Full opinion text
MEMORANDUM ORDER VINCENT L. BRODERICK, District Judge. I. This action arises from plaintiff Wilbert Allen’s termination in October 1982 as director of the City of Yonkers Community Development Agency and as commissioner of the City of Yonkers Department of Community Development (“YCDA”). Plaintiff alleges that these terminations violated 42 U.S.C. § 1981, 42 U.S.C. and § 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and also alleges breach of an employment contract entered into between him and the board of directors of the Yonkers Community Development Agency in November 1981. Defendants are the City of Yonkers (the “City” or “Yonkers”) and the YCDA (collectively sometimes the “institutional defendants”); and the following in their individual capacities and as members of the YCDA board in October 1982: Angelo Martinelli, Sal Prezioso, Michael Edelman, Harold Peterson and Eleanor Kleine (sometimes the “individual defendants”). The court has subject matter jurisdiction over the Title VII claim under 42 U.S.C. § 2000e and those under 42 U.S.C. § 1981 and 1983, pursuant to 28 U.S.C. §§ 1331 and 1343. The plaintiff satisfied the jurisdictional prerequisites for a Title VII case by timely filing a charge with the Federal Equal Employment Opportunity Commission which issued a right to sue letter on October 28, 1983. The plaintiffs state law claim is within the pendent jurisdiction of the court. See 28 U.S.C. § 1367. The case was tried to the court without a jury and the following are my findings of fact and conclusions of law under Rule 52, Federal Rules of Civil Procedure. II. I find that the institutional defendants discriminated against plaintiff because of race in contracting in violation of 42 U.S.C. § 1981 and in employment in violation of 42 U.S.C. § 2000e, and in violation of plaintiffs civil rights under federal law in violation of 42 U.S.C. § 1983, and also breached plaintiffs contract, but find no liability on the part of the individual defendants. There are various reasons for the differential treatment of the institutional and individual defendants. As to the Title VII claims under 42 U.S.C. § 2000e, the institutional defendants are the employers under the statute and the individuals do not qualify as such in their individual capacities. As to the 42 U.S.C. §§ 1981 and 1983 claims, individuals may be held liable, and indeed culpability on the part of the ultimate policy makers is a prerequisite to municipal liability. Jett v. Dallas Independent School District, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Respondeat superior does not apply to the liability of municipal entities under these provisions, in order , to insure that only the actual policy of the entity and not violations of policy or independent actions at lower levels lead to recourse to the deep pockets of taxpayers of political subdivisions of the state. Here, the- ultimate policymaking authority rested, as to Yonkers, with the mayor, the city manager, and the city council, and as to the YCDA, with its board, as described in greater detail below, based on both written sources of legal authority under state law, and “ ‘custom or usage’ having the force of law," Jett, 491 U.S. at 737, 109 S.Ct. at 2723, quoting Praprotnik, 485 U.S. at 124, 108 S.Ct. at 924. As also outlined in greater detail below, these ultimate policymakers or “decision-makers” acted intentionally in an unconstitutional and illegal discriminatory manner. However, pinpointing those with such authority is not the end of the road. As indicated in Praprotnik at 126, 108 S.Ct. at 925: “We are also aware that there will be cases in which policymaking responsibility is shared among more than one official or body.” In the present case there was no videotape of discussions between the mayor and city manager behind closed doors or between those officials and various council and board members; subsequent recollection and oral testimony about what was said in the course of numerous and at times acrimonious arguments is not particularly reliable at a sufficiently fine-tuned level of detail to permit a conclusion whether A and B agreed and conspired, A rather than B was the moving force acting deliberately while B acquiesced, or vice versa. This difficulty is increased because not merely the decisionmakers initiating an action but final policymakers embracing the council and board must be considered. Id. at 127, 108 S.Ct. at 926. Those bodies as such acted deliberately and unconstitutionally, but it is as impossible to determine who had what share of the blame for this as it would have been had those bodies acted by secret ballot and no one remembered who said what during the debate. In sum, from all the evidence it is clear that the authorized Yonkers city and Community Development Agency decisionmakers as a group acted deliberately and unconstitutionally and thus the institutional defendants are liable without resort to re spondeat superior or cognate concepts, even though it is not possible by a preponderance of the evidence to subdivide the culpability of individuals within the group of decisionmakers or to say that all acted deliberately. I find from all of the evidence including demeanor of the witnesses and absence of detail supporting the explanations given for plaintiffs treatment, that the discrimination was brought about because plaintiff’s race, combined with his position in implementing city policy with regard to housing at the time involved