The Volokh Conspiracy
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From a decision this morning by Magistrate Judge Reid Neureiter (D. Colo.) in Doe v. Regents of Univ. of Colo.:
Plaintiff is a Hispanic female doctor. She is a highly trained and skilled triple board-certified anesthesiologist, formerly employed as a tenure-track assistant professor at the University of Colorado ("CU"), with a contemporaneous full-time permanent clinical appointment with the Department of Veterans Affairs (the "VA"). Plaintiff claims to have viewed dangerous conduct and deficiencies in a clinical setting at the VA and CU and then made a confidential report consistent with CU's reporting requirements. It is alleged that after this report, her confidence was breached and, as a result, Plaintiff faced a pervasive pattern of retaliatory, discriminatory, harassing, and hostile acts, ultimately culminating in the termination of her clinical and academic appointments.
It is further alleged that as part of this retaliatory plot, Plaintiff's supervisor conjured false written complaints against Plaintiff and improperly transmitted those complaints to the VA. As a result of these allegedly false complaints, Plaintiff was removed from her supervisory duties at CU, received a charge of unprofessional conduct, had her clinical privileges revoked, and was removed from federal service with the VA and accompanying employment with CU. She claims that her career as a cardiac anesthesiologist and critical care physician has been largely destroyed because of these retaliatory, false complaints.
Plaintiff brings claims against the Regents of the University of Colorado for, among other things, pregnancy discrimination, national origin discrimination, hostile work environment, retaliation under Title VII, and discrimination and retaliation under the ADA and ADAAA.
Plaintiff sought to proceed under pseudonym, but Judge Neureiter said no; here is what strikes me as the heart of the analysis:
On the whole, this case strikes the Court as an employment dispute like so many others that the Court confronts on a regular basis. Such lawsuits frequently contain allegations of discrimination, harassment, and retaliation and are hotly disputed by the two sides. It is undeniably true that when a plaintiff is identified as a complaining party in an employment-related or whistleblower lawsuit, it might cause future employers to think twice about hiring her. But such is the case for any plaintiff in an employment-related or discrimination-related case.
If Plaintiff ultimately is vindicated, which is the objective of the lawsuit, then she will have the outcome to show future employers. And, while the case is pending, she will be able to tell other potential employers she is challenging the termination from CU. But it is highly unusual (indeed, in this judge's experience, unknown) for this kind of lawsuit to be filed under seal or for the identities of the parties to be kept secret.
And here are more details:
Because the general rule is that lawsuits are to be public [citing Fed. R. Civ. P. 10(a) & 17(a) and Tenth Circuit precedent -EV], a plaintiff should be allowed to proceed anonymously "only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger or physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity."
The first thing to note is that, in keeping with the American ideals of government, court proceedings are presumptively open to the public…. The strong interest of the public in having access to court proceedings must be weighed against any claimed privacy interest of a litigant in sealing the proceedings and proceeding under a pseudonym.
Also, it cannot be disputed that the allegations underlying this dispute raise matters of public concern. Plaintiff says she was a highly trained doctor at both CU Hospital and the VA. She claims that she made a report of misconduct to CU and then had her reputation and career ruined in retaliation for making what she assumed would be a confidential report. The Complaint also includes allegations of race or national origin discrimination and pregnancy discrimination. This lawsuit is being brought to clear her name, to vindicate her rights, and to recover damages.
To the extent that her reputation and career already has been destroyed, it is unclear how publication of allegations intended to clear her name would further tarnish that reputation, or how the open publication of her efforts to vindicate herself will cause the harm that the lawsuit is intended to prevent. But more important, the fact that this kind of behavior allegedly is happening among the staff of a renowned Colorado medical institution is almost by definition a matter of public concern. In addition, Plaintiff is seeking damages for her allegedly destroyed career, which is itself a call for compensation from the public fisc….
The Court finds that this case does not involve any of the three unusual circumstances where the Tenth Circuit has found it proper for a plaintiff to proceed anonymously: a matter of a "highly sensitive and personal nature," a "real danger or physical harm," or where the "injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity."
