Labor & Employment Law Daily Wrap Up, PRIVACY—D. Ariz.: Truck driver survives summary judgment against prospective employer on FCRA claim, (Aug 8, 2025)

By Ursula Furi-Perry, J.D., MBA

The plaintiff presented sufficient evidence to raise factual questions about whether the employer had taken an adverse action against him.

A truck driver applied for employment and received a contingent job offer but was never actually hired after his background check came back containing expunged criminal records. The applicant filed suit claiming violations of the Fair Credit Reporting Act (FCRA). A federal district court in Arizona declined to grant the employer’s motion for summary judgment, holding that the applicant presented sufficient evidence to raise factual questions about whether the employer had taken an adverse action against him, rejecting the employer’s argument that no adverse action occurred (Jones v. Asurint, Inc., No. CV-24-00618-PHX-DGC (D. Ariz. Aug. 4, 2025)).

Contingent job offer. The applicant applied for a truck driver position with the employer, and after an interview the same day received a contingent offer of employment, subject to steps such as drug testing, a physical, and a road test. The employer then ordered a background check through Asurint Inc., which returned a report containing expunged criminal records. As required by the FCRA, Asurint sent the applicant a copy of the report and informed him of his rights under the statute. The applicant immediately disputed the inclusion of the expunged records, and the company confirmed receipt of the dispute and notified the employer of the ongoing review, without disclosing its nature. Despite this, the employer’s HR Specialist requested the dispute be closed, a move she later testified she had never made before. Asurint declined, explaining they had 30 days to investigate.

Meanwhile, another applicant applied and quickly moved through the hiring process, receiving a background check, physical, and drug test all within a few days. On the same day Asurint finalized the applicant’s corrected report, now excluding the expunged record, the employer reported him as a “Pass” but continued to advance the other applicant through the hiring process for the single open position. The applicant, unaware of the developments, followed up with the employer, requesting to be scheduled for a physical. The employer responded that a hiring pause had been implemented, although they later encouraged him to reapply, and he was eventually hired elsewhere.

The applicant filed suit alleging a claim for violation of the FCRA. According to the applicant, that the employer took adverse action based on his initial background report without first providing him with the report and a written summary of his rights. The employer moved for summary judgment, arguing that the applicant had released it from liability through a prior settlement with Asurint, that no adverse action had been taken, and that the applicant lacked Article III standing because he suffered no concrete harm.

Procedural issue. The district court addressed the procedural issue under Rule 56 of the Federal Rules of Civil Procedure, reviewing whether there were no material facts at issue, so that the employer was entitled to judgment as a matter of law.

First, the court rejected the employer’s argument that it was released from liability as a customer of Asurint under the broad language of the settlement agreement between the applicant and Asurint. The court explained that under Arizona law, third-party beneficiary status requires clear intent within the agreement, and the employer was not expressly named or implied as a beneficiary, nor did it sign the agreement. The court emphasized that it would be illogical for the applicant to release the employer without expressly doing so.

Adverse action. Next, the court held that the applicant presented sufficient evidence to raise factual questions about whether the employer had taken an adverse action against him, rejecting the employer’s argument that no adverse action occurred, as it had marked his application as a “Pass.” Though the employer claimed the applicant failed to complete necessary onboarding steps, there was a factual dispute regarding whether it prevented him from completing those steps, as the employer was responsible for scheduling the physical and other tests, and the applicant had reached out about scheduling them. A reasonable jury could conclude that the employer’s failure to hire the applicant stemmed from the initial, incorrect background report, and that its actions—such as prematurely asking Asurint to close the dispute—could be interpreted as evidence of pretext or bias.

Standing. Lastly, the court rejected the employer’s argument that the applicant lacked standing because he had already received the background report and rights notice directly from Asurint, and thus suffered no concrete harm. Relying on Ninth Circuit case precedent, the court noted that the applicant had a substantive right to notice from the employer before adverse action. The failure to receive this notice deprived the applicant of the opportunity to contest the report with the employer, a meaningful procedural protection akin to due process. Because the applicant presented evidence that he might have secured the position had he been able to explain the expungement to the employer directly, the court found that he had alleged a concrete, particularized injury sufficient for standing.

Accordingly, the court denied the employer’s motion for summary judgment.

The case is No. CV-24-00618-PHX-DGC.

Judge: Campbell, D.

Attorneys: Devin Heng Fok (DHF Law) for Ray Jones. Catherine Nichole Van Farowe (Ogletree, Deakins, Nash, Smoak & Stewart) for Trans Papa Logistics Inc. Blaize Boles (Polsinelli PC) for Asurint Inc.

Companies: Trans Papa Logistics Inc.; Asurint Inc.

Cases: Privacy Procedure ArizonaNews