13 June 2022: Court Rules State Trooper Suing Andrew Cuomo for Harassment Can Be Pseudonymous

State Trooper Suing Andrew Cuomo for Harassment Can Be Pseudonymous, Because the Case Is "High-Profile"

This analysis by attorney Eugene Volokh was published on 11 June 2022. It refers to legal developments in the civil case brought by a female New York state trooper who Andrew M. Cuomo is alleged to have sexually harassed while New York's state governor. The following excerpt picks up after presenting some legal background before getting to the part addresses a decision related to the state trooper's case, which has been flying under the radar and hasn't seen much coverage in the media:

This brings us to Trooper 1 v. N.Y. State Police, decided Thursday by Magistrate Judge Taryn Merkl (E.D.N.Y.):

On February 17, 2022, Trooper 1 …, a member of former New York Governor Andrew Cuomo's Protective Service Unit, initiated this action alleging that former Governor Cuomo sexually harassed her and other state employees. The complaint names as Defendants the New York State Police … former Governor Andrew Cuomo …, Melissa DeRosa …, and Richard Azzopardi …. Plaintiff is claiming, among other things, discrimination and retaliation in violation of the federal Equal Protection Clause, the New York State Human Rights Law, and the New York City Human Rights Law….

The alleged sexual harassment was:

He then sexually harassed her. He commented on her appearance ("why don't you wear a dress?"); wanted to kiss her ("[c]an I kiss you?"); asked her to find him a girlfriend who could "handle pain;" and steered their conversations towards sex ("[w]hy would you want to get married? … your sex drive goes down"). As with his other victims, the Governor used his physical proximity to Trooper 1 to touch her inappropriately ("he runs his finger down the center of my back of my spine, basically from the top of my neck, basically midway down with his pointer finger and just said, 'Hey, you'").

The court noted that the case was about "sexual harassment, which courts have found to be 'highly sensitive and of an extremely personal nature'" (citing one case, which had also involved allegations of sexual assault), and concluded that this "favors granting Plaintiff's motion." But most of the analysis focused on how much attention the case was likely to draw:

Generally speaking, "'the potential for embarrassment or public humiliation does not, without more, justify a request for anonymity.'" Courts often require "more direct evidence linking disclosure of [a plaintiff's] name to a specific physical or mental injury." … [But] in light of the allegations contained in the complaint and the high-profile nature of the case, "[h]aving the plaintiff's name in the public domain, especially in the Internet age, could subject the plaintiff to future unnecessary interrogation, criticism, or psychological trauma, as a result of bringing this case." As a result, the Court finds that a "chilling effect" could result from Plaintiff's being required to reveal her identity, which weighs in favor of permitting Plaintiff to continue anonymously….

As for whether "the public's interest in the litigation is furthered" by requiring Plaintiff to disclose her identity, the Court finds that this factor also tilts toward Plaintiff….

[W]hen a plaintiff challenges governmental or pseudogovernmental action, the judicial process serves as a significant check on abuse of public power. Thus, as the courts have noted, it is in the public interest that the price of access to the courts not be too high. Where litigants risk public scorn or even retaliation if their identities are made public, unpopular but valid complaints may not be pursued. The value of open proceedings disappears when there are no proceedings to be had.

Here, the Court finds that there is a substantial public interest in the litigation, and that this is a case where the price of access to the courts should "not be too high." …

[T]he Court [also] does not find any alternative mechanisms for protecting Plaintiff's confidentiality in this case given the high level of interest the public and media would certainly have in Plaintiff given the nature of the allegations set forth in the Amended Complaint….

Plaintiff's motion to proceed using a pseudonym … [is therefore] granted without prejudice to Defendants to revisit this issue before trial.

The upshot is that the public will not learn the name of the state trooper suing Andrew M. Cuomo for his alleged sexual harassment anytime soon.

Volokh's interest in the case focuses upon the legal issues associated with allowing participants in court cases to use pseudonyms. Since we've omitted a good portion of his commentary on that topic, please do click through the article link to see his analysis.