Full opinion text
ORDER PONSOR, District Judge. Upon de novo review this Report and Recommendation is hereby adopted, without opposition. Rulings on the pending motions for summary judgment are as set forth in Section IV. The clerk will set the matter for a status conference. So ordered. REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (Docket Nos. 16, 19, 56, 57 and 61) NEIMAN, United States Magistrate Judge. Walter J. Powell (“Plaintiff’), believing that the City of Pittsfield (“Pittsfield”) did not rehire him as a police officer quickly enough following his settlement of a prior employment discrimination lawsuit, filed this action on September 8, 1997. Plaintiff claims that Pittsfield, along with four individuals involved in the rehiring process, Mayor Edward Reilly (“Reilly”), Police Chief Gerald Lee (“Lee”), City Solicitor Kathleen Alexander (“Alexander”) and City Physician Gordon Bird (“Dr.Bird”) (collectively “Defendants”), violated certain civil rights and other laws. Defendants have each moved for summary judgment. The motions, five in all, have been referred to this court for a report and recommendation. See 28 U.S.C. § 636(b). For the reasons stated below, the court will recommend that two of the motions, Dr. Bird’s and Lee’s, be allowed in full and that the remaining three, Pittsfield’s, Reilly’s and Alexander’s, be allowed in part 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 of material fact exists, the burden is on the opposing party to point to specific facts demonstrating that there is, indeed, a trialworthy issue. National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995). A “genuine” issue is one “that a reasonable jury could resolve ... in favor of the nonmoving party.” McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995). Accord United States v. One Parcel of Real Property, Great Harbor Neck, New Shore-ham, R.I., 960 F.2d 200, 204 (1st Cir.1992). Not every genuine factual conflict, however, necessitates a trial. “ ‘It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmov-ant that the materiality hurdle is cleared.’ ” 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 the court 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, in a light most favorable to Plaintiff, the non-moving party. In doing so, the court deems admitted uncon-troverted facts of record supplied by Defendants. See Local Rule 56.1. Plaintiff, an African-American, attended the state police academy in 1983 and thereafter began working as a police officer in the city of North Adams. (Plaintiffs Amended Affidavit (attached to Docket No. 78) ¶¶ 1, 2.) In May of 1985, Plaintiff was hired as a Pittsfield police officer. (Docket No. 32: First Amended Complaint and Demand for Jury Trial (“Complaint”) ¶ 9.) When Plaintiff was initially hired by Pittsfield, Dr. Bird performed 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. Bird held the title of City Physician, a part-time, contract position. (Complaint § 1(C)(4), at 3 and § II at 4.) On March 21, 1991, Plaintiff was fired from the Pittsfield Police Department. (Complaint ¶ 10.) Plaintiff thereafter filed a lawsuit in this district alleging illegal race discrimination. See Powell v. Pittsfield, Civil Action No. 91-30195-FHF. While that lawsuit was pending in 1992, Reilly became the Mayor of Pittsfield, Alexander became the City Solicitor and Lee became the Chief of Police. (See Pitts-field’s Facts §§ i(C)(l)-(3), at 2-3.) Reilly, as Mayor, was the ultimate appointing authority for the Police Department. (Plaintiffs Exhibits, Exhibit 2 (Reilly Deposition) at 8.) On September 29, 1993, Plaintiff and Pittsfield entered into a Settlement Agreement and Release of All Claims (“Settlement Agreement”). (Complaint ¶ 12.) Reilly and Alexander negotiated the Settlement Agreement on behalf of Pittsfield. (Plaintiffs Exhibits, Exhibit 2 (Reilly Deposition) at 13.) As part of their negotiation, Reilly and Alexander met with Lee to discuss requirements which would allow Plaintiff to be reinstated. (Id., Exhibit 4 (Lee Deposition) at 23-24.) Reilly, however, viewed himself as the person ultimately responsible for Plaintiffs reinstatement. (Id,., Exhibit 2 (Reilly Deposition) at 35-36.) The terms of the Settlement Agreement required Plaintiff to dismiss with prejudice all civil actions pending against Pittsfield, 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, Pittsfield agreed to pay Plaintiff $81,000 and reinstate him as a police officer. (Id. ¶ 1.) Plaintiffs reinstatement, however, was conditioned upon his passing a physical and psychological examination and other reasonable conditions to be determined by Police Chief Lee. (Id. ¶ 3.) More specifically, the Settlement Agreement, 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’s personnel department requested Dr. Bird to provide a full police academy entrance physical exam to Plaintiff. (Complaint ¶ 17; Docket No. 48: Exhibits Regarding Memorandum in Support of Bird’s Motion for Summary Judgment (“Bird’s Exhibits”), Exhibit 8 (Bird Deposition) at 31.) At the time, Dr. Bird’s duties as City Physician included giving physicals to Pittsfield police officer candidates who were entering the Pittsfield police force. (Complaint ¶ 16.) Because Pittsfield did not have a specific custom or policy in place pertaining to the rehiring or reinstatement of police officers after a period of separation, the city utilized its policy requiring that newly hired police officers pass a physical examination administered by Dr. Bird. (See Docket No. 65: Memorandum in Support of Alexander’s Motion for Summary Judgment (“Alexander’s Brief’), Exhibit 2 (Alexander Deposition) at 17-19.) Dr. Bird examined Plaintiff on October 20, 1993 — lab tests appeared to have been taken on October 13, 1993 (Bird’s Exhibits, Exhibit 9) — and Dr. Bird found Plaintiff healthy and “[qualified for the position sought.” (Complaint ¶¶ 18, 19; Pittsfield’s Exhibits, Exhibit D.) Nonetheless, abnormal liver function tests, which indicated a possible mild dysfunction, required further liver testing. (Pittsfield’s Exhibits, Exhibit D; Complaint ¶ 19.) On the basis of these further tests, taken on or about October 27, 1993, Dr. Bird determined that