No Pseudonymity in Employment Lawsuit Claiming Discrimination Based on Past Opiate Addiction

From yesterday's decision by Magistrate Judge Barbara Moses (S.D.N.Y.) in Doe v. Black Diamond Capital Mgmt. LLC:

Now before the Court is the motion of plaintiff "John Doe" for an order granting leave to proceed under a pseudonym, or in the alternative, to seal his complaint. {[H]is brief does not discuss the standards for sealing judicial documents in this Circuit, nor otherwise flesh out this point.} For the reasons that follow, the motion will be denied….

Plaintiff previously suffered from an opiate addiction. Additionally, he was arrested in 2014, for drug possession, but "successfully completed a drug treatment program and was never convicted of any crime." As of April 19, 2022—the date on which he filed this action—plaintiff had been sober for five and a half years.

Plaintiff alleges that on June 21, 2021, he was contacted by an executive search firm, SG Partners, regarding an Associate position on the Private Equity Team at defendant Black Diamond Capital Management (BDCM). [He got an offer, but it was then rescinded after he informed BDCM of his past addiction. -EV] [Plaintiff sued under the Americans with Disabilities Act] (asserting that his prior addiction constitutes a disability cognizable under 42 U.S.C. § 12102(1)(A)), the New York State Human Rights Law, and the New York City Human Rights Law….

[P]laintiff argues that litigating under his true name would cause "embarrassment to himself and his family," due to the "societal stigma commonly associated with addiction," and damage to his current and future job prospects, because "[t]he industry in which Plaintiff sought employment (and which he maintains employment currently) is not as large as some may think, and Plaintiff has a legitimate fear that his current and future job prospects may be negatively impacted if his former addiction is revealed." He adds that since he litigated before the EEOC in his own name, BDCM already knows his true identity, and has been supplied with all of his "filed charge materials" from the EEOC….

Ordinarily, "[t]he title of [a] complaint must name all the parties." This rule, "though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings" and "cannot be set aside lightly." It also safeguards "the 'public's common law right of access to judicial proceedings' which is a right 'supported by the First Amendment.'" Accordingly, there is a strong presumption that litigants must proceed under their true names…. Courts in this Circuit, faced with a request by a party to proceed anonymously or pseudonymously, balance that party's privacy concerns against "both the public interest in disclosure and any prejudice to the defendant" ….

The Court does not doubt that plaintiff considers his history of drug addiction and his 2014 arrest to be both sensitive and personal. However, this case does not involve any of narrow categories that courts in this Circuit have recognized as so "highly sensitive" as to warrant anonymity. See, e.g., Doe v. Skyline Automobiles (S.D.N.Y. 2019) (noting that "cases relating to birth control, abortion, homosexuality, welfare rights of illegitimate children, and abandoned families" have been found to be "highly sensitive and of a personal nature," but "allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym"); Michael v. Bloomberg L.P. (S.D.N.Y. Feb. 11, 2015) (rejecting request to proceed anonymously in wage and hour case because it was not "the type of unusual case involving matters of a highly sensitive or personal nature—i.e., claims involving sexual orientation, pregnancy, or minor children—in which courts have justified anonymous plaintiffs proceeding pseudonymously").

Tellingly, plaintiff does not cite a single case from within the Second Circuit to support his contention that his past addiction and arrest record qualify as "highly sensitive" under the Sealed Plaintiff standard. Nor has the Court located any such authority. Plaintiff's fear of embarrassment to himself and his family, while plausible, does not tip the [analysis] in his favor. It is well-settled that "claims of public humiliation and embarrassment" are "not sufficient grounds for allowing a plaintiff in a civil suit to proceed anonymously."

Similarly, plaintiff's categorization of his past addiction as a disability does not alter the calculus. Disability is not typically considered "highly sensitive," and in any event must be pleaded—and hence disclosed—in every disability discrimination lawsuit. See, e.g., Doe v. Trustees of Columbia Univ. in City of New York (S.D.N.Y. 2021) (plaintiff with Asperger syndrome, suing for disability discrimination, was not entitled to proceed anonymously); Vega v. HSBC Sec. (USA) Inc. (S.D.N.Y. 2019) (plaintiff who claimed discrimination based on major depressive disorder and attention deficit disorder was not entitled to proceed under a pseudonym because, although his disability was "personal in nature," it was not "highly sensitive")….

Plaintiff argues that if he litigates this action under his own name he "could face retribution in the industry in which he works," and thus that he has a "legitimate fear" that his job prospects "may be negatively impacted if his former addiction is revealed." He is also "concerned that disclosure of his identity and history of addiction would cause additional anxiety and stress and would aggravate his illness and possibly cause a relapse.". However, both species of harm are described in only in general, conclusory terms, ungrounded in any specifics (beyond plaintiff's allegations as to his experience at BDCM) and unsupported by any evidence. Consequently, even though the potential harm to his job prospects is the same kind of harm that plaintiff brought this action to remedy, neither the second nor the third factor supports his request for leave to proceed anonymously…. "Without corroboration from medical professionals . . . [plaintiff's] general allegation of potential trauma is 'mere speculation' about a risk of psychological injury that cannot support her motion to proceed under a pseudonym."

Even where plaintiffs have presented affidavits, courts frequently reject claims of psychological harm and career damage where the affidavits are vague or speculative. Here, there is no evidence at all to support plaintiff's contention that pursing this case in his own name "could" damage his job prospects and "would" cause additional anxiety that could "possibly" cause a relapse….

[A] defendant is [also] always at a disadvantage when sued by an anonymous plaintiff, such that it must "defend [itself] publicly [before a jury] while plaintiff could make [his] accusations from behind a cloak of anonymity." Moreover, if the case goes to trial, a judicial grant of anonymity may imply that plaintiff is more credible, meriting "extra-solicitous treatment," and further "disadvantage Defendants at all stages of litigation, including settlement, discovery, and trial." …

[P]laintiff contends … that forcing him to sue publicly would contravene sound public policy because it would effectively discourage those with addiction ("a form of mental illness") from publicly pursuing their legal claims. This argument proves too much. Denying anonymity to a plaintiff who prefers it will inevitably have some chilling effect on the willingness of such a plaintiff to sue at all. This is true not only for plaintiffs with mental illness but also for those who were sexually assaulted, those who were falsely arrested or improperly convicted, those who were discriminated against based on sexual orientation or gender identity, and many other plaintiffs who have suffered harms that can and should be redressed through litigation. There is thus no need for the Court to consider the potential chilling effect on a specific group of potential litigants separately from its application of the Sealed Plaintiff balancing test, which already "requires a district court to exercise its discretion in the course of weighing competing interests."

In Rapp v. Fowler (S.D.N.Y. 2021), plaintiff C.D.—who alleged that he was sexually abused, when he was 14 years old, by a well-known adult actor—made a similar plea, arguing "that there is a competing public interest in keeping the identity of those who make sexual assault allegations anonymous so that they are not deterred from vindicating their rights." Further, C.D. (unlike plaintiff here) advised that he would discontinue his claims, to protect his mental health, if the motion for leave to proceed anonymously were denied. As the Rapp court explained, however, its job was to balance the interests [relevant to a pseudonymity claim] (including the plaintiff's), not to make sure that C.D. would persist in his claims. "Though C.D. is correct that the public generally has an interest in protecting those who make sexual assault allegations so that they are not deterred from vindicating their rights, it does not follow that the public has an interest in maintaining the anonymity of every person who alleges sexual assault or other misconduct of a highly personal nature." So too here. The fact that plaintiff's addiction can be characterized as mental illness does not lend additional weight to his motion for leave to proceed anonymously….