then terminated Mr. Wiggins on January 18, 1990. Id. PP 15, 29, 32(c).
In mid-January 1990, defendants allegedly contacted another of Mr. Wiggins' employers, Philip Morris, Inc., and relayed the erroneous conviction information contained in the report, despite defendants' knowledge of the inaccuracy of the information.
Id. PP 16, 35, 48. Thereafter Philip Morris discharged plaintiff on February 6, 1990. Id. PP 39, 49-50.
In an attempt to cover up their involvement in the aforementioned acts, defendants supposedly made false entries in plaintiff's employment records in March 1990. Id. PP 32(f), 53. Plaintiff now seeks $ 35 million dollars in damages.
II. Willful Violations of the Act
Count one alleges willful violations of section 1681m(a)-(c) of the Act. Plaintiff claims that defendants' willful violations are three-fold: First, defendants did not give plaintiff required notice under the Act and made "no disclosure . . . in connection with plaintiff's rights" when they fired him, id. P 19; second, defendants willfully failed to give plaintiff appropriate notice of his right to make a written request challenging the incorrect information contained in the consumer report at the time the adverse action was communicated to him, id. PP 17, 19; and third, defendants "neither had nor used any 'reasonable procedure' to assure compliance" with 15 U.S.C.A. § 1681m(a) and (b) "as required by the Fair Credit Reporting Act," id. P 20.
Due to the convoluted nature of plaintiff's pleadings, it is difficult to discern whether plaintiff intended to assert a claim for a willful violation of section 1681i of the FCRA. In an overabundance of caution, this court will treat count two as also asserting a violation of section 1681i of the Act.
A. Willful Violation of Section 1681m(a)
One of the central purposes of the FCRA is to protect an individual from inaccurate information in a consumer report used as a factor in determining the individual's eligibility for employment. See 15 U.S.C.A. § 1681(b) (1982). In attempting to achieve this goal, Congress imposed different obligations upon consumer reporting agencies that provide consumer credit information and users of consumer reports. Compare id. §§ 1681c-1681e with id. § 1681m.
Users have a limited responsibility. Under the Act, the user
must advise the consumer of the name and address of the consumer reporting agency that provided the report when the consumer is adversely affected by the dissemination of information provided for employment purposes.
The aim of this notice requirement is "to enable the subject of a consumer report to request disclosure from the reporting agency of the nature and scope of the information in his file." Fischl v. General Motors Acceptance Corp., 708 F.2d 143, 149 (5th Cir. 1983). Failure to comply with the "user" provision results in the imposition of civil liability. See 15 U.S.C.A. §§ 1681n, 1681o (1982).
Although "willful" is not defined in the Act, neither malice nor evil motive are necessary to establish a finding of "willfulness." See Stevenson v. TRW, Inc., 987 F.2d 288, 294 (5th Cir. 1993) (citing Fischl v. General Motors Acceptance Corp., 708 F.2d 143, 151 (5th Cir. 1983)). For purposes of this section of the Act, willfulness can be demonstrated by a showing of "knowingly and intentionally committing an act in conscious disregard for the rights of others." See id. at 293 (citing Pinner v. Schmidt, 805 F.2d 1258, 1263 (5th Cir. 1986), cert. denied, 483 U.S. 1022, 97 L. Ed. 2d 766, 107 S. Ct. 3267 (1987)).
Defendants propound two defenses to plaintiff's claim of willful violation of the user provision. Defendants first contend that plaintiff fails to specifically allege that defendants did not disclose the name and address of the consumer reporting agency making the report to Mr. Wiggins. Notwithstanding, plaintiff's claim appears to be adequate on its face. Plaintiff states that "when District Cablevision fired plaintiff it made no disclosure to him in connection with plaintiff's rights " under the Act. Compl. P 19 (emphasis added). This statement coupled with plaintiff's allegation that defendant failed "to comply with the provisions of the Act § 1681m(a)-(c)," Compl. P 18, is sufficient to survive challenge.
Second, defendants maintain that they advised Mr. Wiggins of the adverse criminal record information contained in the consumer report provided to them by Equifax Services, Inc. Defs.' Mot. Dismiss at 5. It is undisputed that Mr. Wiggins was made aware of the inaccurate information contained in the consumer report. However, the statute requires the user to disclose the name and address of the reporting agency when an employment opportunity is denied.
An inference could be drawn that Mr. Wiggins' was given some but not all of the information required under the statute. Mr. Wiggins' termination did prompt him to visit the regional office of ESI one day after being fired, suggesting that defendants may have informed him of at least the name of the consumer reporting agency issuing the report.