Plaintiff, while otherwise healthy, should have a hepatitis panel test to further assess liver function. (Complaint ¶ 20.) On November 10, 1993, the test indicated a positive reaction for hepatitis C. (Id. ¶ 21; Pittsfield’s Exhibits, Exhibit E.) Accordingly, Plaintiff was referred to a specialist, although he indicated that he also wanted to arrange for a consultation with his own doctor about the possibility of hepatitis C. (Complaint ¶ 21; Bird’s Exhibits, Exhibit 13.) On November 15, 1993, Dr. Robert Taylor — a doctor chosen by Plaintiff — reported to Dr. Bird that, although Plaintiff may have a hepatitis infection, he was otherwise healthy and was only restricted from giving blood and imbibing alcohol. (Alexander’s Brief, Exhibit 4(F).) Plaintiff then saw Dr. Arthur Wasser, a gastroenterologist to whom he was referred by Dr. Bird. (Pittsfield’s Exhibits, Exhibit F.) Dr. Was-ser reported on December 13, 1993, that Plaintiff probably had hepatitis C and that treatment for this disease could involve a six month course of interferon three times a week with attendant side effects. (Id.) Even so, Dr. Wasser opined that Plaintiff was asymptomatic and otherwise “a healthy, strapping man” and that the risk of transmission to co-workers and others was “rather low.” (Id.) In the meantime, on December 1, 1993, Plaintiff applied for and was granted a license to run a taxi and limousine business by the Pittsfield License Board. (Id. Exhibit R.) Plaintiff avers that he began driving limousines at the time to help support his family. (Plaintiffs Amended Affidavit ¶11.) On December 21, 1993, Dr. Bird sent a report to Pittsfield’s personnel department indicating that Plaintiff had “chronic active hepatitis” and was, therefore, “disqualified” from employment. (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 of Dr. Bird’s medical opinion, Plaintiff was not legally disqualified from employment. (Alexander’s Brief, Exhibit 2 (Alexander Deposition) at 85.) Plaintiff fired Powers in January of 1994. (Id., Exhibit 5 (Powell Deposition) at 215.) On February 15, 1994, Plaintiffs new counsel; Kenneth Gogel (“Gogel”) wrote Alexander demanding either reinstatement or an official “disqualification” so that Plaintiff could commence appellate review of the matter. (Plaintiffs Exhibits, Exhibit 22.) In letters to Gogel dated February 22 and March 30, 1994, Alexander confirmed that Pittsfield was not yet legally disqualifying Plaintiff, but that the city wanted more medical information from him. (Alexander’s Brief, Exhibit 4(J) and (N).) Ultimately, Plaintiff arranged for a liver biopsy to be performed by Dr. F. Borhan-Manesh of the Veterans Administration. (See id., Exhibit 4(0).) Plaintiff confirmed at his deposition that his doctors told him “that it was medically impossible to make [a definite hepatitis C] diagnosis” without a liver biopsy. (Bird’s Exhibits, Exhibit 16 (Powell Deposition) at 50.) On May 3, 1994, Dr. Borhan-Manesh, having completed the liver biopsy, issued his report. Dr. Borhan-Manesh’s report indicated that, although Plaintiff had chronic hepatitis C, he was otherwise healthy and fit for his job and that there was no risk of infection from casual contact. (Complaint ¶ 25; Pittsfield’s Exhibits, Exhibit L.) Thereafter, several things happened. First, on May 6, 1994, Gogel wrote Alexander demanding immediate 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 his taxi and limousine business and inquired of Lee, the police chief, as to whether he would be able to obtain a “disability” pension if he was unable to return to his job as a police officer. (See Pittsfield’s Exhibits, Exhibit T; Alexander’s Brief, Exhibit 2 (Alexander Deposition) at 121-23, 147-49, Exhibit 3 (Lee Deposition) at 52, 65-66; Plaintiffs Amended Affidavit ¶ 11.) In the meantime, Alexander and Dr. Bird, independently, researched the legal and medical ramifications of hepatitis 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 discuss Plaintiffs situation. (See Plaintiffs Exhibits, Exhibit 27.) Alexander’s note from that meeting refers to “results of biopsy,” “enforcing [the] ADA” and the “2 job rule” as well as Plaintiffs anticipated return to work (Id.) The bottom of the note states: “write Gogel asking for full release of all records.” (Id.) On May 12, 1994, Alexander did indeed write Gogel and advised him that Reilly and Lee were willing to consider Dr. Bo-rhan-Manesh’s results and that, in consultation, they would make a determination regarding reinstatement. (Id., Exhibit 28.) The letter also indicated that Pitts-field remained concerned about the risk to the public and other police officers from Plaintiffs condition. (Id.) The next day, Alexander was provided with Plaintiffs release authorizing Defendants to discuss his condition with Dr. Borhan-Manesh. (Id., Exhibit 29.) Alexander forwarded the release to Dr. Bird. (Id., Exhibit 30.) In June of 1994, Dr. Bird, concerned that Plaintiffs employment as a police officer could entail a higher than normal risk of blood to blood contact, consulted with public health officials at the U.S. Center for Disease Control and the University of Massachusetts Medical Center. (Complaint ¶ 26; Pittsfield’s Exhibits, Exhibit N.) In a letter dated June 28, 1994, these officials informed Dr. Bird that they knew of no restrictions preventing police officers with hepatitis C, who were otherwise healthy, from performing their duties. (Bird’s Exhibits, Exhibit 23; see also Complaint ¶ 26; Pittsfield’s Exhibits, Exhibit N.) Dr. Bird apparently shared this information with Reilly and Alexander. (See Plaintiffs Exhibits, Exhibit 31.) As it turns out, an attorney sharing office space with Gogel wrote Alexander at about the same time claiming that Pitts-field had breached the Settlement Agreement through its “silence.” (Alexander’s Brief, Exhibit 4(Q).) Alexander immediately responded in a letter to Gogel dated June 30, 1994, that any delays were solely attributable to Plaintiff. (Id., Exhibit 4(R).) On July 5,1994, Dr. Bird sent a letter to Alexander indicating that he no longer thought Plaintiffs condition would medically “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’s personnel department were sent copies of Dr. Bird’s