The opinion of the court was delivered by: MCLAUGHLIN
The annexed Report and Recommendation of United States Magistrate A. Simon Chrein is hereby adopted as the Opinion of this Court. No objections were filed within the time permitted. Accordingly, defendant's motion for summary judgment is denied. SO ORDERED
The Clerk shall make copies of this Order and shall serve them upon the parties.
REPORT AND RECOMMENDATION OF U. S. MAGISTRATE
This is an action under 42 U.S.C. § 1983 claiming a violation of due process and equal protection, under Title VII, 42 U.S.C. § 2000(e), for a discriminatory demotion, and under the New York State Constitution for a violation of human rights. N. Y. Const., art. 1, §§ 6,11. This court has jurisdiction under 28 U.S.C. § 1343(a)(3), (4) and under pendent jurisdiction. The plaintiff alleges that she was disciplined without due process and in violation of equal protection when she was removed from a noncivil service, in-house title for racial reasons and without notice and an opportunity to be heard.
The plaintiff began working for the Office of the Inspector General of the New York City Fire Department on October 6, 1980. Defendant's Statement of Material Facts at P1, Aug. 8, 1984. She worked in the noncompetitive, nontenured civil service position of Confidential Investigator Level I until December 1, 1981. Id. at P2. As of December 1, 1981, Ms. Morciglio was promoted to the noncompetitive, nontenured civil service position of Confidential Investigator Level II. Id. at P3.
In January 1982, the plaintiff was given the noncivil service, in-house title of Chief Investigator. Id. at P4. As of March 1, 1983, she was promoted to the provisional civil service title of Principal Investigator, a position she continued to hold until her termination on May 17, 1984. Affidavit in Opposition to Application for Preliminary Injunction at P2, Aug. 29, 1983; Affidavit in Support of Defendant's Motion for Summary Judgment at P9, Aug. 7, 1984. Defendant's Memorandum of Law in Opposition to Plaintiff's Application for a Preliminary Injunction at 2, Sept. 23, 1983 [hereinafter cited as "Memorandum in Opposition to Preliminary Injunction"]; Affidavit of Libertad E. Morciglio at P18, Dec. 21, 1984.
As Chief Investigator, Ms. Morciglio was given supervisory duties in addition to her investigative duties. Her promotion in civil service status to Principal Investigator was intended to provide her accordingly with a salary increase to compensate her for these additional duties. Defendant's Statement of Material Facts at § 5. This salary increase was retroactive to January 1982, the date she actually began her supervisory duties. Affidavit in Support of Preliminary Injunction at P4, Aug. 30, 1983.
The plaintiff was suspended from her in-house title of Chief Investigator on August 11, 1983 and, although retaining her civil service position as Principal Investigator, was relieved of her supervisory duties. Defendant's Statement of Material Facts at P6; Complaint at PP5, 7, 8. The plaintiff brought this action on August 25, 1983 challenging the removal of her title of Chief Investigator.
Nine months after this action was brought, the plaintiff's employment with the New York City Fire Department was terminated. Affidavit of Libertad E. Morciglio at P18, Dec. 21, 1984.
The plaintiff alleges in her first claim that her suspension as Chief Investigator violated her due process and equal protection rights in violation of 42 U.S.C. § 1983 since she was suspended with no notice or hearing and for racially discriminatory reasons. Complaint at PP15-18, 20. In her second claim, the plaintiff alleges a denial of equal employment opportunity in violation of Title VII since she was suspended for racial reasons. Id. at P21. The plaintiff also alleges a ...