POWELL v. CITY OF PITTSFIELD

ORDER

Upon de novo review this Report and Recommendation is herebyadopted, without opposition. Rulings on the pending motions forsummary judgment are as set forth in Section IV. The clerk willset the matter for a status conference.

So ordered.

REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANTS' MOTIONSFOR SUMMARY JUDGMENT (Docket Nos. 46, 49, 56, 57 and 61)

Walter J. Powell ("Plaintiff"), believing that the City ofPittsfield ("Pittsfield") did not rehire him as a police officerquickly enough following his settlement of a prior employmentdiscrimination lawsuit, filed this action on September 8, 1997.Plaintiff claims that Pittsfield, along with four individualsinvolved in the rehiring process, Mayor Edward Reilly("Reilly"), Police Chief Gerald Lee ("Lee"), City SolicitorKathleen Alexander ("Alexander") and City Physician Gordon Bird("Dr.Bird") (collectively "Defendants"), violated certain civilrights and other laws.

Defendants have each moved for summary judgment. The motions,five in all, have been referred to this court for a report andrecommendation. See 28 U.S.C. § 636(b). For the reasons statedbelow, the court will recommend that two of the motions, Dr.Bird's and Lee's, be allowed in full and that the remainingthree, Pittsfield's, Reilly's and Alexander's, be allowed inpart and denied in part.

I. SUMMARY JUDGMENT STANDARD

A court may grant summary judgment pursuant to FED. R. CIV. P.56(c) if "there is no genuine issue as to any material fact" and"the moving party is entitled to a judgment as a matter of law."Once the moving party has asserted that no genuine issue ofmaterial fact exists, the burden is on the opposing party topoint to specific facts demonstrating that there is, indeed, atrialworthy issue. National Amusements, Inc. v. Town ofDedham, 43 F.3d 731, 735 (1st Cir. 1995). A "genuine" issue isone "that a reasonable jury could resolve . . . in favor of thenonmoving party." McCarthy v. Northwest Airlines, Inc.,56 F.3d 313, 315 (1st Cir. 1995). Accord United States v. OneParcel of Real Property, Great Harbor Neck, New Shoreham, R.I.,960 F.2d 200, 204 (1st Cir. 1992).

Not every genuine factual conflict, however, necessitates atrial. "`It is only when a disputed fact has the potential tochange the outcome of the suit under the governing law if foundfavorably to the nonmovant that the materiality hurdle iscleared.'" Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445,448 (1st Cir. 1997) (quoting Martinez v. Colon, 54 F.3d 980,983-84 (1st Cir. 1995)). At bottom, matters of law are for thecourt to decide at summary judgment. Blackie v. Maine,75 F.3d 716, 721 (1st Cir. 1996).

II. BACKGROUND

The court states the facts, which span nearly two decades, ina light most favorable to Plaintiff, the non-moving party. Indoing so, the court deems admitteduncontroverted facts of record supplied by Defendants. SeeLocal Rule 56.1.1

Plaintiff, an African-American, attended the state policeacademy in 1983 and thereafter began working as a police officerin the city of North Adams. (Plaintiffs Amended Affidavit(attached to Docket No. 78) §§ 1, 2.) In May of 1985, Plaintiffwas hired as a Pittsfield police officer. (Docket No. 32: FirstAmended Complaint and Demand for Jury Trial ("Complaint") ¶ 9.)When Plaintiff was initially hired by Pittsfield, Dr. Birdperformed a routine physical examination. (Docket No. 71:Exhibits in Support of Plaintiff Opposition to Defendants'Motions for Summary Judgment ("Plaintiffs Exhibits"), Exhibit 5(Bird Deposition) at 15-16.) At all relevant times, Dr. Birdheld the title of City Physician, a part-time, contractposition. (Complaint § 1(C)(4), at 3 and § II at 4.)

On March 21, 1991, Plaintiff was fired from the PittsfieldPolice Department. (Complaint ¶ 10.) Plaintiff thereafter fileda lawsuit in this district alleging illegal race discrimination.See Powell v. Pittsfield, Civil Action No. 91-30195-FHF. Whilethat lawsuit was pending in 1992, Reilly became the Mayor ofPittsfield, Alexander became the City Solicitor and Lee becamethe Chief of Police. (See Pittsfield's Facts §§ i(C)(1)-(3), at2-3.) Reilly, as Mayor, was the ultimate appointing authorityfor the Police Department. (Plaintiffs Exhibits, Exhibit 2(Reilly Deposition) at 8.)

On September 29, 1993, Plaintiff and Pittsfield entered into aSettlement Agreement and Release of All Claims ("SettlementAgreement"). (Complaint ¶ 12.) Reilly and Alexander negotiatedthe Settlement Agreement on behalf of Pittsfield. (PlaintiffsExhibits, Exhibit 2 (Reilly Deposition) at 13.) As part of theirnegotiation, Reilly and Alexander met with Lee to discussrequirements which would allow Plaintiff to be reinstated.(Id., Exhibit 4 (Lee Deposition) at 23-24.) Reilly, however,viewed himself as the person ultimately responsible forPlaintiffs reinstatement.(Id, Exhibit 2 (Reilly Deposition) at 3536.)

The terms of the Settlement Agreement required Plaintiff todismiss with prejudice all civil actions pending againstPittsfield, its agents, employees, successors and assigns,including the prior action filed in this court. (Docket No. 60:Exhibits [to Pittsfield's] Concise Statement of Facts("Pittsfield's Exhibits"), Exhibit B ¶ 4.) In return, Pittsfieldagreed to pay Plaintiff $81,000 and reinstate him as a policeofficer. (Id. ¶ 1.) Plaintiffs reinstatement, however, wasconditioned upon his passing a physical and psychologicalexamination and other reasonable conditions to be determined byPolice Chief Lee. (Id. ¶ 3.) More specifically, the SettlementAgreement, in applicable part, provided as follows:

Powell agrees that his reinstatement shall be conditioned upon his successful completion of certain re-training as determined by Chief of Police Gerald Lee, certain psychological counseling if and as determined by Chief Lee, successfully undergoing a complete physical and psychological examination, and whatever other conditions Chief Lee determines are necessary in order to facilitate Mr. Powell's reorientation into the Department for both his own interests and the best interests of the Department.

(Id.)

Following execution of the Settlement Agreement, Pittsfield'spersonnel department requested Dr. Bird to provide a full policeacademy entrance physical exam to Plaintiff. (Complaint ¶ 17;Docket No. 48: Exhibits Regarding Memorandum in Support ofBird's Motion for Summary Judgment ("Bird's Exhibits"), Exhibit8 (Bird Deposition) at 31.) At the time, Dr. Bird's duties asCity Physician included giving physicals to Pittsfield policeofficer candidates who were entering the Pittsfield policeforce. (Complaint ¶ 16.) Because Pittsfield did not have aspecific custom or policy in place pertaining to the rehiring orreinstatement of police officers after a period of separation,the city utilized its policy requiring that newly hired policeofficers pass a physical examination administered by Dr. Bird.(See Docket No. 65: Memorandum in Support of Alexander'sMotion for Summary Judgment ("Alexander's Brief"), Exhibit 2(Alexander Deposition) at 17-19.)

Dr. Bird examined Plaintiff on October 20, 1993 — lab testsappeared to have been taken on October 13, 1993 (Bird'sExhibits, Exhibit 9) — and Dr. Bird found Plaintiff healthy and"[q]ualified for the position sought." (Complaint §§ 18, 19;Pittsfield's Exhibits, Exhibit D.) Nonetheless, abnormal liverfunction tests, which indicated a possible mild dysfunction,required further liver testing. (Pittsfield's Exhibits, ExhibitD; Complaint ¶ 19.)

On the basis of these further tests, taken on or about October27, 1993, Dr. Bird determined that Plaintiff, while otherwisehealthy, should have a hepatitis panel test to further assessliver function. (Complaint ¶ 20.) On November 10, 1993, the testindicated a positive reaction for hepatitis C. (Id. ¶ 21;Pittsfield's Exhibits, Exhibit E.) Accordingly, Plaintiff wasreferred to a specialist, although he indicated that he alsowanted to arrange for a consultation with his own doctor aboutthe possibility of hepatitis C. (Complaint ¶ 21; Bird'sExhibits, Exhibit 13.)2

On November 15, 1993, Dr. Robert Taylor — a doctor chosen byPlaintiff-reported to Dr. Bird that, although Plaintiff may havea hepatitis infection, he was otherwise healthy and was onlyrestricted from giving blood and imbibing alcohol. (Alexander'sBrief, Exhibit 4(F).) Plaintiff then saw Dr. Arthur Wasser, agastroenterologist to whom he was referred by Dr. Bird.(Pittsfield's Exhibits, Exhibit F.) Dr. Wasser reported onDecember 13, 1993, that Plaintiff probably had hepatitis C andthat treatment for this disease could involve a six month courseof interferon three times a week with attendant side effects.(Id.) Even so, Dr. Wasser opined that Plaintiff wasasymptomatic and otherwise "a healthy, strapping man" and thatthe risk of transmission to co-workers and others was "ratherlow." (Id.)

In the meantime, on December 1, 1993, Plaintiff applied forand was granted a license to run a taxi and limousine businessby the Pittsfield License Board. (Id. Exhibit R.) Plaintiffavers that he began driving limousines at the time to helpsupport his family. (Plaintiffs Amended Affidavit ¶ 11.)

On December 21, 1993, Dr. Bird sent a report to Pittsfield'spersonnel department indicating that Plaintiff had "chronicactive hepatitis" and was, therefore, "disqualified" fromemployment. (Complaint ¶ 24; Pittsfield's Exhibits, Exhibit I.)Upon learning of Dr. Bird's December 21, 1993, letter,Alexander, City Solicitor, spoke to Plaintiffs then counsel,Michael Powers ("Powers"), and advised him that, regardless ofDr. Bird's medical opinion, Plaintiff was not legallydisqualified from employment. (Alexander's Brief, Exhibit 2(Alexander Deposition) at 85.) Plaintiff fired Powers in Januaryof 1994. (Id., Exhibit 5 (Powell Deposition) at 215.)

On February 15, 1994, Plaintiffs new counsel, Kenneth Gogel("Gogel") wrote Alexander demanding either reinstatement or anofficial "disqualification" so that Plaintiff could commenceappellate review of the matter. (Plaintiffs Exhibits, Exhibit22.) In letters to Gogel dated February 22 and March 30, 1994,Alexander confirmed that Pittsfield was not yet legallydisqualifying Plaintiff, but that the city wanted more medicalinformation from him. (Alexander's Brief, Exhibit 4(J) and (N).)Ultimately, Plaintiff arranged for a liver biopsy to beperformed by Dr. F. Borhan-Manesh of the VeteransAdministration. (See id., Exhibit 4(O).) Plaintiff confirmedat his deposition that his doctors told him "that it wasmedically impossible to make [a definite hepatitis C] diagnosis"without a liver biopsy. (Bird's Exhibits, Exhibit 16 (PowellDeposition) at 50.)3

On May 3, 1994, Dr. Borhan-Manesh, having completed the liverbiopsy, issued his report. Dr. Borhan-Manesh's report indicatedthat, although Plaintiff had chronic hepatitis C, he wasotherwise healthy and fit for his job and that there was no riskof infection from casual contact. (Complaint ¶ 25; Pittsfield'sExhibits, Exhibit L.) Thereafter, several things happened.

First, on May 6, 1994, Gogel wrote Alexander demandingimmediate reinstatement based on Dr. Borhan-Manesh's report.(Plaintiffs Exhibits, Exhibit 25.) At about the same time,Plaintiff applied for and received a bank loan to operate histaxi and limousine business and inquired of Lee, the policechief, as to whether he would be able to obtain a "disability"pension if he was unable to return to his job as a policeofficer. (See Pittsfield's Exhibits, Exhibit T; Alexander'sBrief, Exhibit 2 (Alexander Deposition) at 121-23, 147-49,Exhibit 3 (Lee Deposition) at 52, 65-66; Plaintiffs AmendedAffidavit ¶ 11.) In the meantime, Alexander and Dr. Bird,independently, researched the legal and medical ramifications ofhepatitis C and the Americans With Disabilities Act ("ADA").(Alexander's Brief, Exhibit 2 (Alexander Deposition) at 30-31,38-40, Exhibit 3 (Lee Deposition) at 53-56.) In addition,Alexander and Lee discussed whether Plaintiff had a"communicable disease." (Plaintiffs Exhibits, Exhibit 26.)

On May 11, 1994, Alexander, Reilly and Lee met to discussPlaintiffs situation. (See Plaintiffs Exhibits, Exhibit 27.)Alexander's note from that meeting refers to "results ofbiopsy," "enforcing [the] ADA" and the "2 job rule" as well asPlaintiffs anticipated return to work (Id.) The bottom of thenote states: "write Gogel asking for full release of allrecords." (Id.)

On May 12, 1994, Alexander did indeed write Gogel and advisedhim that Reilly and Lee were willing to consider Dr.Borhan-Manesh's results and that, in consultation, they wouldmake a determination regarding reinstatement. (Id., Exhibit28.) The letter also indicated that Pittsfield remainedconcerned about the risk to the public and other police officersfrom Plaintiffs condition. (Id.) The next day, Alexander wasprovided with Plaintiffs release authorizing Defendants todiscuss his condition with Dr. Borhan-Manesh. (Id., Exhibit29.) Alexander forwarded the release to Dr. Bird. (Id.,Exhibit 30.) In June of 1994, Dr. Bird, concerned thatPlaintiffs employment as a police officer could entail a higherthan normal risk of blood to blood contact, consulted withpublic health officials at the U.S. Center for Disease Controland the University of Massachusetts Medical Center. (Complaint ¶26; Pittsfield's Exhibits, Exhibit N.) In a letter dated June28, 1994, these officials informed Dr. Bird that they knew of norestrictions preventing police officers with hepatitis C, whowere otherwise healthy, from performing their duties. (Bird'sExhibits, Exhibit 23; see also Complaint 26; Pittsfield'sExhibits, Exhibit N.) Dr. Bird apparently shared thisinformation with Reilly and Alexander. (See Plaintiffs Exhibits,Exhibit 31.)

