Preview
Nick Miletak — In Pro Se
14745 Conway Avenue
San Jose, California 95124
408-533-5689-mobile
nmiletak@msn.com
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SANTA CLARA COUNTY SUPERIOR COURT
| DOWNTOWN BRANCH
NICK MILETAK,
Plaintiff,
vs.
JEREMIAH PHILLIPS, LLC., AND DOES 1-
100 INCLUSIVE
Defendants,
Case No.: 22 Cv407260
COMPLAINT FOR DAMAGES
1. ONE (1) VIOLATIONS OF CALIFORNIA
CIVIL CODE § 1786.16
2. WRONGFUL TERMINATION OF
EMPLOYMENT IN VIOLATION OF
PUBLIC POLICY — CALIFORNIA
LABOR CODE SEC. § 1102.5(B)
3. RETALIATION IN VIOLATION OF
PUBLIC POLICY - CALIFORNIA CODE
OF CIVIL PROCEDURE SEC. § 1102.5(B)
UNLIMITED
$40,720
DEMAND FOR JURY TRIAL
COMPLAINT FOR DAMAGES-
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Plaintiff, Nick Miletak submits this claim for damages and respectfully alleges as
follows: |
NATURE OF ACTION
1. This is an individual consumer complaint against Jeremiah Phillips LLC.,
(hereinafter “Defendant”) doing business as Airline Coach Service or ACS in California for one
violation of the California Investigative Consumer Reporting Agency Act contained in California
Civil Code section § 1786.10— § 1786.40 (hereinafter “ICRAA”) and for wrongful termination
of employment in violation of public policy of California Labor Code section § 1102.5(b) and
California Code of Civil Procedure section § 1002.5 in which the Defendants retaliated against
the Plaintiff, Nick Miletak, for informing the Defendant of their non-compliance with the ICRAA:
2. Prior to the Defendant procuring an investigative consumer report (hereinafter
“ICR”), with the Plaintiff as the subject, the Plaintiff informed the Defendant that the consent
disclosure provided to him by the Defendant was not compliant with section § 1786.16 of the
California Civil Code because it did not allow him to check a box requesting for a copy of any
report procured by the Defendant.
3. Despite being alerted of the non-compliant consent disclosure by the Plaintiff the
Defendant still requested for preparation of an ICR, with the Plaintiff as the subject, from
HireRight which was procured on October 19, 2022.
4. Defendant is a ground transportation provider offering service to airlines crews in
and around California. In order to accomplish its objectives, the Defendant hires drivers to for
transporting passengers utilizing their fleet of vehicles.
5. On October 19, 2022 the Defendant procured a background report ID # HE-
110224445 639, with the Plaintiff as the subject of the report, from HireRight.
6. After receiving a copy of the ICR requested by the Defendant around October 26,
2022 the Plaintiff, Nick Miletak, has been ready to continue the onboarding and employment
COMPLAINT FOR DAMAGES
2process but has been prevented from commencing employment in a decision that was unilaterally
made by the Defendant.
1 The California Civil Code also known as the Investigative Consumer Reporting
Agency Act (hereinafter “ICRAA”) §1786.10-1786.40 et seq. clearly requires that the requestor
of the report (Defendant) provides the subject of the report a consent disclosure that contains the
name, address and telephone number of the background reporting agency to be used in preparation
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of the Teport prior to procuring the ICR.
The ICRAA also requires that the consent disclosure contains a check box option for
California consumers to request a copy of the background report if a background report is
procured, It also provides that the recipient of the report shall send a copy of the report to the
consumer within three business days that the report is received by the requestor. The Defendant
failed to provide a compliant consent disclosure to the Plaintiff before procuring the October 19,
2022 background report from HireRight.
(1) Provide the consumer a means by which the consumer
may indicate on a written form, by means of a box to check,
that the consumer wishes to receive a copy of any report that
: is prepared. If the consumer wishes to receive a copy of the
| report, the recipient of the report shall send a copy of the
report to the consumer within three business days of the date
that the report is provided to the recipient, who may contract
! with any other entity to send a copy to the consumer. The ,
notice to request the report may be contained on either the
disclosure form, as required by subdivision (a), or a separate
consent form. The copy of the report shall contain the name,
address, and telephone number of the person who issued the
report and how to contact them.
8. The ICRAA was molded after the FCRA in many respects. The ICRAA was
enacted by the California Legislature with the following declaration: '
The Legislature finds and declares as follows:
COMPLAINT FOR DAMAGES
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(a) Investigative consumer reporting agencies have assumed a vital role in collecting,
assembling, evaluating, compiling, reporting, transmitting, transferring, or communicating
information on consumers for employment and insurance purposes, and for purposes relating to
the hiring of dwelling units, subpoenas and court orders, licensure, and other lawful purposes.
(b) There is a need to ensure that investigative consumer reporting agencies exercise their
grave responsibilities with fairness, impartiality, and a respect for the consumer’s right to privacy.
(©) The crime of identity theft in this new computer era has exploded to become the
fastest growing white-collar crime in America.
@ The unique nature of this crime means it can often go undetected for years without the
victim being aware his identity has been misused.
©) Because notice of identity theft is critical before the victim can take steps to stop and
prosecute this crime, consumers are best protected if they are automatically given copies of any
investigative consumer reports made on them.
