The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge.
Plaintiff Eligio Castro, a former probationary High School
Spanish teacher employed by defendant New York City Board of
Education (the "Board"), brings this pro se action challenging
the termination of his employment as being in violation of the
Fifth and Fourteenth Amendments of the United States
Constitution. Castro seeks compensatory and punitive damages,
along with reinstatement, back pay, and other declaratory
relief. Defendants Board of Education and various supervisors
and administrators at his high school (together the "City
defendants"),*fn1 as well as Castro's former union, defendant
United Federation of Teachers ("UFT")*fn2, move pursuant to
Fed.R.Civ.P. 12(b)(6) to dismiss the amended complaint for
failure to state a claim upon which relief can be granted.
Castro cross-moves for summary judgment, a preliminary
injunction, severance of the action, and separate trials.
Additionally, Castro has made various discovery requests.*fn3
Following reports of Castro's unsatisfactory performance,
based on in-class observations, Castro was informed, by letter
dated May 28, 1989, that due to his unsatisfactory teaching
performance, inter alia, the principal would recommend
discontinuance of his probationary period, which was to expire
on August 8, 1989. Amended Complaint Exh. A.
By letter dated June 15, 1989, Castro filed a grievance
under the collective bargaining agreement between the Board
and the UFT which contested the recommendation of
discontinuance. Amended Complaint, Exh. C. His grievance was
rejected, and Castro then appealed to the next step of the
grievance procedure. Amended Complaint, Exh. D. On June 21,
1989, Castro also made a separate "appeal" to the Chancellor
of the Board, challenging the factual basis for the
recommendation of discontinuance and requesting either
certification of his probationary period as completed, or that
a hearing be held regarding the discontinuance of his
probationary status. Amended Complaint, Exh. B.
A hearing was held on June 27, 1989 on Castro's appeal of
the grievance. Castro challenged the entry into his personnel
file of evaluation reports and other documents which provided
partial basis for the recommendation of discontinuance. The
Hearing Officer rejected the grievance as untimely, noting
that Castro had been afforded the opportunity to respond to
the reports placed into his file in the past, but had not done
so. Amended Complaint, Exh. F. On June 28, 1989, the
discontinuance of Castro's probationary period was finalized,
which effectively terminated his employment.
Castro raises several due process claims in his amended
complaint. He claims denial of due process by virtue of (1)
the placing of administrative observations and letters in his
file upon which the recommendation to discontinue probationary
service was based, Amended Complaint ¶ 3; (2) the Board's
failure to timely respond to a contract grievance over his
alleged deprivation of liberty interest, ¶ 7; (3) the failure
to be afforded a hearing prior to discontinuance, ¶ 8; (4) the
Board's failure to provide him a requested "Interim Relief"
prior to dismissal, ¶ 11; and (5) the Board's denial of his
appeal and his subsequent dismissal, ¶ 12. Castro also alleges
denial of equal protection because he was required to punch a
timeclock while other teachers allegedly were not. Amended
Complaint ¶ 5. He further raises various alleged violations of
the rights of bilingual students by virtue of the Board's
practices regarding bilingual education. Finally, Castro brings
various state claims against the City defendants arising from
the circumstances of his dismissal. With regard to the UFT,
Castro apparently claims that the UFT violated its duty of fair
representation by its failure to request a "Special Complaint,"
pursuant to the Board/UFT Agreement, that "may have" prevented
his dismissal. Amended Complaint ¶ 8.
Castro's due process claims hinge on his contention that he
had a property interest in his probationary teaching position
and was thus entitled to a due process hearing prior to his
dismissal. At the outset, Castro must show that he possesses
a property interest protected by the Constitution. Strong v.
Board of Education, 902 F.2d 208, 211 (2d Cir. 1990). If a
protectable property interest is found, then it must be
determined whether Castro was deprived of that interest without
due process. Id. The "constitutional contours of due process
turn on the specific circumstances of the case, including the
governmental and private interests at issue." Id. Due process
is therefore a "flexible concept requiring
only such procedural protection as the particular situation
Property interests in employment positions are not created
by the Constitution but are defined by state law. Bishop v.
Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684
(1976); Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct.
2701, 2709, 33 L.Ed.2d 548 (1972). Pursuant to § 2573(1)(a) of
the New York Education Law, a probationary period of three
years must be served by any teacher appointed by the Board. A
probationary teacher may be discontinued at any time during the
probationary period. A recommendation to grant or deny tenure
must then be made and notice given to the teacher at least
sixty days before the expiration of probation.*fn4
It is well settled under New York law that a probationary
employee has no property rights in his employment and may be
terminated for "almost any reason or no reason at all."
Venes v. Community School Board, 43 N.Y.2d 520, 525,
373 N.E.2d 987, 990, 402 N.Y.S.2d 807, 810 (1978); James v. Board of
Educ., 37 N.Y.2d 891, 892, 340 N.E.2d 735, 378 N.Y.S.2d 371
(1975). Thus, probationary teachers essentially serve at will.
A probationary employee who has been dismissed is therefore not
entitled to a hearing, unless such an employee can show a
violation of statutory law or a constitutionally impermissible
purpose underlying the termination. York v. McGuire, 63 N.Y.2d
760, 761, 469 N.E.2d 838, 480 N.Y.S.2d 320 (1984).
Because Castro did not have a protectable property interest
in his probationary teaching position, due process did not
require a hearing prior to his dismissal. Moreover, Castro has
alleged no more than vague conclusions. No hard facts support
his contention that the City defendant's decision to terminate
his probationary teaching position was made for a
constitutionally impermissible purpose. As such, his
allegations are insufficient to state a constitutional claim.
See Martin v. New York State Dep't of Mental Hygiene,
588 F.2d 371, 372 (2d Cir. 1978) (a complaint consisting of nothing more
than naked ...