in Yonkers history, made plaintiff a target for resentment against national policy in that field, which he would not have been but for his race. Evaluating the asserted reasons for defendants’ conduct and plaintiff’s performance on the job necessitates a somewhat extended analysis of plaintiff’s dealings with defendants. III. Before setting forth the particular facts surrounding plaintiff’s termination, a brief explanation of the organization of the Yonkers city government, the Yonkers Department of Development (“DCD”) and the YCDA is important. The government of the city of Yonkers consists of a city council which is comprised of thirteen members. Twelve of these members are elected from the different city wards. The mayor of the city is the thirteenth member and is elected from the city at large. City council members are elected for a term of two years. A non-elected city manager is appointed by the city council and serves at the will of the city council. The city manager is the chief executive officer of the city. The DCD is a city department, administered by a commissioner who is appointed by the city manager and serves at the manager’s pleasure. The commissioner of DCD is responsible for coordinating community planning and development projects and for overseeing the functions of the Planning Bureau and the Bureau of Housing and Buildings. The YCDA is an entity created under the laws of New York State by the Yonkers city council for the purpose of developing community projects. The YCDA has the power to plan, undertake, and effectuate urban renewal projects subject to the approval of the city council. The YCDA receives its funding from the United States Department of Housing and Urban Development (“HUD”) through the community development block grant (“CDBG”) program. It is run by a board which consists of seven members. The membership of the YCDA board is set by law; the city manager and mayor of Yonkers are the chairman and vice-chairman of the board. The other members of the board are the city planning director, the city corporation counsel, the city comptroller, and two citizens appointed by the mayor with the advice and consent of the city council. The role of the YCDA director is to implement policy as set by the board. The director’s duties primarily entail administering federal funds received through the CDBG and Urban Development Action Grant (“UDAG”) Programs for housing and community projects, and administering the YCDA’s leased housing programs. The director has no independent, ultimate or decisive powers and no policymaking authority or duties, but instead — as also confirmed by instances cited below — carries out the instructions of the manager, mayor and council, albeit at a high levél of subordinate authority. IV. Plaintiff, who is black, had studied and worked in the fields of architecture and urban planning for over 20 years. Plaintiff holds a B.A. in architecture from Hampton Institute and a M.A. in urban and regional planning from the University of Illinois. Plaintiff also studied real estate development and architecture at Harvard University and New York University. During the early 1970’s, plaintiff worked as an urban planner for the city of Newark. In 1973 plaintiff was promoted to the position of special assistant to the executive director of the office of policy and development of the mayor of Newark. Some time later he became city planning director for the city of Newark, and in 1978 he was again promoted to the post of executive director of the office' of policy and development of the mayor of Newark. In Newark, Allen secured ten UDAG’s for the city of Newark and became familiar with the numerous federal programs relating to housing and community development. In the latter part of 1979, plaintiff left the job with the city of Newark and began his own consulting business, Urban Development and Management, Inc. In early 1980, plaintiff applied for a job with the City of Yonkers as commissioner of DCD and as director of YCDA. Plaintiff was interviewed for the positions on several occasions. During the course of these interviews he met with the commissioner of personnel, the mayor, the- city manager, the assistant city manager, and the acting director of YCDA. During the interview process plaintiff learned generally of the problems that the YCDA was encountering in its relationship with HUD. In 1980, HUD had conducted an audit of YCDA covering the period from July 1, 1978 through June 30, 1980. HUD took the position in the audit that YCDA had made many expenditures which were improper under HUD’s guidelines and that the City of Yonkers had misspent, approximately six million dollars. Plaintiff was informed by the city manager that the City of Yonkers sought, as director of the YCDA, someone who had experience with CDBG and UDAG programs and who was qualified to' develop immediately a comprehensive response to the problems raised by HUD’s audit of YCDA. After Yonkers city officials reviewed many applications they offered plaintiff the two positions, which he accepted. In June 1980, the city hired plaintiff as commissioner of DCD; YCDA by resolution of its board of directors appointed plaintiff as director. His annual salary as commissioner of DCD was fixed at $1,000 and his annual salary as director of the YCDA was set at $39,500. Plaintiff was the first nonwhite to hold these positions. V. .Mr. Allen initially devoted most of his attention to analyzing, and then to formulating a response