The Volokh Conspiracy
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No Pseudonymity in Disability Discrimination / Forced Labor Claim by Terrorism Expert Against Middlebury College
[UPDATE 12/6/23: The court denied the motion to reconsider the decision, and plaintiff has refiled an Amended Complaint under her own name, Jade Parker.]
From D.C. Superior Court Judge Todd Edelman's decision two weeks ago in Doe v. President & Fellows of Middlebury College:
Plaintiff brought this lawsuit against numerous defendants [including American University, George Washington University, and Middlebury College -EV] alleging inter alia employment discrimination, harassment, forced labor, trafficking in labor or commercial sex acts, and bias-related crime. Plaintiff contends that she has been working in the "accelerationism" subfield of terrorism studies since 2015, and that from 2018 to 2021 she "was driving a series of ground-breaking advancements" in the field when the Defendants coerced her to provide her labor and services to them against her will.
According to Plaintiff, the "intellectual core" of Middlebury College's Accelerationism Research Consortium ("ARC") is "derived exclusively from the [P]laintiff's labor," yet she was excluded from the venture because of her disabilities. Plaintiff asserts that Defendants carried out a campaign of harassment and emotional abuse that denied her credibility, equal treatment, benefits, and opportunities. She further states that Defendants' actions have driven her out of her field of study such that she "will never be able to return to the workplace or higher education because of injuries resulting from the [D]efendants' actions." [UPDATE: Here's the original pro se Complaint, for those curious about the factual allegations. -EV]
Plaintiff alleges Counts I-IV pursuant to the District of Columbia Human Rights Act. She alleges that (i) Defendants "maintain[ed] a discriminatory employment scheme, plan, or pattern that systematically and intentionally result[ed] in the disparate treatment of the [P]laintiff … because of or arising from her protected medical condition"; (ii) Defendants engaged in "unlawful harassment or fostered a hostile work environment for the [P]laintiff on the basis of disability discrimination"; (iii) Defendants retaliated against her for protected activity that included "[P]laintiff's public or private opposition to the [D]efendants' patterns or practices of discrimination and harassment on the basis of disability," and later filing of a claim with the Equal Employment Opportunity Commission ("EEOC"); and (iv) Defendants aided and abetted acts of discrimination, harassment, or retaliation by furthering and seeking to make the discrimination and harassment of other Defendants succeed.
Plaintiff brings Counts V-VIII pursuant to the Prohibition Against Human Trafficking Amendment Act. These counts allege that (v) Defendants "knowingly used prohibited means to cause the [P]laintiff to provide labor or services" by "manipulat[ing] her pre-existing belief that her failure to work would result in serious physical harm to members of the public"; (vi) Defendants "enter[ed] into an agreement, explicitly or tacitly, intended to deprive the [P]laintiff of her skilled labor and contractual autonomy," and some Defendants used means of coercion to secure Plaintiff's labor while others "recruited, enticed, provided, obtained, or maintained the [P]laintiff's provision of labor or services knowing that it was caused by means of coercion"; (vii) Defendants "knowingly benefitted financially from the trafficking offenses" because the Defendants all had at least constructive knowledge of, and participated in, a venture that allowed some Defendants to use Plaintiff's work as the labor basis for the ARC; and (viii) Defendants engaged in labor exploitation based on Plaintiff's actual or perceived disabilities evidenced by the alleged statements from some Defendants that Plaintiff's disabilities were their motivation for the acts described in the Amended Complaint and via the doctrine of respondeat superior for other Defendants….
Along with her Complaint, Plaintiff filed her Anonymity Motion asking to "proceed under a pseudonym due to the highly sensitive and private nature of facts involved in this case" and to "safeguard [Plaintiff's] privacy as well as her physical and emotional wellbeing." …
Long-standing precedent recognizes "the public's legitimate interest in knowing all of the facts involved [in a case], including the identities of the parties." As such, "parties to a lawsuit must typically openly identify themselves in their pleadings." … "A plaintiff's desire 'merely to avoid the annoyance and criticism that may attend any litigation' is not sufficient to justify pseudonymous proceedings." …
Plaintiff states that she "seeks to proceed pseudonymously to avoid unnecessary publicity concerning her disability." She further states that this matter surrounds "highly sensitive and personal information" the disclosure of which, alongside her name, could have adverse effects on her ability to pursue educational and employment opportunities outside of her chosen profession and area of expertise. Lastly, she suggests that any disclosures could negatively impact her work as a volunteer firefighter and EMT due to a loss of trust from her patients and their families….