And, even if it did arguably involve a matter of a "highly sensitive and personal nature," the Court finds that the public interest in knowing the allegations in the Complaint and the identities of the parties far outweigh the claimed privacy interests being asserted here…. Plaintiff has sued in Colorado for damages and accused specific individuals within CU of misconduct, including retaliation and discrimination. This case is therefore a matter of public concern, is being litigated in a public court, and the public has a strong interest in knowing how our court system is being used to resolve such a dispute and who is involved in the case.
In addition to the public interest in knowing about the allegations and the claims of misconduct within a public institution, Defendants should be able to not just know the name of the plaintiff, but also to discuss with other potential witnesses Plaintiff's allegations and the circumstances of the lawsuit. For Plaintiff's identity and the allegations of the Complaint to be kept secret from the public would be unfair to the Defendants, who will have to defend against these very serious allegations.
In her Motion to Restrict, Plaintiff cites a case from this District, Doe v. FBI (D. Colo. 2003), where a Colorado state judge had sued the FBI alleging violations of the Freedom of Information Act, the Privacy Act, and asserted claims of invasion of privacy. The FBI had been investigating drug use and impropriety by a state district court judge and one other public official. An unrelated grievance was filed against the judge with Attorney Regulation Counsel ("ARC") and, as part of its own investigation, ARC subpoenaed the FBI's file, which was then released to ARC without having obtained the judge's consent. The judge sued the FBI and sought to keep his identity secret, because the revelation of his identity as plaintiff would only serve to exacerbate the original invasion of privacy and would also be contrary to the principle that attorney grievance proceedings are intended to be anonymous pending a final determination. In the judge plaintiff's view, requiring the use of his real name would damage his professional personal reputation. This parallels the argument raised by Plaintiff in this case.
Chief Judge Philip A. Brimmer rejected the argument in Doe v. FBI and denied the plaintiff's request to proceed anonymously. As Judge Brimmer held, "By initiating an action for damages based on the FBI's disclosure of the Plaintiff's confidential File, Plaintiff has chosen to bring a private matter into the public eye." He further explained that a "plaintiff claiming a privacy interest for the sake of his reputation does not create the 'unusual case.' Reputational interests alone are insufficient to outweigh the public's interest in an open court system that is subject to public scrutiny and criticism."
Chief Judge Brimmer's decision was consistent with another decision out of this District by Judge Kane:
[L]awsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among the facts is the identity of the parties. We think that as a matter of policy the identity of the parties to a lawsuit should not be concealed except in the unusual case.
Doe v. U.S. Dep't of Justice (D. Colo. 1982) (quoting Doe and Moe v. Deschamps (D. Mont. 1974) (holding that state court judge could not proceed with Freedom of Information Act suit for disclosure of Drug Enforcement Administration files about him without disclosing his true name)). In the case decided by Judge Kane, the plaintiff had argued that revelation of his name would "personally embarrass him and prejudicially affect his privacy rights which th[e] suit was expressly designed to protect." The argument was rejected.
If parties want secret resolution of their disputes, they should go to arbitration. Absent extremely unusual circumstances not present here, employment lawsuits like the one at bar, which involves serious claims of retaliation and discrimination against a public university employer, should be public. And that includes the names of the parties to the case.…
Judge Neureiter declined to follow a decision in a related lawsuit by the same plaintiff in the federal district court in D.C., Doe v. Lieberman, No. 1:20-cv-02148 (D.D.C. Aug. 5, 2020), that allowed that case to proceed pseudonymously:
In that litigation, Plaintiff sought an injunction to prevent reports of her alleged medical misconduct from reaching a national databank or a state licensing board without due process. That matter appeared to be purely about her reputation and the desire not to have false misconduct charges shared with regulatory bodies. In this case, by contrast, Plaintiff is seeking money damages for the harm caused by her employer's alleged retaliatory and discriminatory conduct. This is qualitatively different from a lawsuit intended to prevent the reporting of her name to a disciplinary board. The instant Complaint contains serious allegations of misconduct within a CU hospital and a lawsuit brought to resolve such charges should not be resolved in secret—and neither should the identity of the person making the allegations nor the identities of the alleged perpetrators be kept secret.
Plaintiff had also moved to have the entire complaint sealed, and I filed an opposition to that motion; plaintiff then expressed a willingness to have the complaint merely redacted to remove the identifying information. Judge Neureiter rejected the sealing request as well as the pseudonymity request.
For a similar case involving a different doctor and a different university (the University of Michigan), see this post; the motion to proceed pseudonymously is still pending there.