Obabueki v. International Business MacHines Corp.

AMENDED OPINION AND ORDER

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 1

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 2 , a *374 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. 3 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”). 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 *375 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. 5 (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. 6 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 *376 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. 7 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. 8 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. 9 (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.) 10 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; *377 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”). 11 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. 12 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. 13 (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. 14 (Letter *378 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. 15

*379 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 *380 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. 16 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. *381 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, 17 (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. 18 *382 (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 *383 Dep’t 1981) (noting that a dismissal under Section 1203.4 does not amount to “complete expungement”). 19 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.