Persaud v. City Of New York

Background

Devanand Persaud worked for nearly five years for the New York City Department of Finance before he was fired. He sued the City of New York and three Department of Finance officials under 42 U.S.C. § 1983, alleging retaliation for speech protected by the First Amendment. The defendants moved for summary judgment, which asks whether the evidence shows that no reasonable jury could rule for the opposing party.

The case arose from a comment on a Guyanese newspaper’s Facebook post. The post discussed the value and social status of different kinds of work in Guyana. Persaud’s comment referred to “ghetto rats,” oil jobs, democracy, and political supporters. He posted from a personal account that identified him by name and disclosed his professional affiliation with the Department of Finance. The opinion notes a dispute about whether Persaud or his father posted the comment through Persaud’s account, but Persaud agreed that the distinction did not change the legal analysis for this motion.

After complaints about the comment, the Department of Finance’s Equal Employment and Opportunity Office investigated Persaud. The office found that he had posted derogatory comments relating to national origin and referred the matter for further action. Persaud did not participate in the investigation or testify in the later disciplinary proceeding. The Department of Finance charged him with violations involving conduct that might arouse hatred based on race or national origin, conduct likely to bring the City or agency into disrepute, conduct prejudicial to good order and discipline, violation of the social-media policy, and failure to cooperate with the investigations. A state administrative-law judge ruled for the Department of Finance on all six charges and recommended termination. The Department of Finance Commissioner accepted the recommendation and fired Persaud.

First Amendment retaliation claim

The court held that Persaud presented enough evidence for his First Amendment retaliation claim to survive summary judgment. A public employee asserting this claim must show protected speech, an adverse employment action, and a connection between the speech and the action.

The court concluded that Persaud spoke as a private citizen and that his comments addressed matters of public concern, including labor, economic development, democracy, and class in Guyana. The court said the comment’s harsh or offensive wording did not remove it from First Amendment protection, and its focus on a foreign country did not change that conclusion.

The defendants relied on decisions addressing an employer’s reasonable mistake about what an employee said. The court found those decisions inapplicable because Persaud’s written comment was undisputed; the contested questions were whether the defendants acted because of the speech and whether the actions were legally justified.

The defendants did not contest, for purposes of the motion, that the investigation, disciplinary charges, and firing could each qualify as adverse employment actions. The court also found direct evidence supporting causation because several disciplinary charges expressly relied on Persaud’s speech and its content. That evidence could allow a reasonable jury to find that retaliation was at least part of the reason for the defendants’ actions.

Defenses based on independent grounds and workplace disruption

The defendants argued under the Mount Healthy defense that they would have investigated, charged, and fired Persaud even without his speech because he refused to cooperate. The court found genuine disputes of material fact about whether the failure to cooperate was independent of the speech or instead resulted from the investigation that the speech triggered. The charges themselves listed both the speech and the failure to cooperate, and the defendants’ evidence largely consisted of their own statements. The court held that a jury, rather than the court on summary judgment, must resolve the competing inferences.

The defendants also relied on the Pickering balancing defense. Under that defense, a government employer may discipline a public employee for speech on a public issue if the employer reasonably predicts disruption, the predicted disruption outweighs the speech’s value, and the action was taken because of the disruption rather than to punish the speech.

The court did not perform that balancing because disputed facts came first. The defendants offered little evidence that coworkers saw or reacted to the post, that the post affected Department of Finance operations, or that it would meaningfully affect public perceptions of the agency. The court also noted that Persaud worked as an accountant and that the defendants had not shown that his role involved the kind of public authority, confidential work, or public contact present in cases involving police officers and other more public-facing employees. In addition, the defendants offered little evidence that they acted because of predicted disruption rather than because of the speech itself.

Municipal-liability claim

Persaud also asserted a claim against the City under the rule commonly called Monell. That rule permits a municipality to be held liable under § 1983 when an official policy or custom is the moving force behind a constitutional violation; it does not impose liability merely because the municipality employs the person who committed the violation.

The court held that the Department of Finance’s code of conduct and social-media policy were formal policies and that applying those policies led directly to the investigation, charges, and firing. The policies did not need to be unconstitutional in every possible application for the City to face potential liability if their application caused the alleged constitutional violation. The court therefore found a triable issue about whether the policies were the moving force behind the individual defendants’ actions.

The court rejected the defendants’ arguments that Persaud had to show that the policies were facially unconstitutional, that a final policymaker personally fired him, or that a single incident could never support municipal liability. It explained that the single-incident limitation discussed in prior cases concerns attempts to infer an otherwise unsupported policy or custom from one event. Here, Persaud relied on formal written policies that were allegedly applied to cause his injury.

The court also addressed whether it could consider the official-policy issue after requesting supplemental briefing. It concluded that the Federal Rules of Civil Procedure allowed it to identify the issue, give the parties an opportunity to respond, and deny summary judgment on that basis.

Administrative-law-judge findings

The court declined to give the administrative-law judge’s findings preclusive effect for purposes of this motion. It said the defendants had not explained why the asserted findings were necessary to the administrative decision. In any event, the court found that the disputed findings did not resolve the key question here: whether the adverse actions were caused by Persaud’s speech, his refusal to cooperate, or both.

Disposition

Judge Arun Subramanian denied the defendants’ motion for summary judgment. The court directed the Clerk of Court to close the motion docket entry and directed the parties to provide their availability for trial during July, August, and September 2024.