Francesco Portelos, ATR Teacher and Attorney Bryan Glass Lose Their Case at the Court of Appeals

Francesco Portelos

ATR is "Absent Teacher Reserve", a label put in place by the Department to show that the employee has been re-assigned, excessed, or formerly charged with 3020-a. Francesco Portelos was charged with 3020-a . Here is the decision of the 3020-a Arbitrator Felice Busto:

Francesco Portelos' guilty verdict at his 3030-a arbitration

He is a very bad guy, I think, to have anywhere near children in a school. He is also not cleared to work with children - his fingerprints are flagged with a problem code. You are warned.

Angry, vindictive Francesco filed lawsuits against the Department of Education and the UFT Chapter leader at his school. He lost at trial his Federal Lawsuit against Linda Hill and has not won any case filed as of yet. he and his lawyer Bryan Glass have failed to show that any of his ranting and raving is protected under the First Amendment free speech statute.

Francesco Portelos will now have to pay the $14,000 to the Corporation Counsel after he lost his Federal Case at trial in the Eastern District Court.

Indeed, Francesco's attorney Bryan Glass has had a particularly bad couple of weeks, losing  three Court of Appeals cases in rapid succession.

See
State’s top court overturns lower rulings that reinstated NYC’s ‘bad-apple’ teachers

 

Bryan Glass was the attorney for Terrell Williams and Amira Beatty.

Francesco was charged with 3020-a, fined $10,000 and warned not to pursue his cyberbullying by Arbitrator Felice Busto. Shockingly, he did not appeal the decision nor did he listen to the warning.

 Let's look at the sustained 3020-a charges Francesco was found guilty of (in the Opinion and Award of Felice Busto):

SPECIFICATION 6:

During the 2011-2012 school year, Respondent disclosed confidential Department information, including, but not limited to, witness statements, on a non-Department website, including, but not limited to, protectportelos.org.

SPECIFICATION 8:

During the 2011-2012 school year, Respondent inappropriately accessed and/or retrieved Department information, including, but not limited to, a Department email account and/or email messages of another Department employee.

SPECIFICATION 9:

During the 2011-2012 school year, Respondent inappropriately accessed a Department email account and/or email messages of another Department employee.


SPECIFICATION 25:

On or about January 28, 2012, Respondent, without consulting, notifying, and/or seeking authorization from Principal Hill or the I.S 49 administration, accessed the school website, www.Dreyfus49.com, as a site administrator and manipulated the settings to revoke the administrative rights and/or privileges of all individuals previously granted such administrative access.

SPECIFICATION 28:

On or about February 2012, Respondent refused to transfer control and/or ownership of the school website, www.Dreyfus49.com, to Principal Hill, I.S. 49, and/or the Department after agreeing to do so at a meeting with Principal Hill and Superintendent Erminia Claudio.

SPECIFICATION 29:

On or about November 2012, Respondent, without consulting, notifying, and/or seeking approval from Principal Hill or the I.S 49 administration, altered the website www.welearnandqrowtoqether.com, which Respondent had created for the school with Principal Hill's approval, to automatically transfer visitors to his alternative website, https://sites.qooqle.com/site/occupywarrenstreet/, which contained derogatory information about I.S. 49, Principal Hill, and/or the Department.

SPECIFICATION 31:

During the 2012-2013 school year, Respondent, without consulting, notifying, and/or seeking approval from Principal Hill and/or the Department, altered the school website, www.Dreyfus49.com, to automatically redirect visitors to his website, protectportelos.org, which chronicled his issues with various groups including Principal Hill, I.S. 49, and the Department.

SPECIFICATION 33:

During the 2011-2012 school year, Respondent recorded a video in a school facility, namely, I.S. 49, of a student during school hours, without permission or authority.

SPECIFICATION 34:

On or about December 12, 2012, Respondent notified I.S. 49 Superintendent Erminia Claudio that he showed the video referenced in Specification 33 to parents, without permission or authority.

SPECIFICATION 36:

On or about and in the month of September 2012, Respondent:

A. Sent an email message to a parent without permission or authority stating, in sum and substance, that the teacher who sent their son to summer school was not certified to teach and that this message identified the teacher and indicated that her teaching certification had expired.

B. Failed to notify and/or confirm with I.S. 49 administration that the teacher referenced above lacked certification prior to contacting the parent.

