No Pseudonymity for Hindu Plaintiffs Challenging Enforcement of California Caste Discrimination Ban

From Hindu American Found. v. Kish, decided today by Judge Dale Drozd (E.D. Cal.):

[P]laintiff HAF [and nine individual plaintiffs, including three Doe plaintiffs, seek] declaratory and injunctive relief against defendant Kevin Kish, in his official capacity as the director of the California Civil Rights Department …, for allegedly violating the constitutional rights of all Hindu Americans by initiating a Fair Employment and Housing Act … enforcement action in state court against Cisco Systems, Inc. … for discrimination, harassment, and retaliation against an employee based on his caste status. Plaintiff HAF alleges that the Department's discrimination suit brought against Cisco … violated the … Free Exercise Clause … and the Due Process and Equal Protection Clauses … by linking the practice of caste discrimination to Hinduism….

The Ninth Circuit has identified three situations in which parties have been allowed to proceed under pseudonyms: "(1) when identification creates a risk of retaliatory physical or mental harm; (2) when anonymity is necessary to preserve privacy in a matter of sensitive and highly personal nature; and (3) when the anonymous party is compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution …." A party requesting to proceed pseudonymously has the burden of showing that their "need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity."

If a party seeks to sue pseudonymously based on retaliatory harm, courts apply a five- factor balancing test that weighs: "'(1) the severity of the threatened harm, (2) the reasonableness of the anonymous party's fears, … (3) the anonymous party's vulnerability to such retaliation,' (4) the prejudice to the opposing party, and (5) the public interest." The first two factors are the most important….

To proceed under pseudonyms, "a plaintiff must show both (1) a fear of severe harm, and (2) that the fear of severe harm is reasonable." Here, the Doe plaintiffs argue that, as Hindus who reside or work in California, "they are vulnerable … to being individually sued by the [Department] in retaliation for participating in this action;" and they may experience "physical, mental, and economical harm from those around them, including but not limited to prospective employers, co-workers, and persons they interact with on a daily basis." However, the evidence presented by the Doe plaintiffs in the declarations they have filed in support of their motion falls short of persuading the court that consideration of these factors weigh in their favor.

In a declaration submitted by plaintiff, Doe One states that the Department's "actions have caused [them] embarrassment and has made [them] feel that others are judging [them] and undermining [their] religion because of how [they] look and what [their] religious beliefs are." Similarly, in Doe Two's declaration, it is stated that "people around [them] … believe that Hindus are inherently discriminatory" and "[they] feel, that if [they] practice Hindu, [they] will be seen as a discriminatory person." Doe Two also explains that people they "interact with on a daily basis and/or side by side" have "expressed hateful bias towards [them] and persons of South Asian descent practicing Hinduism," and that they "have been ostracized by many people who simply do not understand caste and Hinduism." In Doe Three's declaration, it is stated that they, too, has been "ostracized" at work and received "express hate on internal company social media channels," which they "expect [] to continue." Doe Three also states that they have been asked questions about Hinduism and caste and that they "feel embarrassment and anger each time" they are approached….

[Yet] Doe One describes personal discomfort with the Department's Cisco Action, but not a plausible likelihood of threats or harm. Does Two and Three allege mistreatment at work but do not state whether their co-workers have made any actual threats of harm against them or that the mistreatment would likely increase due to their participation as plaintiffs in this litigation…. [M]erely expressing fear of disagreement or disapproval by community members is insufficient to support a pseudonymous lawsuit…. "Community disagreement and any resulting 'embarrassment or economic harm is not enough' to support a pseudonymous lawsuit." …

Furthermore, the Doe plaintiffs' alleged fears about retaliation from community members are vague and conclusory. Each Doe plaintiff asserts that: "if people know [their] personal information, [they] fear that they will try to harm or retaliate against [them] or [their] family, either physically or in some other way." Does One and Three express concern that if they speak up for persons of South Asian descent, they will receive "retribution in return." Doe Two states that they have "witnessed" an unnamed Hindu non-profit "being targeted" because it was a Hindu faith- based charity, but Doe Two provides no specifics in this regard whatsoever. Consequently, these conclusory assertions provide no plausible basis for finding a real risk of future harassment or harm, and they lack specifics on who would pose the threat or what form it would take.

Each Doe plaintiff asserts that "they fear that [the Department] will come after [them] and/or interfere with [their] employer, resulting in permanent negative reputational and economic harm to [them] or those in [their] family." Plaintiffs argue that these fears "are very reasonable" because the Department "has already sued two individual defendants in the [Cisco Action] based on the [the Department]'s representations that, as Hindus, caste discrimination was inherently part of their religious beliefs and who they are." However, as defendant argues, these speculative concerns about the Department are similarly unavailing. As defendant explains, "[t]he Department brought charges under FEHA against now-plaintiffs Iyer and Kompella due to their specific, alleged actions in their roles as supervisors at Cisco." None of the Doe plaintiffs have established how the Department would have the ability to retaliate in the manner they purportedly fear. For example, as defendant points out, none of the Doe plaintiffs claim to be employers who could plausibly face future enforcement actions.

While "plaintiffs are not required to prove that the defendants intend to carry out the threatened retaliation," they must demonstrate "that a reasonable person would believe that the threat might actually be carried out." Here, for the reasons discussed above, plaintiffs have failed to do so….

The Doe plaintiffs in this case have [also] not alleged or established that they face greater threats than the other named plaintiffs who do not seek anonymity. In addition, the court agrees with defendant's argument that consideration of the fact that six named plaintiffs, including five practicing Hindus in California, are proceeding under their real names weighs against allowing the Doe plaintiffs to use pseudonyms in bringing this action….

[G]iven the Doe plaintiffs' insufficient evidence as described above, they have not demonstrated that their need for anonymity outweighs the presumption of openness in judicial proceedings….

[The Doe plaintiffs] also argue that anonymity is warranted for privacy reasons, stating that "[t]his case involves matters of the utmost intimacy, a person's religious belief or lack of belief." In support of this argument, plaintiffs cite the Fifth Circuit's decision in Doe v. Stegall (5th Cir. 1981), in which the court noted that "religion is perhaps the quintessentially private matter." Beyond citation to the Fifth Circuit's decision in Stegall, however, plaintiffs provide no elaboration as to why the Doe plaintiffs' religious beliefs constitute "a matter of sensitive and highly personal nature." … "The fact that religion is an intensely private concern does not inevitably require that [a] … plaintiff be given Doe status, however. While religion is certainly an individual matter of conscience that is constitutionally shielded from government intervention, it is generally practiced openly and communally, and no court from this or any other circuit has considered a plaintiffs [sic] religious beliefs to be a matter of such sensitivity as to automatically entitle the plaintiff to Doe status." … Therefore, the court finds that plaintiffs have not demonstrated that preserving the Doe plaintiffs' privacy warrants allowing them to proceed pseudonymously in this action.