As it turns out, an attorney sharing office space with Gogelwrote Alexander at about the same time claiming that Pittsfieldhad breached the Settlement Agreement through its "silence."(Alexander's Brief, Exhibit 4(Q).) Alexander immediatelyresponded in a letter to Gogel dated June 30, 1994, that anydelays were solely attributable to Plaintiff. (Id., Exhibit4(R).)

On July 5, 1994, Dr. Bird sent a letter to Alexanderindicating that he no longer thought Plaintiffs condition wouldmedically "disqualify" him from employment. (Complaint ¶ 27;Pittsfield's Exhibits, Exhibit N.) Until the present litigation,however, Plaintiff was not privy to this letter or its contents.(Complaint ¶ 28.) Nor does it appear that Lee or Pittsfield'spersonnel department were sent copies of Dr. Bird's letter. (SeePlaintiffs Exhibits, Exhibit 4 (Lee Deposition) at 70-71,Exhibit 5 (Bird Deposition) at 107.) Instead, Alexander, inresponse to the letter, indicated to Dr. Bird "that she wantedto keep [the July 5, 1994] report for the time beingconfidential and that she had concerns that [Plaintiff] waspursuing disability." (Plaintiff's Exhibits, Exhibit 5 (BirdDeposition) at 109.) The concealment of the July 5, 1994 letter,Plaintiff claims, is a "smoking gun."

On July 13, 1994, Alexander and Gogel discussed Plaintiffsconsideration of disability benefits. (Alexander's Brief,Exhibit 4(T) (Alexander Affidavit) ¶ 15.) Alexander advisedGogel that, if Plaintiff intended to pursue a disability claim,he should do so before Dr. Bird "made a decision on[Plaintiff]'s qualification for duty" as an adverse decisionmight not be consistent with Plaintiffs objectives. (Id.)Alexander indicated that Pittsfield would offer any assistanceit could and Gogel advised her that he would get back to her.(Id.; see also Plaintiffs Exhibits, Exhibit 37.) Alexander didnot, however, tell Gogel that Dr. Bird had changed his mind.(Plaintiffs Exhibits, Exhibit 10 (Alexander Deposition) at 149.)

On July 25, 1994, Alexander, having not heard back from Gogel,wrote to him again requesting that he update her on the statusof the matter. (Alexander's Brief, Exhibit 4(T) (AlexanderAffidavit) ¶ 16.) On July 27, 1994, Gogel called Alexander andtold her that his reinstatement request should be put "on hold"since Plaintiff intended to apply for disability retirementbenefits. (Id. ¶ 17.) Indeed, on July 28, 1994, Plaintiffcontacted Dr. Bird about the possibility of pursuing disabilityretirement options because, he believed, Pittsfield felt he waslegally disqualified from employment. (Complaint ¶ 29.) Dr. Birddid not, however, indicate to Plaintiff his belief thatPlaintiff was not medically disabled. (See Plaintiffs Exhibits,Exhibit 5 (Bird Deposition) at 114-15, Exhibit 44.) On September6, 1994, Alexander wrote Gogel requesting an update.(Alexander's Brief, Exhibit 4(U).) Two days later, on September8, 1994, Gogel wrote back seeking assistance in the form ofinformation with regard to Pittsfield's retirement law. (Id.,Exhibit 4(V).)

On September 20 and October 17, 1994, Alexander wroteadditional letters to Gogel indicating that she was not "surehow [Pittsfield could] assist" Plaintiff with his disabilityapplication but that he "certainly has [their] cooperation."(Pittsfield's Exhibits, Exhibits 0 and P.) In a file note datedNovember 14, 1994, Alexander indicated that Plaintiff came in tosee Dr. Bird the previous Friday, that Plaintiff wanted Dr. Birdto complete a disability statement, and that Plaintiffs doctorswould not say that he was "disabled." (Plaintiff's Exhibits,Exhibit 62.) The note goes on to state that Alexander conversedwith Reilly who told her to "talk to Gogel about[Plaintiff] finding a [doctor] who will say what he wants!"and then states "great solution!" (Id.)

On November 22, 1994, Alexander, who had yet to hear fromGogel, reminded him in a letter, copied to Reilly, that ifPlaintiff intended to continue with his claim for disabilitybenefits, he should provide an appropriate statement from histreating physician. (Pittsfield's Exhibits, Exhibit M.)Alexander also reiterated to Gogel that Pittsfield "hadrequested [Dr. Bird] hold off on his report to the City untilafter the possibility of a disability retirement was fullyexplored by [Plaintiff]." (Id.)4

Hearing nothing, Alexander again wrote Gogel on December 27,1994, asking that he "suggest what the City should do at thispoint." (Id., Exhibit P.) The next day, Gogel wrote backindicating that Plaintiff might be seeking yet another attorney,prompting Alexander to write Plaintiff directly on January 4,1995. (Id.) Again, none of Alexander's correspondence madereference to Dr. Bird's July 5, 1994 letter.

The sequent correspondence occurred in March of 1995 betweenAlexander and a Connecticut attorney Plaintiff had just hired,Elton Williams ("Williams"). (Id.) As with her prior letters,Alexander's letter to Williams of March 28, 1995 — in which sheadvised Williams that she would be happy to meet with him anddiscuss Plaintiffs case — said nothing about Dr. Bird's July 5,1994 opinion that Plaintiffs condition no longer medically"disqualified" him from employment. (See id.)

On May 12, 1995, Alexander and Williams met to discussPlaintiffs unresolved issues. (Alexander's Brief, Exhibit 4(T)(Alexander Affidavit) ¶ 32.) It appears that Alexander informedPlaintiff at that time that he could be reinstated but for thefact that he owned a business — his taxi and limousine venture —in violation of the city ordinance prohibiting police officersfrom owning businesses or engaging in any outside employment.(Complaint ¶ 31.) In a letter dated May 30, 1995, Williamsadvised Alexander that Plaintiff indeed intended to pursuereinstatement and asked what conditions needed to be fulfilledprior to his return. (Alexander's Brief, Exhibit 4(GG).)

On June 5, 1995, Alexander wrote Williams, informing him that,before reinstatement, Pittsfield needed responses to twoquestions: (1) whether Plaintiff had received or was undergoingmedical treatment and (2) whether he had divested his interestin the taxi and limousine business. (Id., Exhibit 4(HH).) Inposing the latter question, Alexander relied on Lee's opinionthat Plaintiff could not be a police officer while operating ataxi business in Pittsfield. (Id., Exhibit 2 (Lee Deposition)at 75.) With respect to this issue, it appears that a number ofwhite police officers who owned businesses or had otheremployment — e.g., one officer ran a bar in Dalton — had beenpermitted to remain employees of the police department.(Plaintiff's Amended Affidavit §§ 15, 16; Pittsfield's Exhibits,Exhibit Z (Powell Deposition) at 287-88; Complaint ¶ 32.) Leeexplained at his deposition, however, that Plaintiffs businesswas different since that business presented a potential conflictof interest; the Police Department was an agent of the LicenseBoard which hadgranted Plaintiffs taxi and limousine license. (Pittsfield'sExhibits, Exhibit Z (Lee Deposition) at 63, 74-75.)5

The letters continued. Alexander wrote Williams on July 11,1995, asking for an update on the status of her June 5, 1995requests. (Alexander's Brief, Exhibit 4(II).) Williams wroteback on August 21, 1995, and indicated that Plaintiff haddiscontinued his interest in the taxi and limousine business.(Id., Exhibit 4(JJ).) On August 28, 1995, Alexander informedWilliams by letter that she needed confirmation of Plaintiffsdivestiture as it appeared that Plaintiff still held businesslicenses. (Id., Exhibit 4(KK).) Alexander also remindedWilliams that she had not yet received an update regardingPlaintiffs medical condition. (Id.) Williams advised Alexanderin a letter dated September 7, 1995, that he would respondfurther after he completed a trial. (Id., Exhibit 4(LL).) OnOctober 26, 1995, having heard nothing from Williams, Alexanderwrote yet again seeking information as to the status of herprior requests. (Id., Exhibit 4(MM).)

On October 30, 1995, Williams contacted Alexander to discussin more depth the specific documentation needed. (Id., Exhibit4(T) (Alexander Affidavit) ¶ 40.) On November 22, 1995, by whichtime nothing further had ensued, Alexander inquired if Williamsstill represented Plaintiff. (Id., Exhibit 4(NN).) Receivingno response, Alexander again wrote to Williams, this time onJanuary 5, 1996. (Id., Exhibit 4(00).) On January 10, 1996,Williams wrote back stating that he no longer representedPlaintiff. (Id., Exhibit 4(PP).) In the meantime, on December29, 1995, Plaintiff contacted Dr. Bird, requesting that he givehim copies of certain letters in his file. (Plaintiffs Exhibits,Exhibit 44.) On January 29, 1996, Gogel called Alexanderadvising her that he might be representing Plaintiff once again.(Alexander's Brief, Exhibit 4(T) (Alexander Affidavit) 44.) Thenext day, January 30, 1996, Alexander wrote Gogel requestingthat he advise her as soon as possible about the status of hisrepresentation. (Id., Exhibit 4(QQ).) That very day, however,Plaintiff himself wrote Mayor Reilly directly, stating that heintended to file a civil action against the city and its agentsfor their allegedly unlawful attempts at barring his return tothe Pittsfield Police Department. (Id., Exhibit RR.)

In a February 13, 1996 letter, Gogel informed Alexander thathe would not be representing Plaintiff. (Id., Exhibit 4(SS).)Accordingly, the next day, Alexander wrote Plaintiff directly,requesting information as to whom she should contact regardingreinstatement. (Id., Exhibit 4(TT).) On February 26, 1996,Plaintiff responded in a letter to Reilly indicating his belief,among other things, that Alexander was "very confused," that shehad "done nothing but delay and attempt to block [his] attemptsto resolve the matter" and that there would "be a price to pay"for the harassment he had allegedly suffered at the hands ofAlexander and others. (Id., Exhibit 4(UU).) On March 1, 1996,Reilly wrote Plaintiff back andaccepted his offer for a meeting. (Reilly's Brief, Exhibit F.)

On March 15, 1996, Plaintiff moved, pro se, to vacate thedismissal of Civil Action No. 91-30195-FHF on the grounds thatPittsfield had "deliberately failed" to execute the SettlementAgreement and had "failed to seriously, honestly and adequatelyrespond" to his former attorneys' written inquiries.(Alexander's Brief, Exhibit 8.) In response, Pittsfield filed alengthy memorandum which detailed its efforts to reinstatePlaintiff. (Id., Exhibit 4.) On April 5, 1996, Senior JudgeFrank H. Freedman found, on the basis of the pleadings beforehim, that Pittsfield had not breached the Settlement Agreementand, thus, vacation of the stipulation of dismissal was notrequired. (Alexander's Brief, Exhibit 8.) As Plaintiff nowpoints out, however, neither Pittsfield's memorandum norAlexander's affidavit filed in conjunction therewith mentionedDr. Bird's July 5, 1994 letter. (Complaint ¶ 34.)

In late March or early April of 1996, Plaintiff had a meetingwith Reilly, Alexander and Jim Williamson, the father of acouncilwoman and a man described by Plaintiff as a "mediator."(Reilly's Brief, Exhibit G (Powell Deposition) at 294-96.) In aletter to Reilly dated April 16, 1996, Plaintiff confirmed thathe had completely divested himself of his taxi and limousinebusiness. (Docket No. 53: Affidavit of David B. Mongue ("Lee'sExhibits"), Exhibit C.) Then, on May 2, 1996, Lee, the policechief, wrote Plaintiff and requested current medicaldocumentation. (Plaintiffs Exhibits, Exhibit 53.) The next day,however, Reilly wrote Plaintiff and informed him of hisintention to reinstate him, to grant him maximum seniority andto pursue a special legislative act to regain all lost servicefor retirement purposes. (Id., Exhibit 56.)

A special act was never pursued by Reilly. Rather, on May 20,1996, Pittsfield allowed Plaintiff to resume employment as apolice officer, but only upon his successful completion of thepolice academy. (Complaint ¶ 36; Plaintiffs Exhibits, Exhibit57; see also Plaintiffs Amended Affidavit ¶ 19; PlaintiffsExhibits, Exhibit 60.) In September of 1996, Plaintiffsuccessfully completed both the physical and course requirementsof the police academy with no accommodation for his hepatitis C.(Complaint ¶ 37.) Thereupon, Plaintiff was reinstated as apolice officer. (See Alexander's Brief, Exhibit 4(WW).)

The complaint in this action was filed on September 8, 1997,and amended on May 11, 1999.6 It has five counts, all ofwhich seek redress for the delay in or interference withPlaintiffs reinstatement to the police force. Count I alleges aviolation of 42 U.S.C. § 1981. Count II claims that Defendantsviolated 42 U.S.C. § 1983. Count III alleges a violation ofSection 504 of the Rehabilitation Act of 1973 ("the Rehab Act"),29 U.S.C. § 794. Count IV contends that the individualdefendants engaged in a conspiracy to violate Plaintiff's civilrights. And Count V alleges breach of the Settlement Agreement.

Defendants' motions for summary judgment were all filed on May1, 2000. (See Docket Nos. 46, 49, 56, 57 and 61.) On that date,Reilly and Lee also requested attorney's fees and costs (seeDocket Nos. 49 and 63), which requests, this day, have beendenied without prejudice by margin notation. Plaintiff filed aconsolidated opposition to the motions on July 3, 2000 (DocketNo. 68) and the matter was thereafter referred to this court fora report and recommendation. After several continuances,requested by counsel, oralargument was held on September 12, 2000. Having carefullyconsidered the parties detailed written and oral submissions,the court now offers its recommendation.

