Full opinion text
AMENDED OPINION AND ORDER SCHWARTZ, District Judge. This diversity action arises out of the withdrawal of an employment offer to plaintiff Abel Obabueki (“plaintiff’) by defendant International Business Machines Corp. (“IBM”). Plaintiff alleges that IBM improperly considered his dismissed misdemeanor conviction in making its decision to withdraw the offer, and failed to properly inform plaintiff of its intent to withdraw the offer, in violation of the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 296(15), 296(16) (“Sections 296(15) and 296(16)”), and the Fair Credit Reporting Act (“FCRA” or “the Act”), 15 U.S.C. §§ 1681 et seq. Plaintiff asserts claims against defendant Choice-point, Inc. (“Choicepoint”) under the FCRA and Section 349 of the New York General Business Law as a result of Choicepoint’s allegedly improper provision of information related to the conviction to IBM. Currently before the Court are cross-motions for summary judgment on plaintiffs claims against each defendant, and plaintiffs motions to strike certain of each defendant’s affirmative defenses. For the reasons set forth below, the motions are granted in part and denied in part. 1. Factual Background A. The Parties and Plaintiffs 1995 Conviction Plaintiff, a citizen of Connecticut, has a Ph. D. in Materials Science and Engineering and a Master of Business Administration (“MBA”) from Stanford University. (IBM’s Statement of Undisputed Material Facts (“IBM 56.1”) ¶ 1; Plaintiffs Rule 56.1 Counter Statement on IBM Claims (“PI. 56.1 Resp. IBM”) ¶ 1.) IBM is a corporation organized and existing under the laws of Delaware with its principal place of business in Armonk, New York. (Amended Complaint (“Compl.”) ¶ 3.) Choicepoint, a corporation organized and existing under the laws of Georgia with its principal place of business in Atlanta, is a consumer reporting agency. (I'd 114; Plaintiffs Rule 56.1 Statement on Choicepoint Claims (“PI. 56.1 Choicepoint”) ¶ 27; Choicepoint’s Rule 56.1 Counter Statement (“Choice-point 56.1 Resp.”) ¶ 27.) Choicepoint regularly engages in whole or in part in the practice of assembling or evaluating information on consumers for the purpose of furnishing consumer reports to employers for employment purposes. The information on consumers which Choicepoint compiles and reports to employers is drawn from matters of public record. (PL 56.1 Choicepoint ¶¶ 26, 28, 29; Choicepoint 56.1 Resp. ¶¶ 26, 28, 29.) In 1995, plaintiff was arrested and charged with fraud in obtaining welfare aid. He entered a plea of nolo contende-re, was ordered to pay restitution for the amount he illegally obtained, was fined $100, served 13 days in jail, and was placed on two years’ probation. (IBM 56.1 ¶ 3; PL 56.1 Resp. IBM ¶ 3; Declaration of Gregory Antollino dated July 4, 2000 in Support of Plaintiffs Motion for Summary Judgment Against Choicepoint (“Antollino Choicepoint Decl.”), Ex. E.) On January 27, 1997, plaintiffs conviction was “vacated” and “dismissed” pursuant to California Penal Code § 1203.4 (“Section 1203.4”). The Order disposing of his case (the “California Order”) stated that plaintiff was convicted of a misdemeanor offense, and was discharged from probation prior to the termination of the designated period. (Declaration of Gregory Antollino dated July 18, 2000 in Support of Plaintiffs Motion for Summary Judgment Against IBM (“Antollino IBM Decl.”), Ex. 3.) The California Order further directed that “the plea, verdict, or finding of guilt ... be set aside and vacated and a plea of not guilty be entered; and that the complaint be, and hereby is, dismissed.” (Id.) Finally, the California Order stated, in parallel language to Section 1203.4, that: “[Plaintiff] is advised that this Order does not reheve him/her of the obligation to disclose the above referenced conviction in response to any direct question contained in any questionnaire or application for public office or for licensure by any State or local agency, or for contracting with the California State Lottery.” (Id.; IBM 56.1 ¶5; Pl. 56.1 Resp. IBM ¶ 5; see also Section 1203.4.) The record of the conviction was not sealed. (IBM 56.1 ¶ 7; Pl. 56.1 Resp. IBM ¶ 7.) Subsequently, plaintiff engaged the services of a private detective to determine what a prospective employer could learn about his conviction by performing a background check. (IBM 56.1 ¶ 8; Pl. 56.1 Resp. IBM ¶ 8; Pl. Dep., Ex. B to Lauri Aff., at 176-82, 461-67.) The detective advised plaintiff that his record was clear and contained no convictions. (IBM 56.1 ¶ 9; Pl. 56.1 Resp. IBM ¶ 9.) Plaintiff claims that he conducted a similar investigation on his own, and was unable to locate information containing his conviction. (Pl. Dep. at 176-82, 461-67.) B. Plaintiffs Application for Employment at IBM At IBM, once a decision is made to make a conditional offer of employment to a candidate, the individual is asked to complete an application form. (IBM 56.1 ¶ 18; Pl. 56.1 Resp. IBM ¶ 18.) An applicant must also complete a Security Data Sheet (“SDS”), which requests, inter alia, that he identify whether he has pleaded guilty or “no contest” to a crime or other offense within the last seven years. However, the applicant is expressly requested not to include “arrests without convictions” or “convictions or incarcerations for which a record has been sealed or expunged.” (IBM 56.1 ¶ 19; Pl. 56.1 Resp. IBM ¶ 19; Ex. M to Lauri Aff.) Both the application form and SDS provide that “any misrepresentation or deliberate omission of a fact ... will justify terminating consideration” of the application for employment. (IBM 56.1 ¶ 20; Pl. 56.1 Resp. IBM ¶ 20.) Further, IBM policy states that the mere identification of a conviction on the SDS will not subject an applicant to disqualification. (IBM 56.1 ¶ 21; Pl. 56.1 Resp. IBM ¶ 21.) Rather, the policy requires that the company perform an analysis of whether the crime is related to the position for which the applicant has applied. (IBM 56.1 ¶ 22; Pl. 56.1 Resp. IBM ¶ 22.) Specifically, the policy provides that “when reviewing information listed on the SDS (i.e. criminal record history) of a potential employee,” the Human Resources unit responsible for hiring must perform an analysis of the crime in relation to the job being offered to determine whether placing the applicant in the position would create a risk to the safety or property of others. (IBM 56.1 ¶ 23; Pl. 56.1 Resp. IBM ¶ 23.) In April 1999, Olwyn Spencer (“Spencer”), IBM’s Program Director for Market Management, identified the need for a marketing manager position for the company’s JAVA Company Software group. Spencer, who is also the Hiring Manager for that group, initially posted the position notice on the IBM website for IBM employees. (IBM 56.1 ¶ 24; Pl. 56.1 Resp. IBM ¶ 24.) By August 1999, no internal candidates had emerged. James Bailey (“Bailey”), an IBM recruiter, then sought outside candidates for the position. At a certain point, Bailey received plaintiffs resume from another IBM recruiter, and sent it to Kathy Brown (“Brown”), the IBM Account Manager for the JAVA position, who in turn forwarded it to Spencer for consideration. (IBM 56.1 ¶¶ 25-26; Pl. 56.1 Resp. IBM ¶¶ 25-26.) In September 1999, plaintiff interviewed with Spencer for the marketing manager position. Spencer rated plaintiff an outstanding candidate for the job, and he was given a conditional offer of employment subject to a background check. Plaintiff then completed the IBM application form and SDS. (IBM 56.1 ¶¶ 27-29; Pl. 56.1 Resp. IBM ¶¶ 27-29; Pl. 56.1 IBM ¶¶ 14-15; IBM 56.1 Resp. ¶¶ 14-15; Ex. A. to Compl.) In response to the question regarding prior convictions that were neither “expunged” nor “sealed,” plaintiff checked “no.” (IBM 56.1 ¶ 30; Pl. 56.1 Resp. IBM ¶ 30.) IBM retained Choicepoint to perform the background check on plaintiff, pursuant to a longstanding agreement (the “IBM-Choicepoint Agreement”) whereby Choicepoint renders “background Verification Services” to IBM. (Pl. 56.1 IBM ¶¶ 21-22; IBM 56.1 Resp. ¶¶ 21-22; Agreement for IBM and Equifax Services, Inc., Ex. 0 to Antollino Choicepoint Decl.) On September 28, 1999, an individual working for Inquest, one of Choice-point’s contractors, was sent to the state courthouse in Santa Clara County, California to check for criminal convictions of plaintiff. (Choicepoint’s Statement Pursuant to Local Civil Rule 56.1 (“Choicepoint 56.1”) ¶ 12; Pl. 56.1 Resp. Choicepoint ¶ 12.) The contractor identified plaintiffs former conviction for welfare fraud and reported it to Choicepoint. (Choicepoint 56.1 ¶ 13; Pl. 56.1 Resp. Choicepoint ¶ 13; Pl. 56.1 Choicepoint ¶ 38; Choicepoint 56.1 Resp. ¶ 38.) On or about October 5, 1999, IBM received a report from Choicepoint, apparently based on the information Choicepoint had obtained from Inquest, which reflected plaintiffs welfare fraud conviction (the “First Report”). However, the report failed to mention the dismissal of the conviction pursuant to Section 1203.4. (IBM 56.1¶ 31; Pl. 56.1 Resp. IBM ¶ 31; Pl. 56.1Choicepoint ¶¶ 39410; Choicepoint 56.1Resp. ¶¶ 39-40; Ex. B. to Compl.) 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. (IBM 56.1 ¶¶ 33-34; Pl. 56.1 Resp. IBM ¶¶ 33-34; Pl. Dep. at 236-37, 279-80.) However, plaintiff did not explicitly state that the conviction had been “expunged” or “sealed.” (IBM 56.1 ¶ 35; Pl. 56.1 Resp. IBM ¶ 35; Pl. Dep. at 236-37, 279-80; Brown Dep., Ex. E to Lauri Aff., at 63-64.) Several IBM employees then reviewed plaintiffs candidacy in light of the First Report and the California Order. Each of them concluded that plaintiff should have disclosed his conviction on the SDS. (IBM 56.1¶¶ 36-45; Pl. 56.1 Resp. IBM ¶¶ 36-45.) These individuals were (i) Brown, (ii) Dick Carson (“Carson”), the Policies and Practices Manager, and (iii) Ketzel. (Id.) On October 11, 1999, Ketzel met with Spencer and advised her that plaintiff had lied on his application because he failed to reveal the conviction. (IBM 56.1 ¶ 44; Pl. 56.1Resp. IBM ¶ 44.) On the basis of Ketzel’s representations, Spencer determined that the trust necessary to initiate an employment relationship did not exist, and decided to withdraw plaintiffs conditional offer as a result of his alleged misrepresentation on the SDS. (IBM 56.1 ¶ 45; Pl. 56.1 Resp. IBM ¶45.) Joseph Damassa, an IBM vice president, approved Spencer’s decision. (Pl. 56.1 IBM ¶¶ 65-66; IBM 56.1 Resp. ¶¶ 65-66; Spencer Dep., Ex 4 to Antollino IBM Decl., at 94-97.) The underlying facts concerning plaintiffs former conviction were not discussed or factored into the decision; IBM contends that the job offer was withdrawn because plaintiff lied on his employment application. (Pl. 56.1 IBM ¶ 63; IBM 56.1 Resp. ¶ 63.) On or about October 13, 1999, Brown called plaintiff and told him that IBM intended to withdraw its conditional offer of employment. (IBM 56.1 ¶ 46; Pl. 56.1 Resp. IBM ¶ 46; Pl. Dep. at 279-81.) By letter dated October 13, 1999, IBM informed plaintiff that it “intend[ed] not to employ [him] based in part on information contained in [the First Report].” Attached to the letter was a copy of the First Report and a written description of plaintiffs rights under the FCRA. (Letter from IBM HR-USA Staffing to Plaintiff dated October 13, 1999, Ex. B. to Compl.; IBM 56.1 ¶¶ 47-48; Pl. 56.1 Resp. IBM ¶¶ 47-48.) While plaintiff contacted Choicepoint concerning the problems he perceived with the First Report, over the next several days he was unable to present additional evidence concerning the dismissal of his conviction necessary to prompt a reconsideration by IBM of its intended decision to withdraw the offer. By letter dated October 18, 1999, IBM informed plaintiff that the offer was formally withdrawn. (IBM 56.1 ¶ 49; Pl. 56.1 Resp. IBM ¶ 49; Letter from IBM to plaintiff dated Oct. 18, 1999, Ex. T to Lauri Aff.) According to IBM, on or about October 11, 1999, IBM made the decision to reduce the staff of its marketing department. At a certain point, Spencer purportedly determined that the marketing manager position for which plaintiff had applied would not be filled and the job posting was deleted on October 26, 1999. Plaintiffs name purportedly remains in IBM’s computer resume database, and IBM states that he has been considered for other positions, most recently in January 2000. (IBM 56.1 ¶¶ 50-52.) Following the withdrawal of the employment offer, and as a result of plaintiffs complaint to Choicepoint, Choicepoint obtained his California court file, and, upon review of the file, issued an amended report to IBM (the “Second Report”). (Pl. 56.1 IBM ¶¶ 75-76; IBM 56.1 Resp. ¶¶ 75-76.) The Second Report, which IBM received on October 20, 1999, contains no mention of plaintiffs conviction, and reflects a clear record. (Ex. C to Compl.) Certain of IBM’s Human Resources staff who had considered the First Report, including Brown, Bailey and Carson, received and examined the Second Report. (Pl. 56.1 IBM ¶¶ 79-81; IBM 56.1 Resp. ¶¶ 79-81; Exs. 10, 16 to Antollino IBM Deck) However, IBM did not re-offer the marketing manager position to plaintiff. (Pl. 56.1 IBM ¶ 78; IBM 56.1 Resp. ¶ 78.) Spencer testified that she finds it difficult to imagine a circumstance where she would hire plaintiff, because he failed to reveal the vacated conviction. (Pl. 56.1 IBM ¶ 83; IBM 56.1 Resp. ¶ 83.) C. Instant Action Plaintiff filed an action against IBM and Choicepoint, Inc. on November 12, 1999, and an Amended Complaint on December 2, 1999. Plaintiff filed an action against two of Choicepoint’s subsidiaries, Choice-point Services, Inc. and Choicepoint Business and Government Services, Inc., on December 29, 1999. The two cases were consolidated on April 14, 2000. Plaintiff alleges that IBM violated Sections 296(15) and 296(16) of the NYSHRL on the ground that IBM withdrew its offer of employment based on plaintiffs conviction. He also alleges that IBM violated the FCRA, 15 U.S.C. §§ 1681b(b)(l)(A), 1681b(b)(3) (“Sections 1681b(b)(l)(A) and 1681b(b)(3)”) because it took adverse action against plaintiff without properly giving him notice that it was taking