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June 14, 1990


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.


I. Due Process Claims

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 demands." Id.

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 ...

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