 19.) Plaintiff also claims that, on a civil administrative appeal from the AFDC’s determination that plaintiff was required to refund the benefits, an administrative law judge found the local AFDC office at fault for informing plaintiff that he was not required to report in writing that he was working. {Id. V 15.)
. Section 1203.4 provides in pertinent part:
(a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation ... the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty ... and ... the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted .... However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery. Section 1203.4(a).
. During the course of this litigation, IBM discovered that, in 1993, plaintiff had also been arrested for and pleaded guilty to charges of shoplifting, a misdemeanor. (Affidavit of Kevin G. Lauri dated June 21, 2000 (“Lauri Aff.”), Ex. H.) Such conviction was similarly dismissed pursuant to Section 1203.4. (Ex. J. to Lauri Aff. at CS-169.) While potentially relevant to defendants' affirmative defenses and an analysis of Choice-point's investigatory procedures, see infra, plaintiff's 1993 conviction was not a factor in IBM’s decision to withdraw plaintiff’s conditional employment offer. Therefore, notwithstanding IBM’s frequent mention of such conviction in its motion papers, the Court declines to consider it in its analysis of plaintiff’s claims against IBM. (See Choicepoint's Memorandum Brief in Opposition to Plaintiff’s Motion for Partial Summary Judgment and in Support of its Cross-Motion for Summary Judgment (“Choicepoinl Mem.”) at 7 (noting that only plaintiff’s 1995 conviction is at issue in this motion)); Plaintiff's Reply Memorandum of Law in Further Support of His Motion for Partial Summary Judgment Against Choicepoinl and in Opposition to Choicepoint’s Motion ("Pl.Rep.Choicepoinl”) at 11 n. 6 (noting that the law is the same with respect to both convictions).
. Under the FCRA, credit agencies may not report convictions that are more than seven years old. 15 U.S.C. § 1681c(a)(5) (prohibiting the reporting of records of arrest or conviction that antedate the report by more than seven years);
see Wiggins v. Equifax Servs. Inc.,
. If an appropriately qualified IBM employee is available for an IBM position, that person will be chosen over an outside candidate. (Plaintiff’s Rule 56.1 Statement on IBM Claims ("Pl. 56.1 IBM”) ¶ 88; IBM's Rule 56.1 Counter-Statement ("IBM 56.1 Resp.”) ¶ 88.)
. According to Eric Ketzel, IBM's Human Resources advisor to Spencer’s group, the background check includes a credit check, criminal check, and a drug test. (Ketzel Dep., Ex. G to Lauri All., at 48-49.)
. Choicepoint's performance under this agreement in plaintiff's case is discussed in Part II.D, infra.
. Equifax is the predecessor-in-interest of Choicepoint. (IBM-Choicepoint Agreement at CS-249.)
. Choicepoint claims that before sending the report, it confirmed that the conviction information obtained was indeed that of plaintiff. Choicepoint also states that it did not communicate this information to any other entity. (Choicepoint 56.1 ¶¶ 14-16.) Neither Choice-point's contractor nor Choicepoint reported plaintiff's 1993 shoplifting conviction. (IBM 56.1 ¶ 32; Pl. 56.1 Resp. IBM ¶ 32.)
. Choicepoint did not contact plaintiff regarding the information it was reporting to IBM. (Pl. 56.1 Choicepoint V 43; Choicepoint 56.1 Resp. ¶ 43.)
. The parlies disagree as to whether Brown told plaintiff that IBM “was withdrawing” the offer or that IBM merely "intended” to do so. (IBM 56.1 ¶ 46; Pl. 56.1 Resp. IBM ¶ 46; Pl. Dep. at 278; Brown Dep. at 69-70.) Given the clear terms of the letter sent on the same day, this factual dispute is immaterial.
. IBM distributes to its Human Resources personnel information concerning the FCRA and its requirements and the proper forms or other material to be issued to comply with the FCRA. (IBM 56.1 ¶ 53; Pl. 56.1 Resp. IBM ¶ 53.)