SPECIFICATION 38:

By committing one, some, or all of the actions described in the above Specifications, Respondent's actions:

A. Had a disruptive and/or negative impact on students, staff, and/or administration at I.S. 49 and the Department.

B. Caused negative publicity, ridicule, and notoriety to I.S. 49 and the Department."

Then he posted the grades of a student and her name on the internet, violating the student's FERPA rights.

The sender of the email below was a tenant in Francesco's building which he owns, and operates during the school day, according to this tenant. The building is in Staten Island. The tenant had to move out because his girlfriend was so ill. The tenant also told me that he was tutoring the son of Jia Lee, the teacher running against Francesco Portelos for UFT president in 2015, and the minute Francesco heard about this, the tenant was harassed endlessly to give Francesco information about Jia's son that Francesco could use against Jia:

"Subject: What is wrong with you
> To: "Francesco Portelos" <mrportelos@gmail.com>
> Date: Wednesday, October 26, 2016, 12:37 PM
> You text me telling me that you're
> confused, that I owe you rent for the month of November, and
> that you did nothing wrong.
>
> So us repeatedly being sick to the point that we've lost
> wages, due to the state of your property,
> Nasty orange water falling on us from the bathroom ceiling.
>
> Mushrooms growing from the bathroom walls and ceilings and
> you want to open the ceiling, exposing us to more spores and
> getting us more sick, and letting in more insects, instead
> of waiting until we leave. All so that you can rent the
> apartment immediately, no matter what effect it has on our
> health. You blame me for not reporting a leak, that I
> couldn't have known was happening.
>
> Mosquitos, beetles, drain flies, spiders, crickets and
> centipedes, on the walls our clothes, our food and  our
> bodies. Bugs whose existence you repeatedly lied about,
> whose presence I repeatedly told you that my fiancé was
> highly afraid of. Bugs that you failed to exterminate,
> because they live inside of the entire foundation of your
> property,
>
> The fact that there is little to no insulation which makes
> the apartment unbearably cold in the winter. The fact that
> there was a hole under the bathroom sink from which cold air
> from outside blew into the bathroom on a daily basis because
> for about 3 to 4 months you refused to do anything about it.
>
> Even though you assured me that the hole would be covered
> before I moved in.
>
> The fact that you promised to clean the apartment before I
> moved in, but instead I walked into a completely dust filled
> apartment.
>
> The fact that you lied about the washer and dryer being free
> more than once.
> The fact that you refuse to get a new washer and dryer even
> though E, the repair man and I all told you that the
> machines do not work properly and need to be replaced.
> I'm the one stuck paying the electricity bill for for this
> old beat up machine that I barely even use, that E
> doesn't have to pay for, but uses daily around the clock.
>
> You unnecessarily decided to bring in people in a full month
> in a half in advance, before our lease ends, while telling
> me that people want to move in before our lease ends, which
> suggest that you want us out. You suggest several times that
> we can leave early if we want, all so that we can forfeit
> our deposit and then you tell me that I'm at fault for the
> time period in which people can view the apartment, and I'm
> at fault for you not being able to find a tenant, because I
> don't want you and some strangers around our pets and our
> belongings while were not home.
>
> We keep getting locked out of the building in the cold and
> in the rain because no matter how many times I tell you that
> the door is malfunctioning, you always reply that its the
> batteries, when it is in fact the door itself and not the
> batteries at all. You wouldn't even give us a key.
>
> You suggest that I can move out sooner, while retaining my
> deposit, then change your mind and try to make it seem as if
> you paying your bills is somehow my responsibility. What you
> owe a bank has nothing to do with me. You try to make is
> seem as if a new tenants deposit, is my deposit, which it
> isn't, and has nothing to do with me.
>
> You sent a stove repair man, who shat on the bathroom floor
> and left it there.
> You sent an exterminator, who smelled so bad that we had to
> open the doors and windows for hours to clear the apartment
> of his body odor.
>
> The fact that we are well beyond stressed out all due to
> these conditions that you caused, provided us or didn't even
> care to take care of or prevent.
>
> The fact that you you refuse to acknowledge that any of
> these things are or your responsibility to take care of or
> to have prevented before hand, the fact that we are up
> coughing or can't sleep at night due to these conditions.
>
> Almost every single time that I told you that I had an issue
> with your property, you immediately replied that the
> conditions that we moved into were somehow my fault, or you
> replied that I had to spend my own money to fix these
> conditions
>
> I do not owe you and I am the one who is confused. Its
> surprising that you could treat people like this without a
> care in the world. You really don't care about how sick
> we've been, you don't care what happens to your tenants so
> long as you get rent.
>
> These conditions are more than legitimate reasons for our
> agreement to be broken and for you to return our deposit.
> Instead you refuse to acknowledge any wrong doing, You
> refuse to do the right thing. Even though these things are
> all on you, even though M and I have never done
> anything wrong to you or to your property, even though we
> paid rent in full every month, you simply don't want to
> return our deposit. You patronize me as if I'm a child, as
> if I don't know how things are supposed to work, by saying
> that you know this is my first apartment, as if I have no
> rights or as if I'm unaware as to how a tenant should expect
> to be treated.
>
> You need to get off of your privilege high horse.

