MEDIA

April 11, 2003

On Plaintiff’s Use of a Pseudonym, the ‘Innocent Owner’ Defense

Published in: New York Law Journal | volume 229
Written by: Peter R. Schlam and Harvey M. Stone

In the U.S. District Court for the Eastern District of New York, Judge Edward R. Korman allowed plaintiff to use a pseudonym in suing a blood-testing center after she contracted hepatitis B. In a civil forfeiture action, Judge I. Leo Glasser rejected the "innocent owner" defense of a woman whose building was apparently used by her son to facilitate drug trafficking. And Judge Raymond J. Dearie found no basis to conclude that MetLife had engaged in gender discrimination or retaliation.

Plaintiff’s Use of Pseudonym

In EW v. New York Blood Center, 02 CV 1067 (Feb. 19, 2002), Judge Korman held that plaintiff, who sought damages for allegedly contracting "HBV" (hepatitis B) from a blood transfusion, could proceed under a pseudonym. Defendants are the entities that tested and collected the blood.

Preliminarily, Judge Korman denied a motion by defendant New York Blood Center (NYBC) asserting lack of jurisdiction from plaintiff’s use of a pseudonym. As the court noted, Fed. R. Civ. P. 17(a) itself allows for correction of a caption if a plaintiff has not been named or identified correctly. In addition, though plaintiff’s attorney had filed 16 complaints against NYBC for other plaintiffs, NYBC moved to dismiss only the instant complaint, in the belief that a newly filed complaint would be time-barred. As Judge Korman observed, "[b]ecause plaintiff’s counsel was led to assume that NYBC would not contest a complaint filed under a pseudonym, NYBC should now be estopped from seeking a dismissal that would extinguish plaintiff’s cause of action."

Having disposed of the jurisdictional issue, the court exercised its discretion to allow plaintiff to remain anonymous in the publicly filed papers. This decision turned on balancing plaintiff’s interest in privacy and security against the dual concerns of (1) public interest in identifying litigants, and (2) harm to defendants from falsifying plaintiff’s name.

Here, the prejudice to plaintiff is real–the embarrassment and stigma of HBV, which (like HIV) is transmitted through transfusions and sexual activity. Questioning plaintiff about how she contracted the disease would inevitably delve into her sexual history.

NYBC, moreover, is organized solely to perform an important public service. This case is thus analogous to one involving a government defendant, "where personal anonymity is more readily granted" because there is a public interest in the action and a lesser interest in defendant’s personal reputation. And, given the press accounts of NYBC’s problematic screening procedures, any additional prejudice to its reputation merely by plaintiff’s use of a pseudonym would be "minimal." Slip op. 8.

Finally, NYBC, which already knows plaintiff’s real name, has not explained how the pseudonym would prejudice it in discovery or at trial. Finding the competing interests to favor plaintiff, Judge Korman stated:

The modern invention of today includes access to court files by those surfing the Internet. The facts of this case provide no occasion for imposing such an invasion of privacy as the price for litigating a legitimate private complaint. (Slip op. 9).

Forfeiture: ‘Innocent Owner’ Defense

In United States v. Real Property And Premises Known as 464 Myrtle Avenue, 98 CV 3948 (March 20, 2003), Judge Glasser, granting summary judgment to the government on its civil forfeiture claim pursuant to 21 USC § 881, found that the owner of real property had, at a minimum, remained "willfully blind" to her son’s use of the property for narcotics trafficking.

The defendant property, a three-story building valued at $385,000, had a grocery store run by the owner, Mrs. Corrado, on the ground floor, plus two apartments on the upper floors. Mrs. Corrado’s son Rafael and his girlfriend lived in one of the apartments. Mrs. Corrado did not live in the building. The common entrance to the apartments was around the corner from the entrance to the grocery store.

The government established probable cause to forfeit the property because of its use in narcotics distribution by Rafael Corrado. To avoid forfeiture, the burden shifted to Mrs. Corrado to show that she was an innocent owner. This, the court found, she failed to do. Putting aside the evidence of drug trafficking occurring via the apartment entrance (and out of Mrs. Corrado’s sight), the undisputed evidence showed: (1) buyers walking into the store and following Rafael or an accomplice outside to conduct drug transactions; (2) Rafael engaged in phone calls at the store to conduct such transactions; and (3) Mrs. Corrado herself answering phone calls to her son from his associates and warning them not to call the phone in the store, but rather to speak to him in person. Mrs. Corrado also admitted having "suspicions" about her son’s activities–suspicions strong enough to prompt her to give these warnings "in order to protect my son and protect my grocery store."