. While plaintiff moves to "dismiss” certain of IBM's and Choicepoint’s affirmative defenses as part of his motion for summary judgment, the Court construes plaintiff's mo-lion as a motion to strike such defenses pursuant to Fed.R.Civ.P. 12(0 ("Rule 12(0”). It further notes that, while the motion is untimely, the Court clearly has the authority at any
. Section 296(15) provides in pertinent part:
It shall be an unlawful discriminatory practice for any person ... corporation or association ... to deny any license or employment of any individual by reason of his having been convicted of one or more criminal offenses, or by reason of a finding of a lack of "good moral character” which is based upon his having been convicted of one or more criminal offenses, when such denial is in violation of the provisions of Article 23-a of the N.Y. Correction Law. The pertinent section of the New York Correction Law, Section 752, provides that no application for any license or employment shall be denied by reason of the applicant having been previously convicted of a criminal offense unless (i) there is a direct relationship between the previous criminal offense and the specific license or employment sought, or (ii) the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. IBM’s policy governing its review of criminal convictions, discussed supra, appears drafted to comply with Section 296(15) as it incorporates Section 752.
. IBM does not concede that plaintiff's conviction was "terminated in his favor” for the purposes of his Section 296(16) claim. (IBM's Memorandum of Law in Further Support of its Motion for Summary Judgment and in Opposition to Plaintiff’s Motion for Partial Summary Judgment ("IBM Mem. Fur. Supp.”) at 13 n. 16); see Part II.B.2, infra.
. Plaintiff also claims that, under New York law, he was not required to reveal his conviction because it was a criminal proceeding
. IBM relies in large part on
Roberts v. New York Life Ins. Co.,
Civ. Action No. 97-55552,
. The Court does not rely on either decision in the disposition of the instant motions. The California Rules of Court concerning depubli-cation of opinions prohibit any court from relying on
Tietgen. See
Cal. R. of Court 977, 979. Ninth Circuit rules only prevent other Ninth Circuit courts from relying on
Roberts,
but the persuasive value of the opinion is significantly reduced because it is unpublished.
See
9th Cir. R. 36-3;
Conopeo v. Roll Int’l Corp.,
. In this regard, the Court points to the ambiguity of the statute and the contrary court holdings on the reach of an ex-offender’s disclosure obligations. Moreover, even if the statute’s terms were not ambiguous, it is not clear if the listed exceptions non-disclosure of define the universe of obligations.
. IBM appears to assert both that (i) Ketzel merely agreed with Brown’s, and the “staffing organization's” recommendation that the conviction was not expunged, and (ii) himself made such determination. (IBM 56.1 Resp. ¶¶ 49, 51.)
. The Court notes that the Second Report does not indicate that plaintiff did not lie on his application for employment, i.e. that the conviction was expunged or sealed. It merely reflects Choicepoint's acknowledgment of the Section 1203.4 dismissal in light of plaintiffs complaint. There is nothing in the record, for example, suggesting that Choicepoint is authorized to, or did, structure its disclosures on the basis of IBM's SDS, or upon the principles of law of the state from which the information is obtained, in this case California.
. IBM specifically states that the Second Report "does not evidence that Plaintiff did not lie, but merely reflects that Plaintiff told Choicepoint his conviction was 'vacated' and requested it not be reported, and Choicepoint accommodated the request.” (IBM Mem. Fur. Supp. at 12.)
. Substantial evidence of falsity of an employer’s explanation may lead to an inference of prohibited discrimination in cases similar to the instant one.
See St. Mary’s Honor Center v. Hicks,
. Plaintiffs contention that such policy was not employed in the instant case is unsupported by the record. (PL Mem. IBM at 30.) The fact that Spencer may have focused her deliberations on whether plaintiff lied on his application does not foreclose the possibility of an additional ground, e.g., the conviction itself, or the fact that plaintiff might not be suited for the position given his criminal record.
. Section 296(16) provides in pertinent part: It shall be an unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, in connection with the licensing, employment or providing of credit or insurance to such individual.
. Plaintiff relies on
In re Johnson,
. Section 160.50(3)(b) includes dismissals of (i) the information before a guilty plea or trial on the basis of grand jury proceedings (§ 170.50); (ii) ACDs involving marihuana (§§ Í70.56, 210.46); (iii) a felony complaint after hearing (§ 180.70); and (iv) an indictment upon the issuance of such indictment (§ 210.25). The rest of Section 160.50(3) includes dismissals (v) of the accusatory instrument after an appeal (§ 3(a)); (vi) pursuant to a verdict of acquittal (§ 3(c)); (vii) pursuant to orders of the trial court, e.g. setting aside a verdict or vacating a judgment (§ 3(d)-(0); (viii) related to habeas corpus (§ 3(g)); (ix) of charges by a grand jury (§ 3(h)); (x) by the prosecutor or arresting police agency prior to the filing of an accusatory instrument (§ 3(i)-(j)); (xi) of offenses relating to controlled substances (§ 3 (k)); and (xii) pursuant to an ACD (§ 3(Z)). None of such dispositions are analogous to dismissal under Section 1203.4.