letter. (See Plaintiffs Exhibits, Exhibit 4 (Lee Deposition) at 70-71, Exhibit 5 (Bird Deposition) at 107.) Instead, Alexander, in response to the letter, indicated to Dr. Bird “that she wanted to keep [the July 5, 1994] report for the time being confidential and that she had concerns that [Plaintiff] was pursuing disability.” (Plaintiffs Exhibits, Exhibit 5 (Bird Deposition) at 109.) The concealment of the July 5, 1994 letter, Plaintiff claims, is a “smoking gun.” On July 13, 1994, Alexander and Gogel discussed Plaintiffs consideration of disability benefits. (Alexander’s Brief, Exhibit 4(T) (Alexander Affidavit) ¶ 15.) Alexander advised Gogel that, if Plaintiff intended to pursue a disability claim, he should do so before Dr. Bird “made a decision on [Plaintifffs qualification for duty” as an adverse decision might not be consistent with Plaintiffs objectives. (Id.) Alexander indicated that Pittsfield would offer any assistance it could and Gogel advised her that he would get back to her. (Id.; see also Plaintiffs Exhibits, Exhibit 37.) Alexander did not, 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 status of the matter. (Alexander’s Brief, Exhibit 4(T) (Alexander Affidavit) ¶ 16.) On July 27, 1994, Gogel called Alexander and told her that his reinstatement request should be put “on hold” since Plaintiff intended to apply for disability retirement benefits. (Id. ¶ 17.) Indeed, on July 28, 1994, Plaintiff contacted Dr. Bird about the possibility of pursuing disability retirement options because, he believed, Pitts-field felt he was legally disqualified from employment. (Complaint ¶ 29.) Dr. Bird did not, however, indicate to Plaintiff his belief that Plaintiff was not medically disabled. (See Plaintiffs Exhibits, Exhibit 5 (Bird Deposition) at 114-15, Exhibit 44.) On September 6, 1994, Alexander wrote Gogel requesting an update. (Alexander’s Brief, Exhibit 4(U).) Two days later, on September 8,1994, Gogel wrote back seeking assistance in the form of information with regard to Pittsfield’s retirement law. (Id., Exhibit 4(V).) On September 20 and October 17, 1994, Alexander wrote additional letters to Go-gel indicating that she was not “sure how [Pittsfield could] assist” Plaintiff with his disability application but that he “certainly has [their] cooperation.” (Pittsfield’s Exhibits, Exhibits 0 and P.) In a file note dated November 14, 1994, Alexander indicated that Plaintiff came in to see Dr. Bird the previous Friday, that Plaintiff wanted Dr. Bird to complete a disability statement, and that Plaintiffs doctors would not say that he was “disabled.” (Plaintiffs Exhibits, Exhibit 62.) The note goes on to state that Alexander conversed with 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 from Gogel, reminded him in a letter, copied to Reilly, that if Plaintiff intended to continue with his claim for disability benefits, he should provide an appropriate statement from his treating physician. (Pittsfield’s Exhibits, Exhibit M.) Alexander also reiterated to Gogel that Pittsfield “had requested [Dr. Bird] hold off on his report to the City until after the possibility of a disability retirement was fully explored by [Plaintiff].” (Id.) Hearing nothing, Alexander again wrote Gogel on December 27, 1994, asking that he “suggest what the City should do at this point.” (Id., Exhibit P.) The next day, Go-gel wrote back indicating 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 made reference to Dr. Bird’s July 5, 1994 letter. The sequent correspondence occurred in March of 1995 between Alexander 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 she advised Williams that she would be happy to meet with him and discuss 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 discuss Plaintiffs unresolved issues. (Alexander’s Brief, Exhibit 4(T) (Alexander Affidavit) ¶ 32.) It appears that Alexander informed Plaintiff at that time that he could be reinstated but for the fact that he owned a business — his taxi and limousine venture — in violation of the city ordinance prohibiting police officers from owning businesses or engaging in any outside employment. (Complaint ¶ 31.) In a letter dated May 30, 1995, Williams advised Alexander that Plaintiff indeed intended to pursue reinstatement and asked what conditions needed to be fulfilled prior 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 two questions: (1) whether Plaintiff had received or was undergoing medical treatment and (2) whether he had divested his interest in the taxi and limousine business. (Id., Exhibit 4(HH).) In posing the latter question, Alexander relied on Lee’s opinion that Plaintiff could not be a police officer while operating a taxi business in Pittsfield. (Id., Exhibit 2 (Lee Deposition) at 75.) With respect to this issue, it appears that a number of white police officers who owned businesses or had other employment — e.g., one officer ran a bar in Dalton — had been permitted to remain employees of the police department. (Plaintiffs Amended Affidavit ¶¶ 15, 16; Pittsfield’s Exhibits, Exhibit Z (Powell Deposition) at 287-88; Complaint ¶ 32.) Lee explained at his deposition, however, that Plaintiffs business was different since that business presented a potential conflict of interest; the Police Department was an agent of the License Board which had granted Plaintiffs taxi and limousine license. (Pittsfield’s Exhibits, Exhibit Z (Lee Deposition) at 63, 74-75.) The letters continued. Alexander wrote Williams on July 11, 1995, asking for an update on the status of her June 5, 1995 requests. (Alexander’s Brief, Exhibit 4(11).) Williams wrote back on August 21, 1995, and indicated that Plaintiff had discontinued his interest in the taxi and limousine business. (Id., Exhibit 4(JJ).) On August 28, 1995, Alexander informed Williams by letter that she needed confirmation of Plaintiffs divestiture as it appeared that Plaintiff still held business licenses. (Id., Exhibit 4(KK).) Alexander also reminded Williams that she had not yet received an update regarding Plaintiffs medical condition. (Id.) Williams advised Alexander in a letter dated September 7, 1995, that he would respond further after he completed a trial. (Id., Exhibit 4(LL).) On October 