Corporate Counsel Daily, Former IDF member who alleged discrimination based on Israeli heritage can’t proceed anonymously, (Oct 23, 2024)

By Kathleen Kapusta, J.D.

The former Intel Corp. employee argued that “these are not normal times” and the “current political climate” meant that Jewish and Israeli people were more likely to be attacked.

The strong interests in favor of open proceedings outweighed the interest of a former member of the Israel Defense Forces in proceeding anonymously in his lawsuit against Intel Corp. alleging discrimination based on his race, ethnicity, religion, and national origin, a federal court in New York concluded. Though he argued that because his family lives in Israel, disclosure of his identity would subject them to a heightened risk of harm at the hands of Hamas, there was no evidence that Hamas was aware of these proceedings, that it would be interested in his lawsuit, or that it has the capacity to locate and attack his family members (Doe v. Intel Corp., No. 24-CV-6117 (JPO) (S.D.N.Y. Oct. 22, 2024)).

The former Intel employee, who alleged he was a “Jewish Israeli citizen who proudly served with the Israel Defense Forces,” moved to the United States at some point to work on a startup company that was later acquired by Intel. He then began working for Intel as an engineering lead and was ultimately promoted to VP of engineering.

Support for Hamas. He claimed that following the October 7, 2023, attacks on Israel by Hamas, Intel’s VP of customer success made statements and social media posts supporting Hamas and “advocat[ing] for and celebrat[ing] the murder of Israelis like [Plaintiff] and the members of his family.” When he complained, Intel, he alleged, took no action. Meanwhile, the VP began acting “frigid and isolating” toward him, asked him which of his coworkers were Israeli and then made disparaging comments about them, refused to approve his expense requests, interrupted him in meetings, and interfered with his job responsibilities.

Punished. The employee again complained and Intel investigated but took no corrective action. Instead, the employee, in April 2024, was laid off and purportedly replaced by a new employee named “Ahmed.” When he protested, Intel created a new job for him with a “significant pay cut.” In July, he was informed that his retention bonus had been cancelled, which, he alleged, was done as punishment for protesting discrimination.

In his subsequent lawsuit against Intel and several former coworkers, the employee, seeking to proceed anonymously, alleged that this litigation involved sensitive and personal matters, disclosure of which would subject him to a risk of physical and mental harm. The court previously granted the request on a provisional basis and Intel objected.

Federal Rule of Civil Procedure 10(a), said the court, requires that “all the parties” be named in the title of a complaint, but there are exceptions to this rule and a “plaintiff’s interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant.” In order to facilitate this balancing, the Second Circuit, in Sealed Plaintiff, identified a non-exhaustive list of factors.

Matters of a sensitive and/or personal nature. Citing to one of those factors, the employee argued that his lawsuit concerns sensitive and personal matters. Contending that “these are not normal times,” he claimed that the “current political climate” means that Jewish and Israeli people are more likely to be attacked. Unpersuaded, the court found that this was not an independent allegation of sensitivity akin to having experienced sexual harassment or having a stigmatized medical condition. Thus, the court did not view this as independently weighing in favor of anonymity.

Risk of harm. The employee, relying on two additional factors, also argued that there was a real risk of harm should his identify be revealed. In support, he pointed to various instances of harassment of, and attacks on, individuals in New York who were either Jewish or publicly supported Israel. This, he contended, showed that “he and his family would be at significant risk of physical harm by... anti-Israel protestors in the United States” who have shown “that they will use every tool at their disposal to harm those who challenge their anti-Israel belief system.”

While the court acknowledged that the employee’s concerns were not trivial, it explained that an alleged risk of harm that is speculative in nature cannot justify anonymity. Rather, a real risk of harm has been found when “there is a history of substantiated prior action directed at plaintiff(s) from defendant(s)” and here, the employee failed to provide any evidence directly linking the disclosure of his name to specific physical or mental injury or any threat of that.

Growing unrest. In support of his assertion that “growing unrest.. floods the streets of New York on a daily basis,” the employee cited several New York Post articles and an Anti-Defamation League dataset of antisemitic incidents. But this, said the court, did not show he personally faced a nonspeculative risk of harm or that the “risks he faces are so substantially greater than those faced by members of other protected groups to justify a departure from the well-settled norm that plaintiffs bringing discrimination claims must publicly disclose their identities.”

Moreover, said the court, even if he attempted to keep his identity in this lawsuit secret from the public, he did not allege that he kept secret his political views, his Jewish identity, his Israeli nationality, or his IDF service. “Because much of the ‘unrest’ that Plaintiff highlights is targeted at Jews and Israelis merely based on their identities,” the court found it “unclear what ‘incremental injury’ would be caused by public disclosure of Plaintiff’s participation in this lawsuit.”

Nor, observed the court, is the employee’s interest in anonymity due to risk of harm one-sided as it must be balanced against the interests faced by the defendants who have been publicly named in the lawsuit. Because the individual defendants are also members of a protected group, they too plausibly face risks of harassment and violence.

Innocent non-parties. Further, said the court, in the Second Circuit courts place special emphasis on the risk of harm to “innocent non-parties” should anonymity be denied. While the employee alleged that because his family lives in Israel, disclosure of his identity would subject them to a heightened risk of harm at the hands of Hamas, there was no evidence Hamas was aware of or interested in his lawsuit or that it had the ability to locate and attack his family members.

Prejudice. In addition, said the court, the defendants would be prejudiced if it were to permit the employee to proceed anonymously. Not only does a defendant have an interest in being able to publicly confront an accuser, disclosure can deter plaintiffs from fabricating or embellishing their claims. Anonymity also imposes non-trivial costs on the parties and the court associated with sealing or redacting court files.

Weighing of interests. Though the court conceded that the employee’s allegations were emotionally and politically charged, and that he was a member of certain groups subject to discrimination, that, it explained, “is true of a plethora of cases in the federal courts and has generally not been understood to authorize anonymous pleading.” Denying the employee’s motion, the court found he failed to provide “sufficient justification to overcome the people’s right to know who is using their courts.”

The case is No. 24-CV-6117 (JPO).

Judge: Oetken, J.P.

Attorneys: Kassandra Vazquez (Wigdor) for John Doe. Melissa C. Rodriguez (Morgan, Lewis & Bockius) for Intel Corp.

Companies: Intel Corp.

Cases: Procedure Discrimination RaceDiscrimination ReligiousDiscrimination NationalOrigin Retaliation NewYorkNews GCNNews