Built to fight, but not to win? Appeal denied.

fRANCESCO pORTELOS cOURT OF aPPEALS

I slept rather well last night. This, despite receiving news that the second highest court in the country, the Court of Appeals, denied my appeal for my first amendment federal case last August. I believe I slept well because I would rather fight for what’s right and lose than not fight at all. This is a stark contrast to the me of 2011. Just six years ago, I had trouble sleeping when I saw all the misconduct taking place at my neighborhood school that I taught STEM at, Berta Dreyfus IS 49. From footballs flying in the hallway, to unreported violence and mismanaged finances…

I posted the audio of the oral argument, and the six points of error we were arguing to the Court of Appeals here, so I will not repeat in this post. Portelos v DOE Federal Appeal Update -Oral Arguments This Wednesday 11.15.17

If you hear the audio of the judges posing questions, you can see why I thought they would grant us at least some of our points. Instead, they used a technicality in the Notice of the Appeal to avoid some of the points and a new trial, while dismissing the other points and then not even mentioning the rest.

Excerpts from the Appeal Decision with my notes in bold. Please excuse the formatting issues as the appeal decision is copied from a PDF file.


Present: ROSEMARY S. POOLER,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges

Francesco Portelos appeals from the August 23, 2016 jury verdict and the October 31,
2016 order of the United States District Court for the Eastern District of New York (Hall, J.),
finding, respectively, that he had failed to establish First Amendment retaliation and that he was
not entitled to a new trial. Although Portelos’s briefs also contain arguments challenging the
district court’s August 13, 2016 partial grant of summary judgment to Defendants, he did not
include that order in his notice of appeal. In this context, that means we do not have jurisdiction
over the district court’s summary judgment decision.

WHEN YOU FILE A NOTICE OF APPEAL, YOU HAVE TO STATE WHAT YOU ARE APPEALING. I FIRST APPEALED ON MY OWN PRO SE, AND DID NOT WRITE THE VERY LATE SUMMARY JUDGEMENT THAT KNOCKED OUT A LOT OF MY CASE BEFORE TRIAL STARTED. TO COMBAT THIS ARGUMENT, MY ATTORNEY LISTED CASES THAT SHOW THAT INTENT MATTERS AND TECHNICALITIES CAN BE OVERLOOKED IN THE NAME OF JUSTICE.

We added in our reply brief:

——–

This Court construes notices of appeal liberally with an eye towards giving effect to the appellant’s intent.  State Trading Corp. of India v. Assuranceforeninger Skuld, 921 F.2d 409, 412-413 (2d Cir. 1990); Frederick v. United Brotherhood of Carpenters and Joiners of America, No. 15-1065, at p.2 (2d Cir. 2016) (summary order).  Technical defects that do not prejudice any party should be disregarded.  Elliott v. City of Hartford, 823 F.3d 170, 172 (2d Cir. 2016); State Trading Corp. of India, at 413.  An appeal from a dispositive order should be considered as equivalent to an appeal from a final judgment.  Songbyrd, Inc. v. Estate of Grossman, 206 F.3d 172, 178 (2d Cir. 2000).

Here, Mr. Portelos plainly sought review of all rulings in his case.  He wanted this Court to review all the rulings that an appeal from the final judgment would bring up.  His intent to seek such broad review is inferable from his Notice of Appeal, even if inartfully drawn.  His appellant’s brief manifests such intent.  The denial of his post-trial motion is a dispositive order that brings up for review all orders made in the case.  Appellees will suffer no prejudice from a liberal reading of the Notice of Appeal, given that they have briefed all the issues raised in Appellant’s Brief.  This Court should consider this appeal on the merits.

