SCRANTON – A federal judge has ruled that a graphic designer and her partner, who sought anonymity in a lawsuit alleging years of sexual harassment at the hands of the main plaintiff’s supervisor while working at a Monroe County resort, would be compelled to name themselves moving forward.
Jane Does 1-2 of Cresco first filed suit in the U.S. District Court for the Middle District of Pennsylvania on June 11, 2021 versus Shawnee Holding, Inc. (doing business as “Shawnee Inn & Golf Resort”) of Shawnee and Jeromy Wo, of Stroudsburg.
“Doe 1 was hired on March 15, 2007 as Graphic Designer/Web Administrator at the Shawnee Inn & Golf Resort, a position she was qualified for based on her extensive experience in art direction and graphic design. Doe 1 is a female. Doe 1 was subjected to a hostile environment/harassment based on gender stereotyping, gender identity and/or sex, which was severe and/or pervasive enough to alter the conditions of her work environment and make it more difficult for her to do her job,” the suit said.
The suit added this would include Wo stripping out of his cycling attire and changing into work attire after his commute in front of Doe 1, Wo claiming Doe 1 was jealous of the victim of an alleged sexual assault which had occurred on the premises, Wo routinely asking questions about gay and lesbian sexual behavior and Wo regularly disclosing Doe 1’s sexual orientation when introducing her to new co-workers, among other incidents.
Though Doe 1 said she complained to the Human Resources department on multiple occasions and the facility’s General Manager Rob Howell, the harassment did not stop. After submitting a complaint to Howell, Doe 1 said she was written up for doing so, in violation of the facility’s Equal Opportunity policy.
Doe 1 was instructed that all of her complaints of harassment must first be brought to Wo, her direct supervisor and main harassment, who would then decide if her complaints should be taken to the Human Resources department, the suit said.
Wo then conducted Doe 1’s performance review, giving her a negative review and denying her a three percent raise, the suit said, while adding that if the plaintiff “fell in line” and didn’t cause any more trouble for Wo, the raise would be reassessed.
Wo added that he had to unilaterally approve any of the plaintiff’s work product, which she said was detrimental to her ability to perform her job, and that all of the above incidents were in violation of the Shawnee Harassment-Free Workplace Policy.
On June 14, 2021, the plaintiff filed a motion to proceed anonymously, on the grounds that the incidents contained in the lawsuit are “the epitome of private.”
“Plaintiffs have kept the facts and nature of this case to themselves. In fact, Doe 1 has taken great lengths to maintain confidentiality regarding her mental health status and related treatment. Plaintiffs seek anonymity for fear that disclosure of Doe 1’s mental health will negatively influence her ability to secure future employment,” the motion stated.
“As outlined in greater depth below, Doe 1 is a married homosexual woman who has developed extreme mental health issues due to the ongoing trauma that stems from the defendants’ actions. Both Doe 1 and Doe 2 have only divulged the existence of and the facts pertaining to the instant case to each other, their treating physicians and counsel. As such, the plaintiffs have suffered alienation and strained relationships with friends and family due to their efforts and desire to keep this matter confidential.”
The defendants countered with an opposing motion filed on July 30, 2021, seeking to deny the plaintiff the ability to remain anonymous in the action.
“Although plaintiffs’ allege they have kept the facts and nature of the case to themselves and only involved ‘each other, their treating physicians and counsel.’ Plaintiff filed a complaint with the Pennsylvania Human Relations Commission under her given name which sets forth the same set of facts which could easily be obtained by the public,” the defense motion said.
“Further, plaintiff has alleged in her complaint and been identified in a newspaper article as a ‘graphic designer hired on March 15, 2007’ at ‘Shawnee Inn & Golf Resort’ who claims ‘sexual harassment at the hands of her supervisor.’ Plaintiff could easily be identified by co-workers and friends from this information.”
The defense argued that, “in cases involving sexual harassment, it is typical, if not universal that details of sexual or otherwise inappropriate gender based behavior will be both pled and presented as evidence.”
“In that regard, plaintiffs’ concern about the existence and details pertaining to alleged harassment are not any different than any other Title VII harassment case,” according to the defense.
