Cohn v. The Department of Education of the City of New York et al

Filing 29

MEMORANDUM and ORDER: The defendants motion 26 to dismiss for failure to state a claim is GRANTED. Ordered by Judge Frederic Block on 1/25/2017. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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PETER COHN,
Plaintiff,
-against-

MEMORANDUM AND ORDER
15-3938 (FB)

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.
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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 Defendant
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
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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
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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 nondispositive, in a practical inquiry to determine whether 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
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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

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