Unpublished Disposition, 900 F.2d 263 (9th Cir. 1990)

No. 89-15153.

United States Court of Appeals, Ninth Circuit.

Before TANG and BEEZER, Circuit Judges, and ALBERT LEE STEPHENS^* , Jr., District Judge.

MEMORANDUM^** 

John Miksad ("Miksad") appeals the district court's grant of summary judgment in favor of Dialog Information Services ("Dialog"), Cossey-Capozzi, Inc. ("Cossey-Capozzi") and Kent H. Cossey ("Cossey"). We reverse and remand.

DISCUSSION

We can affirm a district court's grant of summary judgment on any basis supported in the record. See Lampert v. United States, 854 F.2d 335, 338 n. 2 (9th Cir. 1988), cert. denied, 109 S. Ct. 1931 (1989). Given the facts of this case, the defendants were entitled to summary judgment if the only reasonable conclusions a jury could reach were either: (1) the defendants never received Miksad's credit report; or (2) if the defendants received the credit report, they obtained the report to determine Miksad's employment status, a permissible purpose under the Fair Credit Reporting Act. See 15 U.S.C. §§ 1681a(h) & 1681b(3) (B). However, we conclude that genuine issues of material fact exist on each of these issues. Consequently, we reverse and remand for trial.

(1) Obtaining Miksad's Credit Report

There is a genuine issue of material fact as to whether the defendants received Miksad's credit report.¹  There is ample circumstantial evidence from which a jury could infer that Cossey's company, C & C Associates ("C & C"), asked for and received Miksad's credit report: (1) C & C subscribed to the Credit Bureau of Santa Cruz ("Credit Bureau"), a company which provides consumer reports; (2) Cossey admits he inquired into Miksad's credit file, although Cossey claims he sought only "identifying information," not the credit report; (3) TRW alerted Miksad that C & C had received his credit report; (4) Miksad's credit file indicates that C & C made an inquiry; (5) an expert on the Fair Credit Reporting Act, Joanne Budde, stated that the notation that C & C made an inquiry meant that C & C had ordered the report; (6) the president of the Credit Bureau, John Huffman, stated that based on his experience, any inquiry by C & C would have resulted in the dispatch of a written credit report; (7) C & C was billed $3.00 for receipt of a credit report; and (8) Huffman stated C & C had never asked merely for identifying information in the past.

(2) Employment Purposes

A genuine issue of material fact exists as to whether the investigation was directed toward Miksad's retention as an employee. Deposition statements suggest that the investigation was not conducted to determine whether Miksad would be retained: (1) Dialog's President, Summit, stated that Miksad's credit history was irrelevant and Miksad's retention was not at issue; (2) Miksad's direct supervisor stated that he did not think of firing or demoting Miksad at the time of Cossey's investigation; (3) Cossey stated that the purpose of the investigation was not to see whether Miksad would be retained; and (4) Dialog's General Counsel, Simons, stated that Miksad was not the focus of the investigation. Moreover, Dialog's General Counsel, Simons, stated in a declaration that he hired C & C "(1) to discover the author of the anonymous letter, and (2) to conduct an audit of Dialog's procurement practice." Elsewhere in that declaration, Simons stated that he asked "C & C Associates to investigate Miksad's association with LMS," a company which he suspected Miksad ran. None of these three objectives suggests that the defendants' purpose was to determine if Miksad would be retained as an employee.

REVERSED and REMANDED.²