to, HUD’s audit of the YCDA. Plaintiff began by reviewing the HUD audit, as well as other audits of YCDA which had been conducted by a private accounting firm, Seidman & Seidman. For the years 1978 and 1979, HUD had found 23 instances of money being spent improperly by the YCDA. HUD had noted that YCDA had no system to insure that persons paid by YCDA were working on YCDA related projects. According to HUD’s findings, the City of Yonkers might be obliged to refund six million dollars to HUD. Mr. Allen learned that the YCDA was in jeopardy of losing previously acquired UDAG funds and of being terminated from the CDBG program. Plaintiff’s review of the Seidman & Seidman audits revealed that the YCDA had not complied with previous accounting recommendations suggested to improve the agency’s control of expenditures. Plaintiff hired Anthony LaBreglio, a former HUD employee, to work on developing and implementing accounting and financial management systems seeking to correct some of the problems with the administration of YCDA noted in the audits. Plaintiff installed a system which put controls in place before funds were disbursed, and which provided mechanisms for tracking the financial status of YCDA projects and activities. After completing his analysis of the HUD and Seidman & Seidman audits, plaintiff prepared a response to each of the findings articulated in the HUD audit. His central objective was to avert the loss of federal funding by the CDBG and UDAG programs. These responses seem to have satisfied HUD, which never, while plaintiff was employed in Yonkers, requested clarification from YCDA of its responses to the audit findings. The City of Yonkers has not been required to pay the six million dollars to HUD, which HUD had cited in its audit: Nor did HUD prohibit Yonkers from participating further in the CDBG or UDAG programs. Another matter which commanded plaintiff’s immediate attention at the outset of employment as director of the YCDA was to see to it that the City of Yonkers complied with nine conditions imposed by HUD in 1980 for the receipt of 4.6 million dollars in CDBG funds. These conditions included, among others, that the YCDA provide monthly status reports on the development of its projects and its expenditures, that it develop a- homesteading program, and that it develop a housing complaint process. HUD officials had stressed that Yonkers’ participation in the UDAG and CDBG programs would be terminated if the city failed to meet these conditions. All of these requirements were satisfied by the YCDA under plaintiffs direction. HUD had also directed Yonkers to take a number of steps to expand housing opportunities for racial minorities in east Yonkers, an area of the city with a low concentration of minority population. In fact, less than four weeks after Mr. Allen commenced employment, HUD expressly conditioned YCDA’s receipt of CDBG funds upon YCDA’s pledge on behalf of Yonkers— (a) to construct 100 units of assisted housing for families in east Yonkers; (b) to prepare and submit to HUD an inventory of available east Yonkers sites which could be used for the construction of subsidized housing; (c) to develop and implement a fair housing strategy; and (d) to enact a fair housing ordinance. Mr. Allen undertook measures to help the city to comply with these conditions. Thus under Mr. Allen’s supervision the planning director, Phil Pistone, prepared a list of 14 potential sites in east Yonkers for low and moderate income assisted housing. The issue of federally funded low and moderate income scattered-site housing in east Yonkers was a hotly debated subject in Yonkers. City council members from the east and north sections of Yonkers were in general hostile to the development of such housing, whereas the city council members from southwest Yonkers were not opposed to it. Thus the submission to HUD of possible sites for such housing was vehemently opposed by many members of the city council. Despite this opposition City Manager Fox submitted to HUD the inventory of sites developed under Mr. Allen’s ■ direction. HUD initially found three of the proposed sites to be suitable for developing subsidized housing; it determined that the other 11 sites were unacceptable for topographical or environmental reasons. Mr. Allen also addressed the problem of implementing a Fair Housing strategy. After consulting with the city manager, the city director of human rights, Mr. Scott, and representatives of HUD’s fair housing program, Mr. Allen recommended that $20,-000 of YCDA’s budget be appropriated for such purpose. Mr. Allen and Mr. Scott undertook to establish an outreach program, directed toward educating and counseling minority persons about their rights as tenants, and toward encouraging landlord receptivity to minority tenants. Mr. Allen also urged the adoption by the city council of a fair housing ordinance, which would announce Yonkers’ commitment to providing housing to minorities. City Manager Fox raised the topic with the city council, but it refused to adopt it. Plaintiff later apprised HUD of the steps which he and the city manager had taken with respect to a fair housing ordinance, and of the city council’s position. Shortly after assuming his positions in Yonkers plaintiff undertook supervision of the development of the 1980 application for CDBG funds. This annual application, the preparation- of which Mr. Allen also supervised in 1981 and 1982, set forth proposals for the expending of CDBG