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Evans v. Two Hawk Employment Services

United States District Court, E.D. Kentucky, Northern Division, Covington

January 28, 2015




This is an employment dispute in which Plaintiff William J. Evans, II, proceeding without an attorney, alleges wrongful termination and breach of contract under Kentucky law, and violations of his consumer civil rights under the Fair Credit Reporting Act (FCRA), 15 U.S.C. ยง 1681. Evans brings this action against his former employer, Two Hawk Employment Services, LLC ("Two Hawk"), and Harvey Godwin, Jr., member/manager of Two Hawk, in Godwin's individual capacity. Evans seeks $950, 000 in damages, along with attorney's fees and costs. This matter is before the Court on Defendants' Motion to Dismiss (Doc. 24) and to determine the effect of Two Hawk's Rule 68 offer and Plaintiff's response. Having reviewed the filings, the Court now issues the following memorandum opinion and order.


A. Plaintiff's Employment History

Two Hawk is a North Carolina limited liability company that provides employment services through offices in North Carolina and Kentucky. On December 16, 2013, Plaintiff, a resident of Florence, Kentucky, applied for employment with Two Hawk as a third-shift sanitation worker. After Plaintiff completed application paperwork at Two Hawk's office in Florence, a Two Hawk employee named Judy interviewed him in person. Plaintiff asserts that during the interview, he and Judy discussed his criminal history and he disclosed that he was on probation. Judy instructed Plaintiff to return two days later for orientation.

As directed, Plaintiff returned on December 18, 2013, for orientation and was then sent to Schwan's Global Supply Chain[2] to obtain a badge. Plaintiff was then instructed to return to Two Hawk to receive a work assignment. Because Judy was unsure of the date for the next sanitation worker training course, she assigned him to a "floater" position. Plaintiff alleges that Judy said to him, "[Y]ou can be a floater, until you are given a work schedule, at which time you will become temp to hire." Doc. 1, Complaint, at 2. Judy then instructed Plaintiff to report to work at Schwan's on December 19, 2013, and December 20, 2013, at 5:45 p.m.

Plaintiff completed the December 19 and December 20 shifts. He alleges that during the December 20 shift, his line leader, Tony Davis, told Evans that he wanted Evans on his line and asked the line operator to assign Evans a work schedule. At that point, Plaintiff believes he moved from a "floater" position to "temp-to hire" status, pursuant to Two Hawk's employee handbook and Judy's explanation.

The following week, Evans returned to Two Hawk's office to pick up his paycheck and informed a Two Hawk employee named Natalia of Davis's request that Plaintiff receive a work schedule. Plaintiff alleges that Natalia told him to "do what Mr. Davis told you, " which again he understood as meaning he had become "temp-to-hire."

Shortly after Plaintiff arrived to work on January 1, 2014, a security guard notified him that his badge had been rejected and that he needed to return to the guard station. The next day, Plaintiff contacted Two Hawk and was told that Two Hawk could no longer offer him employment. After Evans pressed for a reason, a Two Hawk staff member said that it was because the company had received the results of Plaintiff's criminal background check.

On January 4, 2014, Plaintiff wrote a letter to Two Hawk's owner, Defendant Harvey Godwin, Jr.[3] explaining the situation. On January 10, 2014, Plaintiff sent a follow-up e-mail to Godwin and received a telephone call from Two Hawk's Human Resources Manager, Harriet Johnson. Johnson said Two Hawk was investigating and would contact Plaintiff early in the next week. After not hearing from Defendants, Plaintiff followed up several times, finally speaking with Johnson on January 20, 2014. Johnson informed Plaintiff that Defendants had sent a letter to him and to call her back if he had questions.

On January 27, 2014, Plaintiff received a letter (Doc. 1-5, at 1), signed by Godwin, stating that Plaintiff's employment was "denied" because of "dishonesty in the application process." The letter attached a commercially prepared "Background Check Report" (Doc. 1-5, at 2-3) indicating that records had been found in Boone and Grant County, Kentucky criminal courts and in the National Criminal Information Bureau. The report does not include any specific information regarding Plaintiff's criminal history.[4]

More than a month later, Plaintiff received another letter, dated March 4, 2014 (Doc. 1-7), stating: "A decision has been made to not offer you employment. This decision was based, either in whole or in part, on information contained in your Consumer Report. Inadvertently, this letter was not sent earlier, but the delay does not alter the terms of it." The letter also describes how to obtain the report from Asurint (the commercial background check provider) and information about how to dispute the report's contents. Godwin signed the letter as "Adverse Action Representative." Plaintiff asserts that he thereafter made numerous attempts to settle the matter before filing the instant case on August 15, 2014. Doc. 1, Complaint.

Plaintiff's complaint asserts three causes of action against both defendants: a federal claim for violations of the FCRA, a state law wrongful termination claim, and a state law breach of contract claim. First, Plaintiff alleges that Defendants failed to follow the procedures set forth in the FCRA regarding the use of consumer reports for employment purposes. Second, Plaintiff asserts that his termination was wrongful because it involved improper use of the criminal background report; Plaintiff does not assert that he was terminated for a discriminatory or retaliatory reason. Third, Plaintiff alleges breach of contract based on statements ...

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