III. DISCUSSION

Before delving into the heart of the motions, the court wishesto address some preliminary matters. First, the Rehab Act, thefocus of Count III, is limited to claims of disability"discrimination under any program or activity receiving Federalfinancial assistance." 29 U.S.C. § 794(a). In his memorandum oflaw, Plaintiff argues only that Pittsfield and Dr. Bird, but notthe remaining three defendants, received federal funds. (DocketNo. 68: Memorandum in Opposition to the Defendants' Motion(s)for Summary Judgment ("Plaintiffs Brief") at 26-37.) AlthoughPlaintiff claimed at oral argument that Count III applies to allfive defendants, it is quite clear that Lee, Alexander andReilly, who in no way are "program[s] or activit[ies] receivingFederal financial assistance," are entitled to summary judgmenton this claim. The court will recommend that Dr. Bird be grantedsummary judgment on Count III as well. While Dr. Bird may treat"Medicaid" patients, (Plaintiffs Exhibits, Exhibit 6 (Brian KaneAffidavit)), there is no evidence that Plaintiffs allegeddiscriminatory treatment arises "under" that program.29 U.S.C. § 794(a).

Second, Count IV, the conspiracy claim, appears to target onlythe individual defendants, not Pittsfield. (See Complaint ¶¶57-60.) Plaintiff conceded as much at oral argument. The court,therefore, will recommend granting summary judgment in favor ofPittsfield on Count IV.

Third, with regard to the breach of contract claim, Count V,the contract at issue — the Settlement Agreement — was enteredinto by Plaintiff and Pittsfield only. Plaintiff concedes thisin his written submissions. (See Complaint ¶ 62 (acknowledgingthat agreement is between plaintiff and Pittsfield); id. 64(alleging merely that "Pittsfield, acting through its agents,servants and employees, . . . breached said contract");Plaintiffs Brief at 41 (referring only to Pittsfield in breachof contract argument).) Moreover, Plaintiff acknowledged at oralargument that Count V is directed only at Pittsfield. Thus,although Alexander signed the agreement on behalf of Pittsfieldand although Reilly, as Mayor, authorized the settlement, itappears that the individual Defendants — Alexander, Reilly, Leeand Dr. Bird — should be granted summary judgment on Count V.

In sum, only the following counts and defendants appear toexist for purposes of examining the remainder of Defendants'summary judgment motions:

Sections 1981 and 1983 (Counts I and II) — against all Defendants (Pittsfield, Reilly, Lee, Alexander and Dr. Bird)

Conspiracy (Count IV) — against Reilly, Lee, Alexander and Dr. Bird

Rehab Act (Count III) — against Pittsfield

Breach of Contract (Count V) — against Pittsfield

The court will discuss these counts and their correspondingdefendants in that order.

A. 42 U.S.C. § 1981 AND 1983 (COUNTS I AND II)

Count I alleges that Defendants violated42 U.S.C. § 19817 and Count II claimsviolations of 42 U.S.C. § 1983.8 Collectively, Counts Iand II allege two general theories of liability: (1) thatDefendants are liable for employment discrimination under theparadigm established by McDonnell Douglas Corp. v. Green,411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); and (2) thatDefendants are liable for retaliation. Before discussing thesubstance of these theories, including Defendants' variousdefenses, the court will address two threshold issues; first,whether section 1981 implies a cause of action against stateactors separate and distinct from a section 1983 cause ofaction; and second, whether, with respect to his section 1981claim against Pittsfield, Plaintiff is relieved from hisobligation under section 1983 to allege that his civil rightswere violated as a result of an official "policy or custom" asrequired by Monell v. New York City Dep't of Social Services,436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

1. Does Section 1981 Imply a Cause of Action Against State Actors Separate and Distinct from Section 1983?

Relying on Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), Defendants argue that42 U.S.C. § 1983 is Plaintiffs exclusive remedy against them forviolation of the civil rights guaranteed by 42 U.S.C. § 1981. Inresponse, Plaintiff argues that the Civil Rights Act of 1991statutorily overruled Jett and, therefore, that his claimsunder sections 1981 and 1983 can exist as independent causes ofaction. In the court's view, Plaintiff has the better argument.

a. Jett v. Dallas Indep. Sch. Dist.

In Jett, the Supreme Court held that a black high schoolathletic director could not sue his employer, a municipality,under section 1981 for removing him from his job on the basis ofrace. At the time Jett was decided, section 1981 provided asfollows:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

This language, the Supreme Court concluded, when read alongsidesection 1983 and in light of each section's history, indicatedCongress' intent "that the explicit remedial provisions of §1983 be controlling in the context of damages actions broughtagainst state actors alleging violation of the rights declaredin § 1981." Jett, 491 U.S. at 731, 109 S.Ct. 2702. Statedanother way, Jett held that, when a claim is brought against astate actor, section 1983 provides the "exclusive" federaldamages remedy for the violation of rights guaranteed by section1981. Id. at 733, 109 S.Ct. 2702.

b. The 1991 amendment to section 1981

Section 101 of the Civil Rights Act of 1991 added two newsubsections to section 1981, one of which will be discussedhere, section 1981(c).9 Subsection 1981(c) provides, infull, that "[t]he rights protected by this section are protectedagainst impairment by nongovernmental discrimination andimpairment under color of State law." 42 U.S.C. § 1981(c).Whether this amendment overrules Jett appears to be a questionof first impression within this circuit.

The Ninth Circuit Court of Appeals as well as a host ofdistrict courts and commentators have interpreted the newsubsection (c) as overturning Jett and thus allowing directcauses of action against state actors for violations of section1981. See, e.g., Federation of African Am. Contractors v. Cityof Oakland, 96 F.3d 1204, 1209, 1214 (9th Cir. 1996) (citingnumerous cases and commentaries); Simmons v. Chicago Bd. ofEduc., No. 97 CV 5451, 2000 WL 1720958, at *6 (N.D.III. Nov.16, 2000) (unpublished); 13B CHARLES ALAN WRIGHT, ARTHUR R.MILLER, EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3573n. 6 (2000 pocket part) (citing Federation of African Am.Contractors for proposition that "[t]he Civil Rights Act of1991 amended 28 U.S.C. § 1981 to allow an implied private causeof action against state actors who impair federal civilrights."). But see Butts v. Volusia County, 222 F.3d 891, 894(11th Cir. 2000) (concluding that Civil Rights Act of 1991 didnot affect Jett). Although the First Circuit has not weighedin on the issue — nor, it appears, has any district court withinthe circuit — it has, post-1991, arguably implied a cause ofaction against state actors under section 1981. See Conward v.Cambridge Sch. Comm., 171 F.3d 12 (lst Cir. 1999) (affirmingsummary judgment in section 1981 race discrimination case whereplaintiff failed to sustain burden of proof); Carter v. RhodeIsland, 68 F.3d 9 (1st Cir. 1995) (allowing both section 1981and section 1983 causes of action to survive summary judgment).

c. Analysis

In the court's view, the rationale behind the Ninth Circuit'sconclusion that section 1981, as amended, impliedly allows adirect cause of action against state actors is sound. In thiscircuit, as in the Ninth Circuit, a four-factor test outlined inCort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975),"remains the touchstone of the modern implied remedy doctrine."Federation of African Am. Contractors, 96 F.3d at 1211. See,e.g., Suter v. Artist M., 503 U.S. 347, 364 n. 16, 112 S.Ct.1360, 118 L.Ed.2d 1 (1992); Thompson v. Thompson,484 U.S. 174, 179, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988); SterlingSuffolk Racecourse Ltd. Partnership v. BurrillvilleRacing Ass'n, Inc., 989 F.2d 1266, 1268-69 (1st Cir. 1993).According to Cort, the following factors are frequentlyconsidered in determining whether a statute implies a privatecause of action:

(1) Is the plaintiff one of the class for whose "especial benefit" the statute was enacted; that is, does the statute create a federal right in favor of the plaintiff?

(2) Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?

(3) Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?

(4) Is the cause of action one traditionally relegated to state law, so that it would be inappropriate to infer a cause of action based solely on federal law?

See Cort, 422 U.S. at 78, 95 S.Ct. 2080. See also SterlingSuffolk Racecourse, 989 F.2d at 1269 n. 4 (noting "that thefourth question is really a tote board for tallying the answersto all the other inquiries and, therefore, need not beconsidered separately").

As the Ninth Circuit found, the four Cort factors lead to aninevitable conclusion that the amended section 1981 contains animplied cause of action against state actors, therebyoverturning Jett. Federation of African Am. Contractors, 96F.3d at 1214. As to the first factor, the statute, by its plainterms, creates federal civil rights in favor of a class ofpersons that includes Plaintiff, i.e., the new statute "makesexplicit that the rights `protected by [§ 1981(a)]' are`protected against impairment by nongovernmental discriminationand impairment under color of State law.'" Id. at 1211(quoting 42 U.S.C. § 1981(c)). Regarding the second Cortfactor, Congressional committee reports on the 1991 amendment"clearly contemplate that § 1981 rights are to receive parallelprotections against state actors and private actors" and"[i]mplying a direct cause of action against state actors under42 U.S.C. § 1981 is consistent with this intent." Id. at1212-13 (citing H.Rep. No. 102-40(I), 102d Cong., 1st Sess. 92,reprinted in 1991 U.S.C.C.A.N. 549, 630; H.Rep. No. 102-40(II),102d Cong., 1st Sess. 37, reprinted at U.S.C.C.A.N. 694,731).10 As for the third factor, the Ninth Circuitconcluded, and this court agrees, "that an implied cause ofaction . . . complements — rather than clashes with — thelegislative scheme." Id. at 1214. Similarly, regarding thefourth Cort factor, the court agrees with the Ninth Circuitthat "[p]rivate causes of action against state actors who impairfederal civil rights have not been traditionally relegated tostate law." Id. (emphasis in original).

The court, therefore, recommends the adoption of the NinthCircuit's conclusion that the amended section 1981 overturnsJett's holding that section 1983 provides the exclusivefederal remedy against state actors for violations of section1981 rights. At bottom, this court believes, section 1981 nowcontains an implied cause of action against state actors.

2. Under Section 1981, is Plaintiff Relieved from Alleging that Pittsfield Violated His Civil Rights as a Result of an Official "Policy or Custom,"?

Assuming section 1981 contains an implied cause of action, thenext question is whether Plaintiff — with regard to Pittsfield —is relieved from alleging, as he must do with respect to section1983, that his civil rights were violated as a result of anofficial "policy or custom." See Monell, 436 U.S. at 694, 98S.Ct. 2018. In the court's view, the answer to that question isno. Stated another way, for Plaintiff to maintain Counts I andII against Pittsfield he must allege, for both counts, that hiscivil rights were violated as the result of an official "policyor custom."

In 1978, the Supreme Court held in Monell that a civilrights plaintiff suing under 42 U.S.C. § 1983 must allege thathis injury resulted from an official "policy or custom." Id.,436 U.S. at 694, 98 S.Ct. 2018. This principle was based both onthe language of section 1983, which imposes liability only wherea state actor "under color of some official policy, `causes' anemployee to violate another's constitutional rights," id. at692, 98 S.Ct. 2018, and the legislative history of the CivilRights Act of 1871, the precursor to section 1983, whereinCongress rejected a proposal to impose vicarious liability underthat statute, id. at 691, 98 S.Ct. 2018. See generallyFederation of African Am. Contractors, 96 F.3d at 1208.

Eleven years later in Jett, the Supreme Court — in additionto implying no section 1981 cause of action against state actors— held that a plaintiff who sues a municipality under section1983 for a violation of his section 1981 rights may not relyupon the doctrine of respondeat superior but must satisfysection 1983's "policy or custom" requirement. Jett, 491 U.S.at 735-36, 109 S.Ct. 2702. In reaching this conclusion, Jettrelied on Supreme Court decisions, including Monell, whichstated that 1983 precluded vicarious municipal liability. Seeid. at 733-35, 109 S.Ct. 2702 (citing, e.g., Monell, Johnsonv. Ry. Express Agency, Inc., 421 U.S. 454, 465, 95 S.Ct. 1716,44 L.Ed.2d 295 (1975), and Moor v. Alameda County,411 U.S. 693, 710 n. 27, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973)).

Since the passage of the Civil Rights Act of 1991, however,several courts, as indicated, have concluded that the amendedsection 1981 implies a separate cause of action against stateactors. See discussion, supra. Some of those same courts havealso asked whether the new statute imposes respondeat superiorliability upon municipalities, that is, whether Jett's secondprinciple has been statutorily overturned as well. Most suchcourts have concluded that the amendment preserves Jett'ssecond holding, namely, that plaintiffs suing municipalities forcivil rights violations under section 1981 must establish thattheir injury was caused by an official "policy or custom." See,e.g., Federation of African Am. Contractors, 96 F.3d at 1215;Johnakin v. City of Philadelphia, No. Civ. A. 95-1588, 1996 WL18821, at *4 (E.D.Pa. Jan. 18, 1996); Gallardo v. Bd. Of CountyComm'rs, 857 F. Supp. 783, 786-87 (Kan. 1994); see alsoPhilippeaux v. N. Cent. Bronx Hosp., 871 F. Supp. 640, 654-56(S.D.N.Y. 1994) (not resolving whether section 1981(c) overturnsJett's first principal, but holding that "policy or custom"must yet be established). Only one commentator has been cited bythe Ninth Circuit as suggesting that the amendment not onlycreates a private cause of action against municipalities, butalso subjects them to respondeat superior liability. SeeFederation of African Am. Contractors, 96 F.3d at 1210 n. 13(citing Leon Friedman, Relationship Between Title VII, Section1981, 1983, ADEA, the Equal Pay Act and StateCauses of Action for Employment Discrimination, C108 AmericanLaw Institute-American Bar Association Course of Study 367, 378(June 1, 1995)). Again, it appears that no court in this circuithas addressed the issue.11

This court agrees with the overwhelming post-Jett authoritythat the 1991 amendment to section 1981 does not imposerespondeat superior liability on municipalities. As the NinthCircuit puts it:

[T]he new § 1981(c) contains language very similar to that of 42 U.S.C. § 1983. Subsection 1981(c) provides that § 1981(a) rights are protected against "impairment . . . under color of State law," while 42 U.S.C. § 1983 imposes liability for the deprivation of rights resulting from actions taken "under color of any statute, ordinance, regulation, custom, or usage, of any State[.]" The Supreme Court based its "policy or custom" requirement, in part, on this very language. Because Congress made use of very similar language in enacting § 1981(c), we conclude that it thereby intended to import into the new subsection the traditional "policy or custom" requirement set forth in Monell, . . . and applied to § 1981 violations in Jett.

