Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CHARLES EDWARD BROWN, )

)

Plaintiff, )

)

v. ) 1:23cv195

)

FIRST ADVANTAGE BACKGROUND )

SERVICES CORP. and ASHCOTT, )

LLC, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

This matter is before the court following the court’s request

that Plaintiff Charles Edward Brown file supplemental briefing on

his request for damages against Defendant Ashcott, LLC

(“Ashcott”). Previously, the court granted Brown’s motion for

default judgment against Ashcott as to liability under the Fair

Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., but it

denied the motion without prejudice as to damages. (See Doc. 103.)

Brown has filed the supplemental briefing to support his request

for at least $100,000 in damages. (Doc. 108.) For the reasons

that follow, Brown’s motion for default judgment as to damages

will be granted in part and denied in part.

I. BACKGROUND

In December 2022, Brown applied for a full-time position as

a long-haul truck driver with FedEx via a third-party vendor, FXG

Vendor J D SR Trucking, Inc. (“FXG”). (Doc. 42 ¶ 46.) Through

FXG, FedEx offered the job to Brown with a start date in January

2023. (Id. ¶ 50.) FedEx conditioned the job offer on Brown’s

successful completion of a background check. (Id.)

FXG contracted with Defendant First Advantage Background

Services Corporation (“First Advantage”) to conduct background

checks for prospective employees. (Id. ¶ 52.) Moreover, First

Advantage retained Ashcott to perform the criminal records

searches for its background check reports. (Id. ¶ 71.)

Accordingly, in December 2022, FXG ordered First Advantage to

conduct a criminal background check on Brown, and First Advantage

then purchased background reports on Brown’s criminal history from

Ashcott (Id. ¶¶ 71, 73). Ashcott searched the court records in

Philadelphia County, Pennsylvania, and it provided First Advantage

with a report that attributed several criminal convictions to

Brown. (Id. ¶¶ 74-75.) Ashcott claimed that it matched the

criminal felony convictions to Brown based on first, middle, and

last names, in addition to his full Social Security Number. (Id.

¶ 77.) First Advantage included the criminal record in the report

provided to FXG. (See id. ¶ 78.)

On January 9, 2023, FXG informed Brown that his job

application had been denied because of the three convictions on

his background check report. (Id.) When Brown obtained a copy of

the report, he identified the mistake and contacted FXG on January

10, 2023. (Id. ¶¶ 79-80.) He informed FXG that he had never lived

in Pennsylvania, had never used the suffix Jr., had a different

Social Security Number, and was not a convicted felon. (Id. ¶ 80.)

FXG told Brown to contact First Advantage to correct the report.

(Id. ¶ 81.) Moreover, FXG told Brown that he could reapply for

the job once the report had been corrected. (Id.) Brown felt

panicked and frustrated because of the false report, and he never

reapplied for the job. (Id. ¶¶ 82-83, 94.)

In July 2025, the court granted Brown’s motion for default

judgment against Ashcott as to liability, but the court denied the

motion without prejudice as to damages. (Doc. 103 at 8.) The

court noted that Brown sought compensatory damages for one year of

lost income in addition to emotional distress said to be caused by

the inaccurate report. (Id. at 7.) Because “[i]t is Brown’s

burden to prove actual damages” and he “appear[ed] to have been

otherwise employed” during the period he claimed lost income, the

court indicated that it would hold a hearing on damages unless

Brown filed “support for his damages request that accounts for

income he earned in the year following the denial of his job

application by FXG.”1 (Id.) Brown has filed the requested

documentation. (See Doc. 108.)

1 The court’s prior order denied Brown’s motion for default judgment as

to damages in part because it appeared that Brown earned income from an

unspecified source between April and October 2023. (Doc. 103 at 7.)

II. ANALYSIS

A. Standard of Review

On a motion for a default judgment, “[i]f the court determines

that liability is established, the court must then determine

whether these unchallenged factual allegations constitute a

legitimate cause of action. The court does not accept factual

allegations regarding damages as true, but rather must make an

independent determination regarding such allegations.” Agora

Fin., LLC v. Samler, 725 F. Supp. 2d 491, 494 (D. Md. 2010)

(citation omitted). Moreover, the court may hold a hearing to

“(A) conduct an accounting; (B) determine the amount of damages;

(C) establish the truth of any allegation by evidence; or (D)

investigate any other matter.” Fed. R. Civ. P. 55(b)(2).

