I believe that the pattern and practice of destroying any exposure of corruption and fraud in public agencies is an error of judgment which should be fought before there is none. If public employees and private individuals are afraid to speak up, our public dollars will continue to be wasted or stolen.
See Garcetti v. Ceballos
WEINTRAUB v. BOARD OF EDUCATION OF CITY SCHOOL DISTRICT OF CITY OF NEW YORK 32and,
US Supreme Court Rules That Public Worker Testimony Is Protected From Retaliation
Betsy Combier
President and CEO, ADVOCATZ
betsy.combier@gmail.com
Editor, Advocatz
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials
PETER COHN, Plaintiff-Appellant,
v.
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.
No. 17-517-cv.
United States Court of Appeals, Second Circuit.
September 20, 2017.
Appeal from a judgment of the United States District Court for the Eastern District of New York (Block, J.).
STEWART LEE KARLIN, Stewart Lee Karlin Law Group, PC, New York, NY., for Appellant.
ERIC LEE (Fay Ng on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY., for Appellees.
PRESENT: DENNIS JACOBS, JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR. Circuit Judges.
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.
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.
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 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.
BLOCK, Senior District Judge
MEMORANDUM AND ORDER Appearances:
For the Plaintiff
STEWART LEE KARLIN
DANIEL EDWARD DUGAN
Law Offices of Stewart Lee Karlin, P.C.
111 John Street, 22nd Floor
New York, New York 10038
For the Plaintiff
STEWART LEE KARLIN
DANIEL EDWARD DUGAN
Law Offices of Stewart Lee Karlin, P.C.
111 John Street, 22nd Floor
New York, New York 10038
For the Defendant
EMERY L. LYON
New York City Law Department
100 Church Street
New York, New York 10007 BLOCK, Senior District Judge :
EMERY L. LYON
New York City Law Department
100 Church Street
New York, New York 10007 BLOCK, Senior District Judge :
Peter Cohn ("plaintiff"), a high school teacher at the High School of Art and Design, brings the present action against the Department of Education of the City of New York, the Board of Education of the City of New York, Eric Strauss, and James Johnson (together, "defendants"). Plaintiff claims that defendants retaliated against him for exercising his First Amendment right to freedom of speech in violation of 42 U.S.C. § 1983. Defendants now move to dismiss plaintiff's case for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reason, their motion is GRANTED.
I
The following facts are derived from the complaint, taken as true and viewed in the light most favorable to plaintiff. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110-11(2d Cir. 2010). Plaintiff was on the grading team for the New York State Regent Examination in June 2011. While performing his duties on the grading team, he noticed that another teacher's students were receiving disproportionately high scores on the exam, which suggested that the teacher had improperly coached the students. After plaintiff reported this observation to defendants Strauss and Johnson—principal and vice principal, respectively, of the High School of Art and Design—and also to the New York State Department of Education Testing Division and the Board of Regents, Cohn claims he received a series of unsatisfactory teaching reviews and was removed from his position as Chairman of Math and Science. He argues that these actions amount to First Amendment retaliation.
II
A government employer "may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large." U.S. v. National Treasury Employees Union, 513 U.S. 454, 465 (1995). However, "[t]he Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (emphasis added). Thus, to establish a First Amendment retaliation case, a public employee must allege facts demonstrating that he or she "spoke as a citizen on a matter of public concern," rather than pursuant to his or her job duties. Id. at 418. If the employee spoke pursuant to his or her job duties rather than as a citizen on a matter of public concern, the employee has no First Amendment cause of action. See id. at 421 ("[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.").
Such is the case here. Plaintiff's speech arose directly from, and "w[as] made pursuant to his duties," on the grading team for the New York Regent Examination. See id. ("The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy."). He was performing his duty of ensuring that the exam was fairly and properly graded; it "is part of what he . . . was employed to do." Id. As defendants point out, this case is directly on point with O'Connor v. Huntington U.F.S.D., No. 11-1275, 2014 WL 1233038, at *8 (E.D.N.Y. 2014), in which Judge Bianco held that a teacher on a grading team who reported grading irregularities on a statewide test was speaking "pursuant to his professional responsibilities and duties as a schoolteacher and grader[,]" rather than as a citizen on a matter of public concern.
Plaintiff here argues that O'Connor is distinct from his case because he reported his observation of grading irregularities to school administrators and the New York State Department of Education Testing Division and the Board of Regents, whereas the plaintiff in O'Connor only reported the grading irregularities to school administrators. But Garcetti instructs the Court to consider many factors, each non-dispositive, in a practical inquiry to determine whether the speech was made as a citizen rather than as an employee. See Garcetti, 547 U.S. 410, 420, 424 ("The proper inquiry is a practical one."). The mere fact that plaintiff here spoke outside of the small circle of school administrators is insufficient to transform his speech into that of a citizen on a matter of public concern. Thus, the facts plaintiff alleges in his Amended Complaint, taken as true and viewed in his favor, are insufficient to establish that he spoke as a citizen when he reported grading irregularities to Strauss, Johnson, and the New York State Department of Education Testing Division and the Board of Regents. And because he has not sufficiently alleged an underlying constitutional violation, his Monell claim also fails. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) ("If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.").
III
For the aforementioned reason, defendants' motion to dismiss for failure to state a claim is GRANTED.
SO ORDERED
/S/ Frederic Block
FREDERIC BLOCK
Senior United States District Judge Brooklyn, New York
January 25, 2017