(f It is the purpose of this title to require that investigative consumer reporting agencies
adopt reasonable procedures for meeting the needs of commerce for employment, insurance
information, and information relating to the hiring of dwelling units in a manner which is fair and
equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper
utilization of the information in accordance with the requirements of this title. :
(g) The Legislature hereby intends to regulate investigative consumer reporting agencies
pursuant to this title in a manner which will best protect the interests of the people of the State of
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California. :
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9. The California legislature included in the statutory scheme a series of due-process-
like protections that impose strict procedural rules on both ICRA’s and users of investigative
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consumer reports. Defendant has thwarted the legislative purpose of the ICRAA by engaging in
COMPLAINT FOR DAMAGES
4unlawful practices even after being informed of serious violations of the ICRAA that appear to
place its business interests above the rights of the consumer.
10. Since alerting the Defendant of the non-compliant consent disclosure on October’
11, 2022) the Plaintiff reasonably believes that the Defendant has continued their unlawful:
practices of procuring background reports without first providing employment candidates with a
compliant consent disclosure.
UL. The Defendant has deliberately prevented the Plaintiff from commencing
employment since October 24, 2022 giving rise to a wrongful termination of employment cause
in violation of public policy of California Labor Code section § 1102.5(b) and California Code of
Civil Procedure section § 1002.5 in which the Defendants retaliated against the Plaintiff, Nick
Miletak, for informing them of the non-compliant consent disclosure being used in candidate
onboarding which state:
§ 1102.5 (b) An employer, or any person acting on behalf
of the employer, shall not retaliate against an employee for
disclosing information, or because the employer believes
that the employee disclosed or may disclose information, fo
a@ government or law enforcement agency, to a person with
authority over the employee or another employee who has
the authority to investigate, discover, or correct the violation
or noncompliance, or for providing information to, or
testifying before, any public body conducting an
investigation, hearing, or inquiry, if the employee has
reasonable cause to believe that the information discloses a
violation of state or federal statute, or a violation of or
noncompliance with a local, state, or federal rule or :
regulation, regardless of whether disclosing the information
is part of the employee’s job duties; and
COMPLAINT FOR DAMAGES
5Clara.
§ 1002.5. (a) An agreement to settle an employment dispute
shall not contain a provision prohibiting, preventing, or
| otherwise restricting a settling party that is an aggrieved
person from obtaining future employment with the employer
against which the aggrieved person has filed a claim, or any
parent company, subsidiary, division, affiliate, or contractor
of the employer. A provision in an agreement entered into
on or after January 1, 2020, that violates this section is void
as a matter of law and against public policy.
PARTIES
12. Plaintiff, Nick Miletak is an adult residing in San Jose, California County of Santa
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13. Defendant Jeremiah Phillips, LLC., is a foreign corporation incorporated. under
file number 5995361 in the State of Delaware and incorporated on March 22, 2016.
14. Defendant Jeremiah Phillips, LLC., is registered with the California Secretary of
State as‘a foreign corporation under file 201617510060 and has a principal place of business
located
at 863 Malcolm Road, Burlingame, California 94010 and at all relevant times mentioned
herein conducted and continues to conduct substantial and regular business throughout California.
15. The true names and capacities, whether corporate, associate, individual or
otherwise, of defendants DOES 1 through 100, inclusive, are unknown to Plaintiff who sues said
defendants by such fictitious names.
JURISDICTION AND VENUE
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16. This Court has personal jurisdiction over the Defendant because they are residents
of and/or doing business in the State of California. :
17. Venue is proper in this county in accordance with Section 395(a) of the Califomia
I
code of Civil Procedure because the Defendant resides in this county, and the injuries alleged
herein occurred in this county.
18.
STATEMENT OF FACTS :
Defendant is a transportation service provider specializing in passenger
fo
COMPLAINT FOR DAMAGES
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transportation catering to airlines crews in an around California and is a user of ICR’s provided
by Investigative Consumer Reporting Agency (hereinafter “ICRA”). Such companies utilizing |
ICR’s in connection with employment screening are subject to rules established in the ICRAA.
9. To carry out its business activities and employment screening objectives, the
Defendant enters into contracts with various vendors or ICRA’s to conduct background screening.;
Additionally, the Defendant also engages in conducting background investigations independently,
with no assistance from ICRA’s on an as needed basis. ,
26. The typical information gathered, and assembled by the Defendant on
employment candidates such as the Plaintiff includes a local criminal background check, national
criminal database data, state and local criminal records, and residential/address history associated
with social security number and date of birth, information relating to general character,
employment history, general reputation, personal characteristics, motor vehicle records, and
mode of living. ‘
21. A criminal record can be the most significant component of a background check
and canjoften negatively impact a consumer’s application for employment or a consumer's
employment. As a result, the ICRAA contains specific provisions that impose duties of special
cate that both providers and users of such information must obey. Strict compliance is 4
requirement of the ICRAA as was intended in the drafting of the legislation and clearly governs
the procedures that both ICRA’s and users of investigative consumer reports must take whet
reporting or using public records in connection with employment. i
2. The ICRAA requires that, in connection with the reporting of a public record all
users of investigative consumer reports must provide the consumer with a specific notification
prior to procuring a report and for investigative consumer reporting agencies (hereinafter
“ICRA”) “at the time” it provides the record to an employer. This duty is in addition to the usual
duty to follow reasonable procedures to assure by the ICRA of “maximum possible accuracy”
COMPLAINT FOR DAMAGES
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standard.
The Facts Pertaining to Plaintiff Nick Miletak
23. Around September 1, 2022 the Plaintiff applied for employment with the:
Defendant to become a Driver by applying through a link on Indeed.com for hourly compensation.
of $16.00.