such action, and without properly certifying to Choicepoint that, inter alia, it would provide such notice. IBM now moves for summary judgment on each of plaintiffs claims; plaintiff cross-moves for summary judgment solely as to his Section 296(16) and FCRA claims. Plaintiff also moves to strike IBM’s affirmative defense of unclean hands. Plaintiff alleges that Choicepoint violated the FCRA in not properly providing information concerning his conviction to IBM under the terms of the Act, in particular 15 U.S.C. §§ 1681b(b)(l)(A), 1681e(b) (“Section 1681e(b)”), and 1681k (“Section 1681k”). He also asserts that Choicepoint violated Section 349 of the New York General Business Law by engaging in deceptive acts and practices with respect to its contract with IBM concerning the provision of such information. Plaintiff now moves, and Choicepoint cross-moves, for summary judgment on each of these claims. Plaintiff also moves to strike Choicepoint’s third affirmative defense of unclean hands, and its sixth affirmative defense as it pertains to Inquest, the third-party contractor hired by Choicepoint. This latter defense, which the parties refer to as the “third party liability” defense, asserts that Choicepoint is not liable for certain damages alleged by plaintiff, because such damages resulted from the acts or omissions of entities other than Choice-point. II. Discussion A. Summary Judgment Standard A district court may grant summary judgment only if it is satisfied that “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, which may be satisfied if it can point to the absence of evidence necessary to support an essential element of the non-moving party’s claim. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All inferences and ambiguities are resolved in favor of the party against whom summary judgment is sought. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir.1994) (citations omitted). If the moving party meets its burden, the opposing party must produce eviden-tiary proof in admissible form sufficient to raise a material question of fact to defeat the motion for summary judgment, or in the alternative, demonstrate an acceptable excuse for its failure to meet this requirement. AGV Prods., Inc. v. Metro-Goldwyn-Mayer, Inc., 115 F.Supp.2d 378, 386 (S.D.N.Y.2000); see also Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.1988) (“[WJhere the moving party has attempted to demonstrate that the non-moving party’s evidence is insufficient as a matter of law to establish his claim, the burden shifts to the nonmoving party to come forward with persuasive evidence that his claim is not ‘implausible’.”) (citation omitted). When reasonable minds could not differ as to the import of the proffered evidence, then summary judgment is proper. Anderson, 477 U.S. at 250-52, 106 S.Ct. 2505; Bryant v. Majfucci, 923 F.2d 979, 982 (2d Cir.1991). Moreover, “mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment.” Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir.1996). On cross-motions for summary judgment, the rule governing inferences and burdens of proof is the same as for a unilateral summary judgment motion. AGV Prods., 115 F.Supp.2d at 386 (citing Straube v. Fla. Union Free Sch. Dist., 801 F.Supp. 1164, 1174 (S.D.N.Y.1992)). That is, each cross-movant must present sufficient evidence to satisfy its burden of proof on all material facts. Barhold v. Rodriguez, 863 F.2d 233, 236 (2d Cir.1988) (citing Eastman Mach. Co., Inc. v. United States, 841 F.2d 469, 473-74 (2d Cir.1988)). The Supreme Court has noted that summary judgment is inappropriate when a case will turn on credibility determinations. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Moreover, courts are hesitant to grant summary judgment when intent and state of mind are at issue. See, e.g., Gallo, 22 F.3d at 1224. However, “although the ultimate issue of a defendant’s intent in taking the ... action often is disputed, that alone is not sufficient to defeat a motion for summary judgment.” Rosen v. Columbia Univ., No. 92 Civ. 6330(AGS), 1995 WL 464991, at *5 (S.D.N.Y. Aug.7, 1995). B. NYSHRL Claims Against IBM 1. Section 296(15) 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 legal framework governing burdens of proof in an employment discrimination action is well settled, and was recently clarified by the Second Circuit in James v. New York Racing Assoc., 233 F.3d 149 (2d Cir.2000). A “minimal” prima facie case of employment discrimination requires a showing of (i) membership in a protected class, (ii) qualification for the position, (iii) an adverse employment action, and (iv) preference for a person not in the protected class. See id. at 153-54 (construing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). If the plaintiff makes out the prima facie case, a presumption of discrimination arises. This shifts the burden of production to the defendant to proffer a nondiscriminatory reason for its challenged action or actions. See id. at 154. If the defendant provides such a nondiscriminatory reason, the presumption of discrimination is eliminated. See id. The burden of persuasion remains with the plaintiff at all times; ultimately it is the plaintiffs responsibility to convince the trier of fact that illegal discrimination occurred. See id. Thus, 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. Id. (citing Fisher v. Vassar College, 114 F.3d 1332 (2d Cir.1997)); cf. Kravit v. Delta Air Lines, No. CV-92-0038, 1992 WL 390236, at *2 (E.D.N.Y. Dec.4, 1992) (applying the above legal framework to a Section 296(15) claim); Ferrante v. Am. Lung Assoc., 90 N.Y.2d 623, 629-31, 665 N.Y.S.2d 25, 687 N.E.2d 1308 (1997) (applying the above framework to a Section 296 claim for age discrimination). Evidence that the employer’s proffered explanation is false “may or may not be sufficient to sustain a finding of discrimination.” James, 233 F.3d at 156-57 (construing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). As the Supreme Court stated in Reeves, a trier of fact may conclude that an employer unlawfully discriminated where “plaintiff has established a prima facie case and set forth sufficient evidence to reject the [employer’s] explanation.” Reeves, 530 U.S. at 148, 120 S.Ct. 2097. “Once the employer has given an explanation, there is no arbitrary rule or presumption as to sufficiency.” James, 233 F.3d at 157. “The way to tell whether a plaintiffs case is sufficient to sustain a verdict is to analyze the particular evidence to determine whether it reasonably supports an inference of the facts plaintiff must prove — particularly discrimination.” Id. In particular, the Court should consider “the strength of the plaintiffs prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports [or undermines] the employer’s case.” Reeves, 530 U.S. at 148, 120 S.Ct. 2097; see also James, 233 F.3d at 156. Here, IBM concedes, for the purposes of its motion, that plaintiff has stated a prima facie case with regard to IBM’s withdrawal of plaintiffs conditional employment offer, (IBM’s