his refusal to read the documents, and out of the placement of
such documents in his personnel file, borders on the frivolous
and is therefore dismissed.
II. Equal Protection
Castro contends that he was denied equal protection of the
law because he was forced to punch a timeclock on arrival at
work, while other teachers allegedly were not required to do
so, and because his timecard was allegedly hidden which
resulted in his being marked absent. The Fourteenth Amendment
provides that no state shall deny to any citizen the equal
protection of the laws. The constitutional guarantee of equal
protection is "the right to be free from invidious
discrimination in statutory classifications and other
governmental activity." Harris v. McRae, 448 U.S. 297, 322, 100
S.Ct. 2671, 2691, 65 L.Ed.2d 784 (1980), reh. denied,
448 U.S. 917, 101 S.Ct. 39, 65 L.Ed.2d 1180 (1980). That right is
violated when the state draws a distinction between individuals
based on unreasonable, arbitrary, or capricious differences
that are irrelevant to a legitimate governmental objective.
Lehr v. Robertson, 463 U.S. 248, 265, 103 S.Ct. 2985, 2995, 77
L.Ed.2d 614 (1983).
Even assuming Castro's allegations are true and according
them a liberal construction, Castro fails to identify any
statutory classification or governmental activity which has
resulted in an invidious discrimination. Nor has he
sufficiently alleged any disparity or discrimination that
affect rights held by him. As such, his equal protection claim
Castro further contends that "by virtue of being a teacher
of children whose liberty interests and constitutional rights
protected under the Civil Rights Act, were denied when
defendants violated the bilingual law as set forth in the
amended complaint and subsequently deemed admitted, has a
valid claim against defendant." Plaintiff's Motion for Summary
Judgment ¶ 4A. It is well settled that "[o]rdinarily, one may
not claim standing . . . to vindicate the constitutional rights
of some third party," Singleton v. Wulff, 428 U.S. 106, 114, 96
S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976) (quoting Barrows v.
Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1033, 97 L.Ed. 1586
(1953), reh. denied, 346 U.S. 841, 74 S.Ct. 19, 98 L.Ed. 361
(1953)). The attempt by Castro to assert an equal protection
claim on behalf of bilingual education students must therefore
fail for lack of standing.
III. Duty of Fair Representation
Castro also alleges, in essence, that the UFT violated its
duty of fair representation due to its refusal to file a
"Special Complaint," pursuant to Article 23 of the Board/UFT
agreement, on Castro's behalf.*fn5 According to Castro the
"Special Complaint" provides a remedy for teachers "who are
subjected to harassment and intimidation," and that, if the
union would have acted, Castro may not have been dismissed.
Amended Complaint ¶ 8.
A union may be implicated in the breach of its duty of fair
representation only if the employer has substantially breached
the collective bargaining agreement, and the union's actions
are shown to have arbitrarily, discriminatorily, or in bad
faith foreclosed the employee's opportunities
to vindicate such wrong through the grievance process. See Vaca
v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).
Castro has shown neither element. A school district's decision
to deny tenure is not reviewable by a grievance under a
collective bargaining agreement because neither arbitrators nor
contract provisions can award tenure. Granting tenure is a
non-delegable duty vested solely in the discretion of the
school district. Cohoes City School Dist. v. Cohoes Teachers
Assoc., 40 N.Y.2d 774, 358 N.E.2d 878, 390 N.Y.S.2d 53 (1976).
Moreover, a Special Complaint results in merely an advisory
"fact finder" report not binding on the Board, and which cannot
compel the Board to annul Castro's probationary discontinuance
and dismissal. See Meagher Affid.Exh. A. Thus substantive
review of the tenure decision and prevention of Castro's
dismissal are beyond the scope of the Special Complaint which
Castro claims he was wrongfully denied. Accordingly, the UFT's
failure to pursue a "Special Complaint" in no way implicated a
breach of the duty of fair representation.
In sum, Castro fails to allege any constitutional violation
sufficient to withstand a motion to dismiss. As such, both
motions to dismiss are granted. Because Castro's federal
claims are dismissed, his state law claims must fall as well.
Castro's cross-motions are denied.
The complaint is therefore dismissed in its entirety as to