lessons of Obabueki

1/11/2012

For those that attended our Certified Volunteer Training program last year, the case of Obabueki v. IBM, 145 F. Supp. 2d 371 (SDNY, 2001) should be a familiar one. Though we didn't go into it so much, what happened in its follow-up case, Obabueki v. Choicepoint, 236 F. Supp. 2d 278 (SNDY, 2002), should also be familiar. We recently applied the lessons learned from these cases for one of our clients. He now has a job that pays more than the combined salaries of the entire staff at the legal dep't of A New Way of Life. (We don't get paid a lot here.) First, I'll explain Obabueki a little bit, followed by a short list of lessons learned--before explaining how these lessons were applied for our client.

Obabueki
By the time he applied for employment with IBM in New York, Mr. Obabueki had dismissed his 1995 conviction under California Penal Code § 1203.4. So, in reliance on his attorney's advice, he stated on IBM's criminal record questionnaire that he was never previously convicted of a crime, but Choicepoint reported the dismissed conviction to IBM. IBM asked Mr. Obabueki about the conviction, and he showed them a copy of the court order dismissing the conviction. IBM subsequently denied him employment, and Mr. Obabueki sued both IBM and Choicepoint under various New York state employment laws and also under FCRA.

The district court held in Obabueki v. IBM that IBM could not be held liable under New York laws protecting job applicants with conviction history, because their decision not to hire Mr. Obabueki was based not on the precise meaning of 1203.4 (that is, whether he in fact had a conviction record), but on the discrepancy between 2 pieces of information Mr. Obabueki provided them (that is, "a lie"). According to IBM, the discrepancy (and the reason they didn't hire him) was between his initial denial of the conviction and the language of the court order granting a 1203.4 dismissal. In Obabueki v. Choicepoint, which resulted in a jury award against Choicepoint, the court vacated the jury verdict and granted Choicepoint's motion for JNOV, holding that the denial of employment was due to Mr. Obabueki's "lie," not Choicepoint's violation of various FCRA provisions.

So what are some of the lessons we can learn from these cases?

Lesson 1: Be consistent.
If you're going to trust the employer's compliance with Title VII and so disclose your dismissed convictions, do so each and every time they ask you. If not, you should never contest what shows up on the background check report with the employer. Deal only with the background check company. In other words, don't give the employer more than 1 version of your past history. This applies especially if you, like Mr. Obabueki, are applying for employment outside California, where 2 CCR 7287.4 prohibits employers from even asking about misdemeanor convictions dismissed under 1203.4.

Lesson 2: Be proactive
Under FCRA and ICRAA, you have a right to inspect what the background check company has on you at any time. Find out what background check company your prospective employer uses. They may not tell you before you apply. That's fine. But they have to tell you the contact info of that background check company, including phone number, when they ask for your consent. At least remember the name of the background check company. As soon as you find out, you should contact the background check company and make sure that they won't report your dismissed convictions.

Lesson 3: Be aggressive
In our experience, most background check companies don't take it seriously until an attorney gets involved. So hire an attorney. Or call the free attorneys at A New Way of Life Reentry Project (323-563-3575)--even before you apply for a job.

Our client
Let's call him Bob. Bob has a long list of convictions, the last of which was more than 10 years ago. If he were applying for employment here in California, Civil Code § 1786.18 would've prevented background check companies from reporting any of those old convictions, but he had a great opportunity out of state. He called me right after he applied for the out-of-state job but before he had to submit to a background check, asking me whether he should or should not disclose his convictions since they had all been dismissed under 1203.4. After I explained the relative risks of each approach, he decided against disclosing them. He gave me the name of the background check company, and I contacted them the next day, asking for a copy of his report and explaining that whatever they find in California should be dismissed under 1203.4 and cannot be reported under FCRA as obsolete arrest records not leading to conviction, Last Friday, they issued a background check report to the employer. It was clean. Bob is moving to the other state in a few days.

