3rd Circ. Urged To Revive SEPTA Background Check Suit

Law360 Matt Fair
December 12, 2017

The Third Circuit was urged during oral arguments on Tuesday to revive class claims accusing the Southeastern Pennsylvania Transportation Authority of failing to provide job applicants with a chance to respond to consumer reports detailing criminal histories that the agency said disqualified them from employment.

Deeptak Guta, an attorney with Gupta Wessler PLLC representing the three lead plaintiffs in the case, argued that the trial court had created an insurmountable hurdle by requiring the would-be SEPTA workers to show that the reports, which they never received copies of, contained inaccurate information that had harmed their employment prospects.

Instead, he argued, the harm flowed from the fact that the workers were denied an opportunity provided under the Fair Credit Reporting Act to review and rebut the reports.

Congress was concerned about the use in information about me, criminal history information that’s going to affect me, when I’m applying for a job, ” he said. This is serious information that affects the ability to people to get jobs, move past their criminal histories and move forward in life. ”

The lawsuit, which dates back to April 2016, accuses SEPTA of violating a provision of FCRA by turning down applicants for jobs they were otherwise qualified for after obtaining background checks from so-called consumer reporting agencies without providing them with adequate notice.

The suit also included allegations that SEPTA’s practices violated Pennsylvania’s Criminal History Record Information Act.

The suit seeks to represent every SEPTA job applicant denied a proper consumer report disclosure within the last two years and any applicant denied a vehicle maintenance or non-paratransit driving job in that period based on drug-related convictions more than seven years old.

U.S. District Judge Petrese Tucker threw out the FCRA claim in April 2017, however, after finding that the plaintiffs did not have standing to pursue the suit.

Gupta argued that the trial judge had prematurely thrown out the claim, but attorney … who represents SEPTA in the case, said that the plaintiffs had failed to show that they had suffered any actual harm because the information included in the reports was accurate.
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Since seeing their complaint thrown out of the federal courthouse, the plaintiffs have refiled a version of their complaint in the Philadelphia County Court of Common Pleas leveling only their CHRIA claim.

That case, however, was dismissed without prejudice in August pending the Third Circuit’s ruling on the federal claim.

The Third Circuit took the matter under advisement following argument on Tuesday.

The plaintiffs are represented by Deepak Gupta of Gupta Wessler PLLC, Cheryl-Lyn Bentley, Adam Klein, Christopher McNerney, Ossai Miazad and Lewis Steel of Outten & Golden LLP, Benjamin Geffen of the Public Interest Law Center of Philadelphia, Jon Greenbaum and Dariely Rodriguez of the Lawyers’ Committee for Civil Rights Under Law, and Ran Hancock of Willig Williams & Davidson.
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The case is Frank Long et al. v. Southeastern Pennsylvania Transportation Authority, case number 17-1889, before the U.S. Court of Appeals for the Third Circuit.