Memorandum of Law in Support of its Motion for Summary Judgment (“IBM Mem.”) at 12.) IBM then proffers a non-discriminatory reason for its action, namely, that plaintiff lied on his employment application. Thus, the Court’s analysis properly centers on plaintiffs ability to present evidence that would allow a reasonable jury to conclude that the withdrawal of his offer resulted from prohibited discrimination, i.e. IBM’s consideration of the fact and/or details of the conviction itself. “It is well settled that a misstatement of a material fact on an employment application is a sufficient non-discriminatory ground for an employer’s refusal to hire.” Kravit, 1992 WL 390236, at *2 (citing New York Stock Exchange, Inc. v. New York State Div. of Human Rights, 37 A.D.2d 941, 325 N.Y.S.2d 778, 780 (1st Dep’t 1971); Grant v. State Comm’n for Human Rights, 54 Misc.2d 775, 283 N.Y.S.2d 486 (Sup.1967)). However, plaintiff argues that IBM’s explanation that plaintiff lied on his application is false in light of the fact that, contrary to IBM’s contention, (i) plaintiffs conviction was “expunged” under California law, which allowed him not to disclose it to IBM under the terms of the SDS, and (ii) none of the exceptions to non-disclosure listed on the California Order applied to plaintiff. Moreover, plaintiff argues that (iii) although IBM “had abundant evidence in its possession” that would indicate that plaintiff did not lie on his application, (a) its employees were not sufficiently familiar with the legal concepts necessary to conclude that plaintiff did or did not lie, and (b) did not reconsider their decision in light of the contents of the Second Report, which indicated that plaintiff had not lied. (Plaintiffs Memorandum of Law in Support of His Motion for Partial Summary Judgment Against IBM and in Opposition to IBM’s Motion for Summary Judgment (“Pl.Mem.IBM”) at 7-30; IBM Mem. Fur. Supp. at 5-20.) The Court addresses each of these points in the context of whether “[IBM’s] explanation is unworthy of credence,” Reeves, 530 U.S. at 147, 120 S.Ct. 2097, and their overall probativeness of the ultimate question on plaintiffs Section 296(15) claim, namely, whether IBM denied plaintiff employment “by reason of his having been convicted” of a criminal offense. Section 296(15). First, it is undisputed that plaintiffs conviction was “vacated” and “dismissed” under Section 1203.4, a California statute. When IBM informed him that it intended to withdraw the conditional job offer based on that conviction, plaintiff related what the California Order stated: that his conviction was vacated and the charges dismissed. IBM’s Human Resources staff subsequently came to the conclusion that plaintiff had lied on the SDS based, in part, on plaintiffs comments to Brown and, specifically, the fact that “plaintiff did not advise Ms. Brown that the conviction had been ‘expunged’ or ‘sealed.’ ” (IBM 56.1 ¶ 35.) While there is no possibility of ambiguity as to whether plaintiffs conviction was sealed' — the relevant court records, after all, were freely disclosed to Choicepoint’s contractor (see Declaration of Eric Jon Taylor dated Aug. 14, 2000 (“Taylor Decl.”), Ex. E) — the issue of whether his conviction was “expunged” under California law is far from clear. While the California Supreme Court has not directly ruled on the issue, numerous California courts have stated, both directly and indirectly, before and after the events in this case occurred, that a dismissal under Section 1203.4 amounts to the “expungement” of a conviction. See, e.g., Stephens v. Toomey, 51 Cal.2d 864, 338 P.2d 182, 185-86 (1959) (stating that, upon a Section 1203.4 dismissal, the probationer is “entitled to ... have the proceedings expunged from the record”); People v. Acuna, 77 Cal.App.4th 1056, 92 Cal.Rptr.2d 224, 226 (2d Dist.2000) (discussing the availability of “expungement” under Section 1203.4 for plaintiffs conviction for child molestation); Krain v. Med. Bd. of Cal., 71 Cal.App.4th 1416, 84 Cal.Rptr.2d 586, 591 (1st Dist.1999) (discussing misdemeanor conviction that was “expunged under the authority of [Section 1203.4]”); People v. Field, 31 Cal.App.4th 1778, 37 Cal.Rptr.2d 803, 808 (4th Dist.1995) (“The California Legislature has seen fit to render convictions expunged pursuant to section 1203.4 ...”); People v. Butler, 105 Cal.App.3d 585, 164 Cal.Rptr. 475, 476 (4th Dist.1980) (“Section 1203.4 allows any convicted felon or misdemean-ant who has been granted probation to petition to have his record expunged, after the period of probation has terminated.”); Adams v. County of Sacramento, 235 Cal. App.3d 872, 1 Cal.Rptr.2d 138, 141 (3d Dist.1992) (“In California, expungement of a conviction is governed by [Section 1203.4].”). Other courts have come to contrary conclusions. See, e.g., People v. Frawley, 82 Cal.App.4th 784, 98 Cal. Rptr.2d 555, 559-60 (1st Dist.2000) (“While a number of courts have used forms of the word ‘expunge’ to describe the relief made available by section 1203.4, the statute does not in fact produce such a dramatic result ... Section 1203.4 does not, properly speaking, ‘expunge’ the prior conviction. The statute does not purport to render the conviction a legal nullity.”); Able Cycle Engines, Inc. v. Allstate Ins. Co., 84 A.D.2d 140, 445 N.Y.S.2d 469, 473 (2d Dep’t 1981) (noting that a dismissal under Section 1203.4 does not amount to “complete expungement”). In addition, while those courts referring to Section 1203.4’s remedy as an expungement acknowledge that the section was never intended to “obliterate the fact that defendant has been finally adjudged guilty of a crime,” see Adams, 1 Cal.Rptr.2d at 141 (citing In re Phillips, 17 Cal.2d 55, 109 P.2d 344 (1941)), those cases recognize that the ex-offender is freed from “certain ‘penalties and disabilities’ of a criminal or like nature.” Id. (citing Copeland v. Dept. of Alcoholic Bev. Control, 241 Cal.App.2d 186, 50 Cal.Rptr. 452 (2d Dist.1966); Kelly v. Municipal Court, 160 Cal.App.2d 38, 324 P.2d 990 (1st Dist.1958)). Although the section may prevent individuals from being considered for certain forms of public sector or state-sanctioned employment or licenses, the policy considerations underlying Section 1203.4 appear to support the notion of expungement where, as in the instant case, an individual applies for private sector employment. Cf. id. at 143-44, 235 Cal.App.3d 872 (holding that preclusion from public sector employment as peace officer was not kind of penalty or disability which was eliminated by ex-pungement of conviction); Frawley, 98 Cal.Rptr.2d at 559 (noting that the “ex-pungement” effect of Section 1203.4 is limited, because such dismissals do not release an individual from certain penalties or disabilities relating to public sector certification, such as obtaining or maintaining a medical or legal license or teaching in elementary or secondary schools). On the basis of the above, it is clear that, as plaintiff contends, IBM cannot prove that plaintiffs conviction was not expunged. However, the