in this particular case and its opponents view that on a motion to dismiss the issue of the precise issue for the court is everything that is said in the four corners of the complaint when construed in the light most favorable to the plaintiff does the point of state a claim for relief and i would respect them as you can see from the appendix  of complaint there are no affidavits the no job descriptions attached so the only thing that that's before the court is is the is the there's no chances regulations there's no there's no talk of the bargaining agreement the only thing that's before the court at this point is the complaint which specifically states that it was not part of his job  the new york state department of education he's in new york city teacher but we we do know if the complaint that he was one of several earth sciences teachers who was setting up the the standardize regents and noticed that one of his fellow teachers seem to have students who cheat perfection in an unusual degree and and pointed that out and as it were blew a whistle this and then the question is is he speaking as a citizen or c b as an employee and it seems to me if you're if you're a teacher and you believe the cheating is going on why why isn't it part of your responsibility as teacher but we don't know if you raise the issue well he did raise the issue internally and i think maybe it was and maybe it could have a better argument could be as maybe a better argument could have been made if he had stayed internally does nothing to suggest that he had to report to the new york state department of education is not one bit enterprise to to to blow the whistle on one front well your honor that shorter answer the short answer is under the matthews case the skate case that was recently decided it has to be part of us official job responsibilities we don't know what is the official job responsibilities are as being part of agreed team in regions we don't know that just because there's nothing in the record to suggest what is the official job responsibilities are you just of with all due respect amazing that that's part of his duty to report this to the new york state department of education there's nothing to suggest that moreover this will chill speech i mean i represent a lot of teachers and if they come to  and they say if i go to the point of education is this will this be protected i'll go the only thing you may have a right to do is to file an internal grievance you know good luck on your grievance this will absolutely put a chill as a practical matter that say there could be a dual purpose if we speaking i suppose there's nothing that compares the required him to do so that's what the allegations in the complaint are there's nothing there to refute that specific allegation moreover it's a civilian  this is a this is something that just a valuable to him and in of itself it's not just available to him it's available to the general public the mackey's case was very very specific there you had to deal with it dealt with a police officer in they had internal regulations that they have a duty to to respond to a quota system and then matthew in matthews it remains internal in this particular instance your honor with all due respect we have somebody we have this on a motion to dismiss we don't have anything else we have a civilian analogue there's nothing to suggest he had a duty as a teacher to report this to the new york state department of education thank you ok i think reserved a couple minutes  can actually honors eric lee for the city a police the district court correctly dismissed cohen's first amendment claim because the first amendment does not protect speech made pursuant to employees duties i think it's clear from the complaint th allegations here are that mr cohn had a responsibility to set up the test make the answer he and he was part of the grading team and so it's reasonable to infer that his job doing was to ensure that the regions exam was fairly and properly graded that's all that the car said the analysis requires here it's a very practical one there's no question he had to do for an improper and proper question is was he responsible for supervising the greeting then of the teachers who do i don't know that your honor i don't know that it necessarily hinges on whether he was a supervisor on the grading team or not for example it's not pledged it's not allege in the complaint what will he play but in the if i could just point to the o'connor decision that the district court below had cited and also cited by the parties here in that case the teachers were grading it round robin style they obviously didn't grade their own students exams but said it could have been one where they had great another teachers again i don't think that this case hinges on whether he was a supervisor or not because it's clear that he was tasked and paid to perform a job to serve on the grading team for the reached exam in a subject matter that he taught for an exam that he set up for exam that he made the answer cheek key to and then he then graded this exam it is within what he had to do when he made the policy to ensure that the officers including the plaintiffs in that case were there that that policy had a detrimental effect to the committee and was impairing the ability for the police officers to do good police work in this there was an alleged impropriety with it was not a situation where he saw evidence or suspected that there was systemic effort by the school administrators to boost the numbers of the tests you know in a way and he was calling out that issue in this case it was a very specific exam that he was a minister one that he helped both on the set up side making the answer key on the grading side so he noticed it in the course of proofs in the course of doing their of the huntington case i forgot the name of the plaintiff that was done on summary judgment motion when the record was completely developed as to what the job responsibilities were and those complaints remained internal they never went to the new york state department of education th there clearly is this is this is different than that case in fact almost all the cases cited relied on came up on a summary judgment motion not a motion to dismiss except one which i think it was a  case as far as your honor asked a very interesting question in this particular case i would argue there was a policy at that school because when i feeling within one student teacher one student that was that that had the benefit of a possible coaching there were a number of students that had benefit account coaching i think it was ten and then my client went to the principal and went to the a p and then and to no avail so i would speak specter we the complaint it just says that he was part of a grieving team we don't know what he did because this is on a motion to dismiss on an on an on a complaint this motion was premature at the very minimum your honor and i respect we submit that this motion to dismiss favorable to my client it was not part of his official job responsibilities after we brought it to the attention of the a p and after he brought it to detention the principal two or three times to go above their head and go outside the agency itself