28, 1995. Mr. King, in response to questions about the alleged tapping of his home phone, for instance, asserted that the TBTA President Ascher testified in a deposition in a suit brought by the union that a Verrazano Bridge tollbooth had been bugged. Tr. at 113-14, 120-22. He described his mail order purchase of a telephone tap detector in the period 1990-91 that confirmed his perception that his phone was tapped. He communicated with the FCC concerning his perception that his phone was tapped, but has not submitted any of this correspondence to the court. Tr. at 123-24.
Plaintiff's allegations of harassment off the job stem from incidents in which he was approached by strangers in bars, one of whom offered to sell him a gun. Tr. at 142-46. He has likewise failed to produce any evidence of any involvement by the credit report defendants in these alleged incidents.
Credit Report Claim
Mr. King has presented more substantial evidence regarding the credit report request than with respect to the harassment claim. The undisputed facts of the credit request are, on or about March 13, 1992, TBTA initiated a request to TR Security for plaintiff's credit report. Anthony Cimato, a principal of TR Security, states that an unnamed employee of the Internal Security Division of TBTA called him on March 12, 1992 to request credit reports for four individuals, who "were up for promotional consideration." Cimato Aff. dated October 18, 1995 P 3. (Defendant, TR Security, in response to an interrogatory from plaintiff, stated: "Defendant TR SECURITY, INC cannot recall the name of the exact TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY employee who made the request to obtain plaintiff's credit report for promotional consideration.") TR Security relayed the request to First American Investigations (FA Investigations), who relayed the request to Genesis Investigations (Genesis) who requested the report from Credit Bureau. (No explanation has been offered as to why neither TR Security, FA Investigations nor Genesis made a direct request for the credit report from Credit Bureau of Port Chester (Credit Bureau) or from Trans Union itself.) Credit Bureau obtained a one-page credit report from Trans Union, not named as a defendant. The report is attached as Ex. C to Credit Bureau Brf. dated August 15, 1995.
Plaintiff disputes the assertion that the credit report failed to make its way back through this network to TBTA but raises nothing but conclusory allegations that TBTA actually received the report. Credit Bureau admits it obtained the credit report and gave it to Genesis. Credit Bureau Brf. at 2. Genesis also admits its role in requesting and transferring the report. "Genesis Investigations has provided valid service to a governmental client who properly requested consumer credit information and Genesis Investigations did so in a confidential and accurate manner." Genesis Brf. dated August 9, 1995 at 6th unnumbered page.
FA Investigations admits receiving the report from Genesis and forwarding it to TR Security. FA Investigations Brf. dated October 2, 1995 at 1. Plaintiff attached FA Investigators' letter to him, explaining that the TR Security request was "for a credit report on you, as requested by the Triboro Bridge and Tunnel Authority, your employer, for consideration in your promotion." Pltf. Ex. F, attached to Pltf. Reply Brf. dated October 17, 1995.
Anthony Cimato of TR Security states, however, that an unnamed employee of the Internal Security Division of TBTA called him on March 13, 1992 to cancel the request for the credit reports. Cimato Aff. dated October 18, 1995 P 5. Cimato states that he contacted William Gans of FA Investigations but was told that the cancellation request was too late. Id. He further states that, although TR Security paid the bill for the credit reports without presenting it to TBTA, no one "at TR SECURITY ever received copies of the credit reports for the plaintiff." Id. P 6.
Plaintiff learned that the request had been made when, with no knowledge that TBTA 'had made any request for his credit report, in July 1992, he obtained his credit report from Trans Union and found an entry recording Credit Bureau's request. (Plaintiff had previously dealt with Trans Union regarding his credit report - the report Credit Bureau transmitted to Genesis included his Consumer Statement with regard to his outstanding student loan. Ex. C attached to Credit Bureau Reply dated November 27, 1995.)
After two days of denying to King that it had requested his credit report, Credit Bureau orally informed him that Genesis was the requesting agency. Pltf. Tr. at 127-32 attached as Ex. A, TR Security Reply Brf. dated November 28, 1995. Pltf. Brf. dated October 17, 1995 at 3. In a letter dated August 3, 1992, Credit Bureau provided Genesis' name and address in writing. Ex. D, Pltf. Brf. dated October 17, 1995. However, Credit Bureau relayed plaintiff's request to Genesis which replied directly to him on July 30, 1992, informing him that they had obtained the report for FA Investigations. Ex. E, Pltf. Brf. dated October 17, 1995.
