No Pseudonymity in Psychological Disability Employment Discrimination Lawsuit

From Doe v. N.Y. City Dep't of Ed., decided today by Judge Mary Kay Vyskocil (S.D.N.Y.):

This is an employment discrimination case. Plaintiff has worked for the DOE since 2012. Plaintiff alleges that she is "psychologically disabled" and was subjected to discrimination, harassment, and unlawful retaliation at work….

[Plaintiff] contends that the "primary purpose" of the motion is to protect her minor child, who has "learning disabilities and ongoing mental health issues." Specifically, Plaintiff "seeks to shield her minor child from any discriminatory harm that may be caused by a record of her mental health issues when she was a minor," particularly given her child's "interest in pursuing a career in the military." Plaintiff also expresses concern that, if she litigates this case using her real name, Defendants will further retaliate against her. Finally, Plaintiff contends that making her name public would put her "future employment prospects … at immense risk" because she fears developing a "reputation associated with suing her employer." …

Under Federal Rule of Civil Procedure 10(a), a "complaint must name all the parties." This requirement "serves the vital purpose of facilitating public scrutiny of judicial proceedings" and "cannot be set aside lightly" because "[t]he people have a right to know who is using their courts." Indeed, the public's right of access to judicial proceedings is "supported by the First Amendment."

In limited circumstances, however, district courts have discretion to permit a plaintiff to proceed under a pseudonym. In evaluating a request to proceed anonymously, the Court must balance "the plaintiff's interest in anonymity … against both the public interest in disclosure and any prejudice to the defendant." … The Court … finds that Plaintiff's limited interest in anonymity does not outweigh the public's interest in disclosure….

[1.] Notwithstanding Plaintiff's self-serving assertions to the contrary, claims of employment discrimination, harassment, and retaliation are not highly sensitive or personal in nature…. "Courts have found that cases relating to birth control, abortion, homosexuality, welfare rights of illegitimate children, and abandoned families are highly sensitive and of a personal nature." …

[2.] The Court is unpersuaded that identifying Plaintiff by name could "pose[] a risk of retaliatory physical or mental harm to [her] or innocent non-parties." To the extent that Plaintiff alleges that Defendants will retaliate against her or her minor child if her name is revealed, Plaintiff has already conceded that "Defendants are well aware of [her] identity." She also admits that "Defendants already involved Plaintiff's minor child in this case." It is therefore unclear how permitting the plaintiff to prosecute her suit anonymously would mitigate the risk of retaliation towards her or her child.

Plaintiff's concern regarding her future employment prospects is similarly unavailing. "[T]he potential injury alleged must be more than 'mere embarrassment' or 'social stigmatization.'" Such a concern surely attends in any employment or discrimination related case. Moreover, Plaintiff's purported concern is both entirely speculative and unsubstantiated…. "[S]peculative claims of physical or mental harms are insufficient to bolster a request for anonymity." … Plaintiff's concern about her minor child's "future interest in joining the military"—at some potential, hypothetical date in the future—fails for the same reason….

[3.] Although Plaintiff contends that revealing her name would risk revealing the identity of her minor child, the Second Circuit [anonymity caselaw] has directed courts to focus on the age of the plaintiff, not associated third parties….

[4.] It is true that "courts are less likely to grant a motion to proceed anonymously when the suit involves solely private parties, as compared to an action involving the government." However, "courts have also determined that [suing the government] can weigh against the use of a pseudonym. That is particularly true where, as here, "the involvement of the government indicates that there is a public interest in the facts of the incident at issue as opposed merely to a public interest in knowledge of the manner in which the courts function in resolving disputes." …

[5.] [W]hen a plaintiff makes "serious charges," courts have found that "[f]airness requires that [Plaintiff] be prepared to stand behind her charges publicly." …

[6.] Plaintiff broadly asserts—without support—that there is "reasonably no public interest in knowing [her] name." However, "lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them" including "the identity of the parties." Moreover, this case does not involve "abstract challenges to public policies, but rather … particular actions and incidents." Accordingly, the Court finds that open proceedings will "benefit the public as well as the parties and also serve the judicial interest in accurate fact-finding and fair adjudication." …

Finally, there are other (less drastic) mechanisms for protecting Plaintiff and her minor child's privacy, such as appropriate, narrow redactions or sealed submissions.

The tenth factor therefore counsels against anonymity….

Plaintiff acknowledges that there are "numerous cases with named Plaintiffs who have filed similar discrimination cases against the DOE." Her case is no different. She should be prepared to litigate this case under her real name—or not at all. {In the alternative, Plaintiff asks that the case proceed under seal. That request is DENIED in light of the presumption of public access to judicial documents.}

I think this is correct, but note that some courts have allowed pseudonymity to conceal a plaintiff's psychological disability; see Appendices 3A & 3B of The Law of Pseudonymous Litigation for a list of many cases going both ways.