Federation of African Am. Contractors, 96 F.3d at 1215(emphasis added by Ninth Circuit). Accordingly, with regard toPittsfield, this court concludes that Plaintiff must allege, forboth Counts I and II, that his civil rights were violated as aresult of an official "policy or custom." The court will applythis standard below.

3. Should Plaintiffs Claims Under Sections 1981 and 1983 Survive Defendants' Motions for Summary Judgment?

The bulk of the parties' written arguments concern Plaintiffsclaim that he was subjected to racial discrimination in hisemployment in violation of sections 1981 and 1983.12 Also,as indicated, Plaintiff alleges that Defendants violatedsections 1981 and 1983 through retaliation.

a. Employment Discrimination

While sections 1981 and 1983 differ in the types ofdiscrimination they proscribe, courts have held that, whenemployment discrimination is at issue in such cases, standardspertinent to Title VII of the Civil Rights Act of 1964 ("TitleVII"), 42 U.S.C. § 2000e et seq., apply even when, as here, nodirect claim under Title VII has been made.13 See T & SService Associates, Inc. v. Crenson, 666 F.2d 722, 724 n. 2(1st Cir. 1981); Stubblefield v. City of Jackson, 871 F. Supp. 903,908 n. 7 (S.D.Miss. 1994). Accordingly, insofar as Counts Iand II allege racial discrimination in the context of Plaintiffsemployment, the court, as have the parties, will apply the threestage, burden-shifting framework first outlined in McDonnellDouglas, and further explained and refined in TexasDep't of Community Affairs v. Burdine, 450 U.S. 248, 254-55,101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), St. Mary's Honor Ctr. v.Hicks, 509 U.S. 502, 506-08, 113 S.Ct. 2742, 125 L.Ed.2d 407(1993), and Reeves v. Sanderson Plumbing Prods., Inc.,530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). See Benham v.Lenox Sav. Bank, 118 F. Supp.2d 132, 141 (Mass. 2000).

At the first stage of McDonnell Douglas, a plaintiff mustestablish a prima facie case of discrimination by apreponderance of the evidence. See Thomas v. Eastman KodakCo., 183 F.3d 38, 56 (1st Cir. 1999), cert. denied,528 U.S. 1161, 120 S.Ct. 1174, 145 L.Ed.2d 1082 (2000). At the secondstage, the burden shifts to the defendant to produce a valid,non-discriminatory reason for the adverse employment action.See id. At the third stage of the analysis, the burden shiftsback to the plaintiff to establish, by a preponderance of theevidence, "that the legitimate reasons offered by the defendantwere not its true reasons, but were a pretext fordiscrimination." Reeves, 530 U.S. at 143, 120 S.Ct. 2097(citations and internal quotation marks omitted).

If this were a Title VII case, not a civil rights action,Plaintiff could not make out a prima facie case ofdiscrimination by the individual defendants, Alexander, Lee, Dr.Bird and Reilly. None of these individuals was Plaintiffs"employer." See Sauers v. Salt Lake County, 1 F.3d 1122, 1125(10th Cir. 1993) (indicating that Title VII actions are notappropriate against government officials in their personalcapacities as they are not the plaintiffs "employer"). See alsoHorney v. Westfield Gage Co., 95 F. Supp.2d 29, 33-36 (Mass.2000) (in which this court held, on the basis of overwhelmingauthority, that there is no individual liability under TitleVII). However, there is a fundamental difference between TitleVII and sections 1981 and 1983. "Title VII applies specificallyto `employers[,]' 42 U.S.C. § 2000e2[,] . . . [while] section1983 permits a lawsuit against a `person' in his individualcapacity. See 42 U.S.C. § 1983." McCue v. Kansas Dep't ofHuman Resources, 165 F.3d 784, 788 (10th Cir. 1999). See alsoSchanzer v. Rutgers Univ., 934 F. Supp. 669, 678 n. 12 (N.J.1996). Similarly, section 1981 does not limit itself to"employer" defendants. See 42 U.S.C. § 1981. See also Johnsonv. Resources for Human Development, Inc., 843 F. Supp. 974, 978(E.D.Pa. 1994) (personal liability is available under section1981 so long as some affirmative link causally connects theactor to the discriminatory action) (citing Allen v. DenverPublic Sch. Bd., 928 F.2d 978, 983 (10th Cir. 1991)). In short,the court will analyze the McDonnell Douglas paradigm withrespect to all five Defendants, even though the paradigm doesnot quite fit.

(i) Plaintiffs prima facie case

Under the McDonnell Douglas framework, Plaintiff shouldersthe initial burden of producing a prima facie case of unlawfuldiscrimination. This includes demonstrating that (1) he is amember of a protected class; (2) an adverse employment actionwas taken against him; (3) he was qualified for the employmenthe held; and (4) his position remained open or was filled by aperson whose qualifications were similar to his. SeeRodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 19(1st Cir. 1999). "For the prima facie case, a disparate impactplaintiff must `identify and relate specific instances wherepersons situated similarly in all relevant aspects were treateddifferently.'" Molloy v. Blanchard, 115 F.3d 86, 91 (1st Cir.1997) (quoting Dartmouth Review v. Dartmouth College,889 F.2d 13, 19 (1stCir. 1989)) (further citation and internal quotation marksomitted).

As applied here, Plaintiff has overcome the "modest" primafacie hurdle. Fernandes v. Costa Bros. Masonry, Inc.,199 F.3d 572, 580-81 (1st Cir. 1999). Plaintiff is African-American andthus a member of a protected class. Defendants assertedly tookan adverse employment action against him, i.e., they delayed orinterfered with his reinstatement to the police force and,although Defendants argue that it justifiably took some time tomake the determination, he was allegedly qualified for the job.Finally, Plaintiff has alleged, however thinly, that similarlysituated white persons were treated differently. For example,Plaintiff claims that only his reinstatement was "unreasonably"delayed, that no white police officers were required to divestthemselves of outside employment or businesses, and that whiteofficers returning to employment were not required to get a fullphysical or re-attend the police academy.

(ii) Defendants' nondiscriminatory explanations

The burden is on Defendants at the second stage of theMcDonnell Douglas analysis to proffer a nondiscriminatoryreason or reasons for the adverse employment action. SeeThomas, 183 F.3d at 56. Defendants submit two such reasonshere. First, they note that Plaintiffs physical examinationdisclosed that Plaintiff had hepatitis C, a condition which Dr.Bird determined rendered Plaintiff medically disabled. Second,they assert that Plaintiffs interest in an outside businesscreated a conflict of interest which stalled his reinstatement.In the court's estimation, these justifications are sufficientto get Defendants past the second analytical step.

(iii) Pretext

At the third stage of the McDonnell Douglas analysis, theburden shifts back to Plaintiff to establish by a preponderanceof the evidence that the facially legitimate reasons offered byDefendants were not their true reasons, but instead, "were apretext for discrimination." Reeves, 530 U.S. at 143, 120S.Ct. 2097. At this point, the court finds it necessary toanalyze the evidence as it relates to each Defendant, mindfulthat at summary judgment the pertinent issue is whetherPlaintiff has provided evidence sufficient to "enable[] afactfinder reasonably to infer that unlawful discrimination wasa determinative factor in the adverse employment action."Feliciano De La Cruz v. El Conquistador Resort and CountryClub, 218 F.3d 1, 6 (1st Cir. 2000) (citation and internalquotation marks omitted.)

(A) Dr. Bird

There is no real evidence and, thus, no reasonable inferencethat any of Dr. Bird's actions were a pretext for unlawfuldiscrimination. The summary judgment evidence proffered simplyreveals the following.

In October of 1993, Dr. Bird, upon request from Pittsfield'spersonnel department, examined Plaintiff and noted an abnormalliver function. A November 10, 1993 test indicated a positivereaction for hepatitis C — "an inflammatory condition . . .[that] is a major concern to the individual [who] has it" — andso Dr. Bird sent Plaintiff to a specialist. That specialist, aswell as a doctor chosen by Plaintiff, both indicated to Dr. Birdin December of 1993 that there was a good chance that Plaintiffhad hepatitis C. Accordingly, it was perfectly reasonable forDr. Bird to opine on December 21, 1993, that Plaintiff had"chronic active hepatitis." To the extent Dr. Bird also opinedthat Plaintiff wasmedically "disqualified" from employment, Alexander immediatelyassured Plaintiff's counsel that a legal conclusion ofdisability would await a liver biopsy.

No fact surrounding the liver biopsy raises a reasonableinference that Dr. Bird's actions were a pretext for anything.Plaintiff, as well as each of the many doctors he consulted onhis own, confirmed that a liver biopsy was necessary for anaccurate diagnosis. Further, any delay in arranging the biopsy,which finally took place in the Spring of 1994, was solelyattributable to Plaintiff. In essence, Dr. Bird was in a holdingpattern until Dr. Borhan-Manesh released his biopsy report onMay 3, 1994.

Nor can there be any reasonable inference that Dr. Bird'sactions after the biopsy report was released were pretextual.Rather, the evidence shows that upon receiving Dr.Borhan-Manesh's report, Dr. Bird immediately researched themedical ramifications of hepatitis C and, within a few weeks,consulted with public health officials at the U.S. Center forDisease Control and the University of Massachusetts MedicalCenter. When these officials informed Dr. Bird in a letter datedJune 28, 1994, that they knew of nothing to restrict Plaintifffrom performing his duties, Dr. Bird promptly shared thisinformation with both Reilly and Alexander and wrote his letterof July 5, 1994. In his letter, Dr. Bird concluded that, in hisopinion, Plaintiff was no longer medically "disqualified" fromemployment. At that point, Dr. Bird's work was essentially done.

To be sure, Plaintiff indicates that on July 28, 1994, andagain on November 11, 1994, he contacted Dr. Bird about thepossibility of pursuing disability retirement options and that,on neither occasion, did Dr. Bird reveal the contents of hisJuly 5th letter. Nor did Dr. Bird provide Plaintiff a copy ofthe July 5th letter on December 29, 1995, when Plaintiffrequested correspondence from his file. However, Dr. Bird hadbeen specifically advised by Alexander, his employer's legalcounsel, to keep the letter "confidential." More to the point,there is no evidence that Dr. Bird had any obligation to releasethe letter to Plaintiff (or anyone else for that matter) or anyreasonable inference that his decision not to tell Plaintiff ofits existence was pretextual.

Finally, with respect to Dr. Bird, Plaintiffs own testimonydemonstrates a lack of pretext:

Q. You had been to [Dr. Bird] over the years while you were a city police officer?

A. On occasions, yes.

Q. He never indicated any personal animus against you?

A. No.

Q. Never indicated any racial animus against you?

A. Not that I can remember, no.

Q. Do you believe [Dr.] Bird acted because of racial animus against you?

A. I don't have any idea why he did what he did.

Q. And if I used the term "racist" here today, we've used an expression "racial animus" here, you understand that they are synonymous, they just have different — a racist is a person?

A. Right.

Q. Racial animus is something consistent with that, that's something that a person has, correct?

A. That's correct.

(Bird Exhibits, Exhibit 16 (Powell Deposition) at 37, 197, 281.)Plaintiffs formercounsel, Gogel, similarly testified that he did not "believethat Dr. Bird had any ill will or animosity towards [Plaintiff]at any time." (Id., Exhibit 26 (Gogel Deposition) at 113.)Accordingly, the court will recommend that Dr. Bird be grantedsummary judgment on the employment discrimination components ofCounts I and II.

(B) Lee

The relevant summary judgment evidence with regard to Lee, thepolice chief, is also meager, consisting of only four items overa three year period. At bottom, the court believes that there isno reasonable inference that any of Lee's actions were a pretextfor unlawful discrimination.

First, the terms of the Settlement Agreement conditionedPlaintiffs reinstatement, in part, "upon his successfulcompletion of certain re-training as determined by . . . Lee. . . and whatever other conditions . . . Lee determines arenecessary in order to facilitate [Plaintiff]'s reorientationinto the Department for both his own interests and the bestinterests of the Department." These terms vested Lee with a gooddeal of control over Plaintiffs reinstatement and, as a result,weaken if not eviscerate any pretext argument with respect tohim.

Second, around May 6, 1994, Plaintiff asked Lee whether hemight be able to obtain a "disability" pension if he was unableto return to his job as a police officer. At about the sametime, Alexander and Lee discussed whether Plaintiff had a"communicable disease" and then, on May 11, 1994, Lee, Alexanderand Reilly met to further discuss Plaintiffs situation. At thatpoint, Plaintiff had just obtained results from Dr.Borhan-Manesh's biopsy — which indicated that Plaintiff hadchronic hepatitis C — but Dr. Bird had not yet written his July5, 1994 letter indicating that he no longer thought Plaintiffscondition medically "disqualified" him from employment.Moreover, it does not appear that Lee was ever sent a copy ofthe July 5th letter. In fact, there is no evidence that Lee hadany active involvement in any medical decision.

Third, on approximately June 5, 1995, Lee opined to Alexanderthat Plaintiff could not be a police officer while operating ataxi business in Pittsfield. In Lee's view, Plaintiffs businessdiffered from other officers' businesses insofar as it presenteda potential conflict of interest; the Police Department was anagent of the License Board. In essence, Lee argues and the courtagrees that Plaintiff cannot establish pretext since he cannotshow that "persons situated similarly in all relevant respectswere treated differently" by him. Molloy, 115 F.3d at 91.Thus, Plaintiff has not cited any evidence that Lee ever hiredor retrained white police officers with comparable medicalconditions or business interests. Indeed, there is no evidencethat Lee actually made any employment decision.

Fourth, on May 2, 1996, a few weeks after Plaintiff confirmedin writing to Reilly that he had completely divested himself ofhis business, Lee wrote Powell requesting current medicaldocumentation. The next day, however, Reilly informed Plaintiffthat he intended to reinstate him and, a few months later,Plaintiff was finally reinstated. Plaintiff offers no argumentas to how these facts even raise an inference of discriminationby Lee, and the court will not create one out of whole cloth.