funds to be allotted to Yonkers. Its preparation required familiarity with federal guidelines, consistent with which it was necessary to designate target areas in Yonkers which had high percentages of low and moderate income persons. Contact with diverse community groups was necessary to develop projects which were consistent with federal standards as to purpose and as to cost, efficiency, and manageability, and to develop a proposed funding level with respect to each of those projects. The amount of money sought in the application depended, in turn, upon funds made available to HUD for CDBG purposes: for 1980, YCDA was allocated $4,603,000 in CDBG funds; for 1981, it was allocated $4,328,-000; for 1982, it was allocated slightly less than $4,000,000. To keep apprised of community developments Mr. Allen attended every city council meeting and often spoke at community meetings. Mr. Allen administered the YCDA in a competent and professional manner. Plaintiffs staff of approximately. 40 persons was divided into five areas: personnel service, rehabilitation, technical service, fiscal operations and acquisition. Together with the division heads, who reported directly to him, plaintiff set monthly goals, and at weekly staff meetings progress made in achieving the goals was monitored and, where appropriate, adjustments were made. A bi-annual evaluation process for all employees was established. To keep the city manager informed of YCDA activities, Mr. Allen regularly transmitted executive reports to his office. Plaintiff had responsibility, as director of YCDA and commissioner of DCD, for the administration of the housing programs subsidized by HUD for the benefit of the poor. This responsibility was competently discharged, as reflected in favorable reviews by HUD of YCDA while plaintiff administered it, as well as in favorable assessments by members of the city council representing those areas of Yonkers where such subsidized housing was prevalent. HUD regularly monitored YCDA’s activities. In particular, it supervised the agency to insure that funds were expended on HUD-approved activities. Under Mr.. Allen’s tenure, HUD’s evaluation of YCDA improved. By the end of 1981, it was considered one of the better development agencies in the Region 2 area, which consisted of three States. In March 1982, a HUD report concluded: On the whole the Agency is a very good one. All documentation is on file, well organized and easily obtainable. Without question the Program has made very positive strides over the course of these past 2V2 years since I was first involved in Yonkers. I would like to commend the staff for a job well done ... The progress that YCDA made under plaintiff’s leadership is confirmed as well by an audit of YCDA by Seidman & Seidman. Plaintiff also competently administered the DCD. On at least a monthly basis, he met with the directors of each department and received monthly reports from them, which he passed along to the city manager. He also provided the city manager with executive reports of the department at regular intervals. VI. In June 1980, plaintiff approached City Manager Ravo to request an employment contract. He wanted a contract to enable him to correct the extensive and somewhat politically sensitive problems raised by the HUD audit without fearing for his job security. Mr. Ravo felt that before they discussed a contract, plaintiff should resolve the issues surrounding HUD’s audit of YCDA. Plaintiff’s race was already at least a factor underlying reluctance to give him a contract at the outset, despite his obvious qualifications. Plaintiff again requested a contract in May 1981 with Mr. Ravo’s successor, Eugene Fox. At this time, plaintiff’s desire for a contract stemmed from a specific desire to evaluate alternative opportunities which had been suggested to him. A few months later, in the fall of 1981, negotiations were initiated between plaintiff and YCDA concerning an employment contract for plaintiff as YCDA director. On November 4, 1981, city-wide elections were held resulting in election of a new mayor and a different majority on the city council. Mr. Martinelli, who had served as Mayor of Yonkers from January 1, 1974 through December 31, 1979, defeated May- or Loehr for the term beginning January 1, 1982. In the latter part of November 1981, City Manager Fox brought the issue of plaintiff’s contract to the YCDA board. By a four to two vote, the board approved a two year employment contract for plaintiff, extending to November 30, 1983. The contract provided for an annual salary of $44,-900.00. It also set forth- procedures, including provisions for notice and a hearing, to be followed in the event that the board wanted to terminate Mr. Allen. The board’s resolution declared that a contract was in order because of plaintiff’s excellent job performance. However, by contrast to offers later made to others who were not more qualified, within a sufficiently short time to be comparable, the Allen contract failed to provide for any severance pay in the event of termination. Thus, although a contract was granted with frank recognition of plaintiff’s excellent performance, it was not on a par with comparable Yonkers offers during a relevant time period. The resistance, which became obvious to me during the trial and from the entire history of the relationship between Yonkers and plaintiff as discussed below, to a nonwhite incumbent in plaintiff’s position was thus overcome at that time sufficiently