A federal judge last week said he needs more information before deciding whether to allow a gay man to litigate an antibias case anonymously.
In a three-page order, U.S. District Judge Thomas N. O’Neill Jr. said he’s uncertain whether “Frank Doe” may proceed under that pseudonym.
For about 16 months, Doe worked as an activities director at Meadowview Rehabilitation and Nursing Center in Whitemarsh before being fired in September for allegedly sleeping during a staff meeting, which he denies doing. Instead, he contends he was fired due to anti-LGBT bias on the part of Meadowview’s top administrator.
Doe’s firing sidetracked his career and educational goals, according to his suit. He’s seeking an unspecified amount in damages and corrective measures at Meadowview.
Doe’s lawsuit, filed in May, alleges wrongful termination, a hostile work environment and retaliation at Meadowview due to his sex and sexual orientation.
Meadowview tried to have Doe’s suit dismissed as meritless. But on Aug. 7, O’Neill said most of Doe’s suit can move forward.
However, O’Neill also instructed both sides to submit information before he decides whether Doe may continue to litigate anonymously.
In his order, O’Neill indicated that a prior case cited by Doe to support his anonymity request may not be sufficient.
“[Doe] identifies just one case in which a court permitted a plaintiff to proceed anonymously in order to prevent the public from believing he was gay,” O’Neill wrote. “The motion in that case was decided nearly 30 years ago, at the height of the AIDS epidemic. It did not create a rule that any plaintiff can proceed anonymously simply because his claims require him to assert that he is gay.”
O’Neill gave Doe’s attorney, Justin F. Robinette, until Aug. 28 to file a supplemental brief in support of Doe’s request for anonymity. The judge also said Meadowview may file a response to Robinette’s brief by Sept. 11.
Attorneys for Meadowview declined to comment for this story.
Robinette said Doe has a reasonable basis to request anonymity.
“My client’s concerns about social stigma, violence and discrimination aren’t unreasonable,” Robinette said. “All one has to do is pick up a newspaper or turn on a television to see that LGBT people are frequent targets by homophobes. I intend to advocate robustly on behalf of Mr. Doe. I’ll be submitting a supplemental brief and an exhaustive affidavit, demonstrating the challenges LGBT people still face, especially in the Trump era. LGBT litigants don’t shed their privacy rights when filing suit.”
Robinette also expressed concern that O’Neill isn’t handling Doe’s retaliation and sexual-orientation claims against Meadowview in a fair manner.
He said O’Neill appears to be relying too heavily on a 2001 anti-LGBT appeals-court ruling, rather than recent rulings by the U.S. Supreme Court favoring the rights of LGBT people.
“I can’t help but feel that Mr. Doe is being treated as a second-class citizen by the court,” Robinette added. “This judge thinks that sexual-orientation discrimination isn’t protected under the law as sex discrimination, and that an employee can never be retaliated against for a complaint of sexual-orientation discrimination because such discrimination wouldn’t be illegal. My client feels like a second-class citizen. Our arguments about why all antigay bias is sex bias were not addressed, as if we aren’t even being heard.”
Doe contends a top administrator at Meadowview continuously referred to him as “Frances” during an eight-month period, despite Doe’s protestations.
Shortly before Doe was fired, the administrator alleged taunted Doe by repeatedly misgendering him during a holiday staff barbecue, according to the suit.
Doe didn’t receive any warnings or a reprimand prior to his firing, which is a deviation from standard office protocol at Meadowview, according to the suit.
The corrective measures Doe is seeking at Meadowview include creating and disseminating an LGBT-inclusive antibias policy; conducting LGBT-inclusive anti-harassment training; and removing from Doe’s personnel file all statements that he allegedly slept on the job.