Finally, as with Dr. Bird, Plaintiff has specificallytestified to a lack of discriminatory animus on Lee's part:

Q. Do you believe that Chief Lee holds any ill will against you?

A. No. I don't believe so, no.

Q. . . . [A]s you sit here today, you don't have any facts to support any suggestion that Chief Lee discriminated against you because of your race, do you?

[Plaintiffs counsel]: Objection.

A. I don't have any personal knowledge other than his name being submitted throughout the documentation submitted by Solicitor Alexander.

Q. And you don't have any facts to relay to us here today that he was somehow involved in this retaliation against you because of that prior lawsuit?

[Plaintiffs counsel]: Objection.

A. To my personal knowledge, no. (Lee's Exhibits, Exhibit A(Powell Deposition) at 313, 315-16.) The Court will thusrecommend that Lee be granted summary judgment on thediscrimination components of Counts I and II.

(C) Alexander

The quantum of summary judgment evidence is somewhat greaterwith respect to Alexander. On or about December 21, 1993,Alexander advised Plaintiffs then-counsel that Plaintiff was notlegally disqualified. In February and March of 1994, Alexanderso informed Plaintiffs new counsel, but indicated thatPittsfield still needed the results of a medical biopsy. Thoseresults were not transmitted to Alexander until around May 6,1994, whereupon Alexander immediately researched the legalramifications of hepatitis C and the Americans With DisabilitiesAct. In the court's view, there can be no reasonable inferencefrom these facts that Alexander engaged in unlawfuldiscrimination.

Although still other evidence is troubling, it too does notraise a reasonable inference that Alexander's actions werepretextual for unlawful discrimination. As indicated, on July 5,1994, Dr. Bird sent Alexander a letter indicating that he nolonger thought Plaintiff suffered from a medical condition whichwould disqualify him from returning to police work. Alexander,however, requested Dr. Bird not to reveal his report to anyone,including Plaintiff. In fact, one week later, on July 13, 1994,Alexander indicated to Plaintiff's counsel that Dr. Bird had notyet "made a decision on [Plaintiffs] qualification for duty."Then, on November 22, 1994, Alexander wrote a letter toPlaintiffs attorney reminding him that Dr. Bird was holding offon issuing his report until Plaintiff made a decision withregard to disability. Further, in response to Plaintiffs motionto vacate the dismissal of his earlier discrimination case,Alexander filed an affidavit which — while detailing, togetherwith fifty — two attached exhibits, the efforts Pittsfield hadtaken to get Plaintiff reinstated-failed to mention or appendDr. Bird's July 5th report.

Unlike Plaintiff, the court does not view Alexander'ssecreting the July 5th report as a smoking gun with regard tohis claims of discriminatory animus. To be sure, it isconceivable that Alexander's failure to mention the July 5threport at that time reflected an intent to mislead. Thus, a fairinference may be drawn that Alexander, knowing of Plaintiffsinterest in exploring disability retirement benefits, concealedDr. Bird's July 25th report in the hope that Plaintiff would optfor disability benefits in lieu of reinstatement. This"deception" may have been motivated by a positive desire toassist Plaintiff in receiving disability benefits or by anegative choice to encourage the retirement of an individual whohad been a thorn in Pittsfield's side. In this vein, bothPlaintiff and his former counsel aver that they would not havesought disability retirement options had they known, in a timelymanner, of the July 5th report. (Plaintiffs AmendedAffidavit ¶ 9; Plaintiff's Exhibits, Exhibit 19 (GogelDeposition) at 120-21.) In Plaintiffs counsel's words, "If I hadseen [Dr. Bird's letter] on July 5th, . . . I would havedemanded [Plaintiffs] immediate reinstatement . . . [a]nd ifthat didn't happen, I would have filed suit." (Plaintiff'sExhibits, Exhibit 19 (Gogel Deposition) at 120.)

Nonetheless, the court finds no reasonable inference that"unlawful discrimination was a determination in the factor in"Alexander's actions. Feliciano Dde La Cruz, 218 F.3d at 6.Although as addressed below, this finding will not saveAlexander from Plaintiff's claims of retaliation, the absence ofevidence tying pretext to discriminatory animus necessarilycalls for summary judgment for Alexander with respect to thediscrimination parts of Counts I and II.

(D) Reilly

Reilly plays an even smaller part in the discriminationportions of Counts I and II. Although Reilly, as the ultimateappointing authority, helped negotiate the Settlement Agreement,he essentially disappeared from the picture until May of 1994when he met with Alexander and Lee after they had received Dr.Borhan-Manesh's report. Thereafter, Reilly was informed of theJune 28, 1994 letter to Dr. Bird from the public healthofficials regarding hepatitis C and was sent copies of some ofAlexander's correspondence. None of these actions, however,reasonably infers that Reilly was acting with a discriminatorypurpose. There is also no evidence that Reilly was formallynotified of Dr. Bird's July 5, 1994 report. Moreover, hispurported comment to Alexander on November 14, 1994 (that sheshould "talk to Gogel about [Plaintiff] finding a [doctor] whowill say what [Plaintiff] wants!"), while perhaps relevant toPlaintiffs retaliation claim, says nothing about unlawfuldiscrimination.

Following the events of 1994, the next "fact" linked to Reillyis his receipt of letters, dated January 30 and February 26,1996, directly from Plaintiff. Reilly responded to theseovertures in a letter dated March 1, 1996, offering to meet withPlaintiff. In fact, a meeting was held within a few weeks. Athis deposition, Plaintiff described the meeting as follows:

A. We talked about back pay, that issue.

Q. How did you get back to that?

A. We went in and started talking about what it's going to take to resolve this.

Q. You go in and say, I want to go back to work, Mayor?

A. Right.

Q. What is his response?

A. That we could — basically, in the letter I told him that I wasn't an unreasonable person and I would sit down with him man to man. I didn't want to deal with Kate Alexander. In fact, I refused to. And I told him if he wanted to sit down and talk to me, that I think we could work something out. I don't like to fight. I wanted to put this behind me.

Q. So he accepts your offer?

A. Yes.

Q. Sits down with you?

A. Yes.

Q. You say, in essence, I want to go back to work, sooner rather than later?

A. Right.

Q. And I'm through being jerked around?

A. Right. But there was an issue of back pay.

Q. And the mayor says, fine, we'll get you back to work?

A. Right. Well, he told me about the back pay, go home, come up with some figures, he said, but, you know, be fair, you know. And then he said, you know, he felt that I should take the job back right away and then we could work on the figures later. You know, after I resolved that. Just go back to work.

Q. So the mayor wanted you back to work?

A. Yeah.

Q. Post haste?

A. Yeah. Like I said, I went back to work in May so it was shortly after this that I went back.

(Reilly Brief, Exhibit G at 297-99.) On May 3, 1996, oncePlaintiff had confirmed to Reilly that he had divested himselfof his business, Reilly wrote Plaintiff and informed him of hisintention to reinstate him, to grant him maximum seniority andto pursue a special legislative act to regain all lost servicefor retirement purposes.

In the court's view, the facts adduced with respect to Reillydo not support a reasonable inference that his actions werepretextual for unlawful discrimination. Indeed, as with otherdefendants, Plaintiff testified that he did not believe thatReilly, individually, acted against him out of any racialanimus. (See Reilly's Brief, Exhibit G (Powell Deposition) at301-02.) The court will therefore recommend that Reilly too begranted summary judgment on the discrimination components ofCounts I and II.

(E) Pittsfield

For reasons similar to those applied to Alexander and Reilly,the court believes that Pittsfield should be granted summaryjudgment with respect to those parts of Counts I and II whichallege employment discrimination. Thus, ever were the court toassume that Reilly — or behalf of Pittsfield — concurred withAlexander in concealing Dr. Bird's July 5th report fromPlaintiff, there is no evidence either direct or indirect, thatReilly was motivated by a racially discriminatory animus.

Moreover, Plaintiff fails to cite evidence, other than his own"information and belief," that his initial physical examinationwas any different than that undergone by Pittsfield's whitepolice officers or that white officers returning to duty werenot required to re-attend the police academy. (Plaintiff'sAmended Affidavit §§ 7, 19.) Plaintiff also neglects to mentionthat he specifically agreed in the Settlement Agreement that hisreinstatement was conditions on his passing a physical andpsychological examination and other reasonable requirements tobe deterred by Lee.

Finally, Plaintiff fails to cite any evidence that Pittsfieldor Reilly ever hired or retained white police officers withcomparable medical conditions or business interests. Theinstances where white police officers were permitted tomoonlight or run their own businesses were dissimilar; thebusinesses were either located outside city limits or involvedfields over which Pittsfield or Reilly exercised no specialregulatory authority. In the words of the First Circuit, to usea "greengrocer's metaphor," rather than comparing apples toapples, Plaintiff appears to have "presented the . . . courtwith two persimmons and a pear." Conward v. Cambridge Sch.Comm., 171 F.3d 12, 20 (1st Cir. 1999). Accordingly, the courtwill recommend that Pittsfield, like the individual defendants,be granted summary judgment on those portions of Counts I and IIthatallege employment discrimination.14

b. Retaliation

As explained, the court believes that all five defendants areentitled to summary judgment on the employment discriminationcomponents of Counts I and II since their actions cannot besaid, as a matter of law, to have been a pretext for unlawfuldiscrimination. Plaintiff nonetheless maintains that Defendantsmay be liable under both sections 1981 and 1983 for unlawfullyretaliating against him for engaging in protected activity. Thecourt agrees with respect to three of those defendants,Alexander, Reilly and Pittsfield.

(i) Section 1983 retaliation

Under section 1983, a plaintiff may allege retaliation bystate actors for exercising his constitutional rights. SeeGuilloty-Perez v. Fuentes-Agostini, 196 F.3d 293 (1st Cir.1999); McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979). Whenfaced with a motion for summary judgment on a section 1983retaliation claim, the plaintiff must demonstrate two genuineissues of material fact: (1) that the disciplined conduct wasconstitutionally protected, and (2) that the plaintiffspunishment was motivated, in whole or in part, by his conduct.Graham v. Henderson, 89 F.3d 75, 80 (2nd Cir. 1996) (citingMount Healthy Sch. Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct.568, 50 L.Ed.2d 471 (1977)); Shabazz v. Cole, 69 F. Supp.2d 177,197 (Mass. 1999). If the plaintiff meets these burdens, thestate actors "must show by a preponderance of the evidence thatthey would have disciplined the plaintiff `even in the absenceof the protected conduct.'" Graham, 89 F.3d at 79 (quotingMount Healthy, 429 U.S. at 287, 97 S.Ct. 568). AccordShabazz, 69 F. Supp.2d at 197.15

(A) Plaintiffs burdens

With regard to the first part of the inquiry, Plaintiffasserts that the conduct for which he was disciplined —"address[ing] his concerns in the courts" (Plaintiff's Brief at21) — was constitutionally protected. This is undoubtedly true.See Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d606 (1996); Shabazz, 69 F. Supp.2d at 197 (citing cases).Still, in order to ultimately prevail at trial, Plaintiff mustprove that the alleged "punishment" meted out — delaying orimpeding his reinstatement as a police officer — was motivatedat least in part by Plaintiffs constitutionally protectedconduct.

Unfortunately for Plaintiff, "a retaliatory state of mindtypically is not susceptible to proof by direct evidence."Ferranti v. Moran, 618 F.2d 888, 892 (1st Cir. 1980). AccordShabazz, 69 F. Supp.2d at 197. Knowing that, Plaintiff contendsthat an inference of retaliation, at least for purposes ofovercoming summary judgment, is warranted in light of severalcircumstantial themes: his being required to have a liverbiopsy, attend the police academy for a second time and take anew physical, as well as the concealment of Dr. Bird's July 5,1994 report. (See Plaintiffs Brief at 21-22.) As before, thecourt will address each defendant separately.

(1) Lee

Plaintiffs allegations of retaliation with respect to Leecarry little weight. Again, the Settlement Agreementspecifically states that "Plaintiffs reinstatement wasconditioned, in part, upon his successful completion of certainre-training as determined by . . . Lee, . . . and whatever otherconditions . . . Lee determines are necessary." Lee cannot befaulted for doing what the Settlement Agreement specificallyauthorized. Further, with regard to the liver biopsy, Plaintiffsown physicians, Drs. DeYeso and Gilbert, as well as subsequentadvice he obtained from the Baystate Medical Center, confirmedthat hepatitis C can only be definitively diagnosed by a liverbiopsy. In fact, there is no evidence that Lee was activelyinvolved in any medical decision. Perhaps most importantly,Plaintiff has testified that he does not believe Leediscriminated against him or "was somehow involved in . . .retaliation against [him] because of th[e] prior lawsuit."(Lee's Exhibits, Exhibit A (Powell Deposition) at 315-16.)Accordingly, the court will recommend that summary judgment begranted Lee on the retaliation component of Count II.

(2) Alexander

The retaliation evidence with regard to Alexander issufficient, in the court's view, to overcome Plaintiffs summaryjudgment burden. In short, it is reasonable to infer thatAlexander's alleged concealment of Dr. Bird's report, togetherwith other actions, may have been motivated, at least in part,by Plaintiffs prior litigation.

To be sure, as Alexander points out, she had no substantiverelationship with any of the parties prior to January of 1992,after Plaintiff had filed his initial lawsuit, and thatPlaintiff himself may have been responsible for much of thedelay in his reinstatement. Indeed, even Plaintiff's formercounsel knew of no action by or statement from Alexander whichwould have led him to believe that Alexander's activities wereretaliatory. (Alexander's Brief, Exhibit 7 (Gogel Deposition) at117.) Still, it is undisputed that Alexander signed theSettlement Agreement on Pittsfield's behalf, and it appears fromsubsequent correspondence that Alexander was the point-person inreturning Plaintiff to the police force. (See Alexander's Brief,Exhibit 4(A).) Moreover, as indicated, Alexander had manyopportunities to reveal Dr. Bird's report — including thepost-verdict proceedings in Civil Action No. 91-30195-FHF — butdid not do so. Indeed, as described, some of the letters may beviewed as intentionally deceptive. At bottom, to the extentAlexander's alleged actions in concealing Dr. Bird's reportimpeded or in any way contributed to the delay in Plaintiffsreinstatement, the court believes that it is reasonable to inferthat she may have been sufficiently motivated by unlawfulretaliation.