26, 1995, having heard nothing from Williams, Alexander wrote yet again seeking information as to the status of her prior requests. (Id., Exhibit 4(MM).) On October 30, 1995, Williams contacted Alexander to discuss in more depth the specific documentation needed. (Id., Exhibit 4(T) (Alexander Affidavit) ¶ 40.) On November 22, 1995, by which time nothing further had ensued, Alexander inquired if Williams still represented Plaintiff. (Id., Exhibit 4(NN).) Receiving no response, Alexander again wrote to Williams, this time on January 5, 1996. (Id., Exhibit 4(00).) On January 10, 1996, Williams wrote back stating that he no longer represented Plaintiff. (Id., Exhibit 4(PP).) In the meantime, on December 29, 1995, Plaintiff contacted Dr. Bird, requesting that he give him copies of certain letters in his file. (Plaintiffs Exhibits, Exhibit 44.) On January 29, 1996, Gogel called Alexander advising her that he might be representing Plaintiff once again. (Alexander’s Brief, Exhibit 4(T) (Alexander Affidavit) ¶ 44.) The next day, January 30, 1996, Alexander wrote Gogel requesting that he advise her as soon as possible about the status of his representation. (Id., Exhibit 4(QQ).) That very day, however, Plaintiff himself wrote Mayor Reilly directly, stating that he intended to file a civil action against the city and its agents for their allegedly unlawful attempts at barring his return to the Pittsfield Police Department. (Id., Exhibit RR.) In a February 13, 1996 letter, Gogel informed Alexander that he 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 regarding reinstatement. (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 she had “done nothing but delay and attempt to block [his] attempts to resolve the matter” and that there would “be a price to pay” for the harassment he had allegedly suffered at the hands of Alexander and others. (Id., Exhibit 4(UU).) On March 1, 1996, Reilly wrote Plaintiff back and accepted his offer for a meeting. (Reilly’s Brief, Exhibit F.) On March 15, 1996, Plaintiff moved, pro se, to vacate the dismissal of Civil Action No. 91-30195-FHF on the grounds that Pittsfield had “deliberately failed” to execute the Settlement Agreement and had “failed to seriously, honestly and adequately respond” to his former attorneys’ written inquiries. (Alexander’s Brief, Exhibit 8.) In response, Pittsfield filed a lengthy memorandum which detailed its efforts to reinstate Plaintiff. (Id., Exhibit 4.) On April 5, 1996, Senior Judge Frank H. Freedman found, on the basis of the pleadings before him, that Pittsfield had not breached the Settlement Agreement and, thus, vacation of the stipulation of dismissal was not required. (Alexander’s Brief, Exhibit 8.) As Plaintiff now points out, however, neither Pittsfield’s memorandum nor Alexander’s affidavit filed in conjunction therewith mentioned Dr. Bird’s July 5, 1994 letter. (Complaint ¶ 34.) In late March or early April of 1996, Plaintiff had a meeting with Reilly, Alexander and Jim Williamson, the father of a councilwoman and a man described by Plaintiff as a “mediator.” (Reilly’s Brief, Exhibit G (Powell Deposition) at 294-96.) In a letter to Reilly dated April 16, 1996, Plaintiff confirmed that he had completely divested himself of his taxi and limousine business. (Docket No. 53: Affidavit of David B. Mongue (“Lee’s Exhibits”), Exhibit C.) Then, on May 2, 1996, Lee, the police chief, wrote Plaintiff and requested current medical documentation. (Plaintiffs Exhibits, Exhibit 53.) The next day, however, Reilly wrote Plaintiff and informed him of his intention to reinstate him, to grant him maximum seniority and to pursue a special legislative act to regain all lost service for 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 a police officer, but only upon his successful completion of the police academy. (Complaint ¶ 36; Plaintiffs Exhibits, Exhibit 57; see also Plaintiffs Amended Affidavit ¶ 19; Plaintiffs Exhibits, Exhibit 60.) In September of 1996, Plaintiff successfully completed both the physical and course requirements of the police academy with no accommodation for his hepatitis C. (Complaint ¶ 37.) Thereupon, Plaintiff was reinstated as a police 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. It has five counts, all of which seek redress for the delay in or interference with Plaintiffs reinstatement to the police force. Count I alleges a violation of 42 U.S.C. § 1981. Count II claims that Defendants violated 42 U.S.C. § 1983. Count III alleges a violation of Section 504 of the Rehabilitation Act of 1973 (“the Rehab Act”), 29 U.S.C. § 794. Count IV contends that the individual defendants engaged in a conspiracy to violate Plaintiffs civil rights. And Count V alleges breach of the Settlement Agreement. Defendants’ motions for summary judgment were all filed on May 1, 2000. (See Docket Nos. 46, 49, 56, 57 and 61.) On that date, Reilly and Lee also requested attorney’s fees and costs (see Docket Nos. 49 and 63), which requests, this day, have been denied without prejudice by margin notation. Plaintiff filed a consolidated opposition to the motions on July 3, 2000 (Docket No. 68) and the matter was thereafter referred to this court for a report and recommendation. After several continuances, requested by counsel, oral argument was held on September 12, 2000. Having carefully considered 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 wishes to address some preliminary matters. First, the Rehab Act, the focus of Count III, is limited to claims of disability “discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). In his memorandum of law, Plaintiff argues only that Pittsfield and Dr. Bird, but not the remaining three defendants, received federal funds. (Docket No. 68: Memorandum in Opposition to the Defendants’ Motion(s) for Summary Judgment (“Plaintiffs Brief’) at 26-37.) Although Plaintiff claimed at oral argument that Count III applies to all five defendants, it is quite clear that Lee, Alexander and Reilly, who in no way are “programas] or activities] receiving Federal financial assistance,” are entitled to summary judgment on this claim. The court will recommend that Dr. Bird be granted summary judgment on Count III as well. While Dr. Bird may treat “Medicaid” patients, (Plaintiffs Exhibits, Exhibit 6 (Brian Kane Affidavit)), there is no evidence that Plaintiffs alleged discriminatory treatment arises “under” that program. 