Portelos v. Hill, 16-3932

Plaintiff Francesco Portelos, a public school teacher, sued NYCDOE officials alleging First Amendment retaliation for union-related speech and certain disciplinary actions.
District court granted partial summary judgment for defendants and, after trial, a jury found Portelos failed to prove First Amendment retaliation; the district court also denied his Rule 59 motion for a new trial.
Portelos appealed the jury verdict and the denial of his Rule 59 motion but did not include the district court’s summary judgment order in his notice of appeal.
Key contested actions: (1) suspension attributed to Laura Brantley (designee of Chancellor Walcott), and (2) disciplinary initiation by Superintendent Erminia Claudio; Portelos argued both were attributable to NYCDOE and motivated by retaliation.
The district court held Portelos’s union meeting speeches and emails were not matters of public concern and that he failed to show retaliatory motive by officials who could bind the municipality.
On appeal, the Second Circuit affirmed, finding limited jurisdiction to the appealed orders, concluding the speech was not protected, and treating errors about municipal attribution as either unsupported or harmless without proof of constitutional injury.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Portelos’s union meeting speech and emails addressed matters of public concern	Speech concerned union governance and treatment by leadership; thus protected	Speech was personal/employee grievances about treatment, not public concern	Court: Not public concern; no First Amendment protection
Whether NYCDOE (municipality) can be liable under Monell for actions of Brantley	Actions by Brantley (suspension) attributable to NYCDOE; thus municipal liability possible	Brantley had authority but no evidence of retaliatory motive	Court: Suspension attributable to Brantley but Portelos presented no evidence of retaliatory motive; claim fails
Whether actions by Superintendent Claudio can be imputed to NYCDOE	Claudio (community superintendent) had authority to initiate disciplinary charges under State law; thus NYCDOE liable	District court found Claudio lacked final policymaking authority	Court: As a matter of law Claudio’s actions can be attributable, but any error was harmless because no underlying constitutional violation shown
Jurisdictional sufficiency of Portelos’s notice of appeal to challenge summary judgment	Portelos argued merits of summary judgment on appeal	Defendants argued notice did not list summary judgment; jurisdiction limited	Court: Lacks jurisdiction to review unlisted summary judgment order; appeal limited to jury verdict and Rule 59 denial

Connick v. Myers, 461 U.S. 138 (1983) (speech by public employee protected only if it addresses matter of public concern)
Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978) (municipal liability requires execution of government policy or custom causing constitutional violation)
Shrader v. CSX Transportation Inc., 70 F.3d 255 (2d Cir. 1995) (appeal jurisdiction limited to matters named in notice of appeal)
New Phone Co., Inc. v. City of New York, 498 F.3d 127 (2d Cir. 2007) (parties cannot waive appellate jurisdictional requirements)
Sousa v. Roque, 578 F.3d 164 (2d Cir. 2009) (employee dissatisfaction with employment conditions typically not public concern)