(3) Dr. Bird

In contrast to Alexander, the court deems it unreasonable topin any retaliatory motivation on Dr. Bird. It was Alexander's,not Dr. Bird's, decision to keep the July 5, 1994 report"confidential." Moreover, as indicated, deposition testimonyfrom both Plaintiff and his former counsel demonstrate that Dr.Bird never exhibited any animus toward Plaintiff. Accordingly,the court will recommend that summary judgment be granted Dr.Bird with respect to the retaliation component of Count II.

(4) Reilly

As with Alexander, the court believes that the retaliationevidence with respect to Reilly sufficiently supportsPlaintiffs summary judgment burden. Alexander's file note ofNovember 14, 1994, (Plaintiffs Exhibits, Exhibit 62), indicatesthat Plaintiff went to see Dr. Bird the previous Friday, thatPlaintiff wanted Dr. Bird to complete a disability statement andthat Plaintiffs doctors would not say that he was "disabled." Itgoes on to state that Alexander conversed with Reilly who toldher to "talk to [Plaintiffs attorney] about finding a [doctor]who will say what he wants." (Id.)

This last statement is curious. On one hand, it could supportan inference that Reilly was frustrated with what he believedwere Plaintiffs ever changing positions. On the other hand, itcould reasonably be read to infer that Reilly's desire tofacilitate Plaintiffs receipt of disability benefits waspreferred to his reinstatement as a police officer. Thus, Reillymay be deemed to have been motivated as much by retaliation asby magnanimity. Such dueling inferences, of course, favorPlaintiff at summary judgment. See Aher v. O'Donnell,109 F.3d 809, 811 (1st Cir. 1997) (at summary judgment "all reasonablecompeting inferences" must be drawn in favor of the non-movingparty).

Alexander's letter dated November 22, 1994, (PlaintiffsExhibits, Exhibit 46), provides more evidence of possibleretaliation by Reilly. As previously indicated, this letter,addressed to Plaintiffs counsel with a copy to Reilly, states asfollows: "[A]s you recall from our telephone conversation inJuly, we had requested [Dr. Bird] hold off on his report to theCity until after the possibility of a disability retirement wasfully explored by [Plaintiff]." (Id.) In Plaintiffs view,Alexander's statement "was inaccurate . . . [as] Dr. Bird had infact issued his report that [Plaintiff] was qualified to returnto work on or about July 5, 1994" and was, therefore, made "tointentionally mislead [Plaintiff] and his attorneys."(Plaintiff's Facts ¶ 00000.)

Assuming that Alexander's letter was in fact inaccurate andintended to deceive, a point she vehemently disputes, it may bereasonably inferred that the letter arose out of Alexander'sNovember 14th meeting with Reilly. While there is no directevidence that Reilly knew about Dr. Bird's July 5, 1994 report,Plaintiffs recent visit with Dr. Bird and that visit'srelationship to Plaintiffs potential claim for disability werediscussed by Reilly and Alexander on November 14th. Yet otherevidence indicates that Alexander had instructed Dr. Bird "tokeep the report confidential." (Plaintiff's Exhibits, Exhibit 5(Bird Deposition) at 109.)

To be sure, had Reilly been motivated to conceal Dr. Bird'sreport solely to assist Plaintiff in obtaining disabilitybenefits as may have been his inclination, the claim ofretaliation might ultimately fail. For now, however, to theextent that the court finds it reasonable for summary judgmentpurposes to infer that Reilly's actions impeded or in any waycontributed to the delay in reinstating Plaintiff, he too mayhave been motived in part by retaliation.

(5) Pittsfield

Having analyzed the individual defendants, the court muststill consider whether the municipal defendant, Pittsfield,might be said to have engaged in retaliation. In doing so, thecourt must determine whether Plaintiff has properly alleged thatPittsfield retaliated against Plaintiff via an official "policyor custom."

For Plaintiff to maintain the retaliation component of CountII against Pittsfield, he must allege that his civil rights wereviolated as the result of an official "policy or custom." SeeMonell 436 U.S. at 694, 98 S.Ct. 2018. The showing is twofold.First, Plaintiff "must identify amunicipal `policy' or a `custom' that caused [his] injury."Silva v. Worden, 130 F.3d 26, 30-31 (1st Cir. 1997) (citingBoard of County Comm'rs of Bryan County v. Brown,520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Pembaur v.Cincinnati, 475 U.S. 469, 479-81, 106 S.Ct. 1292, 89 L.Ed.2d452 (1986); Monell, 436 U.S. at 694, 98 S.Ct. 2018). Second,the disputed "policy" or "custom" must "be the cause and movingforce behind the deprivation of constitutional rights." Silva,130 F.3d at 31 (citing Bryan County Comm'rs, 520 U.S. at 404,117 S.Ct. 1382).

There are at least two methods by which a municipality may beheld liable for acts taken pursuant to a policy: "when thedeprivation resulted (1) `from the decisions of its dulyconstituted legislative body', or (2) from the decisions `ofthose officials whose acts may fairly be said to be those of themunicipality.'" Id. (quoting Bryan County Comm'rs, 520 U.S.at 403-04, 117 S.Ct. 1382) (footnote omitted). In such "policy"cases, "[m]unicipal liability attaches only where thedecisionmaker possesses final authority to establish municipalpolicy with respect to the action ordered." Pembaur, 475 U.S.at 481, 106 S.Ct. 1292. Alternatively, a municipality may beliable to a plaintiff who is injured by "an act performedpursuant to a `custom' that has not been formally approved by anappropriate decisionmaker [when] the relevant practice is sowidespread as to have the force of law." Bryan County Comm'rs,520 U.S. at 404, 117 S.Ct. 1382.

Plaintiff does not argue that either a municipal "custom" orthe actions of Pittsfield's constituted legislative body are atplay. As a result, the court, like the parties, will focus onthe second part of the "policy" issue, i.e., whether the allegedretaliation resulted from the decisions of an official —Plaintiff points to Reilly — whose acts may fairly be said to bethose of Pittsfield. In other words, the pertinent question iswhether Reilly possessed "final authority to establish municipalpolicy with respect to the action ordered." Pembaur, 475 U.S.at 481, 106 S.Ct. 1292. The answer to this question is yes. InReilly's own words, "the ultimate decision" with respect toPlaintiffs disqualification "would be the mayor['s]" since he"ha[d] to make the final appointment." (Plaintiff's Exhibits,Exhibit 2) (Reilly Deposition at 35-36.) Compare Silva, 130F.3d at 31 (actions of individual who was not delegated finaldecision making authority with respect to plaintiffs complaintcannot form basis of municipal "policy"). The court thus turnsto the causation issue.16

As indicated, the disputed policy must also be the cause ofthe injury. See Silva, 130 F.3d at 30. In the words of theSupreme Court, "it is not enough for a § 1983 plaintiff merelyto identify conduct properly attributable to the municipality.The plaintiff must also demonstrate that, through itsdeliberate conduct, the municipality was the `moving force'behind the injury alleged." Board of County Comm'rs, 520 U.S.at 404, 117 S.Ct. 1382 (emphasis in original). Stated anotherway, "a plaintiff must show that the municipal action was takenwith the requisite degree of culpability and must demonstrate adirect causal link between the municipal action and thedeprivation of federal rights." Id.

In his memorandum of law, Plaintiff argues that Reilly'sactions provide the causal link, arguing, in part, as follows:

Reilly was . . . involved in the decisionmaking to encourage [Plaintiff] to seek out disability [retirement options] even though Reilly knew [Plaintiff] was qualified to work. Additionally, Reilly was . . . the person who had to make the ultimate decision as to whether [Plaintiff] had sufficiently divested himself from his taxi business. From these facts[,] . . . it can reasonably be inferred that Reilly was responsible for the ultimate decision-making that kept [Plaintiff] . . . from returning to work. . . .

. . . Reilly's decision to not reinstate [Plaintiff], as well as his decision to not disqualify [Plaintiff] certainly can reasonably be inferred to constitute municipal policy. It also can be reasonably . . . inferred that [Reilly's] specific actions were a direct cause of the discrimination and retaliation that [Plaintiff] suffered. The defendant City of Pittsfield should thus be liable for its actions through the Mayor.

(Plaintiffs Brief at 4-5, 6 (emphasis added).) In support of hiscausation argument, Plaintiff cites three handwritten notes anda letter from Alexander. (See id. at 4-5.)17

The first handwritten note is dated November 10, 1993, thevery day Plaintiff received a positive panel test for hepatitisC. (Plaintiffs Exhibits, Exhibit 11.) The note makes absolutelyno reference to Reilly. At best, the note indicates that adecision was made to send Plaintiff to a specialist and mentions"guidelines for public safety." (Id.) The court is at a lossto see how the note raises a legitimate inference of, let alonedemonstrates, "a direct causal link between" Pittsfield and thealleged deprivation of Plaintiffs rights.

Alexander's second note, dated May 11, 1994, (PlaintiffsExhibits, Exhibit 27), is more troublesome. The note appears toindicate that Reilly met with Alexander and Lee a few days afterthe results of Plaintiffs liver biopsy were released. It alsocryptically refers to "results of biopsy," "enforcing [the] ADA"and the "2 job rule" as well as Plaintiffs anticipated return towork. (Id.) It is difficult to infer from the note, consideredin isolation, that Pittsfield or Reilly were the moving forcebehind any injury alleged.

As previously indicated, however, Alexander's third note ofNovember 14, 1994, (Plaintiffs Exhibits, Exhibit 62), togetherwith her subsequent letter of November 22, 1994, (PlaintiffsExhibits, Exhibit 46), provide the foundation for the causallink. In the court's view, it is reasonable to infer from thesedocuments, perhaps with other evidence, that Pittsfield, throughReilly, was the official "moving force" behind any injuryallegedly suffered by Plaintiff. Stated another way, to theextent that the evidence can be reasonably read to infer thatReilly's — and hence Pittsfield's — actions were taken with therequisite degree of culpability, i.e., to retaliate againstPlaintiff, then Plaintiff has overcome, for summary judgmentpurposes, the causation component of Monell's "policy"requirement.

(B) Defendants' burden

With regard to the final element of Plaintiffs section 1983retaliation claim, Alexander, Reilly and Pittsfield, the onlydefendants remaining on this claim, have not shown as of yetthat they would have delayed or impeded Plaintiffsreinstatement "even in the absence of the protected conduct."Mount Healthy, 429 U.S. at 287, 97 S.Ct. 568. If any of thesedefendants is able to make such a showing at trial, the trialcourt would be justified, in this court's view, to enterjudgment in that defendant's favor on Plaintiffs section 1983retaliation cause of action. At present, however, this courtwill recommend that Alexander, Reilly and Pittsfield's motionswith respect to that portion of Count II alleging section 1983retaliation be denied.

(ii) Section 1981 retaliation

No party has cited any decision from this circuit discussingretaliation in the context of section 1981. In fact, onlyPlaintiff and Pittsfield address retaliation in any depth.Accordingly, since the issue of whether a section 1981retaliation claim even exists appears to be yet another questionof first impression in this circuit, much of the legaldiscussion is borrowed from other jurisdictions. The court'sanalysis is complicated by the fact that the law in this areatoo has changed significantly in the past dozen years.

In the late 1980's, prior to passage of the Civil Rights Actof 1991, section 1981 provided only that "[a]ll persons . . .shall have the same right in every State and Territory to makeand enforce contracts . . . as is enjoyed by white citizens."42 U.S.C. § 1981(a). Before 1989, courts interpreting the "make andenforce contracts" language held that section 1981 encompassedclaims for race-based retaliation during the contract. SeeAndrews v. Lakeshore Rehabilitation Hosp., 140 F.3d 1405, 1410(11th Cir. 1998) (citing cases). In 1989, however, the SupremeCourt in Patterson v. McLean Credit Union, 491 U.S. 164, 109S.Ct. 2363, 105 L.Ed.2d 132 (1989), held that the "make andenforce contracts" language covered "only conduct at the initialformation of the contract and conduct which impairs the right toenforce contract obligations through legal process," but not"conduct which occurs after the formation of a contract andwhich does not interfere with the right to enforce establishedcontract obligations." Patterson, 491 U.S. at 171, 179, 109S.Ct. 2363.

In partial response to Patterson, Congress enacted the CivilRights Act of 1991 which, via the new subsection (b) (see supraat n. 7), more broadly defined the phrase "make and enforcecontracts." Thus, that phrase was amended to "include[] themaking, performance, modification, and termination of contracts,and the enjoyment of all benefits, privileges, terms, andconditions of the contractual relationship."42 U.S.C. § 1981(b). In Rivers v. Roadway Express, Inc., 511 U.S. 298, 114S.Ct. 1510, 128 L.Ed.2d 274 (1994), the Supreme Court described"the 1991 Act's function as `expanding the scope of relevantcivil rights statutes in order to provide adequate protection tovictims of discrimination.'" Rivers, 511 U.S. at 308, 114S.Ct. 1510 (quoting Pub.L. No. 102-166 § 3(4), 1095 Stat. 1071 §3(4) (1991) (emphasis added by Supreme Court)). See alsoAndrews, 140 F.3d at 1411 (noting that the 1991 Act'slegislative history is "replete with expressions of Congress'sintent to broaden section 1981 specifically to cover race-basedretaliation in all phases of contractual relations").

Where does that bring us here? Given the currently broadlanguage of the "make and enforce contracts" language of section1981, it is clear that Plaintiff is not precluded from bringinga section 1981 retaliation claim.18 Plaintiffs 1981retaliationclaim revolves around his contractual relationship withPittsfield, specifically, the allegation that Plaintiff sufferedadverse actions — delays and interference — in theimplementation of the Settlement Agreement. (See Complaint ¶39.) Whether Plaintiff can survive summary judgment on thiscause of action, however, is another matter.