The Court takes Plaintiff's concerns about the public disclosure of her disabilities seriously. However, it is common practice for disability discrimination cases to proceed using the parties' real names in the public record. [Citations omitted. -EV]Additionally, while Plaintiff's disabilities, as described in the Amended Complaint create legitimate privacy concerns, there is no need for her to provide detailed descriptions of her disabilities in future filings (just as the undersigned has not done so in this Order). Plaintiff may also utilize the Superior Court Rules and procedures that allow parties to seal documents entirely or in part (including previously-filed documents) and to seek protective orders as means to safeguard any information she presents about her disabilities. Accordingly, while the nature of Plaintiff's claimed disabilities generate legitimate privacy concerns, they do not create a compelling need for her to proceed pseudonymously in this litigation.
Plaintiff's concerns regarding potential adverse effects that the disclosure of her name could have on her future educational and employment prospects and her current work as a volunteer firefighter and EMT are purely speculative. Plaintiff has not given the Court any concrete reason beyond her own hypothetical statements to believe that the use of her real name would hinder her from pursuing a different career path or impact her ability to serve her community. Plaintiff has presented "hypothesized harms … in entirely conclusory form" that amount to speculation "devoid of factual corroboration or elucidation." As explained supra, there are measures—such as requesting sealing and protective orders—that Plaintiff may take to withhold specific, sensitive information from the public record in this matter should she need to do so….
Plaintiff contends that "there is a tangible risk of both serious physical and mental harm" should she be identified as a party in this lawsuit. She states that the Defendants' defamation of her (if continued) could inflame viewers on large media platforms to target her and threaten her physical safety, and that the use of her true name in this matter "would exacerbate the mental harm that [she] has already experienced." Specifically, Plaintiff states that "[i]t would cause her additional stress and anxiety for Defendants to be allowed to use her identity against her in the public domain considering their past adverse actions." The University Defendants respond that Plaintiff's speculation regarding the potential of harm is illogical because the named Defendants already know her true identity, and that she has only made conclusory statements regarding the potential for harm without any supporting evidence.
Plaintiff's assertions of potential physical and mental harm do not generate "a concrete need for [] secrecy." Plaintiff's reference to private defamation using offensive stereotypes that could lead to "[c]omparable remarks on large media platforms" is entirely hypothetical at this point. Plaintiff has provided no reason for the Court to believe that any alleged defamation would or could be repeated on large media platforms or that there is any likelihood of such remarks inflaming the passions of viewers to target Plaintiff. Plaintiff has not shown that her claims go beyond pure speculation of potential realities, and in this context, "[s]peculative assertions of harm will not suffice." While Plaintiff asserts that in filing her Complaint, "she anticipated University Defendants would [] escalate the strategy and tactics that almost killed her by an order of magnitude" which poses "a tangible risk of serious physical or mental harm to the [P]laintiff," she does not provide any specific ways in which this was done….
{The Court notes that while Plaintiff acknowledges that the Defendants all know her identity, Anonymity Mot. at 2, she has not alleged or even suggested that Defendants have engaged in any such conduct since the inception of this litigation. Nor has she explained how, under these circumstances, proceeding anonymously in this litigation would prevent them from engaging in such conduct should they choose to do so. Further, as stated by Defendants, "Plaintiff has already widely disseminated her disputes with the [D]efendants to 'thousands' under her true name," yet she has not identified any retaliatory physical or mental harm that she has suffered as a result.} …
In "consider[ing] the factors relevant to the case before it," the Court must also take into account (i) the fact that Plaintiff has already publicly aired her grievances against the Defendants; and (ii) that she specifies, including in public filings in this matter, that she is "the foremost expert on militant accelerationism," a designation that likely makes it possible for someone with access to the public filings to discern Plaintiff's identity. Plaintiff's public disclosure of grievances she now wishes to disassociate her name from, along with her repeated references to her highly specialized work, weigh against anonymity because both make her readily identifiable to a party insistent on identifying her. Similarly, the public interest in the openness of judicial proceedings, as described supra, militates strongly against Plaintiff's request for anonymity….
Seems correct to me (see generally The Law of Pseudonymous Litigation); Plaintiff has filed a motion to reconsider, but I doubt that it will be granted.
