No Pseudonymity for Lawyer Alleging Quid Pro Quo Sexual Harassment and Retaliation

From Judge Ronnie Abrams yesterday in Doe v. Legal Aid Society (S.D.N.Y.):

[1.] [Pseudonymity is more justified if] the litigation involves matters of a highly sensitive and personal nature. This case involves allegations of sexual harassment, which undoubtedly qualify. Thus, while this factor weighs in Plaintiff’s favor, courts in this District have routinely held that allegations of sexual harassment and assault alone “are not sufficient to entitle a plaintiff to proceed under a pseudonym.” …

[2.] Plaintiff presents no evidence of any existing or potential threats or intimidation that she would experience should her identity be revealed. She claims only that revealing her identity would cause her and her former clients at LAS emotional harm and embarrassment. As to the allegation that it will pose a risk of mental harm to her and her clients, it is conclusory at best.

Moreover, “a plaintiff must allege more than public humiliation—she must provide corroboration from medical professionals that detail the risk to plaintiff.” Such evidence “must detail how revealing [P]laintiff’s name in particular, as opposed to the trauma that could occur through reliving the experience through litigation, would cause harm.” Plaintiff provides no such evidence, and as such, the Court cannot “speculate about the nature and severity of any mental injury from disclosure.” …

[3.] Plaintiff argues that LAS is aware of her true identity, and as such, will be able to litigate the matter regardless of whether her identity is shared with the public. LAS’s only inconvenience, she maintains, would be “the need to make redactions and take measures not to disclose plaintiff’s identity,” which she acknowledges would create challenges for LAS during discovery.

While it is true that LAS may only be marginally inconvenienced were the Court to grant Plaintiff’s request, it is insufficient to tilt this factor in her favor, because, even where the defendant knows the plaintiff’s identity, “concealment of plaintiff’s identity from the public can still hamper defendants’ ability to conduct discovery.” “This is especially true in a case … that happened over ten years ago[,] where evidence and witnesses may be difficult to find.”

The events that gave rise to Plaintiff’s Privacy Motion stem from allegations that began over a decade ago. Furthermore, LAS is right to note that when claims involve sexual harassment or assault, “the reputational damage risk to Defendant is high and fairness requires that plaintiff be prepared to stand behind her charges publicly.” … “Allowing Plaintiff to proceed anonymously would disadvantage Defendants at all stages of litigation, including settlement, discovery, and trial.” …

[4.] The Court next considers whether Plaintiff’s identity has been kept confidential. As discussed above, and as Plaintiff acknowledges, her identity is known by LAS leadership and former colleagues. She nonetheless maintains that she has kept her identity concealed from the general public. While that may be true, LAS points to Plaintiff’s inclusion of her real name and contact information in her EEOC complaint, which courts have found to weigh against granting a motion to proceed anonymously….

[5.] “Courts have put weight on the right of the public to know the identity of the litigants as well as on the interest of the accused to be able publicly to confront the accuser.” Courts therefore require “something more … to rebut the presumption of public access, at least in cases involving adult sexual assault, and that something more frequently has to be evidence of real (and not conclusory) harm that is substantial and that will flow directly from and is directly linked to disclosure of the party’s name.”

Plaintiff’s arguments that the public interest is not served by disclosure are conclusory at best and “it does not follow that the public has an interest in maintaining the anonymity of every person who alleges sexual assault or other misconduct of a highly personal nature.” “Otherwise, this factor would, in effect, heavily favor anonymity in every sexual assault case.” …

Here’s the court’s summary of the factual allegations from the parties:

Over a decade ago, Plaintiff, then a staff attorney at LAS, began experiencing what she characterizes as a “long-lasting campaign of quid pro quo sexual harassment, and retaliation” against her by Christopher Pisciotta, the Attorney-in-Charge of the Staten Island Criminal Defense Office …. She claims her rebuffs were met with alleged retaliation by Pisciotta who would threaten discipline, among other acts. Following these encounters, Plaintiff maintains that rumors that she and Pisciotta were having an affair abounded at the Staten Island office, which she attempted to dispel by reporting his actions to management at LAS to no avail.

LAS tells a different story—one that identifies Plaintiff rather than Pisciotta as the source of the interpersonal dispute. Beginning in 2017, when Plaintiff was transferred from the Staten Island Office to the Queens County Office, LAS alleges that she began sending “unwanted text and email communications to” Pisciotta, and that it had to reprimand her on three different occasions.

In his declaration, LAS’s General Counsel Scott Rosenberg asserts that Plaintiff was eventually terminated from her position for insubordination on November 7, 2022. Despite Plaintiff’s representations that she was never terminated, the parties agreed to a Separation Agreement on February 6, 2023, which placed her on Unpaid Administrative Leave until December 31, 2023. By the beginning of 2023, Plaintiff began looking for a new position and that March secured an interview with Scott Banks at the Legal Aid Society of Nassau County for a family court supervisory position, which required her to provide professional references from her supervisors at LAS, including Pisciotta.

Hoping to thwart a negative reference, Plaintiff claims that she set up a call with Pisciotta to encourage him to dodge any communications from Banks. During the call, she alleges, Pisciotta sexually harassed her and threatened to divulge that she was “on leave, looking for work, and working with general counsel,” and that afterwards, Pisciotta called Banks back and followed up on his threat to tell him several “negative things” about her.

Plaintiff repeatedly sought information from Rosenberg about how the call went, and enraged by his responses, describes feeling “the great sense of crushing fear that not only was [Pisciotta] intensely focused on her but that he now had the written backing of the mighty LEGAL AID SOCIETY OF NEW YORK CITY to quid pro quo sexually harass the Plaintiff indefinitely either on the job with the prospective employer or on other legal service jobs.”