Vellon v. The Chefs' Warehouse, Inc.

Background

Nouchie Vellon brought a proposed class action against The Chefs' Warehouse, Inc., Dairyland USA Corporation, and John Doe. He asserted claims under the New York City Human Rights Law as amended by the Fair Chance Act, the New York Fair Credit Reporting Act, and the federal Fair Credit Reporting Act.

Vellon alleged that he applied for employment and was invited to a hiring event. Before and during his interview, the defendants allegedly asked him to authorize a background check, asked about his criminal history, and stated that they had already conducted an informal background search. Vellon alleged that he never received a conditional or other employment offer, that the defendants did not provide him with a copy of Article 23-A of the New York Correction Law, and that they did not provide him with the consumer report or written notice of his rights required by the federal Fair Credit Reporting Act.

Vellon also alleged that the defendants followed a general policy of asking about conviction histories before making conditional offers and rejecting applicants based on those histories without performing the required analysis or giving applicants an opportunity to respond. He proposed three classes: a New York City Human Rights Law class, a New York Fair Credit Reporting Act class, and a federal Fair Credit Reporting Act class.

Motion to Dismiss

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally plausible claim. The court treated the pleaded facts as true and drew reasonable inferences in Vellon's favor for purposes of the motion.

Fair Chance Act claim. The Fair Chance Act generally prohibits an employer from asking about or considering an applicant's criminal history until after extending a conditional offer of employment. The court held that Vellon plausibly alleged that the defendants made prohibited inquiries and statements by requesting authorization for a background check, asking him to discuss his criminal history, and referring to an informal background search. Because he alleged that no employment offer came first, the court found that he stated a claim under the New York City Human Rights Law as amended by the Fair Chance Act.

The defendants argued that Vellon had not plausibly alleged that they denied his application because of his criminal history. The court rejected that argument at the pleading stage, explaining that causation was not required for the alleged Fair Chance Act violations and that the pleaded conduct could constitute violations in itself.

New York Fair Credit Reporting Act claim. The court found that Vellon had not expressly alleged that a consumer reporting agency provided the defendants with a report containing his conviction information. But because he alleged that he authorized a background check and that the interviewer knew about his conviction history, the court drew a reasonable inference that the defendants had obtained such a report. The court held that Vellon stated a claim because he also alleged that the defendants failed to provide him with Article 23-A.

Federal Fair Credit Reporting Act claim. The federal law requires a person intending to take adverse employment action based on a consumer report to provide the consumer with a copy of the report and a written description of the consumer's rights. The court held that Vellon plausibly alleged that the defendants took adverse action based at least partly on a background check. The court relied on allegations that the interviewer emphasized the importance of Vellon's conviction history, that Vellon was ultimately denied a job for which he claimed to be qualified, and that the defendants did not provide the report or rights notice.

The court therefore denied the defendants' motion to dismiss Vellon's individual claims in its entirety.

Motion to Strike Class Claims

The defendants also moved under Federal Rules of Civil Procedure 12(f) and 23(d)(1)(D) to strike the class allegations. They argued that Vellon had not pleaded facts showing a common plan or policy and that his proposed classes rested on speculation.

The court explained that motions to strike class allegations are generally disfavored at the pleading stage because discovery may provide information relevant to class certification. It found that Vellon's allegations about a hiring event and a repeated recruitment process plausibly supported an inference that other applicants may have experienced the same conduct. The court therefore concluded that it was premature to decide that the class-certification requirements could not be met.

Disposition

The court denied the defendants' motion to dismiss the Amended Complaint in its entirety. It denied the motion to strike the class claims without prejudice to renewal at the class-certification stage. The court stated that the case would be referred to Magistrate Judge Moses for general pretrial management.