However, plaintiff may have only been told that an Equifax report turned up negative information regarding his criminal history. Mr. Wiggins may have then taken it upon himself to seek out this company and confront those responsible for disseminating such erroneous information. Therefore, facts exist which could provide a basis for relief, and defendants' motion to dismiss with respect to this claim must be denied.
B. Willful Violation of Section 1681m(b)
The Act also requires users of information to disclose the nature of certain information obtained from persons other than consumer reporting agencies upon a consumer's written request. The user of the information must make the right to make such request clear to the consumer when any adverse action is communicated to the consumer. See 15 U.S.C.A. § 1681m(b) (1982). The statute states:
Whenever credit for personal, family, or household [sic] purposes involving a consumer is denied or the charge for such credit is increased either wholly or partly because of information obtained from a person other than a consumer reporting agency bearing upon. the consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living, the user of such information shall, within a reasonable period of time, upon the consumer's written request for the reasons for such adverse action received within sixty days after learning of such adverse action, disclose the nature of the information to the consumer. The user of such information shall clearly and accurately disclose to the consumer his right to make such written request at the time such adverse action is communicated to the consumer.
Plaintiff claims that defendants willfully failed to give him appropriate notice of his right to make a written request challenging the incorrect information contained in the consumer report provided by the consumer reporting agency at the time the adverse action was communicated to him. Compl. PP 17, 19. However, plaintiff's reliance on this statute is misplaced for two reasons. First, this statute requires alerting consumers to information provided by persons other than consumer reporting agencies. Mr. Wiggins does not allege that persons other than Equifax provided information to defendants, and there is no duty upon a user of information to advise or encourage a consumer to make a written request regarding information in a consumer report provided by a consumer reporting agency. Second, this section of the statute only applies to consumer reports created for credit purposes. Although section 1681m(a) applies to reports relating to "credit or insurance for personal, family, or household purposes, or employment," section 1681m(b) only applies when "credit for personal, family, or houshold [sic] purposes involving a consumer is denied or the charge for such credit is increased either wholly or partly because of information obtained from a person other than a consumer reporting agency." Thus, plaintiff's claim is without merit, and defendants' motion to dismiss with regard to this claim is granted.
C. Willful Violation of Section 1681m(c)
Once the Act created this potential reporting liability for users of consumer report information, Congress expressly limited the potential liability of users. No person may be held liable with respect to the user provisions if the user maintains reasonable procedures to assure compliance at the time of the alleged violation. 15 U.S.C.A. § 1681m(c) (1982).
However, this statutory provision does not impose any "requirements" upon the user that form a basis for civil liability.
Therefore, defendants' request for dismissal with respect to this claim is granted.
D. Willful Violation of Sections 1681i
As noted above, it is difficult to understand whether plaintiff intended to assert a claim of willful violation of section 1681i.
In count two of the Complaint, plaintiff does assert a claim of conspiracy to violate section 1681i of the Act. As part of these allegations, plaintiff states that defendants "failed to properly reinvestigate the False Wiggins Consumer Report." Compl. P 24. Plaintiff also claims that defendants made employment decisions based upon a false credit report "intentionally used by defendants in violation [section 1681i] of the Fair Credit Reporting Act." Id. P 29.
Assuming that plaintiff is asserting a willful violation of section 1681i in addition to the conspiracy claim, it is clear that defendants are under no duty to "reinvestigate" the facts provided in a consumer report.
Section 1681i establishes procedural requirements for reinvestigation by consumer reporting agencies in cases of disputed accuracy in a consumer's file. This section places no requirements whatsoever upon users of consumer reports. Defendants' motion to dismiss with respect to a section 1681i claim, if any, is granted.
II. Breach of Employment Contract.
In count two, plaintiff alleges a breach of his employment contract. Plaintiff claims that defendants breached the employment contract by "its failure to comply with its covenant to retain plaintiff in its employ so long as his work was satisfactory." Compl. P 30. Plaintiff claims substantial damages including lost wages and lost benefits "as well as incidental and consequential damages." Id. P 31.
