Eyshinskiy v. Kendall
692 F. App'x 677
| 2d Cir. | 2017Background
- Plaintiff Gennadiy Eyshinskiy was an assistant principal for mathematics at Flushing High School who evaluated teachers and uploaded evaluations to the DOE Advance system.
- He alleged that supervisors (Kendall and Chin) questioned, disputed, interrogated, and required pre-review of his evaluations, and that he was pressured to alter ratings.
- Eyshinskiy sued under 42 U.S.C. § 1983 for First Amendment retaliation and under N.Y. Civil Service Law § 75-b; DOE, Kendall, Horowitz, and Chin were named defendants.
- The district court dismissed the amended complaint for failure to state a First Amendment claim; Eyshinskiy appealed to the Second Circuit.
- The Second Circuit reviewed de novo whether Eyshinskiy’s speech was protected (citizen speech on a matter of public concern) and whether it had a civilian analogue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff spoke as a citizen (rather than as an employee) when evaluating teachers | Eyshinskiy contended his evaluations and defenses to criticism were citizen speech on a matter of public concern | Defendants argued the evaluations and related communications were part-and-parcel of his official duties and made through internal channels | Held: Speech was part of official duties, not citizen speech; therefore not protected |
| Whether plaintiff’s defensive statements were materially different from his official reports (analogous to Jackler) | Eyshinskiy argued his refusals/defenses were protected and akin to Jackler’s refusal to submit false reports | Defendants maintained the interactions were routine supervision, review, and demands for pre-review, not coercion to file false reports | Held: Facts did not show forcible attempts to make him file false reports; defensive statements were not significantly different from official duties |
| Whether speech had a civilian analogue (available to ordinary citizens) | Eyshinskiy argued the substance raised public-concern issues and could be channeled to outside bodies | Defendants emphasized use of DOE Advance and internal supervisors rather than independent public channels | Held: No civilian analogue; speech was made through internal DOE channels and supervisors, not independent agencies |
| Whether the amended complaint adequately pleaded causation/adverse action for First Amendment retaliation | Eyshinskiy asserted retaliatory actions followed his speech | Defendants argued the complaint lacked protected-speech status, so causation inquiry is moot | Held: Court did not reach proximate-causation analysis because speech was not protected; dismissal affirmed |
Key Cases Cited
- Ruotolo v. City of New York, 514 F.3d 184 (2d Cir. 2008) (standard of review for 12(b)(6) dismissal)
- ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87 (2d Cir. 2007) (pleading-stage inference standards)
- Matthews v. City of New York, 779 F.3d 167 (2d Cir. 2015) (two-step test for public-employee First Amendment speech)
- Weintraub v. Board of Education of City School District of City of New York, 593 F.3d 196 (2d Cir. 2010) (speech that is "part-and-parcel" of duties is unprotected)
- Ross v. Breslin, 693 F.3d 300 (2d Cir. 2012) (factors for determining whether speech falls outside official duties)
- Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011) (refusal to submit false reports can be protected where supervisory pressure seeks withdrawal of a truthful report)