——-

The Court of Appeals continues with:

Here, Portelos names the jury verdict and the district’s order denying his motion for a new trial in his notice of appeal without naming either the final judgment or the summary judgment order. Even interpreted liberally, this is insufficient to give notice to Defendants that the summary judgment order was being appealed.
It is of no moment that Defendants nevertheless responded to Portelos’s arguments regarding the
summary judgment motion. They do not have the power to waive the jurisdictional requirements
contained in Rule 3. See New Phone, 498 F.3d at 131.
This defect in the notice of appeal leaves us with jurisdiction only over Portelos’s
challenges to the district court’s rulings during trial and its denial of the Rule 59 motion.

Portelos’s leading argument is that the district court erred in finding his instances of
speech at a United Federation of Teachers meeting and in emails to fellow UFT members were
not protected by the First Amendment because they were not matters of public concern. Whether
a given instance of speech is protected under the First Amendment for the purposes of evaluating
a retaliation claim is a matter of law. See Connick v. Myers, 461 U.S. 138, 150 n.10 (1983). We review conclusions of law de novo. Cf. United States v. Kopstein, 759 F.3d 168, 172 (2d Cir.
2014). “[W]hen a public employee speaks not as a citizen upon matters of public concern, but
instead as an employee upon matters only of personal interest, absent the most unusual
circumstances,” they do not receive First Amendment protection. Connick, 461 U.S. at 147.
Generally, “an employee’s dissatisfaction with the conditions of his employment[] does not
pertain to a matter of public concern.” Sousa v. Roque, 578 F.3d 164, 174 (2d Cir. 2009) (citing
Lewis v. Cowen, 165 F.3d 154, 164 (2d Cir. 1999)). Portelos’s speech falls into this category.
Even if he couched his plaints in impersonal terms, he was expressing concerns about the way
union leadership was treating him.

THIS IS NOT TRUE. A PUBLIC SCHOOL IS FUNDED BY PUBLIC MONEY AND A UNION MEMBER MENTIONING UNNECESSARY BULLYING AND SHARING OF ONLINE SOCIAL MEDIA, THAT TAKES AWAY FROM TEH GOALS OF PUBLIC EDUCATION, IS OF PUBLIC CONCERN.

IN OUR APPEAL WE WROTE:


However, even if one were to construe Mr. Portelos’s union speech as matters of his own workplace bullying (JA 798), the District Court had already ruled in its Summary Judgment decision that “workplace bullying” was protected speech (JA 448).  This Court’s open struggle with this issue illustrates the closeness of the issue.

This Court further should take notice of Appellees’ own concessions in their brief that at least some of the union speech was protected as a matter of public concern (Appellee Brief at 39). Indeed, Appellees argue that “most” of the speech was “largely” unprotected (Appellee Brief at 39,40).  Taking that concession on its face, to the extent at least some of the speech was a matter of public concern, the jury should have been allowed to consider the existence of that protected speech.  This Court should hold as a matter of law that portions of Mr. Portelos’s speech, both at a United Federation of Teachers union staff meeting on June 27, 2012, and a subsequent email sent by Mr. Portelos to all UFT staff, are constitutionally protected speech.  On the record before this Court, Appellees did retaliate against Mr. Portelos for this speech by giving him a disciplinary letter for engaging in this very speech.  Accordingly, Mr. Portelos is entitled to judgment as a matter of law on this claim.

Mr. Portelos subsequently became the elected chapter leader. This clearly bespeaks that Mr. Portelos’s speech was not just of a personal nature, but at least in part based on public concern about broader union issues at the public school and workplace bullying. Because such union issues in turn affect the functions of the public school, they therefore are matters of public concern.  Workplace bullying, in a public school, is also a matter of public concern as it takes away time and resources, meant for educating, and affects work productivity. The District Court erred by not granting judgment to Mr. Portelos on this issue, or at the least not allowing the jury to consider this union speech as a basis for concluding whether he was retaliated against by his school administration for the exercise of his free speech rights.