"It is well-settled in the District of Columbia that 'an employment contract, absent evidence to the contrary, is terminable at the will of either party.'" Smith v. Union Labor Life Ins. Co., 620 A.2d 265, 268 (D.C. 1993) (quoting Sorrells v. Garfinckel's, Brooks Brothers, Miller & Rhoads, Inc., 565 A.2d 285, 289 (D.C. 1989) (citations omitted)); see Newman v. Legal Servs. Corp., 628 F. Supp. 535, 538 (D.D.C. 1986) ("An employment contract is terminable at will unless it is for a specified term."); see also Adams v. George W. Cochran & Co., 597 A.2d 28 (D.C. 1991) (noting a very limited public policy exception to the at-will doctrine);
Wemhoff v. Investors Management Corp. of America, 528 A.2d 1205, 1208 n.3 (D.C. 1987). This presumption can be rebutted "only by a clear statement of the parties' intention to do so." Frazier v. University of the District of Columbia, 742 F. Supp. 28 (D.D.C. 1990) (citing Minihan v. American Pharmaceutical Ass'n, 259 U.S. App. D.C. 10, 812 F.2d 726, 728 (D.C. Cir. 1987)).
There is no allegation in the Complaint overcoming the at-will presumption regarding plaintiff's employment relationship with defendants. See Fleming v. AT&T Info. Servs., Inc., 279 U.S. App. D.C. 15, 878 F.2d 1472, 1474 (D.C. Cir. 1989) (plaintiff's allegations held "manifestly insufficient" to overcome the at-will presumption); Frazier v. University of the District of Columbia, 742 F. Supp. 28, 29 (D.D.C. 1990) ("Because plaintiff makes no allegation that his employment contract was for a definite period of time, he was an employee at-will, and, as such, could be discharged at any time."). Plaintiff never alleges that his employment contract with defendants existed for a definite period of time.
Plaintiff's allegation that defendants promised to retain him "so long as his work was satisfactory," Compl. P 30, does not rebut the presumption of at-will employment when there is no stated contract duration. As one court observed:
An intention to offer a specific term of employment may not be inferred from an employer's written or oral statement that the employee would not be terminated so long as she performed her work in a satisfactory manner. Unless an employee furnishes consideration in addition to her mere services, she is an employee at-will, whose employment may be terminated at any time for any reason.
McWilliams v. AT&T Info. Systems, Inc., 728 F. Supp. 1186, 1195 (W.D. Pa. 1990) (emphasis added) (citing Betts v. Stroehmann Bros., 355 Pa. Super. 195, 512 A.2d 1280, 1281 (1986)). In the case at bar, plaintiff has not alleged any promise of employment for a specific term; therefore the court finds that Mr. Wiggins was an at-will employee and could be terminated by defendants at any time for any reason or for no reason at all. The District of Columbia does not recognize the tort of wrongful discharge for at-will employees. Defendants' motion to dismiss with regard to this claim is granted.
In count three, plaintiff claims that defendants "made and published false and defamatory statements concerning plaintiff to third parties" "without business reason, privilege, justification or other excuse, in reckless disregard of the truth."
Compl. P 42. This is the only allegation supporting a defamation claim within count three; however, various other statements located throughout this complaint also relate to a potential defamation claim. In paragraph 25 in count two, plaintiff states:
During the period January 19 through February 25, 1990, and at other times in 1990, 1991 and through the present time, TCI East/District Cablevision, by and through its agents and employees, slandered, libelled, and defamed Plaintiff by publishing and distributing the False Wiggins Consumer Report to third parties. TCI East/District Cablevision continued to maliciously claim that Plaintiff was tried and found guilty of a serious drug charge when they had actual knowledge that such claim was completely false.
Compl. P 25. Later in this count, plaintiff states that "between January 12, 1990 and January 18, 1990, Williams[, an employee of defendants,] directly transmitted false, malicious information including accusations of felony conviction for cocaine possession pertaining to plaintiff to third parties, including the personnel offices of the Philip Morris, in Atlanta Georgia." Id. P 35. In addition, plaintiff states that an employee of defendants "published to a third party, Evan Hendrick, an editor and publisher of the 'Privacy Times,' the contents of the two false and fraudulent termination forms which Williams had entered into plaintiff's personnel records between March 16, 1990 and March 22, 1990, with the intent and effect that such publication of the false information embarrass and humiliate plaintiff." Id. P 36. Plaintiff goes on to state that "in January 1990, and at various times between January 12, 1990 and January 18, 1990 and other times, defendants, through agents of the DC Partnership and TCI East, Inc., discussed plaintiff's employment with officials at the Atlanta, Georgia offices of Philip Morris." Id. P 38.
Within his claim for malicious and tortious interference with contract, plaintiff states:
TCI East/District Cablevision, by and through its employees, agents, and attorneys intentionally, deliberately and willfully: 1) contacted another employer of Plaintiff, 2) orally related and published the Wiggins False consumer Report it received from ESI on January 10, 1990, and 3) repeated and restated the false cocaine conviction report after having actual knowledge that the report was totally incorrect.