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Mattiaccio v. Dha Group, Inc.

United States District Court, D. Columbia.

April 6, 2015

DHA GROUP, INC., et al., Defendants

Page 170

GENNARO MATTIACCIO, II, Plaintiff, Pro se, Stafford, VA.

For DHA GROUP, INC., AMI GETU, Individually, and as Manager of Human Resources for DHA Group, Inc., DAVID HALE, Individually, Defendants: Emily C. Harlan, LEAD ATTORNEY, NIXON PEABODY, L.L.P., Washington, DC.

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Plaintiff Gennaro Mattiaccio, who is proceeding pro se, filed suit on July 30, 2012, alleging defamation by Defendants Amrote[1] Getu, David Hale, and DHA Group, Inc. (" DHA" ). See Compl. ECF No. [1]. Plaintiff also asserted three claims under the Fair Credit Reporting Act (" FCRA" ), 15 U.S.C. § 1681 et seq., one count against each Defendant, arising out of a post-employment background check of Plaintiff. Presently before the Court is Defendants' Motion for Summary Judgment. Upon consideration of the pleadings,[2] the relevant

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legal authorities, and the record for purposes of a motion for summary judgment, the Court finds that, on the current record, judgment cannot be entered for Defendants on Plaintiff's FCRA claims, but can be entered for Defendants on Plaintiff's defamation claim. Accordingly, for the reasons stated below, Defendants' Motion for Summary Judgment is DENIED IN PART and GRANTED IN PART.


A. Factual Background

Plaintiff was hired as the Lead Proposal Manager for DHA in July 2011.[3] Defs.' Stmt. ¶ 1. At the DHA company holiday party in February of 2012, DHA Chief Operating Officer Bryan Lutz " learned that some attendees had expressed surprise that [Plaintiff] was working at DHA Group, given their understanding that he had prior felony and misdemeanor convictions." Id. ¶ 10. Mr. Lutz " later" informed Defendant Hale--Chief Executive Officer of DHA--and Defendant Getu--then Manager of Human Capital at DHA--of what he had learned at the holiday party. Id. ¶ ¶ 4, 5, 11. Mr. Lutz also informed Yusuf Abdul-Salaam, Plaintiff's supervisor, of Plaintiff's rumored convictions. Id. ¶ 12.

On or about May 3, 2012, Plaintiff met with Defendant Getu to discuss a complaint he had filed a few days prior against DHA regarding his concerns " over the actions of Abdul-Salaam and Hale" relating to Plaintiff's employment.[4] Pl.'s Stmt. ¶ ¶ 18, 19. Plaintiff alleges that on May 4, 2012, he overheard a conversation in Defendant Hale's office between Defendant Hale, Defendant Getu, and Mr. Abdul-

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Salaam regarding the complaint that Plaintiff had filed. Id. ¶ 20; Pl.'s Decl., ECF No. [95], at 71-76, ¶ ¶ 31-33. Plaintiff alleges that

[a]t this meeting, Mr. Abdul-Salaam reported to Mr. Hale, that '[Plaintiff] believes you [Mr. Hale] want him out of DHA.' Mr. Hale appeared silent but asked about [Plaintiff's] employment file, and 'is there documentation.' Ms. Getu responded that some documents were missing but she did not elaborate. The remainder of the conversation concerned the complaint [Plaintiff] had made against the company with Mr. Hale stating he was concerned about a lawsuit. He reiterated that he 'could not believe it.' Mr. Abdul-Salaam indicated that [Plaintiff] 'had a $500,000.00 judgment against someone and had been in court collecting on it.' Someone inside the room, either Mr. Abdul-Salaam or Mr. Hale stated, that they should 'check [Plaintiff] out' and 'get Nelson [Blitz] involved.'

Pl.'s Decl. ¶ 33. Defendants contend that this allegation " does not establish a triable issue of fact because it does not discuss any connection between 'other litigation' and the workplace investigation." Defs.' Reply at 11. The Court will engage with this dispute later in this memorandum opinion.

On an unidentified date following the DHA holiday party and following Mr. Lutz's report to Defendants Hale and Getu about Plaintiff's rumored convictions, Defendant Getu " received similar information regarding [Plaintiff's] background" from another DHA employee. Defs.' Stmt. ¶ 13. Defendants allege that " [a]fter hearing this information for a second time, Ms. Getu became concerned that [Plaintiff] had engaged in misconduct by failing to disclose his criminal convictions to DHA Group, and she went to Nelson Blitz[, outside general counsel for DHA Group,] for guidance." Id. ¶ ¶ 9, 14. It is entirely unclear from the record whether this second report about Plaintiff's convictions was provided to Defendant Getu prior to or following Plaintiff filing his complaint against DHA and speaking to Defendant Getu about the complaint.

On May 16, 2012, at Defendant Getu's request, Mr. Blitz " began researching publicly-available information on [Plaintiff]" [5] to " take a deeper look into [Plaintiff's] criminal background." Id. ¶ 15. In searching local and federal court databases, including Public Access to Court Electronic Records (" PACER" ), Mr. Blitz located several charges and convictions related to a " Gennaro Mattiaccio," including a misdemeanor conviction " of misusing FBI seals in the United States District Court for the Eastern District of Virginia." Id. ¶ ¶ 16-19. That same day, Plaintiff was placed on " Administrative Leave" because of " information coming to light that require[d] additional review and investigation." Id. ¶ ¶ 22, 23.