24. Around October 6, 2022 the Plaintiff was interviewed through Zoom by the
Defendant and offered the position of Driver which he accepted.
25. On October 10, 2022 the Plaintiff received an email from the Defendant from
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airlinecoach@kallidus-suite.com sent to his nmiletak@msn.com email providing a non-
compliant digital consent disclosure requesting the Plaintiffs permission to request and ICR from
HireRight. The digital consent disclosure provided by the Defendant does not comply with
California Civil Code section §1786.16 because it does not allow an employment candidate to
check mark the box on the form to request a copy of any procured background report.
26. On October 11, 2022 at 9:21 AM the Plaintiff sent an email from
nmiletak@msn.com to Joey Juarez at joey@airlinecoach.com and Tajuana Johnson at
tajuana@airlinecoach.com informing the Defendant that the consent disclosure provided to him
does not comply with California Civil Code section §1786.16. In the email the Plaintiff also
informed the Defendant that the offer letter failed to contain an hourly rate of compensation for
the position. The email sent by the Plaintiff also requested for a delay in the start date of
employment.
27. On October 11, 2022 around 12:00 PM the Plaintiff visited the Defendant’s San
Jose office at 2033 Gateway Place, Suite 500, San Jose, California 95110 and spoke with Joey
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Juarez tpeerding the non-compliant consent disclosure, the incomplete offer letter and delayed
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28. While in the San Jose office of the Defendant the Plaintiff fully informed the
COMPLAINT FOR DAMAGES
start date of employment.
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8gDefendant that the consent disclosure provided to him did not comply with California Civil Code!
section §1786.16.
29. While in the San Jose office of the Defendant the Plaintiff also requested a delay
in start date of employment informing Joey Juarez that he wanted to receive a copy of any report
procured iby the Defendant prior to continuing onboarding or commencing employment. Mutual
agreement was reached with Joey Juarez for a delay in the start date pending the Plaintiff receiving
a copy of any report procured by the Defendant. ;
30. On October 19, 2022 HireRight provided background report ID # HE-101022-
HJ639 to the Defendant which contained the Plaintiff as the subject of the report.
3. On October 24, 2022 the Plaintiff received a copy of report ID # HE-101022-
HJ639from HireRight.
32. On October 26, 2022 the Plaintiff sent an email from nmiletak@msn.com to
Ebony Taylor at ebony@airlinecoach.com informing the Defendant that consent disclosure used
to procure report ID # HE-101022-HJ639 was not compliant with California Civil Code section
§1786.16. The email also informed the Defendant that he was prepared to continue onboarding
and commence employment immediately. The email also contained a demand for resolving the
liability of the Defendant for violation California Civil Code section §1786.16. '
33. Since informing the Defendant of non-compliance with section §1786.16 of the
ICRAA |and after informing them that he was ready to continue onboarding and commence
employment on October 26, 2022 the Plaintiff has been prevented from starting employment. |
34, Since alerting the Defendant of the non-compliant consent disclosure the Plaintiff
believes that the Defendant continues to provide a non-compliant consent disclosure to
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employment applicants. 1
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COMPLAINT FOR DAMAGES
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. CAUSES OF ACTION
FIRST CAUSE OF ACTION
! ONE (1) VIOLATION OF CALIFORNIA
CIVIL CODE SECTION §1786.16
35. Paragraphs 1-34 are incorporated herein by reference as though fully set forth.
36. Defendant is a user of investigative consumer reports and MUST comply with all
provisions of the ICRAA to include section § 1786.16.
37. Atall times pertinent hereto, the Plaintiff was a “consumer” as that term is defined
by section § 1786.2 of the California Civil Code.
38. At all times pertinent hereto, the above-mentioned background reports were a
“consumer report” as that term is defined by section § 1786.2 of the California Civil Code.
39. Defendant’s one (1) violation of section § 1786.16 occurred because the Defendant
failed to| provide a compliant consent disclosure to the Plaintiff allowing him to check mark a
check box to request a copy of the report if procured by the Defendant.
40. As aresult of Defendant’s, violations of § 1786.16 of the California Civil Code, +
Defendant is liable to the Plaintiff in a statutory amount of $10,000. California Civil Code section
$1786.50 address penalties for violations of sections §1786.10-1786.40 (ICRAA) as $10,000 or
actual damages per violation or whichever is greater.
The $10,000 per violation liability is supported by an opinion found in Poinsignon ‘
Imperva, Inc., 2018 U.S. Dist. LEXIS 60161, 2018 WL 1709942 where a District Court in in
Northern District of California correctly opined “ICRAA provides that a defendant is liable to: a
consumer for “[aJany actual damages sustained by the consumer as a result of the {defendants}
failure or, except in the case of class actions, ten thousand ($10,000), whichever sum is greater.”
Cal. Cit Code §1786.50(a)(1). Plaintiff does not claim actual damages. An individual plaintiff
who has not incurred any actual damages may still recover $10,000 in statutory damages.”
COMPLAINT FOR DAMAGES
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Further support for the statutory liability of $10,000 per violation is found in Diaz v. First|
Advantage Corp., 2006 U.S. Dist. LEXIS 102566 in which the court opined “The Court does not!
find the language of Section 1786.50 ambiguous and interprets it to mean that an individual may:
be awarded either actual damages resulting from a violation or $10,000. The statute is clear that:
the "as al result" language modifies only the actual damages portion and not the ten thousand:
dollar portion. Accordingly, the Court finds that a causal connection is not required to be awarded
the statutory damages.