Court declines to find that the conviction was expunged because the issue is subject to multiple interpretations in the California courts. The fact that plaintiffs conviction may have been expunged under Section 1203.4 merely raises an issue as to the reasonableness of IBM’s belief that plaintiff lied on his application. Second, IBM argues that the California Order itself required plaintiff to disclose the conviction. Each of the employees who was involved in the decision on plaintiffs application examined the Order, and at least two of them, Carson and Ketzel, affirmatively concluded that the Order’s language requiring plaintiff to “disclose the above-referenced conviction to any direct question contained in any questionnaire ” applied to the SDS. (Carson Dep., Ex C to Lauri Aff., at 38^12; Ketzel Dep., Ex. G to Lauri Aff., at 37-38) (emphasis added). This conclusion appears to conflict with the plain meaning of Section 1203.4. In particular, (i) from a grammatical point of view, it ignores the remainder of the relevant phrase and the sentence of which it is part, and (ii) the result it produces contrasts with the policy goals of Section 1203.4. Section 1203.4 states that dismissal under its auspices “does not relieve ... the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.” Section 1203.4 (emphasis added); California Order. It appears to this Court, based on the structure of the clauses in this sentence, that the word “questionnaire” is modified by “public office,” rather than standing alone. Admittedly, in the California Order at issue in this case, there is greater ambiguity; in particular, the clausal divisions are less clear because the comma following “public office” has been omitted and has been replaced by the word “or.” Nevertheless, the requirement that a vacated conviction be disclosed in any questionnaire appears to contradict the statute’s purpose in relieving an ex-offender of penalties and disabilities associated with the conviction. The two California courts which have addressed the issue have reached opposite conclusions, both in unreported decisions. See Roberts, 1998 WL 911444, at *1 (finding that “questionnaire” includes applications for private sector employment); Tietgen v. City of Pomona, 222 Cal.Rptr. 368, 370-72 (1st App.Dist.1986) (finding that applicant need not to have disclosed his conviction on an application for public employment, because that position was not for “public office”). Thus, IBM has not established that plaintiff was required to disclose his conviction according to the terms of Section 1203.4 or California Order. However, while the statute appears to suggest that an ex-offender need not disclose his conviction on an application for private employment, the Court need not, and does not so rule for the purposes of this motion. Like the issue of expungement under Section 1203.4, the fact that the disclosure obligation is susceptible of multiple interpretations, and may in fact be contrary to what IBM believed, raises an issue as to the reasonableness of IBM’s belief that plaintiff lied on his application. Third, the deposition testimony of those employees involved in the decision to withdraw plaintiffs offer further raises a question as to IBM’s rationale for the withdrawal. Such testimony, introduced by plaintiff, reveals that certain of the employees who concluded plaintiff had lied on his application were not entirely familiar with the legal concepts necessary to make that decision. Specifically, Brown testified that because the Order did not use the word “expunged” that the conviction was not expunged. (Brown Dep., Ex. 18 to Antollino IBM Decl., at 30.) However, in an e-mail expressing her concerns to Carson, Brown stated that while plaintiff told her that the charges had been dropped completely, the Order “[did] not state that he was given complete forgiveness.” (Ex. 14 to Antollino IBM Decl.) (emphasis added). She also defined “expunged” to mean that “your record is clear,” and “that it is sealed,” but stated she did not know if expunged meant “sealed and expunged.” (Brown Dep. at 30, 66.) By contrast, she defined “dismissed” to mean that “[the conviction] would still show.” (Id. at 30, 67.) Finally, she equated “forgiveness” to “cleared,” but not to “expunged,” which, as noted supra, she also defined in terms of a clear record. (Id. at 67.) Carson testified that he had dealt with differences in legal terminology from different states on approximately five or six occasions since beginning his work for the company’s Policies and Practice Division in 1993. (Carson Dep., Ex. 6 to Antollino IBM Decl., at 43-44; PI. 56.1 IBM ¶ 31; IBM 56.1 Resp. ¶ 31.) He testified that he is aware of such differences pertaining to a situation where a court has sealed or otherwise disposed of a criminal record. (PI. 56.1 IBM ¶ 31; IBM 56.1 Resp. ¶31.) However, he stated that he did not know what the California Order meant when it said that “the finding of guilty [was] set aside and the Court dismissed the action”; yet he concluded, without relying on the advice of any attorney, that plaintiffs conviction had not been expunged. (Carson Dep. at 41-42, 47-48; IBM 56.1 Resp. ¶ 42-43.) He further testified that if he were asked to consider the reversal of a conviction on appeal arising in any jurisdiction, he would consult with IBM’s attorneys to determine how to proceed in evaluating the applicant. (Carson Dep. at 46-47; PL 56.1 IBM ¶41; IBM 56.1 Resp. ¶ 41.) Ketzel stated that plaintiff lied on his employment application because “[h]e said he has not been convicted and he has.” (Ketzel Dep., Ex. 5 to Antollino IBM Decl., at 20.) Ketzel acknowledged that if plaintiff had a conviction that was “expunged” and he answered “no” to the question regarding prior convictions, he would have been telling the truth. (Id. at 20.) Ketzel concluded that the conviction was not “expunged,” and that plaintiff lied, on the basis of “input from [Brown],” the First Report, and the California Order. (Id. at 21-22; PI. 56.1 IBM ¶ 51; IBM 56.1 ¶ 51.) However, he testified that he was unsure what “vacated” means, in the context of the Order’s dismissal of plaintiffs conviction, and that he does not know what “expunged” means. (Ketzel Dep. at 22, 26, 36.) Nevertheless, Ketzel expressed his view and that of the Human Resources staff regarding withdrawal of the offer to Spencer, and in turn to Damassa. Spencer apparently understood from Ketzel that plaintiff had been convicted of a crime which he should have reported on his SDS. (IBM 56.1 Resp. ¶ 54, Spencer Dep., Ex. 4 to Antollino IBM Decl., at 88.) She testified that she did not “understand the legalities, the fine details of a vacated conviction versus a non-vacated conviction.” (Id. at 43.) Yet, relying on the advice of Ketzel and without reviewing any document, she decided that plaintiff had lied on the application and that “the trust necessary to initiate an employment relationship did not exist.” (Id. at 47-48, 54, 86, 88; IBM 56.1 Resp. ¶ 55.) Fourth, following plaintiffs complaint