—————-

We also find unconvincing Portelos’s argument that the district court erroneously
dismissed the New York City Department of Education (“NYCDOE”). Following the Supreme
Court’s decision in Monell v. Department of Social Services of the City of New York, 436 U.S.
658 (1978), a municipality (as opposed to an individual government employee) can be liable
only for a constitutional violation when “the municipality itself commits the misdeed, that is,
when execution of a government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts the injury…” Walker v.
City of New York, 974 F.2d 293, 296 (1992) (internal citation and quotation marks omitted).
Whether a given municipal employee’s actions can be taken as the municipality’s depends on
state law, but generally the question is whether the employee “possesses final authority to
establish municipal policy with respect to the action ordered.” Id. This can be established in
several ways, but at issue here is whether “an official has final authority over significant matters
involving the exercise of discretion…” Nagle v. Marron, 663 F.3d 100, 116 (2d Cir. 2011)
(internal citations omitted).

Two NYCDOE actions are at issue here. First, it is uncontested that Portelos’s suspension
is attributable to Laura Brantley, acting as designee of Chancellor Walcott, whom state law gives
the final authority to suspend teachers. N.Y.C. Dept. of Educ. Chancellor’s Reg. C-770. But it is
contested whether Brantley had any retaliatory motive. Portelos acknowledges that he did not
introduce any evidence showing that Brantley had such motive, but says that he would have done
so (and has such evidence in reserve) had he known that this issue would have come up at the
Rule 50 stage. Absent an argument as to why the district court’s conduct was improper or biased
in preventing the presentation of certain evidence, we will not speculate about what evidence
outside the record may or may not have shown. Portelos implicitly concedes that the evidence in
front of the court did absolutely nothing to establish that Brantley had any retaliatory motive or
even knew that such a motive might be in play, and that is fatal to his appeal. Cf. Galdieri-
Ambrosini v. National Realty & Development Corp., 136 F.3d 276, 289 (2d Cir. 1998)
(discussing the “complete absence of evidence” standard for Rule 50).

Next, Portelos argues that Superintendent Erminia Claudio both had final authority to
initiate disciplinary proceedings against him and had retaliatory motive. The district court found
that Portelos failed to establish Claudio’s final authority. THAT’S BECAUSE THE DISTRICT JUDGE ONLY GAVE US 2 HOURS TO PUT ON OUR CASE WITH MY TESTIMONY.

On appeal, Portelos points to N.Y.S.
Education Law Section 2590-j(7)(b), which states quite clearly that Section 3020-a “charges may
be initiated by the community superintendent…” So, as a matter of law, Portelos is correct that
Claudio’s actions were attributable to the NYCDOE. But that is not the end of the matter. Even
assuming that Portelos properly preserved his objection, this error was harmless. Monell liability cannot attach absent proof of an underlying constitutional harm, and Portelos has not
demonstrated that here. Cf. United States v. Quinones, 511 F.3d 289, 312 (2d Cir. 2007) (holding
error harmless when it does not influence the jury verdict).
We have considered the remainder of Portelos’s arguments and find them to be without
merit. THEY MAKE NO MENTION OF THE ALLEGATIONS I ALLEGED AGAINST PRINCIPAL LINDA HILL STEALING MONEY, NOR THE DISTRICT COURT JUDGES EXCLUSION OF TESTIMONY AND FACTS BEFORE THE JURY.

Accordingly, the order of the district court hereby is AFFIRMED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk


NEXT STEPS? I WON’T SHARE THEM HERE JUST YET, BUT WILL KEEP YOU POSTED. WHO KNOWS, MAYBE THIS CASE WAS SLATED FOR THE SUPREME COURT OF THE UNITED STATES FROM THE BEGINNING.

NYC ATTORNEYS PAUL MARKS, ESQ., SCOTT SHORR, ESQ., JESSICA GIAMBRONE ESQ. (THE OBJECTION QUEEN), AND THE REST OF THE DOE AND NYC LAW OFFICE TEAM SHOULD NOT POP THE CHAMPAGNE BOTTLE JUST YET.

 

About Francesco Portelos

Parent and Educator fighting for the student and the teacher.

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