> From: Francesco Portelos <mrportelos@gmail.com>
> Subject: Re: What is wrong with you
> To:
> Date: Wednesday, October 26, 2016, 3:55 PM
> What is it
> that you want?
>
> On Wed, Oct
> 26, 2016, 2:25 PM Francesco Portelos <mrportelos@gmail.com>
> wrote:
> Let's be
> adults, honest and call it is as it is...
> You want money
> for a deposit on a new place and want to break you agreement
> to get that deposit. However, instead of saying so ahead of
> time to try and work with you, you come up with this. I
> chips have advertised it as November 1st.
> Through your own
> admission, in your email, you state that I called repairmen
> and an exterminators. In fact I addressed your concerns as
> soon as you informed me. From stuck doors to battery
> replacement.
> Please indicate
> if you will allow me to enter and fix there bathroom
> ceiling.
> Francesco

In my opinion, these facts show a dangerous man harming innocent people . After UFT Rep. Richard Candia did not help Francesco attack Principal Linda Hill, and after Francesco went after Mr. Candia's girlfriend, also a teacher, Francesco sued Candia in the NYS Supreme Court but the case was quickly disposed by the judge. See PORTELOS, FRANCESCO vs. CANDIA, RICHARD, Index no. 0100309/2013.

Betsy Combier

Editor, ADVOCATZ.com
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United States Court of Appeals, Second Circuit.

FRANCESCO PORTELOS, Plaintiff-Appellant, v. LINDA HILL, PRINCIPAL OF I.S. 49, in her official and individual capacity, ERMINIA CLAUDIO, CITY OF NEW YORK, CITY OF NEW YORK DEPARTMENT OF EDUCATION, Defendants-Appellees, DENNIS WALCOTT, Chancellor of New York City Department of Education, Defendants.

16-3932-cv

    Decided: December 04, 2017

Present: ROSEMARY S. POOLER, RICHARD C. WESLEY, PETER W. HALL, Circuit Judges.Appearing for Appellant: Bryan D. Glass, Glass Krakower LLP, New York, NY Appearing for Appellee: Scott Shorr, Assistant Corporation Counsel (Kathy C. Park, Assistant Corporation Counsel, on the brief) for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY

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.

We have jurisdiction only over rulings designated in the notice of appeal. See Fed R. App. P. 3(c)(1)(B); Shrader v. CSX Transportation Inc., 70 F.3d 255, 256 (2d Cir. 1995). Although we read and apply Rule 3's requirements “quite liberally on the understanding that mere technicalities should not stand in the way of consideration of a case on its merits,” United States v. Caltabiano, 871 F.3d 210, 215 (2d Cir. 2017) (internal quotation omitted), we simply “do not have the authority to waive the jurisdictional requirements․” New Phone Co., Inc. v. City of New York, 498 F.3d 127, 130 (2d Cir. 2007); see also Gonzalez v. Thaler, 565 U.S. 134, 147 (2012); Smith v. Barry, 502 U.S. 244, 248 (1992); Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988). Since Portelos appeals from a ruling other than the final judgment that does not have a similar effect as a final judgment, we have jurisdiction only over the particular ruling mentioned in the notice of appeal. Shrader, 70 F.3d at 256. 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. We assume the parties' familiarity with the underlying facts, procedural history, and specification of issues for review.

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.

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

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk