Courts across the country differ on what is required to prove emotional distress damages under the FCRA. The Eleventh Circuit has proven to be no exception.
In Johnathan Rodriguez v. General Information Services, No. 5:16-CV-01067-MHH, 2019 WL 691403, at *2 (N.D. Ala. Feb. 19, 2019) the plaintiff’s FCRA claims, including a § 1681e(b) claim, a claim for emotional distress damages, and a willfulness claim, all survived summary judgment. The facts of this case are quite interesting and are also necessary to fully appreciate the court’s discussion regarding emotional distress damages.
Over a period of three years, defendant General Information Services (“GIS”) prepared three separate background checks in connection with plaintiff Johnathan Rodriguez’s (note the spelling) applications for employment – one in June 2013, another in March 2016, and finally one in May 2016.
In June 2013, Rodriguez applied for a job at Kroger in Huntsville, Alabama. In connection with the application process, GIS prepared a background report on him and provided it to Kroger. The background report showed that Rodriguez had an extensive criminal history that included multiple felony offenses in New Jersey. SPOILER ALERT: that information was false. Rodriguez had not been charged with or convicted of a crime. Still, based on that report, Kroger did not hire Rodriguez.
In March 2016, Rodriguez applied for a job at a Dollar General store also located in Huntsville, Alabama. Again, GIS prepared a background report on him and provided it to Dollar General. However, this time GIS’s report contained no criminal history and reflected a grade of “Pass.” Rodriguez was hired (and held the job for only a week, but that is neither here nor there).
In May 2016, Rodriguez applied for a job with Kroger again. He received a job offer conditioned on him passing a drug test and a background check. On this report, also performed by GIS, there appeared the same felony convictions from the 2013 report, as well as pending charges for first degree murder, aggravated assault, and weapons possession.
The best part – that criminal history actually belongs to an individual named “Jonathan Rodriguez.”
To establish a violation of § 1681e(b), a plaintiff must “present evidence tending to show that a credit reporting agency prepared a report containing ‘inaccurate’ information” and that he “was damaged as a result of the allegedly inaccurate [ ] credit report.” But here, the court stated that “[i]t is undisputed that GIS’s May 2016 report concerning Mr. Rodriguez is inaccurate.” Therefore, GIS was left to show that it followed reasonable procedures when it created that May 2016 report OR rely on Rodriguez being unable to produce evidence that shows that the inaccurate information in the May 2016 report injured him.
The court denied GIS’s motion for summary judgment as to all causes of action. With regard to the reasonableness of GIS’s procedures, the court determined that there were several questions of fact that should be properly left for the jurors to decide. Such facts included discrepancies contained in the May 2016 report; the fact that, from one phone call GIS made in July 2016 to the New Jersey Department of Corrections, it was able to detect the error in the May 2016 report; and a question of fact as to whether Kroger terminated Rodriguez based on work performance or based on his background report.
Now, we get to the discussion on emotional distress.
Under the FCRA, plaintiffs may recover emotional distress damages. Without initially choosing a side, the court noted that, within the Eleventh Circuit alone, “district courts do not agree on whether a plaintiff must present more than his own testimony as evidence of emotional distress.” Then, the court determined that Rodriguez, on his own, presented “sufficient evidence to create a question of material fact as to whether his emotional distress constitutes actual damages.” Johnathan Rodriguez v. General Information Services, No. 5:16-CV-01067-MHH, 2019 WL 691403, at *9 (N.D. Ala. Feb. 19, 2019).
Specifically, the court noted that Rodriguez made the following claims regarding his alleged emotional distress damages:
- After Kroger terminated Mr. Rodriguez, he received a copy of his background report in the mail. Rodriguez described feeling as though “there was nothing I … could do. I thought I was just thrown into the river and left to fight, to swim in the river current.”
- In July 2016, Mr. Rodriguez received an “updated” report. However, Mr. Rodriguez explained: “[E]verything was still on my background…. The felonies were still there. And after seeing this, [I] went into a deeper state of depression, realizing that no one could help me.”
- When asked whether he was happy, Mr. Rodriguez responded: “All of this still gets to me, and it makes me sad, depressed and mad every day I wake up.” (Doc. 47-2, p. 22, tp. 194).
- When asked what he wants to get out of his lawsuit, Mr. Rodriguez responded that he “want[s] to know wherever [he goes he’ll] be safe” and that he no longer will have to “fear stepping outside” because of the felonies on his background report. (Doc. 59-4, p. 214).
Not only did the court explicitly state that “[t]his testimony is sufficient to support Mr. Rodriguez’s allegation that he has suffered emotional harm due to GIS’s conduct,” it nevertheless went on to point out that Rodriguez’s testimony is corroborated by other evidence in the form of testimony from his wife. His wife testified that:
- “[H]e’s gotten upset a few times that he can’t support us like a man…. He apologizes to me and gets – he cries about that. He’s like, ‘I’m sorry that you can’t have your white picket fence. I’m sorry that you can’t stay home and take care of our son. I’m sorry that, you know, we can’t afford the three children of our dreams.”
The takeaway here is that the evidence required for a plaintiff to prove emotional distress damages in the Eleventh Circuit varies by district. In some districts, the plaintiff’s word is enough to survive summary judgment. In others, plaintiffs will need to produce other evidence that corroborates their own testimony to achieve the same result. And again, this is all as between district courts within the Eleventh Circuit. Here, in the Northern District of Alabama, the plaintiff produced both types of evidence and the court still took the opportunity to explicitly state that the plaintiff’s word was enough.