Sunilariy, the court in Ballard v. Pac Logistics Corp., 2019 U.S. Dist. LEXIS 62121
opined “Defendant next argues that Plaintiff has failed to plead facts sufficient to support his
claim for actual damages under the ICRAA. However, Plaintiff is entitled to $10,000 in statutory
damages per violation if he prevails. See Cal. Civ. Code § 1786.50(a)(1).
41. Plaintiff is entitled to recover $10,000 or actual damages per violation, statutory
damages, costs and attorneys’ fees from the Defendant, pursuant to § 1786.50.
WHEREFORE, Plaintiff seeks judgement in Plaintiff's favor and damages against
Defendant for the following requested relief:
| A, Actual damages;
B. Statutory damages of $10,000;
C. Punitive damages; '
D. Costs and reasonable attorneys’ fees pursuant to California Civil Code section [
§1786.50; and
E. Such other and further relief as may be necessary, just and proper.
COMPLAINT FOR DAMAGES
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CAUSES OF ACTION |
SECOND CAUSE OF ACTION }
WRONGFUL TERMINATION OF EMPLOYMENT |
(CALIFORNIA LABOR CODE SECTION § 1102.5(b))
42, Paragraphs 1-34 are incorporated herein by reference as though fully set forth.
43. To prevail on a claim for wrongful termination in violation of public policy, a
plaintiff hmust show that (1) an employer-employee relationship existed; (2) the plaintiff's
employment was terminated; (3) the termination violated public policy; and (4) the termination
caused the plaintiff damages. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal. App tt
623, 641; Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426, fn. 8.) In
addition, the public policy allegedly violated must be substantial and fundamental, articulated at
the time of termination, and embodied in either a constitutional or statutory provision. (Stevenson
v. Superior Court (1997) 16 Cal.4th 880, 889-890; Gantt v. Sentry Insurance (1992) 1 Cal.4th
1083, 1090-1091.
44, Plaintiff was offered the position of passenger driver with the Defendant ob
October 6, 2022 and accepted for an hourly compensation rate of $16.00 ‘
45. Plaintiff alleges that he has been ready to continue onboarding and commence
employment with the Defendant since October 26, 2022 but has been prevented from starting
employment in a unilateral decision by the Defendant. |
46. The decision to discontinue Plaintiffs employment was made by the Defendant
after the Plaintiff asserted his rights under California Civil Code section §1786.16. |
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47. The Plaintiff estimates his damages at the time of filing of this complaint as around
$2688 but reasonably anticipates that damages could reach the anticipated annual wages of
$30,720 ($16 x 40 hours weekly = $640 or $2560 monthly or $30,720 annually) and they continue
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to accrue at around $128.
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48. Defendant’s violation entitles Plaintiff to damages pursuant to California Civil
COMPLAINT FOR DAMAGES
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Code §3294(a) & 3294(b).
WHEREFORE, Plaintiff seeks judgement in Plaintiff's favor and damages against
Defendant, for the following requested relief:
: A. Actual damages of $30,720 or in an amount to be proven at trial;
' B. Statutory damages;
| C. Punitive & Exemplary damages that this court determines appropriate;
D. Costs and reasonable attorneys’ fees pursuant; and
| F. Such other and further relief as may be necessary, just and proper.
THIRD CAUSE OF ACTION
RETALIATION IN VIOLATION OF PUBLIC POLICY .
(CALIFORNIA CODE OF CIVIL PROCEDURE SECTION § 1002.5 :
49, Paragraphs 1-34 are incorporated herein by reference as though fully set forth.
50. The actions by all of the Defendants and its agents, managing agents and
employees described above were caused by and were in retaliation for the protected activity of]
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Plaintiffjset forth above.
51. Despite the Plaintiff informing the Defendants of the non-compliant consent
disclosure the Defendant still procured an ICR, with the Plaintiff as the subject of the report,
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without complying with California Civil Code section §1786.16. After alerting the Defendants
of use of a non-compliant consent disclosure the Defendants retaliated against the Plaintiff in
direct violation of public policy. Despite numerous attempts to commence employment with the
Defendants the Plaintiff has been denied. Furthermore, before the retaliation occurred,
Defendants failed to take all reasonable steps to prevent such retaliation.
92. Defendants’ actions against Plaintiff, as alleged above, constitute unlawful
retaliation in employment on account of Plaintiff's engaging in dialogue regarding non-
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compliance with California Civil Code section §1786.16 pre-litigation settlement negotiations
with Defendants for their violation.
COMPLAINT FOR DAMAGES
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53. | Asaproximate result of Defendants retaliatory actions against Plaintiff, as alleged
above, Plaintiff has been harmed in that Plaintiff has suffered the loss of wages, salary, benefits,
and additional amounts of money Plaintiff would have received if Plaintiff has not been retaliated |
against. las a result of such retaliation and consequent harm, Plaintiff estimates that his damages,
at the time of filing of this complaint as around $2688 but reasonably anticipates that damages
could reach the anticipated annual wages of $30,720 ($16 x 40 hours weekly = $640 or $2560,
oe $30,720 annually) and they continue to accrue at around $128.
monthly
54. Asa further proximate result of Defendants retaliatory actions against Plaintiff, as
alleged above, Plaintiff has been harmed in that Plaintiff has suffered the intangible loss of
employment-telated opportunities as, for example, experience in the position sought by plaintiff.
