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Wilson v. Prudential Financial

March 30, 2009


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 75



This matter comes before the court on the defendant's renewed motion for summary judgment. The plaintiff alleges that because defendant CARCO Group, Inc., a consumer reporting agency,*fn1 violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681e(b), defendant Prudential Financial Services ("Prudential"), an insurance and real estate company, withdrew an offer of employment that it had extended to the plaintiff. The defendant moves for summary judgment, asserting that the plaintiff has failed to establish a genuine issue of material fact with respect to any of the elements of a FCRA claim. The court holds that the plaintiff has demonstrated that there is a genuine issue of material fact with respect to his allegation that the defendant violated the FCRA and, accordingly, denies the defendant's motion for summary judgment.


A. Factual Background

Because the facts of this case have been summarized in previous decisions, the court will discuss only those facts that are relevant to the instant issue. See Wilson v. Prudential Fin., 332 F. Supp. 2d 83, 83-88 (D.D.C. 2004); Wilson v. Prudential Fin., 475 F. Supp. 2d 48, 48-52 (D.D.C. 2007). The plaintiff alleges the following: Prudential extended him an employment offer, which the plaintiff accepted. Compl. ¶¶ 2, 4. On August 1, 2002, Prudential sent the plaintiff a letter confirming the plaintiff's acceptance of the employment offer but indicating that the offer was subject to the satisfactory completion of a background verification process. Id. ¶¶ 6-7; Pl.'s Opp'n at 4. The letter indicated a base annual salary of $45,000, eligibility to participate in Prudential's compensation and pension plans, and paid vacation days. Compl.¶ 3; Pl.'s Opp'n at 3.

Prudential had a pre-existing Consulting Services Agreement with the defendant to perform background checks on prospective employees. Compl. ¶¶ 1, 8. As part of the agreement, the defendant provided Prudential with projected time frames for completion of the background reports. Pl.'s Opp'n at 2. The background report prepared in anticipation of the plaintiff's employment was expected to be completed within ten or eleven days of the request, i.e., on or before August 12, 2002. Compl. ¶ 25; Pl.'s Opp'n at 4. At some time prior to September 3, 2002, the plaintiff avers that Lois Hefferman, an employee of the defendant, and Kimberly Fontanetta, an employee of Prudential, made statements to the plaintiff suggesting that his background report contained information involving pending criminal charges in Oklahoma. Compl. ¶¶ 17, 41; Pl.'s Opp'n at 4-6, 19-21. On September 3, 2002, Prudential notified the plaintiff that it was withdrawing its employment offer and subsequently sent him a copy of the background report, dated September 6, 2002. Compl. ¶¶ 9, 12; Pl.'s Opp'n at 8. Prudential indicated that it had withdrawn the offer because it had not received a complete and satisfactory background report and needed to fill the position quickly. Compl. ¶¶ 10-11; Pl.'s Opp'n at 6. The defendant's background verification report included in the criminal history section the word "pending" in relation to an apparent criminal charge against the plaintiff in Oklahoma. Compl. ¶ 14.

After receiving the letter from Prudential and the copy of the background report, the plaintiff contacted the Oklahoma State Court Network and the Oklahoma State Bureau of Investigation, both of which informed him that he did not have charges pending in Oklahoma. Id. ¶ 19. The plaintiff subsequently ordered a background check directly from the Oklahoma State Bureau of Investigation, which indicated that other individuals named "Derek Wilson" or "Derrick Wilson," whose social security numbers and birth dates did not match the plaintiff's, had criminal charges pending against them in Oklahoma. Id. ¶ 20. On September 5, 2002, the plaintiff informed the defendant that his background was clear of any criminal charges. Id. ¶ 21. On September 6, 2002, the defendant sent Prudential an amended background verification report indicating that the plaintiff did not have any past or pending criminal charges. Id. ¶ 22. On September 25, 2002, Prudential sent the plaintiff a letter stating that although it was aware that the plaintiff had cleared the background check, it could not offer him a position but would contact him "when a suitable position became available." Wilson, 332 F. Supp. 2d at 86. Prudential never hired the plaintiff.

B. Procedural Background

In 2002 the plaintiff filed a related suit in the Superior Court for the District of Columbia claiming breach of contract by Prudential and negligence and defamation by CARCO. Wilson v. Prudential Fin., 218 F.R.D. 1, 2 (D.D.C. 2003).After the case was removed to federal court, this court dismissed the action without prejudice because the plaintiff failed to timely oppose the defendants' motions to dismiss. Id. at 4. In November 2003, the plaintiff filed the instant action in this court, reasserting the claims against Prudential and CARCO. See generally Compl. Both defendants filed motions to dismiss. See Def.'s Mot. to Dismiss (Nov. 17, 2003); Prudential's Mot. to Dismiss (Nov. 20, 2003). The court granted Prudential's motion to dismiss and denied CARCO's motion to dismiss but directed the plaintiff to perfect service. See generally Mem. Op. (Aug. 3, 2004). After the plaintiff perfected service, the defendant again moved to dismiss for failure to state a claim or alternatively for summary judgment. Def.'s Mot. (Aug. 8, 2004). In October 2004, the court granted in part and denied in part the defendant's motion, dismissing the plaintiff's defamation claim while upholding the negligence action under the FCRA. Wilson v. Prudential Fin., 2004 WL 2451412, at *3-6 (D.D.C. Oct. 18, 2004).

The defendant moved for summary judgment in September 2006, which the plaintiff opposed. Def.'s Mot. (Sept. 29, 2006). In March 2007, the court granted the defendant's motion, dismissing the negligence claims on the grounds that the plaintiff failed to present expert testimony necessary to establish a prima facie case of negligence under the FCRA. Wilson, 475 F. Supp. 2d at 42. The Circuit reversed and remanded, stating that a plaintiff filing suit under the FCRA need not always present expert testimony on the question of whether the defendant's procedures were reasonable. Wilson v. CARCO Group, Inc., 518 F.3d 40, 42-43 (D.C. Cir. 2008). The Circuit further noted that the plaintiff is still required to present some evidence from which a trier of fact could reasonably infer that the defendant failed to follow reasonable procedures. Id. Upon remand, the defendant again moved for summary judgment. See generally Def.'s Mot. In light of the Circuit decision, the court reviews the defendant's renewed motion for summary judgment and the plaintiff's opposition thereto.


A. Legal Standard for a Motion for ...

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