to Choicepoint concerning the alleged inaccuracies in the First Report, Choicepoint provided a Second Report to IBM that reflected that plaintiffs record was clear. Seeking to minimize the importance of the Second Report, IBM points out that the Report was not received until October 20, 1999, after IBM had withdrawn plaintiffs offer of employment, and therefore “had no bearing upon IBM’s conclusion that plaintiff lied ....” (IBM 56.1 ¶78.) This argument ignores the possibility of IBM’s reconsideration of the withdrawal and re-extension of the offer. Such disregard of the contents of the Second Report is probative of the falsity of IBM’s explanation for the withdrawal of plaintiffs offer. In support of its explanation that plaintiffs alleged misstatement was the reason for the withdrawal, IBM introduces the testimony of Choicepoint’s record manager, Andrew Klaer, who stated that the First Report was, in fact, accurate, and the Second Report inaccurate. In particular, Klaer stated that the Second Report’s exclusion of the conviction was based solely on information provided by plaintiff, because it is “Choicepoint’s practice to favor the consumer if anything is disputed.” (IBM Mem. Fur. Supp. at 11-12; Klaer Dep. at 52-54, 59-62.) Such testimony is questionable, because it reflects a practice that is antithetical to the principles of accuracy upon which Choicepoint’s work depends; moreover, it is contradicted by (i) evidence in Choicepoint’s records that the First Report was inaccurate, (Choicepoint Tracking Database form dated Oct. 14, 1999, Ex. L to Antollino Choicepoint Decl. (reflecting that the contractor “miss[ed]” certain information upon his first investigation)), and (ii) an e-mail from Brown indicating that the First Report was clearly “incorrect,” and recommending its destruction, (Ex. 10 to Antollino IBM Deck). Finally, the fact that Spencer decided to eliminate the position for which plaintiff applied shortly after plaintiffs offer was withdrawn raises additional questions as to IBM’s rationale for the withdrawal. (IBM Mem. Fur. Supp. at 11 n. 14.) Examining the entire record, construing the facts implicated by the four points above in the light most favorable to plaintiff, and resolving all inferences and ambiguities in his favor, plaintiff has raised questions with regard to the truth of IBM’s proffered explanation. However, contrary to plaintiffs suggestion, he need not only allege a prima facie case and “a question as to whether IBM actually believed that plaintiff lied” in order to demonstrate the pretext necessary to survive a motion for summary judgment on his Section 296(15) claim. (PI. Mem. at 28-29.) Plaintiff must make a substantial showing that IBM’s explanation was false. See Reeves, 530 U.S. at 144, 120 S.Ct. 2097; cf. Weiser v. Forest Pharmaceuticals, Inc., No. 99 Civ. 1809, 2001 WL 293951, at *6 (S.D.N.Y. Mar. 26, 2001) (“The plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that more likely than not [discrimination] was the real reason for the [employment action].”) Plaintiff has failed to do so here. He has established that there are questions under California law as to whether his conviction was expunged, and whether he was required to disclose his conviction on IBM’s SDS. Further, it may be that those IBM employees who were involved in the decision to withdraw plaintiffs employment offer concluded that he had lied in undue haste and without adequate consideration of the difficult legal principles that were directly implicated by the decision. Moreover, their failure to consider the evidence contained in the Second Report, coupled with their disregard of the conclusions of that Report on questionable grounds, suggests that their initial decision as to plaintiffs withdrawal was inflexible, which in turn suggests that there may have been deeper issues behind that withdrawal than plaintiffs alleged misstatement on his application. However, as IBM points out, “[pjlaintiff does not cite any testimony or documentation showing [that] Olwyn Spencer, the individual who ultimately decided to withdraw the offer, or any other individual involved in the decision, did not believe [p]laintiff lied.” (IBM Mem. Fur Supp. at 10-11.) In fact, the voluminous testimony of IBM’s employees, and the communication among themselves on the issue of plaintiffs application was completely consistent: each believed, having examined plaintiffs 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. See Reeves, 530 U.S. at 149, 120 S.Ct. 2097 (holding that “[a] prima facie case and sufficient evidence to reject the employer’s explanation may permit a finding of liability”) (emphasis added). Moreover, plaintiff has not set forth any additional facts that would raise an inference of discrimination. Nothing in the record indicates that IBM’s rationale for withdrawing the employment offer was based on the fact of plaintiffs conviction, rather than the fact that he lied on his application, or another reason. In fact, the nature of IBM’s established policy concerning its consideration of convictions in the employment process, which is in the record, suggests an alternative reason. As noted supra, that policy tracks Section 296(15), incorporating New York Correction Law § 752, which permits an employer to discover a prospective employee’s past conviction, and deny employment to him where, inter alia, “the issuance of the license or the granting of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” Section 296(15); (IBM 56.1 ¶¶ 21-23; PI. 56.1 Resp. ¶¶ 21-23.) IBM’s disregard of the information contained in the Second Report, as well as Spencer’s reticence to consider plaintiff for another position, may plausibly be explained by the rationale underlying such policy, namely, that IBM was concerned about the welfare of its employees and, its ultimate concern, the success of its business. Having considered “the strength of the plaintiffs prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports [or undermines] the employer’s case,” Reeves, 530 U.S. at 148, 120 S.Ct. 2097, the Court finds that plaintiff has failed to raise a triable issue of fact as to whether IBM’s withdrawal of his employment offer resulted from the fact of his conviction so as to constitute prohibited discrimination under Section 296(15). Accordingly, the Court grants IBM’s motion for summary judgment on this claim., 2. Section 296(16) Section 296(16) prohibits an employer from making an inquiry into or taking an adverse action with respect to the arrest or criminal accusation of an individual which was terminated in the individual’s favor. IBM contends that plaintiffs Section 296(16) claim must be dismissed because the criminal proceedings against plaintiff were not “terminated in his favor.” (IBM Mem. Fur. Supp. at 12-20.) The Court agrees. According to Section 296(16), whether a criminal proceeding was terminated in an individual’s favor is governed by Section 160.50 of the New York Criminal Procedure Law (“Section 160.50”). This section lists several instances