Alternatively, “the Court may award relief without a hearing if it

is supported by the pleadings.” J & J Sports Prods., Inc. v. After

Six Prods., Inc., No. 13-CV-591, 2014 WL 644400, at *2 (E.D. Va.

Feb. 19, 2014) (citing Anderson v. Found. for Advancement, Educ.

& Emp. of Am. Indians, 155 F.3d 500, 507 (4th Cir. 1998)).

“The FCRA provides a private cause of action for those damaged

by violations of the statute. A successful plaintiff can

recover . . . actual damages for negligent violations. Actual

Brown has supplemented the record, and it is evident that his testimony

was in fact the opposite. (Doc. 108 at 5.) He did not earn income from

employment during that period. (Doc. 108-1 ¶ 9.)

damages may include not only economic damages, but also damages

for humiliation and mental distress.” Sloane v. Equifax Info.

Servs., LLC, 510 F.3d 495, 500 (4th Cir. 2007) (citations omitted).

B. Brown’s Lost Employment Opportunity Damages

Brown first contends that, at minimum, he is entitled to the

difference between what he actually earned in 2023 and what he

would have earned in 2023 had he been hired by FedEx. (Doc. 108

at 6.) According to Brown, this difference – or “shortfall” – is

at least $76,179.15. (Id.) However, Brown overstates his harm.

A plaintiff seeking actual damages under the FCRA has a duty

to mitigate his damages. See, e.g., Cooper v. Milliman, Inc., No.

23-cv-00028, 2025 WL 2249600, at *7 (M.D. Fla. Aug. 7, 2025); Smith

v. Experian Info. Sols., Inc., No. 24-CV-408, 2025 WL 973492, at

*2 (N.D. Ind. Apr. 1, 2025); Marcinski v. RBS Citizens Bank, N.A.,

36 F. Supp. 3d 286, 291 (S.D.N.Y. 2014). Here, FXG invited Brown

to reapply for the job once First Advantage corrected his

background check report. (Doc. 42 ¶ 48.) Brown disputed the

report with First Advantage on January 10, 2023, and First

Advantage issued a corrected report on February 8, 2023 (Docs. 42

¶ 80; 68 at 13; 68-2 at 22-23). Yet, Brown never reapplied for

the job. (Doc. 42 ¶ 94.) Brown cannot now claim lost income for

an entire year when he made no effort to mitigate his damages,

especially after FXG expressly invited him to reapply. Thus, at

most, the shortfall in Brown’s income stems only from the six-week

period between his denial by FXG and the issuance of the corrected

background check report, at which point he could have simply

reapplied for the job.

The applicable measure of Brown’s economic damages is the

difference between what Brown earned on average for six weeks of

work with his original employer, R&L Carriers, and what he would

have earned if he had worked those same six weeks with FedEx.

While at R&L Carriers, Brown earned $5,216.55 over the course of

about four months. (Docs. 108 at 3-4; 108-2 at 2.) This equates

to about $326.03 per week, or $1,956.21 for six weeks. At FedEx,

Brown anticipated that he would have earned between $83,200 and

$93,600 annually. (Doc. 108 at 3.) Giving Brown the benefit of

assuming that he would have earned at the high end of the salary

range, this equates to $1,800 per week, or $10,800 for six weeks.

As a result, a reasonable calculation of Brown’s income shortfall

for the relevant six-week period is $8,843.79.

C. Brown’s Emotional Distress Damages

Brown next argues that he suffered emotional distress because

of Ashcott’s erroneous reporting and that it independently

justifies a damages award of $100,000. (Id. at 7.) Specifically,

Brown contends that he experienced “prolonged and severe emotional

distress, including depression, anxiety, sleeplessness, heavy

drinking, loss of motivation to seek work, and a deterioration of

his physical health as evidenced by a spike in his A1C levels.”

(Id. at 8.) According to Brown, “[t]hese injuries persisted for

the better part of a year and required professional mental health

treatment and medication.” (Id.)

The Fourth Circuit has “warned that not only is emotional

distress fraught with vagueness and speculation, it is easily

susceptible to fictitious and trivial claims.” Robinson v. Equifax

Info. Servs., LLC, 560 F.3d 235, 241 (4th Cir. 2009) (quoting

Sloane, 510 F.3d at 503). Thus, a plaintiff is required to

“sufficiently articulate true demonstrable emotional distress.”