WHEREFORE, Plaintiff seeks judgement in Plaintiffs favor and damages against
Defendants, for the following requested relief:
A. Actual damages of $30,720 or in an amount to be proven at trial;
Statutory damages; and
¢. Punitive damages; and i
D Costs and reasonable attorneys’ fees; and
E. Such other and further relief as may be necessary, just and proper.
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Date: November 16, 2022 Ah wratek
' Nick Miletak — In Pro Se
COMPLAINT FOR DAMAGES
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Preview
Nick Miletak — In Pro Se 14745 Conway Avenue San Jose, California 95124 408-533-5689-mobile nmiletak@msn.com | SANTA CLARA COUNTY SUPERIOR COURT | DOWNTOWN BRANCH NICK MILETAK, Plaintiff, vs. JEREMIAH PHILLIPS, LLC., AND DOES 1- 100 INCLUSIVE Defendants, Case No.: 22 Cv407260 COMPLAINT FOR DAMAGES 1. ONE (1) VIOLATIONS OF CALIFORNIA CIVIL CODE § 1786.16 2. WRONGFUL TERMINATION OF EMPLOYMENT IN VIOLATION OF PUBLIC POLICY — CALIFORNIA LABOR CODE SEC. § 1102.5(B) 3. RETALIATION IN VIOLATION OF PUBLIC POLICY - CALIFORNIA CODE OF CIVIL PROCEDURE SEC. § 1102.5(B) UNLIMITED $40,720 DEMAND FOR JURY TRIAL COMPLAINT FOR DAMAGES- Co mo I DA RF WN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, Nick Miletak submits this claim for damages and respectfully alleges as follows: | NATURE OF ACTION 1. This is an individual consumer complaint against Jeremiah Phillips LLC., (hereinafter “Defendant”) doing business as Airline Coach Service or ACS in California for one violation of the California Investigative Consumer Reporting Agency Act contained in California Civil Code section § 1786.10— § 1786.40 (hereinafter “ICRAA”) and for wrongful termination of employment in violation of public policy of California Labor Code section § 1102.5(b) and California Code of Civil Procedure section § 1002.5 in which the Defendants retaliated against the Plaintiff, Nick Miletak, for informing the Defendant of their non-compliance with the ICRAA: 2. Prior to the Defendant procuring an investigative consumer report (hereinafter “ICR”), with the Plaintiff as the subject, the Plaintiff informed the Defendant that the consent disclosure provided to him by the Defendant was not compliant with section § 1786.16 of the California Civil Code because it did not allow him to check a box requesting for a copy of any report procured by the Defendant. 3. Despite being alerted of the non-compliant consent disclosure by the Plaintiff the Defendant still requested for preparation of an ICR, with the Plaintiff as the subject, from HireRight which was procured on October 19, 2022. 4. Defendant is a ground transportation provider offering service to airlines crews in and around California. In order to accomplish its objectives, the Defendant hires drivers to for transporting passengers utilizing their fleet of vehicles. 5. On October 19, 2022 the Defendant procured a background report ID # HE- 110224445 639, with the Plaintiff as the subject of the report, from HireRight. 6. After receiving a copy of the ICR requested by the Defendant around October 26, 2022 the Plaintiff, Nick Miletak, has been ready to continue the onboarding and employment COMPLAINT FOR DAMAGES 2process but has been prevented from commencing employment in a decision that was unilaterally made by the Defendant. 1 The California Civil Code also known as the Investigative Consumer Reporting Agency Act (hereinafter “ICRAA”) §1786.10-1786.40 et seq. clearly requires that the requestor of the report (Defendant) provides the subject of the report a consent disclosure that contains the name, address and telephone number of the background reporting agency to be used in preparation | of the Teport prior to procuring the ICR. The ICRAA also requires that the consent disclosure contains a check box option for California consumers to request a copy of the background report if a background report is procured, It also provides that the recipient of the report shall send a copy of the report to the consumer within three business days that the report is received by the requestor. The Defendant failed to provide a compliant consent disclosure to the Plaintiff before procuring the October 19, 2022 background report from HireRight. (1) Provide the consumer a means by which the consumer may indicate on a written form, by means of a box to check, that the consumer wishes to receive a copy of any report that : is prepared. If the consumer wishes to receive a copy of the | report, the recipient of the report shall send a copy of the report to the consumer within three business days of the date that the report is provided to the recipient, who may contract ! with any other entity to send a copy to the consumer. The , notice to request the report may be contained on either the disclosure form, as required by subdivision (a), or a separate consent form. The copy of the report shall contain the name, address, and telephone number of the person who issued the report and how to contact them. 8. The ICRAA was molded after the FCRA in many respects. The ICRAA was enacted by the California Legislature with the following declaration: ' The Legislature finds and declares as follows: COMPLAINT FOR DAMAGES 3oD wo aD DH 10 ul 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 (a) Investigative consumer reporting agencies have assumed a vital role in collecting, assembling, evaluating, compiling, reporting, transmitting, transferring, or communicating information on consumers for employment and insurance purposes, and for purposes relating to the hiring of dwelling units, subpoenas and court orders, licensure, and other lawful purposes. (b) There is a need to ensure that investigative consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer’s right to privacy. (©) The crime of identity theft in this new computer era has exploded to become the fastest growing white-collar crime in America. @ The unique nature of this crime means it can often go undetected for years without the victim being aware his identity has been misused. ©) Because notice of identity theft is critical before the victim can take steps to stop and prosecute this crime, consumers are best protected if they are automatically given copies of any