where a criminal action shall be considered terminated in favor of the accused. See Section 160.50(3).. The New York Court of Appeals has found that such list “encompasses an expansive class of dispositions, including acquittal and various specified dismissals and vacaturs, regardless of whether premised on grounds unrelated [sic] to guilt or innocence.” Matter of Hynes, 47 N.Y.2d 659, 663, 419 N.Y.S.2d 942, 393 N.E.2d 1015 (1979). That court has also stated that Section 160.50 embodies “the legislative recognition of the importance of protecting individuals from having dismissed criminal charges considered in connection with their employment.” Matter of Joseph M., 82 N.Y.2d 128, 132, 603 N.Y.S.2d 804, 623 N.E.2d 1154 (1993). Plaintiff asserts that his conviction was “terminated in his favor” because it was vacated and dismissed pursuant to Section 1203.4. (PI. Mem. IBM at 23-25.) No court has determined whether a disposition under Section 1203.4 is “terminated in favor” of the accused within the meaning of Section 160.50. Noting that under New York Executive Law § 300, the provisions of the NYSHRL “must be liberally construed to accomplish the purposes of the statute,” Cahill v. Rosa, 89 N.Y.2d 14, 20, 651 N.Y.S.2d 344, 674 N.E.2d 274 (1996), plaintiff asserts that the disposition under Section 1203.4 may be compared to an adjournment in contemplation of dismissal (“ACD”) under New York Criminal Procedure Law Section 170.55, which is included in 160.50. (PI. Mem. IBM at 24); see Section 160.50(3)(b) (“[A] criminal action or proceeding against a person shall be considered terminated in favor of such person where ... an order to dismiss the entire accusatory instrument against such person pursuant to section 170.30, 170.50, 170.55, 170.56, 170.75, 180.70, 210.20, or 210.46 of this chapter ... was entered or deemed entered ... ”) (emphasis added). The Court.disagrees. The specific nature of the relief and the procedural posture of cases encompassed by each statute are markedly different. Under New York law, an ACD is neither a conviction nor an acquittal. Hollender v. Trump Village Coop., Inc., 58 N.Y.2d 420, 423, 461 N.Y.S.2d 765, 448 N.E.2d 432 (1983). Rather, after arraignment but before the entry of a plea of guilty or the commencement of a trial, the defendant is released from custody on his own recognizance. If, within six months of the issuance of the ACD, the action is not restored to the active calendar by the court upon the motion of the government, the charges will be dismissed automatically and, pursuant to Section 160.50, the record is sealed unless the court finds it is not in the interests of justice. Section 170.55; Section 160.50(1). The statute explicitly states that: The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt. No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution. Section 170.55(8). In contrast, Section 1203.4 dismissals apply to existing convictions effected by a plea of guilty before trial or a finding of guilt by a jury, and are only entered after a specified period of probation. The charges are not automatically dismissed, but the accused must petition the Court before any action is taken. Once the plea or verdict of guilty is withdrawn and the charges dismissed, plaintiff is not released from all penalties and disabilities resulting from the conviction; as noted supra, at a minimum, individuals may still prevented from being considered for certain forms of public sector or state-sanctioned employment. The statute itself requires individuals to report their conviction in certain public settings, and, “in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.” Section 1203.4. Finally, while the charges are dismissed, they are not sealed. The conviction remains in the public record, such that an employer, or a consumer reporting agency, may discover them as part of a background check. Accordingly, even liberally construing the provisions of Section 296(16) and the provisions of Section 160.50 incorporated by reference therein, the Court finds that Section 1203.4 relief is not analogous to an ACD. Plaintiff also compares Section 1203.4 relief to a dismissal in the “interest (or furtherance) of justice,” which is one of the favorable terminations specified under New York Criminal Procedure Law § 170.30 (“Section 170.30”). The remedy itself is detailed in New York Criminal Procedure Law § 170.40 (“Section 170.40”). Like an ACD, this form of relief is neither an acquittal nor a determination on the merits; it leaves the question of guilt or innocence unanswered. Ryan v. New York Tel. Co., 62 N.Y.2d 494, 504, 478 N.Y.S.2d 823, 467 N.E.2d 487 (1984). Under Section 170.40, “as a matter of judicial discretion,” a court may dismiss “a simplified traffic information, a prosecutor’s information or a misdemeanor complaint, or any count thereof’ in the interest of justice, after arraignment upon such accusatory instrument. Section 170.40. The court must point to a “compelling factor, consideration, or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice.” Section 170.40. Such remedy is clearly not analogous to Section 1203.4, which provides a specific process for post-conviction relief and directs the court to dismiss the charges if the conditions of probation have been satisfied and the individual “is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense.” Section 1203.4. Moreover, as IBM points out, California has a statute analogous to Section 170.40 which is wholly separate from Section 1203.4. That provision, California Penal Code § 1385 (“CPC § 1385”), states that “[t]he judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes.” CPC § 1385. The Court also declines to find that any of the other dispositions listed in Section 160.50 are analogous to Section 1203.4 relief. Thus, because plaintiffs criminal proceeding was not “terminated in his favor” as defined by Section 160.50, the Court grants IBM’s motion for summary judgment as to plaintiffs Section 296(16) claim. C. FCRA Claims Against IBM Plaintiff alleges that IBM violated the FCRA, in particular 15 U.S.C. §§ 1681b(b)(l)(A), 1681b(b)(3), by (i) withdrawing plaintiffs conditional offer of employment without first providing him with a copy of the First Report and a description of rights under the Act, and (ii) failing to properly certify to Choicepoint that it would provide such forms of notice and use the information in the report for the proper purpose under the Act. As far as this Court can tell, no court has addressed claims brought under either of the above sections. The Court addresses the claims in reverse order. Section 1681b(b)(3) requires that, “in using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall provide to the consumer to whom the report relates (A) a copy of the report; and (b) a description in writing of the rights of the consumer under this subchapter, as prescribed by the Federal Trade Commission .... ” Plaintiff claims that such procedures were not properly followed because IBM had already “taken adverse action” by