New York Law School

Art Leonard Observations

Posts Tagged ‘U.S. District Court’

Out Gay Federal Judge Rejects Anonymity for Genderqueer Trans-Masculine Plaintiff

Posted on: May 7th, 2018 by Art Leonard No Comments

 

U.S. District Judge J. Paul Oetken, himself the first out gay man to be appointed a federal trial judge, has granted a motion by the defendants in an employment discrimination case to lift an order he had previously issued allowing the plaintiff, a “genderqueer and transmasculine” individual, to proceed anonymously as “Jamie Doe” in a discrimination lawsuit against their former employer, Fedcap Rehabilitation Services, and two of Fedcap’s supervisors. Judge Oetken gave the plaintiff 14 days from the April 27 ruling on FedCap’s motion to decide whether they intend to proceed with this suit using their real name.  Doe v. Fedcap Rehabilitation Services, Inc., 2018 WL 2021588, 2018 U.S. Dist. LEXIS 71174 (S.D.N.Y., April 27, 2018).

The plaintiff uses “preferred pronouns of ‘they,’ ‘their,’ and ‘theirs,” wrote the judge. “Doe” alleges that “the Defendants discriminated against Doe based on Plaintiff’s disability (breast cancer, depression, anxiety, and post-traumatic stress disorder), sexual orientation (queer), and gender (gender non-conformity/genderqueer/trans-masculine). Plaintiff also alleges that Defendants retaliated against Plaintiff for exercising their rights under the Family Medical Leave Act.  Plaintiff has since left Fedcap and found new employment.”  Upon filing the lawsuit, Doe had moved to proceed under a pseudonym. The court granted the motion without prejudice to the Defendants’ right to seek lifting of the order, which they have now done.

The starting point for the court is Rule 10(a) of the Federal Rules of Civil Procedure, which provides that “all the parties” be named in the title of a Complaint. The 2nd Circuit, which has appellate jurisdiction over cases filed in the Southern District of New York, has ruled that this requirement “serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly.”  That court has commented, “When determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff’s interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant.”  The 2nd Circuit has identified a non-exclusive list of ten different factors that courts might consider in conducting such a balancing test.

The plaintiff identified four harms if their name is revealed in this litigation. Plaintiff says their trans-masculinity is an “intimate detail” that they don’t want to disclose through the public record; that “outing them” as trans-masculine would compound the trauma they have already suffered from the defendant’s discrimination; that “genderqueer individuals suffer disproportionately from discrimination” and “outing” them in this way would place them “at further risk of discrimination by employees at their new job,” and finally that, as a parent of school-age children, plaintiff is concerned that disclosing their identity may expose their children to bullying.”

The defendants identified three types of prejudice to them if plaintiff is allowed to proceed anonymously. First, the “non-trivial cost of sealing or redacting court filings;” second, that “anonymity might allow Plaintiff to make accusations that they would not have made if their identity were publicly known;” and third, “Defendants contend that anonymity creates an imbalance when it comes to settlement negotiations.”  The defendants, who are not anonymous, may feel public pressure to settle the case in order to avoid bad publicity, while an anonymous plaintiff might “hold out for a larger settlement because they face no such reputational risk.”

Judge Oetken concluded that the case “presents no particularly strong public interest in revealing Plaintiff’s identity beyond the ‘universal public interest in access to the identities of litigants,’” which he remarks is “not trivial.” But the public interest would not be “especially harmed if Plaintiff proceeded pseudonymously.”

However, wrote the judge, “The key issue here is the extent to which Plaintiff has already revealed their gender and sexual orientation to the general public. Defendants point to Plaintiff’s voluntary participation in a news story for a major news outlet.  In the story, Plaintiff used their real name, identified as genderqueer, and revealed other details about their gender non-conformity.  The article also featured a photograph of Plaintiff, and the picture specifically illustrated Plaintiff’s non-conformance with gender norms.”  Thus, the defendants argued, Doe had already voluntarily disclosed “the sensitive issues they seek to keep secret in this case.”