On May 17, 2012, Mr. Blitz obtained an " Advanced Background" report on Plaintiff from a service called U.S. Search. Id. ¶ 24. The report " contained various forms of information pertaining to [Plaintiff], including his criminal history." Id. ¶ 25. The criminal history section of the report referenced " a March 28, 2005 conviction for misdemeanor 'assault and battery' in the Richmond City General District Court." Id.

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On or about May 21, 2012, Plaintiff's supervisor, Mr. Abdul-Salaam, conducted an analysis of Plaintiff's DHA-issued laptop. Id. ¶ 26. In an email to Defendant Getu, Mr. Abdul-Salaam informed Defendant Getu that he had found " pornographic images" on Plaintiff's computer. Id. ¶ 28.

On May 29, 2012, Mr. Blitz " memorialized the results of DHA Group's investigation into [Plaintiff's] background in a 'Preliminary Investigation' memorandum," to which Mr. Blitz appended the U.S. Search report and the PACER search results he had found.[6] Id. ¶ ¶ 30, 31; see also Defs.' Ex. A (Preliminary Investigation report), ECF No. [91-1], at 67-93. Mr. Blitz's memorandum " highlighted certain information from [Plaintiff's] criminal history, including the 2005 'assault and battery' conviction in Richmond" and also referenced the existence of the pornographic photographs and videos on Plaintiff's laptop, explaining that one video " depicted mid-teenage children inappropriately touching one another." [7] Defs.' Stmt. ¶ ¶ 32-34. Plaintiff alleges that this report contained numerous inaccuracies, including that he was convicted of assault and battery as well as perjury. Pl.'s Stmt. ¶ ¶ 39, 40.

Mr. Blitz emailed the Preliminary Investigation memorandum and attachments to Defendants Getu and Hale on May 29, 2012. Defs.' Stmt. ¶ 36. Included with the Preliminary Investigation memorandum was a draft of the letter informing Plaintiff he was terminated. Id. The termination letter explained that " [i]n the attached Preliminary Investigation, and through basic research, it was revealed that you [Plaintiff] had and have been far less than candid with DHA with respect to important and relevant aspects of your background and experience." Defs.' Ex. A (Termination Letter), ECF No. [91-1], at 57-58. Defendant Getu forwarded Mr. Blitz's email to Mr. Lutz, a member of the Management Council.[8] Defs.' Stmt. ¶ 37.

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On May 30, 2012, DHA terminated Plaintiff's employment. Id. ¶ ¶ 35, 38.

B. Procedural History

Plaintiff filed suit in this Court on July 30, 2012, alleging Defendants Getu, Hale, and DHA defamed Plaintiff, and asserting three claims for violations of the FCRA. See generally Compl., ECF No. [1]. Upon Defendants' motion, the Court dismissed the defamation claim without prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). Order & Mem. Op. (Dec. 11, 2012), ECF Nos. [14 & 15]. Plaintiff subsequently amended his complaint and provided more detail to support his defamation claim. See generally Am. Compl., ECF No. [16].

In July 2013, the parties contacted the Court with a discovery dispute regarding the scope of depositions Plaintiff intended to take. See Order (July 8, 2013), ECF No. [40], at 1. Defendants opposed Plaintiff asking a specific set of employment-related questions, including questions about the complaint Plaintiff filed against DHA, as a veiled attempt to " gather evidence regarding a potential future wrongful termination action" or employment discrimination claim. Id. at 1-2. As Plaintiff had not elected to pursue a wrongful termination or employment discrimination claim, the Court issued an order precluding Plaintiff from inquiring into the employment-related topics listed in a letter that Plaintiff had provided at the Court's request in order to resolve the discovery dispute. Id. at 1; Ex. 1 (Plaintiff's July 5, 2013, Letter), ECF No. [40-1].

On August 9, 2013, Plaintiff again sought leave to amend his complaint to include eleven additional claims, including four employment discrimination-related and wrongful termination-related claims, an FCRA claim against a new defendant, Nelson Blitz, and several tort and defamation claims against another new defendant, Karen Fischer, amongst other claims. See generally Mot. for Ext. of Time to Am. Compl., ECF No. [46]. The Court denied Plaintiff leave to amend his complaint to include the employment-related claims because the claims were largely unrelated to the existing lawsuit which was nearing the end of discovery and several of the claims would not survive a motion to dismiss. See Order & Mem. Op. (Sept. 16, 2013), ECF Nos. [53 & 54], at 4-6. The Court did, however, permit Plaintiff to include the claims against Defendants Blitz and Fischer. Id. at 6-7. Plaintiff then filed his Second Amended Complaint. See Sec. Am. Compl., ECF No. [55]. Shortly thereafter, Defendants moved the Court to Strike parts of the Second Amended Complaint, arguing that it included allegations that related only to the employment claims that the Court had denied Plaintiff leave to include in his Second Amended Complaint. See Defs.' Mot. to Strike, ECF No. [59]. On November 5, 2013, the Court granted in part and denied in part Defendants' Motion to Strike. Order & Mem. Op. (Nov. 5, 2013), ECF Nos. ...

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