.Plaintiff also contends that e-mail communications between Ketzel, Damassa, and Brown support his conclusion that IBM took an adverse action prior to October 18, 1999. Specifically, he points out that Ketzel’s e-mail to Damassa on October 11, 1999 was entitled "Rescind Offer?” and that Ketzel’s October 12 e-mail to Brown reporting Damassa's opinion was entitled "Rescind Offer!” (PI. Rep. IBM at 13 & n. 8; Ex. 7 to Antollino IBM Deck) However, even assuming that the title reflected Damassa's actual response, such response was a mere indication of intent, or at most a direction to act, not the act of withdrawal itself.
. As IBM points out, such a ruling would effectively allow every employee who suffers an adverse employment action following a credit agency report to file an FCRA claim asserting that the decision was made prior to the sending of the intent letter, on the ground that the intent letter reflects that a decision has already been made. (IBM Mem. Fur. Supp. at 22.)
. For the same reason, the Court finds unsupportable plaintiff's further contention that IBM was required to provide the required notice under Section 1681b immediately after receiving the First Report, and "before anyone made a determination that plaintiff had lied.” (PL Mem. IBM at 26.)
. Paragraph 2 requires in pertinent part that:
[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
(ii) the consumer has authorized in writing ... the procurement of the report by that person.
15 U.S.C. § 1681b(2).
. Paragraph 3 refers to 15 U.S.C. § 168 lb(b)(3), discussed supra.
. Plaintiff, in his motion papers, withdraws his claims for defamation and common law negligence against Choicepoint, insofar as they are pre-empted by 15 U.S.C. § 1681h(e). (Plaintiff's Memorandum of Law in Support of His Motion for Partial Summary Judgment Against Choicepoint ("Pl.Mem.Choicepoint'') at 6 n. 4; Compl. ¶¶ 48-54, 58-65.)
. Choicepoint also suggests, incorrectly, that plaintiff lacks standing to assert a claim under Section 168 lb(b)(l)(A). (Choicepoint Mem. at 18.) Under Sections 1681n or 1681o of the FCRA, plaintiff, who is indisputably a consumer under the Act, has a private right of action against any person who, respectively, willfully or negligently "fails to comply with any requirement imposed under [the FCRA].” 15 U.S.C. §§ 1681n, 1681o (emphasis added).
. Choicepoint asserts that plaintiff's Section 1681b(b)(l)(A) claim should be dismissed, in part, because “[p]laintiff served no interrogatories, no requests for admission, and no deposition notices which asked for information addressing the certification issue or 1681(b),” and because plaintiff failed to ask questions regarding certification to Choicepoint or IBM representatives. (Choicepoint Rep. at 12; cf. IBM Mem. Fur. Supp. at 25 (stating that plaintiff's failure to ask Carson about certification was to avoid evidence that such certification was provided).) The Court does not accept Choicepoinl's attempt to blame plaintiff for its own failure to produce evidence of certification. The mere fact that plaintiff did not request such information during discovery does not defeat his FCRA claim.
. In this regard, the current record suggests that Choicepoint’s contractor simply "miss[ed]” the information that was contained in the court's files. (Choicepoint Tracking Database form dated Oct. 14, 1999, Ex. L to Antollino Choicepoint Dec!.; Taylor Deck, Ex. E (displaying Section 1203.4 petition on plaintiff’s misdemeanor docket.)) However, Choicepoint's record manager testified in his deposition that he does not know
. The Court notes that Choicepoint devotes a substantial portion of its motion papers to the issue of “expungement” under California law. (Choicepoint Mem. at 10-12; Choicepoint Rep. at 7-10.)
. For example, the FCRA would not logically require an agency to review the entire court file of each of the individuals it investigates.
Cf. Houston v., TRW Info. Servs.,
No. 88 Civ. 0186,
. The Court need not address whether a report can be “maximally accurate” for the purposes of Section 1681e(b) when information it reports has become stale between the time of its original investigation and the date the report is provided. (PI. Mem. Choice-point at 15-17; PI. Rep. Choicepoint at 16);
see Houston v. TRW Info.
Servs.,
. The principal cases that Choicepoint cites in support of its summary judgment motion on its Section 1681e(b) (and Section 1681k) claims are inapposite. In
Boothe v. TRW,
. Because the Court dismisses each of plaintiff's claims against IBM, plaintiffs motion to strike IBM’s affirmative defense of unclean hands is denied as moot.