The parties agree that section 1981 retaliation must beanalyzed under the McDonnell Douglas paradigm for Title VIIclaims. (See, e.g., Docket No. 59): Defendant City ofPittsfield's Memorandum in Support of its Motion for SummaryJudgment ("Pittsfield's Brief") at 11 (citing Choudhury v.Polytechnic Institute of New York, 735 F.2d 38, 44 (2nd Cir.1984); Goff v. Continental Oil Co., 678 F.2d 593, 599 (5thCir. 1982); Sisco v. J.S. Alberici Constr. Co., 655 F.2d 146,150 (8th Cir. 1981)); Plaintiffs Brief at 19 (citing Wyatt v.Boston, 35 F.3d 13, 15 (1st Cir. 1994); Petitti v. Comm'n ofMass. Dep't of Mental Health, 859 F. Supp. 33, 40 (Mass. 1993)).See also Spriggs v. Diamond Auto Glass, 242 F.3d 179, 190-91(4th Cir. 2001) (utilizing McDonnell Douglas three-stageburden-shifting framework in section 1981 retaliation action).The parties also appear to agree that, to make a prima faciecase of retaliation under section 1981. Plaintiff mustdemonstrate (1) that he engaged in activities protected bysection 1981; (2) that he was subjected to an adverse employmentaction; and (3) that there is a causal connection between thetwo. (See Pittsfield's Brief at 11; Plaintiffs Brief at 19.)

Several individual defendants imply that Plaintiff cannot madeout a prima facie case of retaliation against them as they arenot Plaintiffs "employer." Again, were this a Title VII case,these defendants probably would be correct. See Sauers, 1 F.3dat 1125; Horney, 95 F. Supp.2d at 3336. However, as indicated,even though Title VII cases appear to provide the analyticalframework, section 1981 liability can attach to an individual aswell as to an employer. See Allen, 928 F.2d at 983; Johnson,843 F. Supp. at 978. Hence, the court has considered section 1981retaliation liability with respect to each of the defendants andits conclusion mirrors its analysis of section 1983 retaliation.

In the end, the court believes, for essentially the samereasons stated above with respect to Section 1983 retaliation,that no reasonable jury could infer that Dr. Bird or Leeretaliated against Plaintiff because he engaged in a protectedactivity. On the other hand, the court believes that areasonable jury could infer that Alexander and Reilly retaliatedagainst Plaintiff in violation of section 1981 and that, throughReilly, Pittsfield may be liable for having an official "policy"of retaliation which caused the alleged injury. The court,therefore, will recommend that summary judgment only enter infavor of Dr. Bird and Lee on that portion of Count I allegingsection 1981 retaliation.

(iii) Qualified immunity

Before leaving sections 1981 and 1983, one final matter needsto be addressed with respect to Alexander, Reilly andPittsfield, the only defendants this court believes are notentitled to summary judgment on Counts I and II. Citinglacobucci v. Boulter, 193 F.3d 14, 24 (1st Cir. 1999),Alexander states, quite conclusory, that "[a]s the undisputedfacts make plain, [she] had an objectively reasonable basis forbelieving her conduct would not abridge [Plaintiff]'s rights."(Alexander's Brief at 31.) Pittsfield, too, has a perfunctoryqualified immunity argument. (SeePittsfield's Brief at 4-5.) Reilly's qualified immunity argumentis described in somewhat greater depth.

Assuming Alexander's and Pittsfield's passing qualifiedimmunity arguments have not been waived, cf. Airport ImpactRelief, Inc. v. Wykle, 192 F.3d 197, 205 (1st Cir. 1999)("Issues adverted to in a perfunctory manner, unaccompanied bysome effort at developed argumentation, are deemedwaived. . . ."), they, along with Reilly's, must still fail atthis juncture. As to Reilly and Alexander, it is well-settled inthis circuit that, when there is a triable issue as to whetheran official acted with a retaliatory motive, a grant ofqualified immunity at the summary judgment stage isinappropriate. See Broderick v. Roache, 996 F.2d 1294, 1298(1st Cir. 1993); Feliciano-Angulo v. Rivera-Cruz, 858 F.2d 40,47 (1st Cir. 1988). As to Pittsfield, its argument ought to berejected as well. "A municipality enjoys no immunity fromdamages liability under § 1983." Fletcher v. Town of Clinton,196 F.3d 41, 55 (1st Cir. 1999) (citing Owen v. City ofIndependence, 445 U.S. 622, 657, 100 S.Ct. 1398, 63 L.Ed.2d 673(1980)). In other words, it is possible "for a municipality tobe held liable for the actions of lower-level officers who arethemselves entitled to qualified immunity." Id. (citation andinternal quotation marks omitted).

B. CONSPIRACY (COUNT IV)

Plaintiffs conspiracy claim is brought under two theories.First, Plaintiff alleges that the individual defendants engagedin a "discriminatory" conspiracy in violation of42 U.S.C. § 1985(3).19 Second, Plaintiff contends the individualdefendants engaged in a "retaliatory" conspiracy in violation of42 U.S.C. § 1985(2).20 Severaldefendants suggest that Plaintiff may also be alleging a "commonlaw" conspiracy. However, because Plaintiffs memorandum of lawdoes not mention such a theory, the court will not consider itfurther.21

1. Section 1985(3) "Discriminatory" Conspiracy

A conspiracy cause of action under 42 U.S.C. § 1985(3) hasfour elements: "(1) two or more persons must conspire, (2) todeprive, either directly or indirectly, any person or class ofpersons of the equal protection of the laws or of equalprivileges and immunities under the laws, (3) one or more of theconspirators must have done or caused to be done an act infurtherance of the object of the conspiracy, and (4) theplaintiff must have suffered either an injury to person orproperty or a deprivation of a constitutionally protected rightor privilege as a result of the conspiracy." Andrade v.Jamestown Housing Auth., 82 F.3d 1179, 1192 (1st Cir. 1996)."The Supreme Court has construed the second element to requirethat `there must be some racial or perhaps otherwiseclass-based, invidiously discriminatory animus behind theconspirators' action.'" Id. (quoting Griffin v.Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338(1971)).

As indicated above, the court believes that Plaintiff hasfailed to show any discriminatory or racial animus toward him onthe part of any individual defendant. At best, Plaintiff mightbelieve that Alexander was acting pursuant to a discriminatoryor class-based animus. (See Alexander's Brief, Exhibit 5 (PowellDeposition) at 271-79.) However, one actor does not a section1985(3) conspiracy make. See Irizarry v. Palm Springs Gen.Hosp., 657 F. Supp. 739, 741 (S.D.Fla. 1986) (citingFrancis-Sobel v. Univ. of Me., 597 F.2d 15, 17 (1st Cir.1979)); BLACK'S LAW DICTIONARY at 305 (7th ed. 1999)("conspiracy" defined as "[a]n agreement between two or morepersons to commit an unlawful act") (emphasis added). Moreover,the court has found no reasonable inference that unlawfuldiscrimination was a determining factor in Alexander's actions.Thus, Plaintiffs section 1985(3) conspiracy claim mustfail.22

2. Section 1985(2) "Retaliatory" Conspiracy

In his memorandum of law, Plaintiff alleges that he is alsoasserting asection 1985(2) conspiracy against the individual defendants.(Plaintiff's Brief at 25-26.) Plaintiff describes his section1985(2) claim as a conspiracy of "retaliation." As previouslyexplained, it is reasonable to infer that Alexander and Reilly,but not the other individual defendants, may have been motivatedby unlawful retaliation However, neither Alexander nor Reillydiscusses section 1985(2), perhaps because the First Circuit hasinterpreted this section as providing a remedy for a plaintiffwho has been retaliated against for having instituted a priorlawsuit. See Irizarry v. Quiros, 722 F.2d 869, 871 (1st Cir.1983). See also Wright v. No Skiter Inc., 774 F.2d 422, 426(10th Cir. 1985) (similar). Furthermore, because the SupremeCourt has held that class-based discrimination is not anecessary element of a section 1985(2) claim, see Kush, 460U.S. at 721, 103 S.Ct. 1483, the lack of discriminatory animusdoes not doom this cause of action. At bottom, the courtbelieves that Count IV should survive, but only insofar as ittargets Alexander and Reilly as engaging in a conspiracy inviolation of 42 U.S.C. § 1985(2).

C. THE REHAB ACT (COUNT III)

The Rehab Act bars certain discrimination against individualswith disabilities. It states, in pertinent part, as follows:

No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .

29 U.S.C. § 794(a). The phrase "individual with a disability"means "any person who — (i) has a physical or mental impairmentwhich substantially limits one or more of such person's majorlife activities; (ii) has a record of such an impairment; or(iii) is regarded as having such an impairment."29 U.S.C. § 705(20)(B). The phrase, however, "does not include an individualwho has a currently contagious disease or infection and who, byreason of such disease or infection, would constitute a directthreat to the health or safety of other individuals or who, byreason of the currently contagious disease or infection, isunable to perform the duties of the job."29 U.S.C. § 705(20)(D).

Pittsfield, the only remaining defendant on the Rehab Actcount, pursues a two-fold argument. First, Pittsfield assertsthat Plaintiffs hepatitis C is not an impairment thatsubstantially limits one or more of his major life activitiesand that, in any case, it did not regard Plaintiff as havingsuch an impairment. 29 U.S.C. § 705(20)(B)(i) and (iii). Second,Pittsfield contends that Plaintiffs hepatitis C is a "contagiousdisease or infection" which they reasonably believed"constitute[d] a direct threat to the health or safety of otherindividuals." 29 U.S.C. § 705(20)(D). Case law in this area,too, has evolved rapidly over the past several years.

1. Does Plaintiff's Hepatitis C Substantially Limit One or More of His Major Life Activities or did Pittsfield Regard Him to Have Such an Impairment?

Pittsfield acknowledges that hepatitis C is a physicalimpairment, but argues that it does not substantially limit amajor life activity. Citing federal labor regulations,Pittsfield asserts "major life activities" are limited to"functions such as caring for oneself, performing manual tasks,walking, seeing, hearing, speaking breathing, learning andworking." 29 C.F.R. § 1630.2(h)(2)(i). As a riposte, Plaintiffargues that hepatitis C substantially limitsthe major life activity of reproduction. Neither side offers anymedical evidence in support of their claims.

The court need not resolve the issue of whether Plaintiffshepatitis C in fact substantially limits a major lifeactivity, since, at the very least, there is a genuine issue asto whether Pittsfield regarded Plaintiff as having animpairment which substantially limits his ability to work.29 U.S.C. § 705(20)(B)(iii). See Tardie v. Rehabilitation Hosp. ofRhode Island, 168 F.3d 538, 541 (1st Cir. 1999) ("An individualwho has an impairment that is not substantially limiting (or hasno impairment at all) is nevertheless `disabled' if she istreated by her employer as having an impairment that doessubstantially limit major life activities."). For example, onDecember 21, 1993, Dr. Bird sent a report to Pittsfield'spersonnel department indicating that Plaintiff had "chronicactive hepatitis" and was, therefore, "disqualified" fromemployment. Then, in June of 1994, Dr. Bird consulted withpublic health officials at the U.S. Center for Disease Controland the University of Massachusetts Medical Center because ofhis concern that the nature of Plaintiffs employment as a policeofficer entailed a higher than normal risk of blood to bloodcontact. Even Pittsfield, in its memorandum of law, implies thatthere is some evidence that it treated him as having asubstantially limiting impairment. (Pittsfield's Brief at 15(Because Plaintiff "cannot prove that Hepatitis C is a physicalimpairment, which limits a major life activity, nor will he beable to show that he has a record of such an impairment[,] . . .[Plaintiff] is thus left to prove that [Pittsfield], because ofhis affliction with Hepatitis C, incorrectly regarded hisdisease as a threat to public health. . . .") (emphasis added).)

In short, Pittsfield's first argument does not entitle it tosummary judgment on Count III. Accordingly, the court turns toPittsfield's second argument that Plaintiffs hepatitis C is a"contagious disease of infection" that it reasonably believedconstituted a "direct threat" to others.

2. Is Hepatitis C a Contagious Disease or Infection Constituting a Direct Threat to the Health or Safety of Other Individuals?

Citing tuberculosis and HIV/AIDS cases, Pittsfield arguesthat hepatitis C is a contagious disease and that the citybelieved "in good faith" that police officers with hepatitis Cposed a direct threat to public health. (Pittsfield's Brief at15.) In response, Plaintiff argues that Pittsfield's belief wasunreasonable. The court believes that genuine issues of materialfact preclude summary judgment.

The "direct threat" restriction adopts the Supreme Court'sinterpretation of the Rehab Act in School Bd. of Nassau Countyv. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987).Bragdon v. Abbott, 524 U.S. 624, 649, 118 S.Ct. 2196, 141L.Ed.2d 540 (1998).23 Under Arline, the "basic factors"for determining if a carrier of a contagious disease is entitledto protection include "[findings of] facts, based on reasonablemedical judgments given the state of medical knowledge, about(a) the nature of the risk (how the disease is transmitted), (b)the duration of the risk (how long is the carrier infectious),(c) the severity of the risk (what is the potential harm tothird parties) and (d) the probabilities the disease will betransmitted and will cause varying degrees of harm." Arline,480 U.S. at 287-88, 107 S.Ct. 1123.

Bragdon involved a disability discrimination claim broughtin this circuit by an HIV-positive individual against a dentistwho refused to fill the plaintiffs cavity. The First Circuitaffirmed the grant of summary judgment to the plaintiff, Abbottv. Bragdon, 107 F.3d 934 (1st Cir. 1997), and, after a remandwas ordered by the Supreme Court, Bragdon v. Abbott,524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540, reaffirmed that decision,Abbott v. Bragdon, 163 F.3d 87, 88 (1st Cir. 1998). The soleremaining question on remand was whether performance of thecavity-filling procedure posed a "direct threat" to others and,thereby, came within the exception to the ADA's broadprohibition against discrimination. Abbott, 163 F.3d at 88.The First Circuit resolved that question, as a matter of law, infavor of the plaintiff. Id. at 90. It did so, even thoughthere were forty-two documented cases of occupationaltransmission of HIV to health-care workers, none of whom weredental workers. Id.

