17-517-cv

Cohn v. Dep’t of Educ. of N.Y.C.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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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 20 day of September, two thousand seventeen. th

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. The 1

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.

 Cohn sued his principal and assistant principal, as 1

well as the New York City Department of Education and Board

of Education.

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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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