investigative consumer reports made on them. (f It is the purpose of this title to require that investigative consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for employment, insurance information, and information relating to the hiring of dwelling units in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of the information in accordance with the requirements of this title. : (g) The Legislature hereby intends to regulate investigative consumer reporting agencies pursuant to this title in a manner which will best protect the interests of the people of the State of | California. : 1 9. The California legislature included in the statutory scheme a series of due-process- like protections that impose strict procedural rules on both ICRA’s and users of investigative : consumer reports. Defendant has thwarted the legislative purpose of the ICRAA by engaging in COMPLAINT FOR DAMAGES 4unlawful practices even after being informed of serious violations of the ICRAA that appear to place its business interests above the rights of the consumer. 10. Since alerting the Defendant of the non-compliant consent disclosure on October’ 11, 2022) the Plaintiff reasonably believes that the Defendant has continued their unlawful: practices of procuring background reports without first providing employment candidates with a compliant consent disclosure. UL. The Defendant has deliberately prevented the Plaintiff from commencing employment since October 24, 2022 giving rise to a wrongful termination of employment cause in violation of public policy of California Labor Code section § 1102.5(b) and California Code of Civil Procedure section § 1002.5 in which the Defendants retaliated against the Plaintiff, Nick Miletak, for informing them of the non-compliant consent disclosure being used in candidate onboarding which state: § 1102.5 (b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, fo a@ government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or : regulation, regardless of whether disclosing the information is part of the employee’s job duties; and COMPLAINT FOR DAMAGES 5Clara. § 1002.5. (a) An agreement to settle an employment dispute shall not contain a provision prohibiting, preventing, or | otherwise restricting a settling party that is an aggrieved person from obtaining future employment with the employer against which the aggrieved person has filed a claim, or any parent company, subsidiary, division, affiliate, or contractor of the employer. A provision in an agreement entered into on or after January 1, 2020, that violates this section is void as a matter of law and against public policy. PARTIES 12. Plaintiff, Nick Miletak is an adult residing in San Jose, California County of Santa ‘ 13. Defendant Jeremiah Phillips, LLC., is a foreign corporation incorporated. under file number 5995361 in the State of Delaware and incorporated on March 22, 2016. 14. Defendant Jeremiah Phillips, LLC., is registered with the California Secretary of State as‘a foreign corporation under file 201617510060 and has a principal place of business located at 863 Malcolm Road, Burlingame, California 94010 and at all relevant times mentioned herein conducted and continues to conduct substantial and regular business throughout California. 15. The true names and capacities, whether corporate, associate, individual or otherwise, of defendants DOES 1 through 100, inclusive, are unknown to Plaintiff who sues said defendants by such fictitious names. JURISDICTION AND VENUE I | 16. This Court has personal jurisdiction over the Defendant because they are residents of and/or doing business in the State of California. : 17. Venue is proper in this county in accordance with Section 395(a) of the Califomia I code of Civil Procedure because the Defendant resides in this county, and the injuries alleged herein occurred in this county. 18. STATEMENT OF FACTS : Defendant is a transportation service provider specializing in passenger fo COMPLAINT FOR DAMAGES 6| transportation catering to airlines crews in an around California and is a user of ICR’s provided by Investigative Consumer Reporting Agency (hereinafter “ICRA”). Such companies utilizing | ICR’s in connection with employment screening are subject to rules established in the ICRAA. 9. To carry out its business activities and employment screening objectives, the Defendant enters into contracts with various vendors or ICRA’s to conduct background screening.; Additionally, the Defendant also engages in conducting background investigations independently, with no assistance from ICRA’s on an as needed basis. , 26. The typical information gathered, and assembled by the Defendant on employment candidates such as the Plaintiff includes a local criminal background check, national criminal database data, state and local criminal records, and residential/address history associated with social security number and date of birth, information relating to general character, employment history, general reputation, personal characteristics, motor vehicle records, and mode of living. ‘ 21. A criminal record can be the most significant component of a background check and canjoften negatively impact a consumer’s application for employment or a consumer's employment. As a result, the ICRAA contains specific provisions that impose duties of special cate that both providers and users of such information must obey. Strict compliance is 4 requirement of the ICRAA as was intended in the drafting of the legislation and clearly governs the procedures that both ICRA’s and users of investigative consumer reports must take whet reporting or using public records in connection with employment. i 2. The ICRAA requires that, in connection with the reporting of a public record all users of investigative consumer reports must provide the consumer with a specific notification prior to procuring a report and for investigative consumer reporting agencies (hereinafter “ICRA”) “at the time” it provides the record to an employer. This duty is in addition to the usual duty to follow reasonable procedures to assure by the ICRA of “maximum possible accuracy” COMPLAINT FOR DAMAGES 7Co em nN DH WH FF WN YR YW NY KR NR RN DB ee ee Re ea A AF BH F FO wMwA AA ESN BS standard. The Facts Pertaining to Plaintiff Nick Miletak 23. Around September 1, 2022 the Plaintiff applied for employment with the: Defendant to become a Driver by applying through a link on Indeed.com for hourly compensation. of $16.00. 