(CN) - A former CVS employee may amend a class action accusing Rite Aid of using an illegal LexisNexis background check on prospective employees, a federal judge ruled.
Kyra Moore filed a class action against Rite Aid and LexisNexis Search Solutions Inc. on March 22, 2013, alleging the retailer refused to hire her based on a background check.
Having worked for CVS for four years, during an interview with loss-prevention agents in July 2010, Moore said she'd never stolen from the store, but may have set aside some items for future purchase that were later put back on the shelves or taken by someone else.
The CVS agent and Moore drafted a handwritten "voluntary admission statement," which was sent to LexisNexis for use in its "Esteem" database, thus classifying Moore as a thief.
Moore was then sent home and fired, according to the complaint.
She says that after applying for a supervisor position at Rite Aid about a year later, LexisNexis sent her a background check report scoring her "non-competitive."
The attached initial notice letter, dated April 25, 2011, on Rite Aid stationery, said that if she responded within five days, the store would "consider whatever information you provide to us in making our final decision whether to employ/terminate you."
Rite Aid then withdrew its offer of employment, and Moore's attorney sent two letters to LexisNexis, dated May 23 and July 28, disputing the accuracy of the Esteem report, she claims.
Though LexisNexis sent Moore a revised report scoring her "eligible" over two years later, in October 2013, she was not offered a position at Rite Aid, the complaint states.
Moore then voluntarily dismissed LexisNexis as a defendant on Oct. 28.
She designated her case as related to a 2011 class action filed by former Forman Mills and Dollar General employees also accused of theft, Goode v. LexisNexis Risk & Information Analytics Group Inc., which alleges violations of the Fair Credit Reporting Act (FCRA).
But DuBois granted Rite Aid's motion to dismiss Moore's suit Wednesday, finding that she failed to allege that Rite Aid took an adverse action by using her LexisNexis classification.
"Although plaintiff argues in her response to the motion that LexisNexis adjudications constitute adverse actions, plaintiff does not allege that Rite Aid relied on those adjudications as final employment decisions and that the five-day period provided for in the initial notice letter was not a 'real opportunity' for her 'to contest the adjudication,'" DuBois wrote. "The closest the complaint comes to such an allegation is the statement that 'LexisNexis and Rite Aid have designed this arrangement so that the pre-adverse action notice always gets sent after LexisNexis has scored the application and after LexisNexis has provided Rite Aid with the applicant's background report.' Such an allegation, standing alone, is not sufficient to state a claim upon which relief can be granted on this ground." (Emphases in original).
Moore also failed to explain why she did not timely dispute the report, the ruling states.
"Nowhere in the complaint does plaintiff allege that five days was an insufficient amount of time to respond or that the paucity of information in the Esteem report prevented her from making a meaningful response," DuBois wrote. "Therefore, the complaint fails to state a claim upon which relief can be granted on this ground."
Moore has 15 days to amend that claim, however, as well as her claims for statutory and punitive damages, the ruling states.
Rite Aid, the country's third-largest retail drugstore chain, reported first quarter revenues of $6.5 billion as of May 31, 2014, having reaped $25.5 billion in annual revenue as of March 1.
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