4 Comments

Pui-Yee

4/13/2012 05:55:51 am

Thank you for this real-life example. It really helps gel together what I learned at the certification training. =)

Mike Davidson

4/14/2012 02:39:02 am

This is a landmark case that I have studied and I am glad that you are using it as an instructional material for your clients. I would however like to point out some errors in your case notes.

1) The court dismissed IBM from the case not because it held that Mr. Obabueki did not "lie" but the IBM staff members made their mistake in accessing the court documents due to their lack of expertise in the subject matter.
2) The court dismissed the jury award because in providing IBM with the correct court documents, Mr. Obabueki cured whatever error Choicepoint made.

In the Obabueki case, Choicepoint did correct their report but at that point IBM had decided to rescind their offer of employment. Mr. Obabueki also contacted Choicepoint first as you advise here, leading to the revised report but gave IBM the complete story when they would not change their position after the revised report from Choicepoint.

The case does not provide any lesson in defending against the practice of companies like Choicepoint as you seem to be teaching with the case. Any strategy that works depends largely on the employer.

Law as practiced in USA today is still not color blind and not the effective arbiter of justice as most lawyers would like to sell it. Those who understand the flaws in law take advantage of it everyday.

Law only seem effective because there are people who choose peace despite being wronged for the good of the society. US has benefited from this for a long time not because of the effectiveness of US law but more because of alternative opportunities open to people in the US.

In many countries, when the law fails, individuals become "cornered" and fight back destructively but even when things go really bad, there is always hope in the USA to "rise up" again.

More than anything, the case is an amplification of the failure of the American legal system and not a choice in legal tactics.

That is the real lesson from the case and not a legal strategy against unscrupulous entities.

Joshua Kim

4/25/2012 05:33:48 am

You raise two separate and distinct points, Mr. Davidson. And I'll address them in turn.

(1) FIRST-LEVEL READING OF THE CASES

Although I tend to think that, as with literature, legal opinions are often open to interpretation, I strongly disagree with your version of facts and the law. For the sake of brevity, I'll abbreviate Obabueki as O and give pincites (in parentheses) to respective F.Supp.2d. without volume. Assume all internal citations and quotation marks are omitted. And I can't figure out how to add emphasis here, so, to the extent that quoted language has emphasis in the original, well, it's all gone.

(a) Chronology

Facts as stated in O v. IBN (377), "Upon receiving the First Report, Brown contacted plaintiff and advised him of its contents. Plaintiff responded that the conviction had been vacated and the case dismissed, and provided Brown with a copy of the California Order." According to O v. ChoicePoint (281), "After plaintiff had been informed that his job offer would be withdrawn, he contacted Choicepoint to find out whether the 1997 dismissal order had been included in the report that Choicepoint provided to IBM. Plaintiff informed a Choicepoint employee via telephone that his 1995 conviction had been dismissed, and he faxed a copy of the 1997 order to Choicepoint."

(b) Reason for granting IBM's summary judgment motion on O's NYSHRL claim

I don't know this law well, but according to the court in O v. IBM (380), "Section 296(15) prohibits a private employer from discriminating against an individual applicant, through denial of employment, on the basis of prior criminal convictions or the perception of such convictions." The court goes on to say, "if the defendant proffers a nondiscriminatory reason for his actions and the plaintiff cannot point to evidence that reasonably supports a finding of prohibited discrimination, the defendant is entitled to summary judgment."

The NY law requires that O meet the burden of proof showing IBM denied him employment on the basis of his prior conviction. Under this standard, the court found that:

In fact, the voluminous testimony of IBM's employees, and the communication among themselves on the issue of plaintiff's application was completely consistent: each believed having examined plaintiff's SDS, the Choicepoint Report, and the California Order, that plaintiff lied on his application because he had not disclosed his vacated conviction. Because plaintiff has failed to present substantial evidence as to the falsity of that explanation, so as to eliminate IBM's justification for its adverse action, this evidence, on its own, is insufficient to raise an inference of prohibited discrimination.

