No Pseudonymity in Lawsuit by Employees Alleging Sexual Harassment by Casino Magnate Steve Wynn

From Doe v. Wynn Resorts Ltd., decided Monday by Magistrate Judge Cam Ferenbach (D. Nev.):

Plaintiff Judy Does work at the Wynn/Encore Salon, and they claim that their employer allowed Steve Wynn to sexually harass them. In their ninety-two page third amended complaint, the Judy Does bring claims against Wynn Resorts Limited and Wynn Las Vegas, LLC for (1) discrimination based on sex; (2) hostile work environment based on sex/sexual harassment; (3) retaliation; (4) false imprisonment; (5) invasion of privacy; and (6) injunctive relief….

[P]laintiffs argue … that they should be allowed to proceed using fictitious names because they will be embarrassed if their identities are revealed. Plaintiffs also argue in their supplement in support of their motion for a protective order that their identities should be protected from Steve Wynn, even though he is likely to be a witness in this case. They also argue that Steve Wynn will sue them for "speaking out" if he learns their identities….

Firmly embedded in the American judicial system is a presumption of openness in judicial proceedings. That is why our court system has a default preference for openness, and parties are allowed to use pseudonyms "in the 'unusual case' when nondisclosure of the party's identity 'is necessary … to protect a person from harassment, injury, ridicule or personal embarrassment.'"

If such unusual or special circumstances exist, the district court has discretion to permit a party to remain anonymous so long as "the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity." … Federal Rules of Civil Procedure Rule 10(a) commands that the title of every complaint must name all the parties. "The normal presumption in litigation is that parties must use their real names." …

Plaintiffs fear they will suffer severe retaliatory harm from multiple sources. They argue that their names must be kept off the public docket because if Steve Wynn, specifically, learns their identities, he will sue them. Although the Wynn corporate defendants in this case already know the Judy Does' identities, the Does allege that their current supervisors may not be aware of their litigation and may retaliate against them. The Judy Does also argue that they are still working in the salon and beauty industry, and fear retaliation within the industry. They also argue that that Steve Wynn's powerful friends will retaliate against them. No plaintiff claims risk of physical harm.

The Ninth Circuit held that that when a plaintiff faces economic rather than physical harm, the harm must be "extraordinary" to justify granting anonymity. The Ninth Circuit distinguished "perhaps typical" fears of termination and blacklisting, which many plaintiffs face, from the "extraordinary" harm required to justify granting anonymity. In Advanced Textile, the Ninth Circuit overturned the lower court's refusal to grant plaintiffs' request to proceed anonymously. The plaintiffs, Chinese garment workers working on the island of Saipan, feared that if their employers discovered their participation in the suit, they would be terminated. Once terminated, they were likely to be deported to China, where they or their family could be imprisoned for failure to pay punitive debts imposed by the employers. The Ninth Circuit found that these workers' fears of potential deportation, arrest, and imprisonment constituted "extraordinary" retaliation, meriting an anonymity order. The Ninth Circuit found that their fears were reasonable based on the workers' declarations repeating the threats of their employers and since they knew other people who had been imprisoned in China for failure to pay debts.

The Ninth Circuit distinguished a Fifth Circuit case holding that plaintiff attorneys in a Title VII action had no right to anonymity. The Fifth Circuit determined that those plaintiffs' fears of being fired or otherwise retaliated against by their employers for asserting their claims were "typical." The Ninth Circuit noted that the Fifth Circuit had "simply held that it was not faced with a case meriting anonymity because the threatened retaliation was not extraordinary." …

The Judy Does fear that if they reveal their identities on the public docket (or to Steve Wynn during discovery), Steve Wynn will retaliate by suing them, which would cause economic harm…. There is no threat of severe retaliatory harm here, however, even assuming the Judy Does' fears are true, because there is nothing preventing Steve Wynn from suing the Judy Does now as Doe defendants. If Steve Wynn does not yet know their identities, there is nothing preventing him from filing a lawsuit against "Judy Does 1-9." The doe lawsuit is generally a tool in the plaintiff's toolbox – either by bringing the lawsuit as an anonymous plaintiff like the Does in this case—or by bringing a lawsuit against a doe defendant, with the intent of discovering the identity of the doe defendant during litigation. Plaintiffs brought this lawsuit in 2019, and Steve Wynn has not sued them yet. Steve Wynn has no reason to sit back and wait for the anonymous speakers' masks to fall. The Judy Does have already spoken, and Steve Wynn has not sued them.

To judge the reasonableness of plaintiffs' fears, courts "consider the surrounding context and other listeners' reactions to the threats." Further, the court must also consider "[whether] plaintiffs were threatened, and [whether] a reasonable person would believe that the threat might actually be carried out." A party does not meet its burden by merely alleging a fear that a person will sue them.

Regarding reasonableness of the fear I "consider the surrounding context and other listeners' reactions to the threats." I also consider whether "plaintiffs were threatened, and [whether] a reasonable person would believe that the threat might actually be carried out." Steve Wynn has not threatened to sue the Judy Does. Plaintiffs only speculate that he might sue them, even though there is nothing preventing him from suing them now. Plaintiffs have not met their burden to show that their fear of being sued reasonably rises to the unusual level required to justify shielding their identity. There are no factors here, like in Advanced Textile, such as a high risk of arrest or imprisonment, elevating the Judy Does' fears to the level of an "extraordinary" fear….