Plaintiff contacted FA Investigations and received a copy of the report from them but did not contact TR Security. Instead he wrote a letter of complaint directly to President Ascher of TBTA. Pltf. Tr. at 133-34. Plaintiff also obtained a number of corrections from Trans Union but does not allege that he requested Trans Union to notify Credit Bureau or other prior recipients of this update to the report.
Defendants, TR Security, FA Investigations, Genesis Investigations and Credit Bureau of Port Chester, have moved for summary judgment on the grounds that their actions in requesting plaintiff's consumer credit report were not in violation of FRCA as all acted in a good faith belief that the report was requested by TBTA for a permissible purpose under FRCA, that there were no inaccuracies in the credit report obtained, in the alternative, that, no damages accrued to plaintiff from any inaccuracy in the report, and that plaintiff has failed to produce any evidence from which any inference could be drawn that any of these defendants was involved in the alleged harassment he experienced from his employer, TBTA.
The standard for deciding motions for summary judgment is specified in Fed. R. Civ. P. 56(c):
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
"On a summary judgment motion, the court is not to weigh the evidence, or assess the credibility of witnesses, or resolve issues of fact," Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir. 1995), but as the Supreme Court noted in Celotex Corp. v. Catrett: "one of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses." 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
Although all justifiable inferences of the non-movant are to be credited, the non-movant must offer some "concrete evidence from which a reasonable juror could return a verdict in his favor. . . . The movant has the burden of showing there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Not all disputed facts are a basis for denying summary judgment. "The non-movant may defeat summary judgment only by producing specific facts showing that there is a genuine issue of material fact for trial." Samuels v. Mockry, 77 F.3d 34, 36, 1996 WL 76123, *2 (2d Cir. 1996).
Plaintiff did not address the harassment claim in his briefs. His deposition testimony on this subject was rambling and provided no substantive evidence of his claims. He has failed to meet his burden of production with respect to a summary judgment motion and thus summary judgment is granted to the credit report defendants on this arm of their motions.
Credit Report Claim
Plaintiff's claims against the credit report defendants arise under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. Construing plaintiff's amended complaint liberally, as is appropriate for a pro se plaintiff, Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993), citing Hughes v. Rowe, 449 U.S.5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980), it alleges that the report was obtained on an impermissible basis, under false pretenses, and that credit report defendants violated their duty to assure that the information transmitted was accurate.
With respect to the first claim, § 1681b, titled "Permissible purposes of consumer reports," provides, in pertinent part: "A Consumer reporting agency may furnish a consumer report under the following circumstances and no other: . . . (3) To a person which it has reason to believe- . . . (B) intends to use the information for employment purposes. . ." (Emphasis added.) "Employment purposes" in connection with a consumer report is defined in § 1681a(h) as "a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee."
The critical issue with respect to plaintiff's claim against the credit report defendants that the report was obtained for an impermissible purpose is whether the credit report defendants' acts constituted a violation of FRCA, even if TBTA's action in requesting a credit report on its employee under a false statement was a FRCA violation. Here plaintiff has produced no material facts supporting any inference that these organizations acted other than in a good faith belief that the credit report was requested for "employment purposes" by an organization that was indisputably the employer of the plaintiff.
For the purposes of this summary judgment motion, one must accept the inference that TBTA misrepresented its purpose to TR Security by stating that the report was to be used in connection with consideration of plaintiff for promotion. Accepting the additional inference that this misrepresentation in TBTA's request establishes that it was not for a permissible employment purpose, plaintiff has produced no material fact supporting the inference that any of the credit report defendants had any reason to believe that the permissible reason asserted by TBTA was false.
Plaintiff was a TBTA employee in March 1992, and, in fact, is still a TBTA employee.
Plaintiff's name was one of four given to TR Security for credit checks. Cimato Aff. Ex. B.
Plaintiff also bases his claims against the credit report defendants on the assertion that "it was obtained under false pretenses, which violates the FCRA." Pltf. Brf. dated October 17, 1995 at 1. The term, "under false pretenses," is found in § 1681q, which provides:
Any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined not more than $ 5,000 or imprisoned not more than one year, or both.