24. Around October 6, 2022 the Plaintiff was interviewed through Zoom by the Defendant and offered the position of Driver which he accepted. 25. On October 10, 2022 the Plaintiff received an email from the Defendant from i airlinecoach@kallidus-suite.com sent to his nmiletak@msn.com email providing a non- compliant digital consent disclosure requesting the Plaintiffs permission to request and ICR from HireRight. The digital consent disclosure provided by the Defendant does not comply with California Civil Code section §1786.16 because it does not allow an employment candidate to check mark the box on the form to request a copy of any procured background report. 26. On October 11, 2022 at 9:21 AM the Plaintiff sent an email from nmiletak@msn.com to Joey Juarez at joey@airlinecoach.com and Tajuana Johnson at tajuana@airlinecoach.com informing the Defendant that the consent disclosure provided to him does not comply with California Civil Code section §1786.16. In the email the Plaintiff also informed the Defendant that the offer letter failed to contain an hourly rate of compensation for the position. The email sent by the Plaintiff also requested for a delay in the start date of employment. 27. On October 11, 2022 around 12:00 PM the Plaintiff visited the Defendant’s San Jose office at 2033 Gateway Place, Suite 500, San Jose, California 95110 and spoke with Joey ; ? Juarez tpeerding the non-compliant consent disclosure, the incomplete offer letter and delayed t 28. While in the San Jose office of the Defendant the Plaintiff fully informed the COMPLAINT FOR DAMAGES start date of employment. 1 8gDefendant that the consent disclosure provided to him did not comply with California Civil Code! section §1786.16. 29. While in the San Jose office of the Defendant the Plaintiff also requested a delay in start date of employment informing Joey Juarez that he wanted to receive a copy of any report procured iby the Defendant prior to continuing onboarding or commencing employment. Mutual agreement was reached with Joey Juarez for a delay in the start date pending the Plaintiff receiving a copy of any report procured by the Defendant. ; 30. On October 19, 2022 HireRight provided background report ID # HE-101022- HJ639 to the Defendant which contained the Plaintiff as the subject of the report. 3. On October 24, 2022 the Plaintiff received a copy of report ID # HE-101022- HJ639from HireRight. 32. On October 26, 2022 the Plaintiff sent an email from nmiletak@msn.com to Ebony Taylor at ebony@airlinecoach.com informing the Defendant that consent disclosure used to procure report ID # HE-101022-HJ639 was not compliant with California Civil Code section §1786.16. The email also informed the Defendant that he was prepared to continue onboarding and commence employment immediately. The email also contained a demand for resolving the liability of the Defendant for violation California Civil Code section §1786.16. ' 33. Since informing the Defendant of non-compliance with section §1786.16 of the ICRAA |and after informing them that he was ready to continue onboarding and commence employment on October 26, 2022 the Plaintiff has been prevented from starting employment. | 34, Since alerting the Defendant of the non-compliant consent disclosure the Plaintiff believes that the Defendant continues to provide a non-compliant consent disclosure to | | employment applicants. 1 ' 1 | \ COMPLAINT FOR DAMAGES 9Pp eon an 10 ll 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 . CAUSES OF ACTION FIRST CAUSE OF ACTION ! ONE (1) VIOLATION OF CALIFORNIA CIVIL CODE SECTION §1786.16 35. Paragraphs 1-34 are incorporated herein by reference as though fully set forth. 36. Defendant is a user of investigative consumer reports and MUST comply with all provisions of the ICRAA to include section § 1786.16. 37. Atall times pertinent hereto, the Plaintiff was a “consumer” as that term is defined by section § 1786.2 of the California Civil Code. 38. At all times pertinent hereto, the above-mentioned background reports were a “consumer report” as that term is defined by section § 1786.2 of the California Civil Code. 39. Defendant’s one (1) violation of section § 1786.16 occurred because the Defendant failed to| provide a compliant consent disclosure to the Plaintiff allowing him to check mark a check box to request a copy of the report if procured by the Defendant. 40. As aresult of Defendant’s, violations of § 1786.16 of the California Civil Code, + Defendant is liable to the Plaintiff in a statutory amount of $10,000. California Civil Code section $1786.50 address penalties for violations of sections §1786.10-1786.40 (ICRAA) as $10,000 or actual damages per violation or whichever is greater. The $10,000 per violation liability is supported by an opinion found in Poinsignon ‘ Imperva, Inc., 2018 U.S. Dist. LEXIS 60161, 2018 WL 1709942 where a District Court in in Northern District of California correctly opined “ICRAA provides that a defendant is liable to: a consumer for “[aJany actual damages sustained by the consumer as a result of the {defendants} failure or, except in the case of class actions, ten thousand ($10,000), whichever sum is greater.” Cal. Cit Code §1786.50(a)(1). Plaintiff does not claim actual damages. An individual plaintiff who has not incurred any actual damages may still recover $10,000 in statutory damages.” COMPLAINT FOR DAMAGES 10wo eo nN KH wr 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further support for the statutory liability of $10,000 per violation is found in Diaz v. First| Advantage Corp., 2006 U.S. Dist. LEXIS 102566 in which the court opined “The Court does not! find the language of Section 1786.50 ambiguous and interprets it to mean that an individual may: be awarded either actual damages resulting from a violation or $10,000. The statute is clear that: the "as al result" language modifies only the actual damages portion and not the ten thousand: dollar portion. Accordingly, the Court finds that a causal connection is not required to be awarded the statutory damages. Sunilariy, the court in Ballard v. Pac Logistics Corp., 2019 U.S. Dist. LEXIS 62121 opined “Defendant next argues that Plaintiff has failed to plead facts sufficient to support his claim for actual damages under the ICRAA. However, Plaintiff is entitled to $10,000 in statutory damages per violation if he prevails. See Cal. Civ. Code § 1786.50(a)(1). 