29 U.S.C. § 794(a). Second, Count IV, the conspiracy claim, appears to target only the individual defendants, not Pittsfield. (See Complaint ¶¶ 67-60.) Plaintiff conceded as much at oral argument. The court, therefore, will recommend granting summary judgment in favor of Pittsfield on Count IV. Third, with regard to the breach of contract claim, Count V, the contract at issue — the Settlement Agreement — was entered into by Plaintiff and Pittsfield only. Plaintiff concedes this in his written submissions. (See Complaint ¶ 62 (acknowledging that 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 breach of contract argument).) Moreover, Plaintiff acknowledged at oral argument that Count V is directed only at Pittsfield. Thus, although Alexander signed the agreement on behalf of Pittsfield and although Reilly, as Mayor, authorized the settlement, it appears that the individual Defendants — Alexander, Reilly, Lee and Dr. Bird — should be granted summary judgment on Count V. In sum, only the following counts and defendants appear to exist 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 TV) — against Reilly, Lee, Alexander and Dr. Bird Rehab Act (Count III) — against Pitts-field Breach of Contract (Count V) — against Pittsfield The court will discuss these counts and their corresponding defendants in that order. A. 12 U.S.C. §§ 1981 AND 1983 (COUNTS I AND II) Count I alleges that Defendants violated 42 U.S.C. § 1981 and Count II claims violations of 42 U.S.C. § 1983 . Collectively, Counts I and II allege two general theories of liability: (1) that Defendants are liable for employment discrimination under the paradigm established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); and (2) that Defendants are liable for retaliation. Before discussing the substance of these theories, including Defendants’ various defenses, the court will address two threshold issues; first, whether section 1981 implies a cause of action against state actors separate and distinct from a section 1983 cause of action; and second, whether, with respect to his section 1981 claim against Pittsfield, Plaintiff is relieved from his obligation under section 1983 to allege that his civil rights were violated as a result of an official “policy or custom” as required 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 that 42 U.S.C. § 1983 is Plaintiffs exclusive remedy against them for violation of the civil rights guaranteed by 42 U.S.C. § 1981. In response, Plaintiff argues that the Civil Rights Act of 1991 statutorily overruled Jett and, therefore, that his claims under sections 1981 and 1983 can exist as independent causes of action. 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 school athletic director could not sue his employer, a municipality, under section 1981 for removing him from his job on the basis of race. At the time Jett was decided, section 1981 provided as follows: 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 alongside section 1983 and in light of each section’s history, indicated Congress’ intent “that the explicit remedial provisions of § 1983 be controlling in the context of damages actions brought against state actors alleging violation of the rights declared in § 1981.” Jett, 491 U.S. at 731, 109 S.Ct. 2702. Stated another way, Jett held that, when a claim is brought against a state actor, section 1983 provides the “exclusive” federal damages remedy for the violation of rights guaranteed by section 1981. 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 new subsections to section 1981, one of which will be discussed here, section 1981(c). Subsection 1981(c) provides, in full, that “[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.” 42 U.S.C. § 1981(c). Whether this amendment overrules Jett appears to be a question of first impression within this circuit. The Ninth Circuit Court of Appeals as well as a host of district courts and commentators have interpreted the new subsection (c) as overturning Jett and thus allowing direct causes of action against state actors for violations of section 1981. See, e.g., Federation of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1209, 1214 (9th Cir.1996) (citing numerous cases and commentaries); Simmons v. Chicago Bd. of Educ., 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 § 3573 n. 6 (2000 pocket part) (citing Federation of African Am. Contractors for proposition that “[t]he Civil Rights Act of 1991 amended 28 U.S.C. § 1981 to allow an implied private cause of action against state actors who impair federal civil rights.”). But see Butts v. Volusia County, 222 F.3d 891, 894 (11th Cir.2000) (concluding that Civil Rights Act of 1991 did not affect Jett). Although the First Circuit has not weighed in on the issue — nor, it appears, has any district court within the circuit — it has, post-1991, arguably implied a cause of action against state actors under section 1981. See Conward v. Cambridge Sch. Comm., 171 F.3d 12 (1st Cir.1999) (affirming summary judgment in section 1981 race discrimination case where plaintiff failed to sustain burden of proof); Carter v. Rhode Island, 68 F.3d 9 (1st Cir.1995) (allowing both section 1981 and section 1983 causes of action to survive summary judgment). c. Analysis In the court’s view, the rationale behind the Ninth Circuit’s conclusion that section 1981, as amended, impliedly allows a direct cause of action against state actors is sound. In this circuit, as in the Ninth Circuit, a four-factor test outlined in Cort 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); Sterling Suffolk Racecourse Ltd. Partnership v. Burrillville Racing Ass’n, Inc., 989 F.2d 1266, 1268-69 (1st Cir.1993). According to Cort, the following factors are frequently considered in determining whether a statute implies a private cause 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 Sterling Suffolk Racecourse, 989 F.2d at 1269 n. 4 (noting “that the fourth question is really a tote board for tallying the answers to all the other inquiries and, therefore, need not be considered separately”). As the Ninth Circuit found, the four Cort factors lead to an inevitable conclusion that the amended section 1981 contains an implied cause of action against state actors, thereby overturning Jett. Federation of African Am. Contractors, 96 F.3d at 1214. As to the first factor, the statute, by its plain terms, creates federal civil rights in favor of a class of persons that includes Plaintiff, i.e., the new statute “makes explicit that the rights ‘protected by [§ 1981(a) ]’ are ‘protected against impairment by nongovernmental discrimination and impairment under color of State law.’ ” Id. at 1211 (quoting 42 U.S.C. § 1981(c)). Regarding the second Cort factor, Congressional committee reports on the 1991 amendment “clearly contemplate that § 1981 rights are to receive parallel protections against state actors and private actors” and “[i]mplying a direct cause of action against state actors under 42 U.S.C. § 1981 is consistent with this intent.” Id. at 1212-13 (citing H.Rep. No. 102^40(1), 102d Cong., 1st Sess. 92, reprinted in 1991 U.S.C.C.A.N. 549, 630; H.Rep. No. 102-40(11), 102d Cong., 1st Sess. 37, reprinted at U.S.C.C.A.N. 694, 731). As for the third factor, the Ninth Circuit concluded, and this court agrees, “that an implied cause of action ... complements — rather than clashes with — the legislative scheme.” Id. at 1214. Similarly, regarding the fourth Cort factor, the court agrees with the Ninth Circuit that “[pjrivate causes of action against state actors who impair federal civil rights have not been traditionally relegated to state law.” Id. (emphasis in original). The court, therefore, recommends the adoption of the Ninth Circuit’s conclusion that the amended section 1981 overturns Jett’s holding that section 1983 provides the exclusive federal remedy against state actors for violations of section 1981 rights. At bottom, this court believes, section 1981 now contains 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, the next question is whether Plaintiff—with regard to Pitts-field—is relieved from alleging, as he must do with respect to section 1983, that his civil rights were violated as a result of an official “policy or custom.” See Monell, 436 U.S. at 694, 98 S.Ct. 2018. In the court’s view, the answer to that question is no. Stated another way, for Plaintiff to maintain Counts I and II against Pittsfield he must allege, for both counts, that his civil rights were violated as the result of an official “policy or custom.” In 1978, the Supreme Court held in Mo-nell that a civil rights plaintiff suing under 42 U.S.C. § 1983 must allege that his injury resulted from an official “policy or custom.” Id., 436 U.S. at 694, 98 S.Ct. 2018. This principle was based both on the language of section 1983, which imposes liability only where a state actor “under color of some official policy, ‘causes’ an employee to violate another’s constitutional rights,” id. at 692, 98 S.Ct. 2018, and the legislative history of the Civil Rights Act of 1871, the precursor to section 1983, wherein Congress rejected a proposal to impose vicarious liability under that statute, id. at 691, 98 S.Ct. 2018. See generally Federation of African Am. Contractors, 96 F.3d at 1208. Eleven years later in Jett, the Supreme Court—in addition to implying no section 1981 cause of action against state actors— held that a plaintiff who sues a municipality under section 1983 for a violation of his section 1981 rights may not rely upon the doctrine of respondeat superior but must satisfy section 1983’s “policy or custom” requirement. Jett, 491 U.S. at 735-36, 109 S.Ct. 2702. In reaching this conclusion, Jett relied on Supreme Court decisions, including Monell, which stated that 1983 precluded vicarious municipal liability. See id. at 733-35, 109 S.Ct. 2702 (citing, e.g., Monell, Johnson v. 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 amended section 1981 implies a’ separate cause of action against state actors. See discussion, supra. Some of those same courts have also asked whether the new statute imposes respondeat superior liability upon municipalities, that is, whether Jett’s second principle has been statutorily overturned as well. Most such courts have concluded that the amendment preserves Jett’s second holding, namely, that plaintiffs suing municipalities for civil rights violations under section 1981 must establish that their 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 WL 18821, at *4 (E.D.Pa. Jan.18, 1996); Gallardo v. Bd. Of County Comm’rs, 857 F.Supp. 783, 786-87 (D.Kan.1994); see also Philippeaux v. N. Cent. Bronx Hosp., 871 F.Supp. 640, 654-56 (S.D.N.Y.1994) (not resolving whether section 1981(c) overturns Jett’s first principal, but holding that “policy or custom” must yet be established). Only one commentator has been cited by the Ninth Circuit as suggesting that the amendment not only creates a private cause of action against municipalities, but also subjects them to respondeat superior liability. See Federation of African Am. Contractors, 96 F.3d at 1210 n. 13 (citing Leon Friedman, Relationship Between Title VII, Section 1981, 1983, ADEA, the Equal Pay Act and State Causes of Action for Employment Discrimination, C108 American Law Institute-American Bar Association Course of Study 367, 378 (June 1, 1995)). Again, it appears that no court in this circuit has addressed the issue. This court agrees with the overwhelming post-Jeii authority that the 1991 amendment to section 1981 does not impose respondeat superior liability on municipalities. As the Ninth Circuit 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 to Pittsfield, this court concludes that Plaintiff must allege, for both Counts I and II, that his civil rights were violated as a result of an official “policy or custom.” The court will apply this 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 Plaintiffs claim that he was subjected to racial discrimination in his employment in violation of sections 1981 and 1983. Also, as indicated, Plaintiff alleges that Defendants violated sections 1981 and 1983 through retaliation. a. Employment Discrimination While sections 1981 and 1983 differ in the types of discrimination