(c) Reason for granting ChoicePoint's motion for JNOV

In order to obtain actual damages, O had to prove causation between ChoicePoint's violation of FCRA and IBM's decision to deny employment. I'll quote at length from O v. ChoicePoint (284-85)

The uncontroverted testimony of the IBM witnesses showed that the decision to withdraw plaintiff's job offer was based on IBM's consideration of both the initial Choicepoint report and the 1997 dismissal order provided by plaintiff.
...
And after evaluating both the initial Choicepoint report and the 1997 order, IBM concluded that plaintiff had lied on the SDS. The fact that this conclusion was based on IBM's possibly erroneous interpretation of the legal effect of the 1997 order is of no consequence to the issue of whether Choicepoint caused plaintiff's injury. While Choicepoint may have provided IBM with incomplete information regarding plaintiff, the uncontested evidence offered at trial showed that IBM based its decision on information that was complete and accurate. Thus, Choicepoint's negligence--which may have caused the production of the initial report--cannot be said to have been the proximate cause of IBM's decision.

(2) SOCIAL IMPLICATION OF THESE CASES

You make a number of broad generalizations regarding our legal system, which I myself entertain at times. However, just because I too entertain those thoughts at times, it doesn't mean that I believe them to be true. It does mean, however, that I myself experience a level of frustration with the American legal system. So, instead of addressing each of your generalizations in turn, I will explain how I deal with that frustration myself--for example, this website and the clinic behind it. Yes, our legal system is rigged in a way that favors those who have the resource to utilize all its tools. So let's make those tools available to the very people without such resource. And let's make this information and knowledge as widely available as we can. And, from these small steps, while we wait for major social changes to take shape, real and substantial good can and do come to individuals we serve. The story of my client described in the above post is a case in point.

Gregory Antollino link

1/22/2015 12:50:54 pm

I represented Abel Obabueki at trial and on appeal. It's heartbreaking to see what that decision did to ruin the intention of the Fair Credit Reporting Act, and to excuse employers for the discrimination they impose on ex-offenders, even those who enter into a deal whereby it is promised that their convictions will be "off their record" and they won't have to check the box when applying for employment. Mr. Obabueki was a graduate student receiving financial aid when he was charged with "fraud in obtaining aid." The local prosecutor wanted to take on a Stanford MBA student for having the audacity to simultaneously obtain public assistance for his family and student loans and grants for the deleterious costs of obtaining a private university education with a wife and three children. Although the civil jury thought that what happened justified an award of damages, the judge (now deceased) was antagonistic towards me throughout the trial; I can still see the look on his face when he read the verdict. Although this is a loss from almost 15 years ago, I will never forget this case, and how my client was denied the protections of the Fair Credit Reporting Act and the New York State Human Rights Law. IBM got off on the speculation that it assumed that my client had "lied" on his application for employment. ChoicePoint got off on IBM's wooden "decision," even though by the time CP had corrected its damning report, it was too late to unring the bell. The one thing my client did - that was honest but strategically wrong - was to fess up and show IBM the order vacating the conviction. Had he actually LIED, and denied that he had ever had a conviction that was vacated, and waited for ChoicePoint to issue an updated report, he would have gotten the job - or at least had a case against IBM which the judge could not so easily have dismissed before trial. The FCRA was created so that records not up-to-date would not adversely affect people who needed updated records in order to get employment (or credit, or whatever). In my opinion, the appeals court turned its back on the facts, and Congress' and simply rubber-stamped the district court decision, despite that a unanimous jury took less than an afternoon to find CP liable. At the time, I needed the money that I would have won had the verdict remained intact. I no longer do, but my feelings about the Obabueki case remain strong in my heart, and the result biggest miscarriage of justice that I have experienced as an attorney. For the rest of my life I will never forget how unfairly this man - who just happened to be Black and of African descent - was treated by the U.S. courts, notwithstanding a jury verdict in his favor and a law designed to protect him in exactly these circumstances.

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lessons of Obabueki

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