41. Plaintiff is entitled to recover $10,000 or actual damages per violation, statutory damages, costs and attorneys’ fees from the Defendant, pursuant to § 1786.50. WHEREFORE, Plaintiff seeks judgement in Plaintiff's favor and damages against Defendant for the following requested relief: | A, Actual damages; B. Statutory damages of $10,000; C. Punitive damages; ' D. Costs and reasonable attorneys’ fees pursuant to California Civil Code section [ §1786.50; and E. Such other and further relief as may be necessary, just and proper. COMPLAINT FOR DAMAGES llCe YN DAH PF WN RP RY KY NR YN NN N Be Bee Be Be Be Be ee oe oN A A BR YN =F SF BD mK A HAH RB YW YH KF DS CAUSES OF ACTION | SECOND CAUSE OF ACTION } WRONGFUL TERMINATION OF EMPLOYMENT | (CALIFORNIA LABOR CODE SECTION § 1102.5(b)) 42, Paragraphs 1-34 are incorporated herein by reference as though fully set forth. 43. To prevail on a claim for wrongful termination in violation of public policy, a plaintiff hmust show that (1) an employer-employee relationship existed; (2) the plaintiff's employment was terminated; (3) the termination violated public policy; and (4) the termination caused the plaintiff damages. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal. App tt 623, 641; Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426, fn. 8.) In addition, the public policy allegedly violated must be substantial and fundamental, articulated at the time of termination, and embodied in either a constitutional or statutory provision. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889-890; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090-1091. 44, Plaintiff was offered the position of passenger driver with the Defendant ob October 6, 2022 and accepted for an hourly compensation rate of $16.00 ‘ 45. Plaintiff alleges that he has been ready to continue onboarding and commence employment with the Defendant since October 26, 2022 but has been prevented from starting employment in a unilateral decision by the Defendant. | 46. The decision to discontinue Plaintiffs employment was made by the Defendant after the Plaintiff asserted his rights under California Civil Code section §1786.16. | | + 47. The Plaintiff estimates his damages at the time of filing of this complaint as around $2688 but reasonably anticipates that damages could reach the anticipated annual wages of $30,720 ($16 x 40 hours weekly = $640 or $2560 monthly or $30,720 annually) and they continue t to accrue at around $128. 1 | 48. Defendant’s violation entitles Plaintiff to damages pursuant to California Civil COMPLAINT FOR DAMAGES 12 ' |Co em YW DAHA Fw NY we N NN De Se He ee me Oe Oe BReRBRRERBBHE SBE Seri FARES R TS Code §3294(a) & 3294(b). WHEREFORE, Plaintiff seeks judgement in Plaintiff's favor and damages against Defendant, for the following requested relief: : A. Actual damages of $30,720 or in an amount to be proven at trial; ' B. Statutory damages; | C. Punitive & Exemplary damages that this court determines appropriate; D. Costs and reasonable attorneys’ fees pursuant; and | F. Such other and further relief as may be necessary, just and proper. THIRD CAUSE OF ACTION RETALIATION IN VIOLATION OF PUBLIC POLICY . (CALIFORNIA CODE OF CIVIL PROCEDURE SECTION § 1002.5 : 49, Paragraphs 1-34 are incorporated herein by reference as though fully set forth. 50. The actions by all of the Defendants and its agents, managing agents and employees described above were caused by and were in retaliation for the protected activity of] ! Plaintiffjset forth above. 51. Despite the Plaintiff informing the Defendants of the non-compliant consent disclosure the Defendant still procured an ICR, with the Plaintiff as the subject of the report, ' without complying with California Civil Code section §1786.16. After alerting the Defendants of use of a non-compliant consent disclosure the Defendants retaliated against the Plaintiff in direct violation of public policy. Despite numerous attempts to commence employment with the Defendants the Plaintiff has been denied. Furthermore, before the retaliation occurred, Defendants failed to take all reasonable steps to prevent such retaliation. 92. Defendants’ actions against Plaintiff, as alleged above, constitute unlawful retaliation in employment on account of Plaintiff's engaging in dialogue regarding non- t ! compliance with California Civil Code section §1786.16 pre-litigation settlement negotiations with Defendants for their violation. COMPLAINT FOR DAMAGES 13| \ 53. | Asaproximate result of Defendants retaliatory actions against Plaintiff, as alleged above, Plaintiff has been harmed in that Plaintiff has suffered the loss of wages, salary, benefits, and additional amounts of money Plaintiff would have received if Plaintiff has not been retaliated | against. las a result of such retaliation and consequent harm, Plaintiff estimates that his damages, at the time of filing of this complaint as around $2688 but reasonably anticipates that damages could reach the anticipated annual wages of $30,720 ($16 x 40 hours weekly = $640 or $2560, oe $30,720 annually) and they continue to accrue at around $128. monthly 54. Asa further proximate result of Defendants retaliatory actions against Plaintiff, as alleged above, Plaintiff has been harmed in that Plaintiff has suffered the intangible loss of employment-telated opportunities as, for example, experience in the position sought by plaintiff. WHEREFORE, Plaintiff seeks judgement in Plaintiffs favor and damages against Defendants, for the following requested relief: A. Actual damages of $30,720 or in an amount to be proven at trial; Statutory damages; and ¢. Punitive damages; and i D Costs and reasonable attorneys’ fees; and E. Such other and further relief as may be necessary, just and proper. 1 Date: November 16, 2022 Ah wratek ' Nick Miletak — In Pro Se COMPLAINT FOR DAMAGES 14