UPDATE
U.S. Magistrate Judge Joseph F. Saporito Jr. ruled against the plaintiffs’ motion to proceed anonymously, while also ruling against a prior motion from the defendants to dismiss the case, in a memorandum opinion issued on March 15.
Saporito used the Megless factors to determine that the legal balance weighed against the plaintiffs maintaining their anonymity. The factors are as follows:
• The extent to which the identity of the litigant has been kept confidential;
• The bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases;
• The magnitude of the public interest in maintaining the confidentiality of the litigant’s identity;
• Whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant’s identities;
• The undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and
• Whether the party seeking to sue pseudonymously has illegitimate ulterior motives.
“First, the plaintiffs have kept the facts and nature of this case and their claims to themselves, including in particular Doe 1’s mental health status and related treatment. Doe 1 necessarily disclosed her identity and the facts underlying her employment claims to the Pennsylvania Human Rights Commission for investigation of her administrative complaint – a mandatory prerequisite to litigation under Title VII and the PHRA – but that limited disclosure for non-public investigatory proceedings is not inconsistent with maintaining confidentiality,” Saporito said.
“Second, the plaintiffs state that they fear potential physical violence or other backlash that they might experience from unknown persons if their names are attached to publicly available court records highlighting their homosexuality, and that they fear the possible stigma associated with being identified as homosexual or as an individual suffering from a mental illness, particularly in the context of seeking future employment opportunities. These generalized fears are entirely speculative – the plaintiffs have articulated no specific threats or any particular basis for their concerns. With respect to the stigma of homosexuality, the plaintiffs’ concern further appears to be overstated based on their otherwise uninhibited openness about their same-sex marital status. As the defendants note, the plaintiffs are legally married, they openly disclose their marital status on social media, and they are the joint owners of record of their marital home.”
According to Saporito, the plaintiffs’ case does not vary greatly from a standard professional sexual harassment case, thus leading him to disfavor anonymity here.
“Third, there is minimal public interest in maintaining the confidentiality of the plaintiffs’ names. The plaintiffs argue that a ruling by this court denying their motion may deter other persons suffering from mental illness or experiencing harassment based on sexual orientation from suing to vindicate their rights. But, again, we see little to distinguish the facts alleged here from the typical hostile workplace sexual harassment case, involving emotional and mental injury as a matter of course. Fourth, the claims here are not purely legal claims, and thus the public’s interest cannot be said to be ‘atypically weak.’ Across the board, the plaintiffs’ various claims are all fact-intensive. This factor weighs against anonymity,” Saporito said.
“Fifth, the plaintiffs suggest that denial of this motion might cause them to abandon this lawsuit, sacrificing potentially valid claims to preserve their anonymity. While this outcome, particularly in this context of enforcing federal and state anti-discrimination laws, would be undesirable to the public interest, the plaintiffs’ stated intention on this point is far from unequivocal. Sixth, there is no evidence or allegation that the plaintiffs have an illegal or ulterior motive for pursuing their claims against the defendants anonymously. This factor weighs in favor of anonymity.”
Saporito, also having found that a plausible intentional infliction of emotional distress charge was lodged, threw out the defendants’ dismissal motion and denied their motion for a more definite statement with respect to the plaintiffs’ Title VII and PHRA claims.
The plaintiffs were then directed to file an amended complaint within 30 days, which they did on April 13. It identified the plaintiffs as Amy Jo Schaefer and Barbara Jean Bendall.
For counts of hostile work environment/harassment, wrongful discharge, retaliatory discharge, aiding and abetting, retaliation, intentional infliction of emotional distress and loss of consortium, the plaintiffs are seeking compensatory and punitive damages, plus pre- and post-judgment interest, costs, attorney’s fees and injunctive relief, in the form of a neutral employment reference for Jane Doe No. 1, to enact and enforce an anti-discrimination and anti-harassment policy, to provide appropriate training and to post notice of the result in this case at the Shawnee Inn and Golf Resort.
The plaintiffs are represented by Adrian K. Cousens, Anne K. Manley and Jessica L. Harlow of Gross McGinley, in Allentown.
The defendants are represented by Ellen C. Schurdak and John E. Freund III of King Spry Herman Freund & Faul, in Bethlehem.
U.S. District Court for the Middle District of Pennsylvania case 3:21-cv-01037
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com