Doe disagrees, saying they have revealed their sexual orientation but not their gender identity, particularly their identity as “trans-masculine,” which would be disclosed if they have to proceed under their real name in this lawsuit. But this argument did not persuade Judge Oetken, who wrote, “But while that is true, the news story still shows that Plaintiff was comfortable with putting their gender-non-conformity in the public eye.  The Court is mindful that coming out is a delicate process, and that LGBTQ individuals may feel comfortable disclosing one aspect of their identity but uncomfortable disclosing another.  Nevertheless, Plaintiff’s very public coming out as genderqueer undermines their arguments about the harm that would be caused by disclosure of their trans-masculinity.”

The court concluded that the issue was “whether the additional disclosure of Plaintiff’s identity as trans-masculine would so harm Plaintiff as to outweigh the significant prejudice to Defendants and the public interest in access to the identities of the litigants. Plaintiff has not met that significant burden.”  Oetken suggests that Plaintiff wants “what most employment-discrimination plaintiffs would like: to sue their former employer without future employers knowing about it,” but that is not how the civil litigation system is set up.  “Defendants – including two individuals – stand publicly accused of discrimination and harassment, including detailed allegations of misconduct.  Defendants do not have the option of proceeding pseudonymously,” commented Oetken. “Allowing Plaintiff to proceed anonymously would put Defendants at a genuine disadvantage, particularly when it comes to settlement leverage.  Courts allow such an imbalance only in unique circumstances, and Plaintiff has not shown that this is one of those special cases.”

While acknowledging that the disclosure of Doe’s trans-masculinity “would be difficult and uncomfortable,” wrote the judge, “this alone is not enough to demonstrate the exceptional circumstances required to proceed pseudonomously, especially in light of Plaintiff’s public identification as genderqueer.”

During the early years of the AIDS epidemic, many federal courts granted motions for plaintiffs suing for AIDS-related discrimination to proceed as John Doe or Jane Doe, accepting the argument that requiring them to sue under their own names would have compounded the discrimination they had suffered, especially in light of the media interest in reporting about legal issues stemming from the epidemic. Today, when there is considerable litigation by transgender individuals, including high school students seeking appropriate restroom access, it is not unusual to find that the court will refer to plaintiffs by their initials, even though the plaintiffs — represented by public interest law firms — may have revealed their names and posed for photos to publicize their cases.  One suspects that “Jaime Doe” would have been allowed to proceed anonymously had they not already appeared under their name in news stories.

Doe is represented by Brittany Alexandra Stevens of Phillips & Associates PLLC, and Marjorie Mesidor of Phillips & Phillips PLLC. Attorneys from the law firm of Epstein, Becker & Green, P.C., represent the defendants.

New Court Ruling Shows What May Be Lost Due to Trump/Pence Election

Posted on: November 17th, 2016 by Art Leonard No Comments

A November 4 ruling in a sexual orientation discrimination case that was brought by the Equal Employment Opportunity Commission (EEOC) shows that progress on LGBTS rights may be lost as a result of the election of Donald Trump and Mike Pence. The ruling in EEOC v. Scott Medical Health Center, 2016 U.S. Dist. LEXIS 153744, 2016 WL 6569233 (W.D. Pa.), was issued by U.S. District Judge Cathy Bissoon, who was nominated to the federal district court in Pittsburgh by President Obama in 2010 and confirmed by the Senate in October 2011 by a vote of 82-3.  The judge, a Brooklyn native, was reportedly the first woman of Indian descent to sit as a federal judge when she took her previous position as a U.S. Magistrate Judge in 2008. In this ruling, the judge held that Title VII may be used to protect gay people from sexual orientation discrimination.

In this case, Dale Baxley was hired in mid-July 2013 by Scott Medical Health Center in a telemarketing position. He claims that he was subjected by his manager, Robert McClendon, to “a continuing course of unwelcome and offensive harassment because of his sex” that created a hostile work environment.  According to the Complaint filed in the district court, McClendon “routinely made unwelcome and offensive comments about Baxley, including but not limited to regularly calling him ‘fag,’ ‘faggot,’ ‘fucking faggot,’ and ‘queer,’ and making statements such as ‘fucking queer can’t do your job.’”  The Complaint also alleges that after McClendon found out that Baxley is gay and had a same-sex partner, he “made highly offensive statements to Baxley about Baxley’s relationship with the partner such as saying, ‘I always wondered how you fags have sex,’ ‘I don’t understand how you fucking fags have sex,’ and ‘Who’s the butch and who is the bitch?’”  Baxley was gone from the job after about a month of McClendon’s verbal abuse, a victim – he claims – of “constructive discharge.”  That is, his working conditions were so miserable that he was compelled to quit.

