17-517-cv
Cohn v. Dep’t of Educ. of N.Y.C.

                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 20th day of September, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             JOSÉ A. CABRANES,
             RAYMOND J. LOHIER, JR.
                           Circuit Judges.

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    PETER COHN,
             Plaintiff-Appellant,

                 -v.-                                               17-517-cv

    THE DEPARTMENT OF EDUCATION OF THE
    CITY OF NEW YORK, THE BOARD OF
    EDUCATION OF THE CITY OF NEW YORK,
    ERIC STRAUSS, individually, and JAMES
    JOHNSON, individually,
             Defendants-Appellees.

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FOR APPELLANT:             STEWART LEE KARLIN, Stewart Lee
                           Karlin Law Group, PC, New York,
                           NY.

FOR APPELLEES:             ERIC LEE (Fay Ng on the brief),
                           for Zachary W. Carter,
                           Corporation Counsel of the City
                           of New York, New York, NY.

     Appeal from a judgment of the United States District
Court for the Eastern District of New York (Block, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Peter Cohn, a New York City public school teacher,
alleges that he suffered unlawful retaliation after he
suggested that a fellow teacher had improperly assisted
students prepare for a state-wide standardized test.1 The
United States District Court for the Eastern District of New
York (Block, J.) dismissed the complaint on motion,
concluding that Cohn’s speech was not protected by the First
Amendment because it was made pursuant to his duties as a
government employee. We review that decision de novo.
Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.
2008). We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review.

     As part of his duties as an earth science teacher, Cohn
was required to set up the laboratory portion of the New
York State Regents Examination and help grade it. Cohn
observed that approximately a dozen students in another
teacher’s class received perfect scores, and suspected that
the teacher had improperly coached those students before the
test. Cohn raised his concerns to the school’s principal
and assistant principal and, when they failed to act, Cohn
informed the New York State Department of Education and the
Board of Regents. Cohn alleges that he afterward suffered
various adverse employment consequences, including
unsatisfactory performance reviews.

    1
       Cohn sued his principal and assistant principal, as
well as the New York City Department of Education and Board
of Education.
                             2
     Only certain types of speech made by government
employees are protected by the First Amendment: it is
necessary (but not sufficient) that the government employee
“sp[eak] ‘as a citizen’ rather than solely as an employee.”
Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir.
2015) (quoting Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir.
2011)). There is no “brightline rule” to determine whether
or not “a public employee is speaking pursuant to [his]
official duties,” i.e., speaking as an employee rather than
as a citizen. Ross v. Breslin, 693 F.3d 300, 306 (2d Cir.
2012). “Courts must examine the nature of the plaintiff’s
job responsibilities, the nature of the speech, and the
relationship between the two.” Id.

     In Weintraub v. Board of Education, a teacher alleged
retaliation after complaining that a school administrator
had declined to punish a student who had thrown books at the
teacher. 593 F.3d 196, 198 (2d Cir. 2010). The teacher’s
complaint was made “pursuant to his official duties because
it was part-and-parcel of his concerns about his ability to
properly execute his duties as a public school teacher--
namely, to maintain classroom discipline.” Id. at 203
(citation and quotation marks omitted). Consequently, the
teacher spoke as an employee rather than as a citizen.

     So too here. Cohn and the other earth science teachers
were responsible for setting up the laboratory exam,
creating the answer key, and grading the exam. As in
Weintraub, Cohn’s speech was “part-and-parcel” of his job
responsibilities--here, ensuring the fair and proper
administration of a test for which he had some
responsibility. Id. The alert to school officials that
another teacher may have helped students cheat was therefore
“pursuant to his official duties.” Id. Accordingly, Cohn
was speaking as an employee--rather than as a citizen--and
his speech is unprotected by the First Amendment.

     Cohn’s counterarguments are unavailing. He contends
that he was speaking in a private capacity when he raised
his concerns beyond his immediate supervisors (the principal
and assistant principal) by writing to state educational
officials. A similar argument was rejected in Ross:
“[t]aking a complaint up the chain of command to find
someone who will take it seriously ‘does not, without more,
transform . . . speech into protected speech made as a


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private citizen.’” 693 F.3d at 307 (quoting Anemone v.
Metro. Transp. Auth., 629 F.3d 97, 116 (2d Cir. 2011)).

     Cohn also argues that he spoke as a citizen rather than
as an employee because private citizens may likewise write
to state educational officials about suspected cheating.
Although a “civilian analogue” to a government employee’s
speech militates in favor of an inference that the
employee’s speech is protected by the First Amendment, see
Matthews, 779 F.3d at 175-76, the presence of an unofficial
analogue does not necessarily mean the speech is protected.
Weintraub concluded that the plaintiff teacher spoke as an
employee (rather than as a citizen) before the opinion
considered the presence of a civilian analogue. 593 F.3d at
203. Although the lack of a civilian analogue “supported”
the conclusion that the teacher spoke as an employee, it was
not determinative. Id. Even if private citizens can
complain to state educational authorities in the same way he
did, it would not change our conclusion that Cohn’s speech
was made pursuant to his official duties, and therefore
unprotected by the First Amendment.

     For the foregoing reasons, and finding no merit in
Cohn’s other arguments, we hereby AFFIRM the judgment of the
district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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