October 13, 1999, the day plaintiff received the letter from IBM’s Human Resources department stating that the company intended to withdraw its conditional offer of employment. Plaintiff points to facts, discussed supra, indicating that IBM’s internal decision-making process had been completed by October 12, the date when Ketzel met with Spencer and subsequently sent an e-mail to Damas-sa concerning the staffs recommendation that IBM rescind the offer. He therefore concludes that “[t]here is not a shred of evidence indicating that IBM made any decision — or intended to make any decision — after it sent the letter on October 13,” (PI. Mem. IBM at 26), and that “[t]he sending of the second letter [on October 18] was not a decision- — it was merely a notification that a decision had been made,” (Plaintiffs Reply Memorandum of Law in Further Support of His Motion for Partial Summary Judgment Against IBM (“Pl.Rep.IBM”) at 14.) Because plaintiff misinterprets the statute and misconstrues the underlying purpose of its requirements, his contention is unavailing. An internal decision to rescind an offer is not an adverse action. The FCRA defines “adverse action,” inter alia, as the “denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee.” 15 U.S.C. § 1681a(k)(l)(B)(ii) (emphasis added). Clearly, plaintiff did not suffer any adverse effect until his offer of conditional employment was withdrawn on October 18, 1999. Plaintiff concedes this point in his own moving papers, where he states that “what matters is not what IBM said, but what IBM did.” (PL Mem. IBM at 26.) IBM’s internal discussions had no impact on plaintiff; only when its staff acted by letter did IBM take any action. Holding that an employee may suffer an adverse action as a result of an internal decision by the employer is akin to finding that a party’s summary judgment motion is denied before the Opinion is composed and issued, following discussions between the judge and his law clerk. The absurdity of such result is evident. Moreover, the statute expressly allows for the formation of an intent to take adverse action before complying with Section 1681b(b)(3), as it states that “the person intending to take” adverse action must provide the report and description of rights. 15 U.S.C. § 1681b(b)(3). After all, how can an employer send an intent letter without having first formed the requisite intent? After receipt of the intent letter, plaintiff could have come forward with information responding to the First Report that showed he had not lied on his application. He attempted to do so by asking Choice-point to reexamine his records. Such opportunity to discuss and dispute the report is exactly the scenario envisioned by the FCRA. See Lynne B. Barr, “The New FCRA: An Assessment of the First Year,” 54 Bus. Law. 1343, 1348 (1999) (citing Letter from FTC to Employers Association of New Jersey dated Dec. 18, 1997) (stating that the “clear purpose” of the FCRA is “to allow consumers to discuss reports with employers or otherwise respond before adverse action is taken”). Because plaintiffs position that forming an intent to withdraw an employment offer is an adverse action is legally unsupportable, the Court denies his motion, and grants IBM’s motion for summary judgment as to his FCRA claim under Section 1681b(b)(3). Plaintiff also argues that IBM violated the FCRA because “before using a report, IBM must certify to Choicepoint that it will comply with the FCRA and the State Human Rights Laws.” (PI. Mem. at 27.) Plaintiffs claim is grounded in IBM’s alleged failure to provide evidence of such certification during discovery. (Id.) Section 1681b(b)(l)(A) provides: (1) Certification from user. A consumer reporting agency may furnish a consumer report for employment purposes only if: (A) the person who obtains such report from the agency certifies to the agency that: (i) the person has complied with paragraph (2) with respect to the consumer report, and the person will comply with paragraph (3) with respect to the consumer report if paragraph (3) becomes applicable; and (ii) information from the consumer report will not be used in violation of any applicable Federal or State equal employment opportunity law or regulation; and (B) the consumer reporting agency provides with the report, or has previously provided, a summary of the consumer’s rights under this subchapter, as prescribed by the Federal Trade Commission .... IBM argues, based on the plain language of the statutory provision, that only the consumer reporting agency may be held liable under this subsection, not the user of the reports. The Court agrees. “In construing the terms of a statute, we look first to the language itself.” Washington v. Schriver, 240 F.3d 101, 107 (2d Cir.2001) (citing Disabled in Action of Metropolitan New York v. Hammons, 202 F.3d 110, 119 (2d Cir.2000)). As the Second Circuit has stated: Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent .... The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). Only where the meaning of a statutory provision is textually ambiguous may the Court consult its legislative history. Id. Section 1681b(b)(l) sets forth the “[e]on-ditions for furnishing and using consumer reports for employment purposes.” The section contains three subsections that set forth certain obligations for consumer reporting agencies and users such as employers. However, contrary to plaintiffs suggestion, (PL Rep. IBM at 14), each of the subsections need not, and does not, prescribe obligations for both agencies and users. The second and third subsections both affect users. See 15 U.S.C. §§ 1681b(b)(2), b(b)(3) (setting forth certain conditions for the procurement of and use of consumer reports). On the other hand, the first subsection, at issue here, sets forth obligations that an agency must satisfy before furnishing a consumer report. The plain language of the provision states that “a consumer reporting agency may furnish a consumer report for employment purposes only if ...” certain certifications are obtained from the user of such report. 15 U.S.C. § 1681b(b)(l); (see Letter from the FTC to Stephen Kilgo dated July 28, 1998, Affidavit of Kevin G. Lauri dated Aug. 23, 2000, Ex. 2 (“[W]hile an employer is required to procure the written authorization (release form) from the consumer, the [Consumer Reporting Agency] is required to obtain the employer’s certification before furnishing the report”).) Moreover, another section of the FCRA, 15 U.S.C. § 1681e(a) (“Section 1681e(a)”), contains an analogous requirement: the section obligates the agency to obtain certain certifications from the user and to make sure the report will be used for the purposes listed in Section 1681b. Setting forth “compliance procedures” for consumer reporting agencies, Section 1681e(a) provides that: Every consumer reporting agency shall maintain reasonable procedures designed to ... limit the furnishing of consumer reports to the purposes listed under section 1681b of this title. These procedures shall require that pros