Ironically, the EEOC’s lawsuit on behalf of Baxley resulted not from a charge he filed but from the agency’s investigation of discrimination charges filed with the Pittsburgh office by five of Baxley’s former female co-workers. These women alleged that they were subjected to sexual harassment by McClendon, including “unwanted touching so frequently and severely that it created a hostile and offensive work environment and resulted in adverse employment decisions being taken against them.”  While investigating these charges, the agency learned about McClendon’s treatment of Baxley and Baxley’s claim that he had been constructively discharged.

At the end of the investigation, the EEOC issued a “Letter of Determination” to Scott Medical Health Center stating that the investigation “also revealed that McClendon harassed a male employee because of sex, specifically and repeatedly referring to the male employee as a ‘faggot,’ and repeatedly asking about the employee’s sexual experiences and preferences. The investigation revealed that McClendon targeted this male employee because he did not conform to what McClendon believed was acceptable or expected behavior for a male because of his association with members of the same sex rather than the opposite sex.”  The letter concluded that McClendon’s conduct created a hostile environment resulting in the constructive discharge of Baxley.  The EEOC attempted unsuccessfully to achieve a conciliation agreement with the employer, then filed this lawsuit.

This was the first lawsuit that the EEOC filed on behalf of a gay former employee alleging that his discharge was “because of sex” in violation of Title VII of the Civil Rights Act of 1964. In July 2015, the agency had reversed its position of half a century when it ruled in Baldwin v. Foxx that the U.S. Transportation Department may have violated Title VII when it denied a promotion to a gay air traffic controller.  After accepting the view that sexual orientation claims can be asserted under Title VII, the agency was on the lookout for appropriate private sector cases to bring, in order to vindicate a public policy against such discrimination as well as seeking a remedy for the employee involved.  The agency was seeking to establish court precedents that would lock its interpretation into the case law.  Prior to this case filing, all of the Title VII sexual orientation claims presented to federal courts had been lawsuits filed by individual discrimination victims, not by the federal agency.

The Health Center asked the court to dismiss the EEOC’s complaint, arguing that Title VII does not prohibit discrimination based on sexual orientation, citing two precedents from the U.S. Court of Appeals for the 3rd Circuit, Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257 (3rd Cir. 2001), and Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3rd Cir. 2009), in support of that argument.  But Judge Bissoon found that in those prior decisions, the court of appeals had not been presented with all the arguments that the EEOC has developed in support of its 2015 change of position on this issue, and more recent events have undermined the earlier rulings, so she concluded that those rulings – by the court with direct appellate authority over district court decisions from Pennsylvania – did not compel dismissal of this complaint.

The EEOC advanced three lines of argument in support of its position. First, that Baxley was “targeted because he is a male, for had he been female instead of a male, he would not have been subjected to discrimination for his intimate relationships with men.”  Second, the he was “targeted and harassed because of his intimate association with someone of the same sex, which necessarily takes Baxley’s sex into account.”  And, third, that he was “targeted because he did not conform to his harasser’s concepts of what a man should be or do.”  This last argument is a version of the “sex stereotype” theory that the Supreme Court approved in 1989 in Price Waterhouse v. Hopkins.

Judge Bissoon said that the EEOC’s three arguments were actually just one argument stated three different ways, “with the singular question being whether, but for Mr. Baxley’s sex, would he have been subjected to this discrimination or harassment. The answer, based on these allegations, is no.”

For purposes of ruling on a motion to dismiss a claim, the court assumes that the plaintiff’s factual allegations are true, and asks whether, based on those facts, the plaintiff has a plausible legal claim. Thus, Judge Bissoon was ruling, if the EEOC can prove these factual allegations, it will win the case.

Judge Bissoon held, straightforwardly, that “Title VII’s ‘because of sex’ provision forbids discrimination on the basis of sexual orientation.” This statement directly contradicts the two prior 3rd Circuit rulings, but Judge Bissoon found that it was consistent with how the law had developed under Title VII, dating back as early as 1983 when the Supreme Court began “broadening” its interpretation of sex discrimination in a series of cases culminating with Price Waterhouse in 1989.  She also noted that at least one federal appeals court, the Cincinnati-based 6th Circuit, has already used the sex stereotyping theory to extend protection to a transgender plaintiff.