Mrs. Corrado’s suspicions, the court noted, imposed upon her the duty to "take all reasonable steps" to prevent illicit use of the property. In Judge Glasser’s view, encouraging her son’s associates to meet him at the property instead of calling him on the phone was inadequate to discharge that duty.

In response to the government’s arguments, Mrs. Corrado offered innocent interpretations of her statements in recorded telephone conversations. "Given her admitted suspicions," Judge Glasser found, "this dispute is not material." Slip op. 12.

As the court also found, under the circumstances, forfeiture would not be an "excessive fine" prohibited by the Eighth Amendment. Slip op. 13-15.

Gender Discrimination

In Tunny v. Metropolitan Life Insurance Co., 99 CV 2531 (EDNY, March 25, 2003), Judge Dearie granted defendant’s motion for summary judgment against a litany of discrimination and retaliation claims under Title VII.

Plaintiff worked as an account representative in several MetLife offices from June 1994 until her termination in November 1997. MetLife evaluates and compensates its account representatives according to the value of the life insurance policies they sell. During the first four quarters of employment, account representatives receive a fixed weekly payment (the initial payment level or IPL) based on prior pay and must meet a benchmark amount of commissions called the "validation requirement." Following the first year, their compensation is tied to the number of policies they sell and their ability to "validate," except that they no longer receive a fixed weekly payment and are not terminated unless they fail to validate for two consecutive quarters.

Plaintiff alleged that MetLife discriminated against women because, among other things, (1) MetLife intentionally delayed hiring her in order to pay her a smaller IPL during her first year; (2) she was told to write policies with lower face amounts for female clients; (3) she was denied a transfer out of a particular office, while a male employee was allowed to transfer; (4) women earn less than men at MetLife; (5) MetLife’s compensation policies made it more difficult for women to succeed; and (6) MetLife delayed the processing of her policies so that she missed validation requirement deadlines.

Plaintiff alleged that she was subjected to retaliatory treatment because of her prior sexual harassment claim (previously dismissed by Judge Dearie as lacking a factual basis). As a result of the discrimination and retaliation, plaintiff asserted, she was incapable of doing her job. She lost her job when she failed to validate for two consecutive quarters.

As Judge Dearie determined, the only alleged discriminatory act that was not time-barred was plaintiff’s termination. Finding that the "continuing violation doctrine" did not apply to other alleged incidents, the court stated:

[P]laintiff has not submitted sufficient evidence for a reasonable jury to find that these policies are discriminatory. Plaintiff has presented no evidence to show that the pre-hire incomes of the women joining MetLife as account representatives are decidedly less than those of the men joining MetLife as account representatives, or that women’s IPLs at MetLife are as a whole lower than men’s. Nor has she offered any evidence tying the quarterly validation requirements to disparate treatment of women and men at MetLife beyond her speculation about women’s less competitive socialization. Slip op. 15-16.

Similarly, the court rejected the theory of equitable tolling concerning these other incidents because plaintiff had waited two years to file her claim even though she had sought legal advice prior to her termination.

As to the Title VII gender discrimination claims, plaintiff failed to show that defendant’s legitimate nondiscriminatory reason for discharging her was pretextual. Plaintiff had failed to meet the minimum validation requirements in two successive quarters. As Judge Dearie saw it, plaintiff had shown evidence of positive, rather than discriminatory, treatment by MetLife, which extended her time to meet her requirements. This undercut an inference of discriminatory motive in her termination.

Judge Dearie found plaintiff’s evidence of gender discrimination to be inadequate. Nor did plaintiff provide evidence of statistically significant disparities in the treatment of men and women.

Judge Dearie also found that plaintiff had failed to establish a prima facie case of retaliation. Plaintiff satisfied the first and second prongs of the test because: (1) several managers and supervisors were aware of her sexual harassment complaint, and (2) her termination qualified as an adverse employment action. But plaintiff could not show a causal connection between her sexual harassment complaints and her termination. She was not terminated until nearly two years after she filed her complaint; she provided no evidence of women who experienced similar retaliatory treatment by MetLife; and the relationship between her laundry list of alleged workplace difficulties and any "retaliation" was far too speculative. Slip op. 32.

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan.

[This article is reprinted with permission from the April 11, 2003, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]