they proscribe, courts have held that, when employment discrimination is at issue in such cases, standards pertinent to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., apply even when, as here, no direct claim under Title VII has been made. See T & S Service 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 I and II allege racial discrimination in the context of Plaintiffs employment, the court, as have the parties, will apply the three stage, burden-shifting framework first outlined in McDonnell Douglas, and further explained and refined in Texas Dep’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 (D.Mass.2000). At the first stage of McDonnell Douglas, a plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence. See Thomas v. Eastman Kodak Co., 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 second stage, 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 shifts back to the plaintiff to establish, by a preponderance of the evidence, “that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” 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 of discrimination 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 not appropriate against government officials in their personal capacities as they are not the plaintiffs “employer”). See also Horney v. Westfield Gage Co., 95 F.Supp.2d 29, 33-36 (D.Mass.2000) (in which this court held, on the basis of overwhelming authority, that there is no individual liability under Title VII). However, there is a fundamental difference between Title VII and sections 1981 and 1983. “Title VII applies specifically to ‘employers!,]’ 42 U.S.C. § 2000e-2[,] ... [while] section 1983 permits a lawsuit against a ‘person’ in his individual capacity. See 42 U.S.C. § 1983.” McCue v. Kansas Dep’t of Human Resources, 165 F.3d 784, 788 (10th Cir.1999). See also Schanzer v. Rutgers Univ., 934 F.Supp. 669, 678 n. 12 (D.N.J.1996). Similarly, section 1981 does not limit itself to “employer” defendants. See 42 U.S.C. § 1981. See also Johnson v. Resources for Human Development, Inc., 843 F.Supp. 974, 978 (E.D.Pa.1994) (personal liability is available under section 1981 so long as some affirmative link causally connects the actor to the discriminatory action) (citing Allen v. Denver Public Sch. Bd., 928 F.2d 978, 983 (10th Cir.1991)). In short, the court will analyze the McDonnell Douglas paradigm with respect to all five Defendants, even though the paradigm does not quite fit. (i) Plaintiffs prima facie case Under the McDonnell Douglas framework, Plaintiff shoulders the initial burden of producing a prima facie case of unlawful discrimination. This includes demonstrating that (1) he is a member of a protected class; (2) an adverse employment action was taken against him; (3) he was qualified for the employment he held; and (4) his position remained open or was filled by a person whose qualifications were similar to his. See Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 19 (1st Cir.1999). “For the prima facie case, a disparate impact plaintiff must ‘identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently.’ ” Molloy v. Blanchard, 115 F.3d 86, 91 (1st Cir.1997) (quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir.1989)) (further citation and internal quotation marks omitted). As applied here, Plaintiff has overcome the “modest” prima facie hurdle. Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580-81 (1st Cir.1999). Plaintiff is African-American and thus a member of a protected class. Defendants assertedly took an adverse employment action against him, i.e., they delayed or interfered with his reinstatement to the police force and, although Defendants argue that it justifiably took some time to make the determination, he was allegedly qualified for the job. Finally, Plaintiff has alleged, however thinly, that similarly situated white persons were treated differently. For example, Plaintiff claims that only his reinstatement was “unreasonably” delayed, that no white police officers were required to divest themselves of outside employment or businesses, and that white officers returning to employment were not required to get a full physical or re-attend the police academy. (ii) Defendants’ nondiscriminatory explanations The burden is on Defendants at the second stage of the McDonnell Douglas analysis to proffer a nondiscriminatory reason or reasons for the adverse employment action. See Thomas, 183 F.3d at 56. Defendants submit two such reasons here. First, they note that Plaintiffs physical examination disclosed that Plaintiff had hepatitis C, a condition which Dr. Bird determined rendered Plaintiff medically disabled. Second, they assert that Plaintiffs interest in an outside business created a conflict of interest which stalled his reinstatement. In the court’s estimation, these justifications are sufficient to get Defendants past the second analytical step. (iii) Pretext At the third stage of the McDonnell Douglas analysis, the burden shifts back to Plaintiff to establish by a preponderance of the evidence that the facially legitimate reasons offered by Defendants were not their true reasons, but instead, “were a pretext for discrimination.” Reeves, 530 U.S. at 143, 120 S.Ct. 2097. At this point, the court finds it necessary to analyze the evidence as it relates to each Defendant, mindful that at summary judgment the pertinent issue is whether Plaintiff has provided evidence sufficient to “enable[ ] a factfinder reasonably to infer that unlawful discrimination was a determinative factor in the adverse employment action.” Feliciano De La Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1, 6 (1st Cir.2000) (citation and internal quotation marks omitted.) (A) Dr. Bird There is no real evidence and, thus, no reasonable inference that any of Dr. Bird’s actions were a pretext for unlawful discrimination. The summary judgment evidence proffered simply reveals the following. In October of 1993, Dr. Bird, upon request from Pittsfield’s personnel department, examined Plaintiff and noted an abnormal liver function. A November 10, 1993 test indicated a positive reaction for hepatitis C — -“an inflammatory condition ... [that] is a major concern to the individual [who] has it” — and so Dr. Bird sent Plaintiff to a specialist. That specialist, as well as a doctor chosen by Plaintiff, both indicated to Dr. Bird in December of 1993 that there was a good chance that Plaintiff had hepatitis C. Accordingly, it was perfectly reasonable for Dr. Bird to opine on December 21, 1993, that Plaintiff had “chronic active hepatitis.” To the extent Dr. Bird also opined that Plaintiff was medically “disqualified” from employment, Alexander immediately assured Plaintiffs counsel that a legal conclusion of disability would await a liver biopsy. No fact surrounding the liver biopsy raises a reasonable inference that Dr. Bird’s actions were a pretext for anything. Plaintiff, as well as each of the many doctors he consulted on his own, confirmed that a liver biopsy was necessary for an accurate diagnosis. Further, any delay in arranging the biopsy, which finally took place in the Spring of 1994, was solely attributable to Plaintiff. In essence, Dr. Bird was in a holding pattern until Dr. Borhan-Manesh released his biopsy report on May 3,1994. Nor can there be any reasonable inference that Dr. Bird’s actions after the biopsy report was released were pretextual. Rather, the evidence shows that upon receiving Dr. Borhan-Manesh’s report, Dr. Bird immediately researched the medical ramifications of hepatitis C and, within a few weeks, consulted with public health officials at the U.S. Center for Disease Control and the University of Massachusetts Medical Center. When these officials informed Dr. Bird in a letter dated June 28,1994, that they knew of nothing to restrict Plaintiff from performing his duties, Dr. Bird promptly shared this information with both Reilly and Alexander and wrote his letter of July 5, 1994. In his letter, Dr. Bird concluded that, in his opinion, Plaintiff was no longer medically “disqualified” from employment. At that point, Dr. Bird’s work was essentially done. To be sure, Plaintiff indicates that on July 28, 1994, and again on November 11, 1994, he contacted Dr. Bird about the possibility of pursuing disability retirement options and that, on neither occasion, did Dr. Bird reveal the contents of his July 5th letter. Nor did Dr. Bird provide Plaintiff a copy of the July 5th letter on December 29, 1995, when Plaintiff requested correspondence from his file. However, Dr. Bird had been specifically advised by Alexander, his employer’s legal counsel, to keep the letter “confidential.” More to the point, there is no evidence that Dr. Bird had any obligation to release the letter to Plaintiff (or anyone else for that matter) or any reasonable inference that his decision not to tell Plaintiff of its existence was pretextual. Finally, with respect to Dr. Bird, Plaintiffs own testimony demonstrates 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 former counsel, Gogel, similarly testified that he did not “believe that 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 granted summary judgment on the employment discrimination .components of Counts I and II. (B) Lee The relevant summary judgment evidence with regard to Lee, the police chief, is also meager, consisting of only four items over a three year period. At bottom, the court believes that there is no reasonable inference that any of Lee’s actions were a pretext for unlawful discrimination. First, the terms of the Settlement Agreement conditioned Plaintiffs reinstatement, in part, “upon his successful completion of certain re-training as determined by ... Lee ... and whatever other conditions ... Lee determines are necessary in order to facilitate [Plaintiff]’s reorientation into the Department for both his own interests and the best interests of the Department.” These terms vested Lee with a good deal of control over Plaintiffs reinstatement and, as a result, weaken if not eviscerate any pretext argument with respect to him. Second, around May 6, 1994, Plaintiff asked Lee whether he might be able to obtain a “disability” pension if he was unable to return to his job as a police officer. At about the same time, Alexander and Lee discussed whether Plaintiff had a “communicable disease” and then, on May 11, 1994, Lee, Alexander and Reilly met to further discuss Plaintiffs situation. At that point, Plaintiff had just obtained results from Dr. Borhan-Manesh’s biopsy— which indicated that Plaintiff had chronic hepatitis C — but Dr. Bird had not yet written his July 5, 1994 letter indicating that he no longer thought Plaintiffs condition medically “disqualified” him from employment. Moreover, it does not appear that Lee was ever sent a copy of the July 5th letter. In fact, there is no evidence that Lee had any active involvement in any medical decision. Third, on approximately June 5, 1995, Lee opined to Alexander that Plaintiff could not be a police officer while operating a taxi business in Pittsfield. In Lee’s view, Plaintiffs business differed from other officers’ businesses insofar as it presented a potential conflict of interest; the Police Department was an agent of the License Board. In essence, Lee argues and the court agrees that Plaintiff cannot establish pretext since he cannot show that “persons situated similarly in all relevant respects were treated differently” by him. Molloy, 115 F.3d at 91. Thus, Plaintiff has not cited any evidence that Lee ever hired or retrained white police officers with comparable medical conditions or business interests. Indeed, there is no evidence that Lee actually made any employment decision. Fourth, on May 2, 1996, a few weeks after Plaintiff confirmed in writing to Reilly that he had completely divested himself of his business, Lee wrote Powell requesting current medical documentation. The next day, however, Reilly informed Plaintiff that he intended to reinstate him and, a few months later, Plaintiff was finally reinstated. Plaintiff offers no argument as to how these facts even raise an inference of discrimination by Lee, and the court will not create one out of whole cloth. Finally, as with Dr. Bird, Plaintiff has specifically testified 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 thus recommend that Lee be granted summary judgment on the discrimination components of Count