Sloane, 510 F.3d at 503. “A plaintiff’s testimony ‘must indicate

with specificity how the plaintiff’s alleged distress manifested

itself’ and ‘must also show a causal connection between the [FCRA]

violation and her emotional distress.’” Primrose v. Castle Branch,

Inc., No. 14-CV-235, 2017 WL 57800, at *8 (E.D.N.C. Jan. 3, 2017)

(alteration in original) (quoting Bryant v. Aiken Reg’l Med. Ctrs.,

Inc., 333 F.3d 536, 547 (4th Cir. 2003)). “‘Demonstrable’

emotional distress refers to emotional distress which leads to

externally observable occurrences like physical symptoms or a

diagnosis from a medical professional.” Id. (first citing Bryant,

333 F.3d at 547; and then citing Dennis v. Columbia Colleton Med.

Ctr., Inc., 290 F.3d 639, 653 (4th Cir. 2002)).

Here, Brown alleges that his A1C levels, which measure his

blood glucose, have risen from 6.7 percent to 7.5 percent because

of his emotional distress. (Docs. 108 at 7; 108-3 at 8.) He

asserts that he has experienced some loss of sleep, and he has

increased his drinking from two glasses of wine per day to two

bottles of wine per day, five days per week. (Docs. 108 at 7;

108-3 at 9-10.) Moreover, he contends that his primary doctor

began prescribing an antidepressant to him in October 2023. (Docs.

108 at 7; 108-3 at 5-6.) Finally, Brown asserts that he began

seeing a psychologist at some point in 2023. (Docs. 108 at 7;

108-3 at 10.)

The court is unpersuaded that these externally observable

occurrences warrant $100,000 in actual damages for emotional

distress. Brown may have experienced some initial reaction and

frustration at the erroneous information on his background check

report. However, he contacted First Advantage only one day later,

and First Advantage produced a corrected report within six weeks.

Brown knew all along that the initial report was false. Further,

although he reviewed the erroneous report in January 2023, he did

not seek treatment for depression from a healthcare professional

until October 2023. Accordingly, he did not receive any medication

until about ten months after the alleged cause of his emotional

distress. Given this significant lapse of time, the relatively

quick resolution of the initial discrepancy, and the fact that

Brown could have reapplied for the position shortly after the error

occurred (and long before he began to see anyone for his symptoms),2

it is difficult for the court to causally connect his claimed

depression or increased alcohol consumption to the false

information on his background check report. Moreover, Brown did

not provide any testimony or documentation from his treating

physician, psychologist, or counselor.

Nevertheless, Brown has plausibly claimed some demonstrable

emotional distress that occurred after he became aware of the

initial background check report. The court will therefore award

Brown $2,500 in actual damages for the emotional distress incurred

because of Ashcott’s erroneous reporting.

In sum, the court awards Brown $8,843.79 for his lost

employment opportunity and $2,500 for his emotional distress,

resulting in a total award of $11,343.79 in actual damages. As to

attorney’s fees, “in the case of any successful action to enforce

liability” for negligent noncompliance, the FCRA authorizes a

party to recover “the costs of the action together with reasonable

attorney’s fees as determined by the court.”3 15 U.S.C.

2 Brown has maintained all along that his prospective employer agreed

with him that his lapsed medical certificate was curable and not an

impediment to his being hired. (Doc. 77 at 19-20.)

3 The court already found that Brown failed to allege any facts that

would demonstrate a willful violation of the FCRA by Ashcott. (See Doc.

103 at 8.) However, a party may recover costs and attorney’s fees in

successful actions for either willful or negligent noncompliance with

the FCRA. 15 U.S.C. §§ 1681n(a)(3), 1681o(a)(2).

§ 1681o(a)(2). Any request for attorney’s fees shall be made

through a separate motion that complies with Local Rule 54.2.

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that Plaintiff Brown’s motion for

default judgment (Doc. 52) as to damages is GRANTED IN PART and

Brown shall recover of Defendant Ashcott actual damages in the

amount of $11,343.79; the motion is otherwise DENIED.

/s/ Thomas D. Schroeder

United States District Judge

October 14, 2025