In the instant case, Pittsfield provides no facts about thenature of the risk of hepatitis C, the duration of the risk, thepotential harm to third parties or the probabilities thathepatitis C will be transmitted and cause varying degrees ofharm. Of course, Pittsfield points out that Dr. Bird consideredstandards and guidelines about hepatitis C and that the city hasa general duty to keep its employees free from the risk ofcontagious disease. These facts, however, simply do notdemonstrate that Pittsfield is entitled to judgment as amatter of law on the question of whether Plaintiffs hepatitis Ccaused a "direct threat" to the health and safety of otherindividuals. Rather, at the very least, a genuine issue ofmaterial fact exists in this regard. See Nunes v. Wal-MartStores, Inc., 164 F.3d 1243, 1249 (9th Cir. 1999) (reversingsummary judgment for employer where plaintiff raised issue ofmaterial fact as to "direct threat" question); Rizzo v.Children's World Learning Centers, Inc., 84 F.3d 758, 764 (5thCir. 1996) (issues of material fact existed as to whetherplaintiff was direct threat to health or safety of others whendriving van carrying small children, so as to be precluded frombeing qualified individual with disability). Moreover,Pittsfield's arguments to the contrary, the "direct threat"exception says nothing about an employer's "good faith" or"reasonable belief" that the plaintiffs condition causes a riskto the community. See 29 U.S.C. § 705(20)(D).24Accordingly, the court will recommend that Pittsfield's motionfor summary judgment with respect to Count III be denied.

D. BREACH OF CONTRACT (COUNT V)

As indicated, the only remaining defendant with respect toPlaintiffs breach of contract claim — which alleges breach ofthe Settlement Agreement — is Pittsfield. Resolution of thisclaim is easy. In its motion as well as at oral argument,Pittsfield acknowledged that it was not seeking summary judgmenton Plaintiffs breach of contract claim. The court, therefore,will recommend that only the individual defendants, but notPittsfield, be granted summary judgment on Count V.

IV. CONCLUSION

For the foregoing reasons, the court recommends thatDefendants' various motions for summary judgment be resolved asfollows:

(1) Dr. Bird and Lee's motions for summary judgment (Docket Nos. 46 and 49) should be ALLOWED in full;

(2) Alexander and Reilly's motions for summary judgment (Docket Nos. 56 and 61) should be DENIED with respect to Counts I and II (insofar as those counts assert claims of retaliation) and Count IV (insofar as that court asserts a claim under 42 U.S.C. § 1985(2)), but otherwise ALLOWED; and

(3) Pittsfield's motion for summary judgment (Docket No. 57) should be DENIED with respect to Counts I and II (insofar as those counts assert claims of retaliation), Count III and Count V, but otherwise ALLOWED.25

March 19, 2001.

1. Although the motions have been ably briefed and argued byall parties, the court, in sketching the facts, has been slowedby a number of technical deficiencies. Particularly frustratingwas the fact that arguments had been inserted in variousparties' Local Rule 56.1 factual statements. In addition, inaccord with Local Rule 56.1, the court has had to ignoreproffered "facts" that contain no record citation.

One example is Reilly's 56.1 Statement (contained in DocketNo. 64: Reilly's Memorandum of Law in Support of his Motion forSummary Judgment ("Reilly's Brief")). Reilly states therein that"from [September 29, 1993] until late February, 1996, [he] hadno direct communication with the Plaintiff," citing, as support,his affidavit dated April 28, 2000. (Reilly's Brief at 7 ¶ 8.)The affidavit, however, says nothing of the sort, (see id.,Exhibit A), and, accordingly, the court has ignored thisparticular allegation.

By way of further example, at page 10 of its LocalRule 56.1 Statement of Facts (Docket No. 58) ("Pittsfield's Facts"),Pittsfield argues, without record support, that a businessPlaintiff ran "was in violation of [a] City Ordinance and aconflict of interest." Similarly, Pittsfield then states in thenext sentence, again without any record support, that Plaintiffwas "informed . . . that [he] would have to turn in his[business] licenses." (Id.) These unsupported proffers havebeen disregarded.

For his part, Plaintiff claims at paragraphs dd through ff ofhis Local Rule 56.1 Statement of Facts in Dispute in Support ofhis Opposition to the Defendants' Motion(s) for Summary Judgment(Docket No. 61) ("Plaintiff's Facts") that notes taken onNovember 10, 1993, indicate that Alexander, Reilly, Lee and Birddiscussed whether Plaintiff was suffering from a "disablingcondition" and whether they were entitled under the law to havehim "retire" or "let him go." Because the actual notes containno such indication, Plaintiff's description has been ignored bythe court.

2. At his deposition, Dr. Bird stated that, unlike hepatitisA and B, "[h]epatitis C is a major concern" because of itsconnection to cirrhosis and liver cancer:

Hepatitis A and B have been identified through blood work for many years. There are serologies available to diagnose the difference. A, B and C represent different types of viruses that attack the liver. Hepatitis A is the traditional one that used to be felt contaminated through food, water, by a fecal oral root where a person would become acutely ill with jaundice, nausea, vomiting and fully recover. And long term complications are either nonexistent or rare.

Hepatitis B was the traditional one transmitted through blood and blood products, can cause an acute illness as well as a chronic illness.

Hepatitis C was the one we used to call nonA nonB until 1989, was felt to be a hepatitis transmitted through blood products and transfusions. But since 1989 had a blood test that could identify it. It also is an inflammatory condition of the liver and unfortunately people that contract it, eighty-five percent or so will always have it in their system. Only fifteen percent probably clear it and have unmeasurable virus later on.

Hepatitis C is a major concern to the individual that has it because of the incidents over the years with the development of cirrhosis and subsequent liver cancer. There are treatments available although they are not very good ones, as far as treatment of hepatitis C to try to improve an individual's prognosis. [Sic]

(Bird's Exhibits, Exhibit 1 (Bird Deposition) at 58-60.)

3. It should be noted, however, that, on December 21, 1993,Plaintiff was examined by Dr. Veronica DeYeso, agastroenterologist practicing in Great Barrington, who concludedthat, although infectivity was probably less than one percent,Plaintiff "must have a liver biopsy." (Bird's Exhibits, Exhibit19.) Plaintiff then saw Dr. Mark Gilbert, a VeteransAdministration physician, who confirmed positive test resultsand that hepatitis C can only be definitively diagnosed by aliver biopsy. (Id., Exhibit 20.)

4. In the meantime, Plaintiff went to the Baystate MedicalCenter where he indicated to doctors that he had received"conflicting reports from [two] other physicians about whetherhe has or has had or has been exposed to hepatitis." (Bird'sExhibits, Exhibit 25.) Baystate doctors' notes, which continuethrough November 27, 1994, confirm that Plaintiff had hepatitisC and conclude with a recommendation that a liver biopsy beconsidered. (See id.) Of course, by that time, Plaintiff hadalready had a liver biopsy.

5. Pittsfield claims that it only became aware of Plaintiff'staxi and limousine business when the local newspaper reported onFebruary 24, 1994, that Plaintiff had been arrested whiledriving his limousine in New York state. (Pittsfield Facts at9.) This statement is somewhat puzzling given that the LicenseBoard's approval of Plaintiff's license application — whichincluded a safety inspection by the Police Department — occurredin early December, 1993. (See Pittsfield's Exhibits, Exhibit R.)It should be noted as well that Plaintiff was cleared of allcharges stemming from the New York arrest. (See Alexander'sBrief, Exhibit L.)

6. Throughout these proceedings, Plaintiff has beenrepresented by yet other counsel.

7. In full, section 1981, entitled "Equal rights under thelaw," states as follows:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) "Make and enforce contracts" defined

For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

42 U.S.C. § 1981.

8. In pertinent part, section 1983 states as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .

42 U.S.C. § 1983.

9. In actuality, section 101 of the Civil Rights Act of 1991designated the previous text of section 1981 as subsection (a)and added new subsections (b) and (c). See supra at n. 7. Thenew subsection (b) is discussed below with regard to Plaintiff'sretaliation claim.

10. To be sure, as the Ninth Circuit points out, thelegislative history surrounding the amendment suggests thatCongress' intent in adding subsection (c) was to codify Runyonv. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976),which held that section 1981 rights are protected againstprivate discrimination as well as against statediscrimination. Id. at 1212. However, "[b]ecause § 1981(c)affords identical protection against `impairment bynongovernmental discrimination' and `impairment under color ofState law,' and because § 1981(c) implicitly codifies an impliedcause of action against private defendants," this court, likethe Ninth Circuit, "infer[s] that § 1981(c) also contains animplied cause of action against state actors who `impair' aclaimant's § 1981 rights." Id. at 1213 (emphasis inoriginal).

11. Plaintiff cites Springer v. Seaman, 821 F.2d 871 (lstCir. 1987), in which the First Circuit, citing Haugabrook v.City of Chicago, 545 F. Supp. 276, 281 (N.D.Ill. 1982), held"that the doctrine of respondeat superior is applicable toclaims brought under 42 U.S.C. § 1981." Id. at 881. However,both Springer and Haugabrook are pre-Jett cases and,therefore, have no applicability here.

12. In his memorandum of law, Plaintiff does not address"handicap" discrimination with respect to Counts I and II. Thus,the court only considers Counts I and II in the context ofrace-based claims.

13. According to Lee, Plaintiff may have been able to asserta Title VII claim but, unfortunately for him, failed to followthe procedural requirements imposed by that statute. (See DocketNo. 51: Defendant Gerald Lee's Memorandum in Support of hisMotion for Partial Summary Judgment and Costs ("Lee's Brief") at15 n. 14.)

14. A Monell-based "policy or custom" analysis might alsodoom Plaintiff's employment discrimination claim againstPittsfield. However, since the court believes that no reasonableinference of unlawful discrimination exists with respect to anyindividual, it discusses the "policy or custom" issue in thecontext of retaliation only. See infra.

15. Pittsfield's argument to the contrary, it appears asthough a section 1983 retaliation claim need not be subsumedinto a Title VII employment discrimination cause of action. Manyof the section 1983 retaliation cases — e.g., Graham, McDonaldand Shabazz — are brought by prison inmates who are notclaiming retaliation in the employment context.

16. It is arguable that Alexander, City Solicitor, alsopossessed final decision making authority as she signed theSettlement Agreement on Pittsfield's behalf. (See Pittsfield'sExhibits, Exhibit B.) However, since Plaintiff focuses on Reillyas the "official" causal link, the court does likewise.

17. Plaintiff also cites several lines from Alexander'sdeposition testimony which simply appear to confirm herunderstanding that Reilly was the ultimate decisionmaker withregard to Plaintiff's appointment.

18. To the extent that Butler v. RMS Technologies, Inc.,741 F. Supp. 1008, 1010 (Mass. 1990), might hold otherwise, thatcase is out dated; it was decided after Patterson but beforeenactment of the Civil Rights Act of 1991.

19. In full, section 1985(3) states as follows:

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985(3).

20. In full, section 1985(2) stales as follows:

If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws.

42 U.S.C. § 1985(2).

21. Nor has the court considered further any argument thatsections 1985(3) and 1985(2) do not contain private rights ofaction. That argument is misplaced. See Nieves v. McSweeney,241 F.3d 46 (1st Cir. 2001) (indicating that section 1985(3)"confers a private right of action for injuries occasioned when`two or more persons . . . conspire . . . for the purpose ofdepriving, either directly or indirectly, any person or class ofpersons of the equal protection of the laws, or of equalprivileges and immunities under the laws'"); Altschuler v.Univ. of Pa. Law Sch., No. 95 Civ. 249, 1997 WL 129394, at*17 (S.D.N.Y. 1997) ("Section 1985(2) provides a private rightof action to recover for damages from certain kinds ofinterference with federal and state judicial proceedings.")(citing Kush v. Rutledge, 460 U.S. 719, 724, 103 S.Ct. 1483,75 L.Ed.2d 413 (1983)), aff'd, 201 F.3d 430 (2nd Cir. 1999)(unpublished), cert. denied, 530 U.S. 1276, 120 S.Ct. 2744,147 L.Ed.2d 1008 (2000).

22. In so concluding, the court recognizes that there may beadditional reasons why Plaintiff's section 1985(3) conspiracyclaim fails. (See, e.g., Lee's Brief at 14-15) (arguing thatPlaintiff's section 1985(3) cause of action is "preempted" byboth section 1983 and Title VII.)

23. While Bragdon and other cases cited in this sectionconcerned suits under both the Rehab Act and the ADA, the twoacts' standards for carriers of contagious diseases are thesame. See Onishea v. Hopper, 171 F.3d 1289, 1298 n. 14 (11thCir. 1999); Estate of Mauro ex rel. Mauro v. Borgess Med.Ctr., 137 F.3d 398, 402 (6th Cir. 1998).

24. Even if the statute so stated, the argument againstgranting summary judgment would still be strong. SeeGarcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 652(1st Cir. 2000) (O'Toole, J., dissenting) ("Where manyinterrelated considerations bear on an assessment of what is`reasonable,' prudence cautions against too ready a resort tosummary dispositions as a matter of law.").

25. The parties are advised that under the provisions ofRule 3(b) of the Rules for United States Magistrates in the UnitedStates District Court for the District of Massachusetts, anyparty who objects to these findings and recommendations mustfile a written objection with the Clerk of this Court within ten(10) days of the party's receipt of this Report andRecommendation. The written objection must specifically identifythe portion of the proposed findings or recommendations to whichobjection is made and the basis for such objection. The partiesare further advised that failure to comply with this rule shallpreclude further appellate review by the Court of Appeals of theDistrict Court order entered pursuant to this Report andRecommendation. See Keating v. Secretary of Health & HumanServices, 848 F.2d 271, 275 (1st Cir. 1988); United States v.Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Scott v.Schweiker, 702 F.2d 13; 14 (1st Cir. 1983); United States v.Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Park Motor Mart,Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir. 1980). Seealso Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 88L.Ed.2d 435 (1985). A party may respond to another party'sobjections within ten (10) days after being served with a copythereof.