Plaintiff's Immigration Concerns Don't Justify Pseudonymity

From Thursday’s decision by Magistrate Judge JoAnna Gibson McFadden in Doe v. Amazon.com Servs. LLC:

Jane Doe has sued Amazon.com Services LLC for employment discrimination and seeks to proceed under a pseudonym in all public filings….

In short, Doe is concerned that naming herself publicly in this suit will somehow impair her ability to acquire documents necessary for her pending permanent residency application…. According to her motion, she is present in the United States on an employer-sponsored work authorization, and her lawful status “is dependent on maintaining continuous, non-disrupted employment.” She “is engaged in an active employment-based permanent residency process,” and her “permanent residency application is currently pending before the United States Department of Labor.” This process “consists of multiple sequential stages that must be completed in a defined order and within specific timing constraints.” Once the Department of Labor completes its review, Doe “must initiate the next phase within approximately three months” and must complete the phase in “December of this year.”

Among the materials Doe must submit and verify is “detailed experience documentation, including letters from prior employers describing specialized skills.”  … She acquired “a substantial portion of the specialized skills that [she] must document” while she worked for the defendant. She “must therefore rely on documentation, verification, or references associated with Defendant, or individuals associated with Defendant, to satisfy immigration requirements.” …

Doe contends that “[p]ublic identification of [her] in connection with this [employment discrimination] litigation creates a material risk of impairing [her] ability to obtain necessary cooperation, references, or documentation from the limited available sources during this critical period” of her immigration process. “Delays in obtaining required documentation within the relevant window may affect the sequencing and timing of subsequent stages.” …

She argues that she “faces concrete, time-sensitive[, particularized] harm that extends beyond generalized reputational concerns” and “creates a specific vulnerability not shared by most litigants.” “[D]elays in obtaining required documentation could disrupt the sequencing of her permanent residency application and jeopardize her lawful status.”

Doe describes her “request [as] narrowly tailored” “to prevent public dissemination that would occur through routine internet searches of court filings.” The defendant already knows her identity, and granting her motion would not prejudice the defendant’s ability to defend itself.

She also contends that “the public interest in open proceedings is not substantially impaired by permitting pseudonymous litigation in this case” because her “claims involve private employment matters rather than governmental action or matters of significant public concern” and “the factual and legal issues in this case can be fully understood and evaluated without public knowledge of [her] specific identity.” …

Rule 10(a) of the Federal Rules of Civil Procedure requires that “[t]he title of the complaint … name all parties ….” As the Fourth Circuit recently explained,

There is a presumption that parties must sue and be sued in their own names.

Pseudonymous litigation undermines the public’s right of access to judicial proceedings because [t]he public has an interest in knowing the names of the litigants, and disclosing the parties’ identities furthers openness of judicial proceedings. For that reason, few cases warrant anonymity, and few litigants request it.

Matters of a sensitive and highly personal nature involve sexual assault victims, minors, birth control, welfare cases involving minors born to unmarried parents, homosexuality, “and other particularly vulnerable parties or witnesses.”

Doe’s suit is not of similar ilk. She is suing the defendant for national origin discrimination and alleges that her new management team wrongfully criticized her work, put her on a Focus Plan with no objective performance standards, and did so immediately after she complained about management. Her complaint has no sensitive or highly personal allegations that warrant protection.

To the extent that Doe is claiming some sort of immigration-related privacy interest, Doe v. Merten (E.D. Va. 2004), is instructive. In Merten, the plaintiffs challenged the alleged policies of Virginia colleges “to deny admission to illegal alien applicants” even though “they fall within the acceptable academic ranges for admissions.” The plaintiffs sought approval to proceed pseudonymously, claiming “that if they are required to reveal their identities, the federal government will seek to deport them or their families and they will thus likely decide not to proceed with this suit, effectively rendering them unable to vindicate their rights in this matter.”

The court found that the plaintiffs had not demonstrated the need to preserve privacy in a sensitive and highly personal matter. “This is so because unlawful or problematic immigration status is simply not the type of ‘personal information of the utmost intimacy’ that warrants abandoning the presumption of openness in judicial proceedings….

Doe also fails to show that publicly identifying her as the plaintiff in this action will pose a risk of retaliatory physical or mental harm to her or “more critically” a non-party.

Her concern that “[p]ublic identification in connection with employment discrimination litigation against her former employer creates a material risk of impairing [her] ability to obtain critical documentation from limited available sources” is speculative. This will not suffice. Specifically, there is no information suggesting that the defendant would not timely respond to her request for employment verification.

Furthermore, the defendant knows that Doe filed a charge with the Equal Employment Opportunity Commission (“EEOC”). And, in support of her motion, Doe argues that she “does not seek to conceal her identity from Defendant.” There is thus no evidence that identifying Doe here would provide additional retaliatory incentive.

Likewise, there is nothing to suggest her current or future employer would take adverse action against her for suing her former employer. Other than the defendant, who already knows of Doe’s EEOC charge and will know of her suit, Doe provides no information from which the court can determine who would retaliate against her.

In addition, the defendant’s potential unwillingness to provide documentation (or to the extent her motion refers to retaliation by her current or future employer) is not the type of retaliation courts have recognized supports anonymity…. “… [P]seudonymity has not been permitted when only the plaintiff’s economic or professional concerns are involved” …. [C]oncern about current and future employment is insufficient to support anonymity ….

Regarding immigration-related retaliation, Merten is again instructive. As described above, the plaintiffs challenged the alleged policies of colleges “to deny admission to illegal alien applicants” even though “they fall within the acceptable academic ranges for admissions.” They sought approval to proceed pseudonymously, claiming “that if they are required to reveal their identities, the federal government will seek to deport them or their families and they will thus likely decide not to proceed with this suit, effectively rendering them unable to vindicate their rights in this matter.”

The court found that this was an insufficient threat of retaliation …. The plaintiffs relied on a memorandum from the Office of the Attorney General of Virginia that urged colleges “to report undocumented students to federal authorities.” But the court found that “there is no sound reason to believe that disclosure of plaintiffs’ identities in this suit increases their chances of being deported.” “In the first place, the federal government is already aware of each plaintiff’s immigration status.” …

Doe’s stated privacy interests—avoiding a speculative risk of retaliation and/or adverse actions by future employers—do not outweigh the public’s right of access to judicial proceedings. She has accused her employer of discrimination based on her national origin. Under well-settled case law, the public’s right of access to the related proceedings is crucial for the public’s continued trust in the rule of law and the judiciary and, therefore, outweighs Doe’s privacy interests. Because Rule 10(a) requires that the complaint name all parties, Doe must file an amended complaint using her real name to proceed….

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