Plaintiffs[] fear that their supervisors, others in the industry, or powerful friends of Steve Wynn, will retaliate against them. The plaintiffs do not allege that any of Steve Wynn's powerful friends have threatened to retaliate against them, but they allege generally that he has powerful friends in the salon and gaming community that will retaliate against them. The Judy Does also allege that they fear retaliation in the "salon industry" in general. The Judy Does do not give specific examples of any threatened retaliation from their managers or from within the salon/beauty/gaming industry, but their allegations imply that they face reduced work, possible termination, or blacklisting within the salon/beauty industry.

These arguments open the figurative flood gates. Most sexual harassment plaintiffs, with claims like the Judy Does in this case, file claims in this court using their real names. Many employees would prefer to litigate their cases against their employers in secret. The presumption that plaintiffs should proceed under their real names, as highlighted by Rule 10, reflects the openness of our public courts. The plaintiff's fears of retaliation from current or potential future employers are not "extraordinary" as contemplated by the Ninth Circuit in Advanced Textile….

The Judy Does argue that Steve Wynn has sued other people who have made similar public allegations about him. Since there is nothing stopping Steve Wynn from suing them now, however, they are probably not vulnerable to a pure retaliatory lawsuit, absent some other factor.

Plaintiffs have not alleged that they have faced any retaliation since filing their EEOC Charges (in 2018) nor this case (in 2019). Steve Wynn and other executives identified in plaintiffs' complaint are no longer employed by the defendants in this case. Plaintiff's fear that their supervisors, others in the industry, or powerful friends of Steve Wynn, will retaliate against them are not reasonable because anyone who works for a large company would be able to make a similar argument. The standard cannot be that employee-plaintiffs of large companies (led by wealthy CEOs) can litigate in secret, but employee-plaintiffs of small companies (led by less powerful CEOs) must litigate in public.

Unlike the Advanced Textile plaintiffs, the plaintiff Judy Does have not been threatened with any type of retaliation from any of these actors. The plaintiff Judy Does do not allege that any of the other victims been blacklisted in their industry for making similar allegations. Unlike in Advanced Textile, the plaintiffs do not allege that the defendants here will terminate and deport their workers and thus take the matter outside the Court's jurisdiction. Plaintiffs' vulnerability to retaliation if their names are disclosed to Steve Wynn or other non-parties is minimal. Plaintiffs have not met their burden to show that they are vulnerable to retaliation….

Plaintiffs' request to conceal their identities from Steve Wynn, the named perpetrator, and other non-parties, will greatly prejudice the defendants once discovery opens.

Plaintiffs also argue their identity is not crucial to the resolution of this case. They argue that remaining anonymous would not obstruct the public's ability to scrutinize the important issues in this case. Openness in judicial proceedings fosters the press's ability to research the litigants' backgrounds (which may bear on matters pertaining to credibility) and the potential motivations for suing. That information may be central to the public's broader understanding of this case. Allowing the plaintiffs to proceed without using their true names undermines these important values.

Federal courts are courts of public record, and the strong presumption is that the public has a right to know who is seeking what in court and whether he or she is entitled to the relief sought. The presumption can be overcome in unusual cases where anonymity is critical. This is not such an unusual case. The public interest factor weighs against allowing the plaintiffs to proceed anonymously….

Plaintiffs [also] argue that they should be permitted to use fictitious names because they are afraid of having to relive their traumatic experiences publicly and while at work. For example, plaintiffs argue that clients might identify them as one of Steve Wynn's victims and make intrusively thoughtless comments.

Plaintiffs' allegations involve sensitive issues that are personally embarrassing to them. There are no allegations of sexual assault in this case. The defendants argue that the type of sexual harassment they allege Steven Wynn subjected them to are all within the realm of a Title VII sexual harassment suit. The Judy Does claim they were subjected to unwelcome verbal and/or physical conduct of a sexual nature by Steve Wynn. Title VII plaintiffs, however, usually bring their suits in their own names. The Judy Does argue that this case is different from other Title VII sexual harassment suits because of the identity of Steve Wynn. Plaintiffs contend that Steve Wynn's wealth and notoriety make this case different, rather than the actual allegations.

I assume for the purposes of this order that all the Judy Does allegations against Steve Wynn, which are horrific, are true. Many sexual harassment plaintiffs have brought horrific claims against their supervisors and have done so using their real names. Plaintiff's contention here is that it is the identity of Steve Wynn, i.e., of being identified as one of Steve Wynn's victims, is what makes this case different from other sexual harassment cases. This argument, however, inappropriately discounts the trauma felt by people who are sexually harassed by supervisors who are not famous.

Allowing plaintiffs in general to proceed anonymously against famous perpetrators in sexual harassment cases based on the perpetrator's identity will lower the public's confidence in the courts. Considering the acts (not the identity) of the perpetrator, as alleged by similarly situated sexual harassment plaintiffs, serves the public interests of treating like cases alike and protecting open courts. The plaintiffs' fear of harassment, injury, ridicule, or personal embarrassment in this case are equally present for all similarly situated sexual harassment victims and is not extraordinary. The plaintiffs' interest in remaining anonymous is greatly outweighed by the prejudice to the public. The plaintiffs have not met their burden regarding the factors in the second situation….