Firm’s Unusual First Amendment Case to Head to Trial

In April 2022, the civil rights law firm Famighetti & Weinick PLLC filed a First Amendment retaliation case on behalf of its client, Devanand Persaud, against the City of New York and individuals employed by the City. The firm regularly handles free speech cases, but this case was unusual. In this case, Persaud alleged that he did not engage in any free speech. Yet, on two occasions with two different judges, the court refused to grant the City’s request to dismiss this case alleging violations of free speech. How could that be? Today’s Long Island employment law blog explains.

The following information is taken from the publicly available court orders issued in the case.

Persaud worked for the New York City Department of Finance (the DOF). He is of Guayanese national origin. In October 2020, a Guyanese newspaper published an article entitled “Gutter Work.” Boiled down to its essence, the article discussed the rise of oil jobs in Guyana and public debate about which workers in Guyana should have those jobs.

The newspaper shared the article on Facebook. A response to the post was generated from Persaud’s Facebook account, but Persaud alleged that his father, not he, posted the comment. The comment expressed a view about which workers should get the good oil jobs. Thus, as alleged by Persaud, he did not engage in any First Amendment activity, i.e. he did not engage in free speech activities.

After the post, the DOF allegedly received some complaints from the public about the post from Persaud’s account. This lead to investigations from two internal DOF agencies – the Department Advocate and the EEO. This, in turn, led to charges being brought against Persaud. The charges alleged that the Facebook comment violated the agency’s code of conduct and social media policy, and that Persaud did not participate in the investigation concerning the comment.

Ultimately, an administrative law judge held a hearing and upheld the charges. She recommended the penalty of termination, and Persaud was then terminated.

Two threshold issues immediately presented themselves in the case: (1) since Persaud did not say anything himself, but rather he alleged that his father made the speech, could Persaud maintain a First Amendment claim? (2) does the administrative law judge’s decision prohibit Persaud from bringing a lawsuit?

On the first question, in 2016, the U.S. Supreme Court issued a decision called Heffernan v. City of Peterson. The Heffernan case established “perceived” First Amendment cases. Basically, if a government actor believes that an individual has engaged in First Amendment speech, but the individual has not actually engaged in speech, then the individual could still have a First Amendment claim. Thus, under Heffernan, Persaud appeared to have a case of First Amendment retaliation.

But, did the ALJ’s decision bar a lawsuit? Because Persaud did not allege that he had a First Amendment claim in the course of the termination hearing, the ALJ did not have an opportunity to rule on the issue. So, the termination hearing should not bar a lawsuit.

Persaud tested these legal waters by filing his case in the Southern District of New York. Not surprisingly, the City immediately moved to dismiss the case arguing that (1) Persaud’s complaint did not show that the Defendants intended to punish him for the speech (lack of causation) and (2) that the ALJ’s decision barred the claims (legally, called collateral estoppel). Judge Vyskocil denied the motion, noting the Complaint had alleged sufficient facts to support the claims and that because Persaud did not allege First Amendment retaliation before the ALJ, his claims were not barred.

The case continued and the parties exchanged discovery and took depositions. At the end of discovery, the City against asked the Court to dismiss the case. Again, the City argued, among other things, that Persaud did not show that the Defendants had the requisite intent (called causation) and that, regardless, its interest in preserving a harmonious work environment outweighed the First Amendment value of the speech, and the Facebook post risked disrupting that harmony. Accordingly, the City argued had a right to terminate Persaud.

In a detailed, thoughtful, and lengthy decision, Judge Submaranian rejected all of the City’s arguments. First, as pointed out by F&W, the charges issued against Persaud recited the entirety of the Facebook post. When that happens, appellate courts rule that a plaintiff has produced direct evidence of retaliation. Judge Submaranian accepted the argument and held that Persaud did not have to produce any further evidence of retaliation (causation), even though he had done so in briefing.

Next, Defendants argued that they would have fired Persaud, even in the absence of the First Amendment speech. The Court resoundingly rejected this argument, as well, finding the City’s evidence in support to be “not exactly show-stopping,” consisting primarily of their own statements.

Finally, the Defendants argued that their interest in maintaining harmony between co-workers outweighed the First Amendment importance of the speech. Again, Judge Submaranian rejected the argument without reaching the question of the speech’s importance. Instead, he determined that the City had not shown, beyond dispute, that it had any interest in regulating the speech.

As an aside, Judge Submaranian’s decision also went into great detail about another tricky legal issue. There is no question that individual employees of a city or municipality may be held liable for constitutional violations. But, cities and other municipalities are not automatically liable for those individuals’ violations.

Instead, plaintiffs must generally show that a policy or custom of the city caused the constitutional violation (called Monell liability, after the Supreme Court case setting this standard). The intricacies of this legal quirk are beyond the scope of this blog, but Judge Submaranian detailed the development of the law in this area and ultimately held that because the individual defendants in Persaud’s case relied on the City’s social media policy to terminate Persaud, then the City could be liable.

In sum, F&W has defeated each of the City’s arguments made across two motions, and which were considered by two different judges. This unusual and challenging case survived all the City’s attempts to dismiss it. The case is now slated to go to trial before the fall.

If you have questions about First Amendment retaliation, based on perceived or actual First Amendment activity, contact a First Amendment lawyer at Famighetti & Weinick PLLC. Our office phone number is (631) 352-0050.

Perceived First Amendment Case Heads to Trial

Perceived First Amendment Case Heads to Trial

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