As the EEOC has done, Judge Bissoon quoted Justice Scalia’s statement in the Supreme Court’s 1998 same-sex harassment case, Oncale v. Sundowner Offshore Services, that “statutory prohibitions often go beyond the principal evil [that Congress intended to address] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Thus, the lack of any evidence that Congress intended to prohibit sexual orientation discrimination in 1964 does not require rejecting a sexual orientation discrimination claim in 2016.

Referring back to Price Waterhouse, the judge wrote, “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. As the EEOC states, ‘discrimination against a person because of the sex of that person’s romantic partner necessarily involves stereotypes about “proper” roles in sexual relationships – that men are and should only be sexually attracted to women, not men.’  This discriminatory evil is more than reasonably comparable to the evil identified by the Supreme Court in Price Waterhouse.  Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.”

And the judge found that this argument was not presenting in its fully developed form to the 3rd Circuit in its earlier cases, so it had not been specifically rejected by that court.  In its earlier cases, furthermore, the 3rd Circuit panels had relied on the failure of Congress to pass the Employment Non-Discrimination Act as evidence that Congress did not intend to protect gay people from discrimination.  “However,” she wrote, “subsequent Third Circuit decisions have questioned the value of reliance on Congress inaction.”  Furthermore, she pointed out, many of the cases relied upon in those earlier 3rd Circuit decisions had in turned relied upon circuit court cases that pre-dated Price Waterhouse, and so necessarily had not ruled on the sex stereotype theory.

“The Supreme Court’s recent opinion legalizing gay marriage demonstrates a growing recognition of the illegality of discrimination on the basis of sexual orientation,” wrote the judge. “That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.” Thus, the court denied the employer’s motion to dismiss the Title VII complaint.

If the employer appeals this case to the 3rd Circuit, it will be reaching an appellate bench with seven Democratic appointees (by Presidents Clinton and Obama) and five Republican appointees (by Presidents Bush I and II).  There are two vacancies.  There are nine active senior judges of the circuit, mostly appointed by Republican presidents, who might sit on particular three-judge panels but would not participate in “en banc” reviews by the full circuit bench.   By random draw, any particular three-judge panel might by more or less receptive to Judge Bissoon’s reasoning, although one can’t conclusively presume that every Democratic appointee will agree and every Republican appointee will disagree.  But the point to bear in mind is that Obama, through his appointments, switched the 3rd Circuit from a more conservative to a more progressive bench, and Trump can rebalance the circuit by filling the two vacancies and the next one that comes along if a Clinton or Obama appointee takes senior status.

Similarly, at the EEOC, significant progress in protecting LGBT rights came through administrative rulings and litigation decisions undertaken by President Obama’s appointees. The agency has become a vocal proponent of a broad interpretation of Title VII to protect LGBT people from employment discrimination, and its reasoning has been followed by other agencies, such as the Department of Labor and the Department of Education.   It seems unlikely that Trump’s appointees, once attaining full control of the federal agencies and departments, would keep to the same course.  Indeed, it is not a sure thing that Trump will allow Obama’s executive orders banning sexual orientation and gender identity discrimination within the Executive Branch, to stay in place.  The Order requiring federal contractors to have non-discrimination policies is likely on the repeal list.

Luckily, individuals can continue to file discrimination lawsuits under Title VII, so the loss of the agency as a plaintiff in their cases will not shut them out of court. But preserving the gains made so far may be difficult against the tide of new judicial and agency appointments that will be made beginning January 21.  Stalling on confirmations by the Senate has left close to 100 federal judgeships vacant, and there are hundreds of agency appointments to be made as well, which will cumulatively change the direction in which federal anti-discrimination law has been developing during the Obama years.  The appointment of new Supreme Court justices will matter as well, of course, because ultimately the question whether Title VII and other federal sex discrimination laws protect LGBT people will end up before that Court, where a transgender “bathroom” case under Title IX has already been accepted for review.   If these cases are decided after Trump has had two Supreme Court appointments, it is reasonable to speculate that the newly solidified conservative majority will not be inclined to adopt such a broad interpretation of Title VII or other federal sex discrimination laws.  Elections matter.