to permit a contract to be granted, albeit under less favorable conditions offered to others within a relevant time span. The evidence, primarily that subsequently set forth (see particularly Part IX below), leads to the clear conclusion that reluctance to commit Yonkers to a nonwhite in the position involved, while temporarily overcome sufficiently for the contract to issue, was not overborne sufficiently to grant a contract equal to that offered during the relevant period to other equally or less qualified applicants. During the entire period covered by the events described here, having a nonwhite in the position involved was considered by Yonkers decisionmakers to be problematic, leading to differentially less favorable treatment. The minutes of the board meeting reflect that Mr. Allen’s fine job performance was the reason for awarding him a contract. With the change of administration in Yonkers city government in January 1982, the membership of the YCDA board changed dramatically, and plaintiff’s contract — already delayed initially despite plaintiff’s obvious qualifications — became a far more intense issue. Mr. Cola, who had been appointed in 1979 a citizen member of the YCDA board, and who in 1982 was a newly-elected city council member, wrote in late November 1981 to HUD’s area manager questioning the propriety of plaintiff’s contract with YCDA. He suggested that the vote of the board authorizing the contract was improper; he contended that the vote of one board member, Mr. Pistone, was compromised. Plaintiff in his capacity as commissioner of DCD supervised Mr. Pistone, the planning director of DCD. Mr. Pistone had been planning director for at least 15 years. He had been appointed by the city manager and could only be fired for cause by the city manager. The position of planning director qualifies as a civil service position. However, absent evidence that this board member’s vote would have been decisive, its relevance appears minimal and the objection to the contract appears pretextual, masking its motivation by other factors. In March 1982, after making inquiries into the vote and the relationship between Mr. Pistone and plaintiff, HUD responded in a letter to the Yonkers authorities: This is in response to your question regarding a possible conflict of interest in the approval of an employee contract between Mr. Wilbert Allen and the Yonkers Community Development Agency. Your inquiry raised the question as to whether such a conflict of interest existed when the Planning Director, who is under Mr. Allen ... voted for approval of Mr. Allen’s contract, in the Planning Director’s capacity as a member of the YCDA Board. This office has reviewed the matter in question and we have determined that in order to avoid any conflict of interest in this situation, the vote of the YCDA Board should be ratified with the Planning Director abstaining from the voting process. We are recommending that this procedure be followed by the YCDA Board whenever any such similar conflict of interest situation is presented. The HUD letter did not indicate that the Allen contract was improper or void or that further action was required; it merely suggested optional further corrective action. After receiving a copy of HUD's letter, City Manager Prezioso informed plaintiff that in his opinion his contract with YCDA was null and void. Plaintiff, in response, sent City Manager Prezioso a letter expressing his belief that the contract was still in effect. On April 19, 1982, the YCDA board convened and, by a vote of four to one, declined to ratify Mr. Allen’s contract. At the time of the vote, no one on the board expressed any dissatisfaction with plaintiff's job performance. Some members of the board expressed their sentiment that the issue revolved around the validity of the contract, not Mr. Allen’s performance on the job. Plaintiff felt that the board’s vote was improper and that his employment contract was still in effect; plaintiff determined to continue to perform all assigned duties accordingly, expressing these sentiments to both Mayor Martinelli and City Manager Prezioso. VII. In the early months of 1982, Mr. Allen attempted to apprise the new mayor and the city manager’s office of Yonkers’ relationship with HUD and of the progress of various YCDA projects as well as other development projects. He provided the mayor and city manager’s office with copies of the 1980 HUD audit, Seidman & Seidman audits, the Agency’s responses thereto and with status reports concerning YCDA. He sent Mayor Martinelli a memorandum describing the variety of different economic tools that were being utilized by YCDA to construct public housing in Yonkers. He briefed the new mayor on strategies to enhance economic development in the city and provided him, on request, with a description of the status of the Yonkers Industrial Development Agency (“IDA”). In sum, Mr. Allen was responsive to the needs of the new administration and provided it with whatever information was necessary to bring it up to date. Notwithstanding the purported revocation of his employment contract, plaintiff continued diligently to execute his responsibilities as commissioner of DCD and as director of the YCDA. He met on almost a daily basis with the city manager and he continued his practice of submitting to the city manager’s office monthly executive reports providing updated information on the status of YCDA projects. He also continued, in his capacity as commissioner of DCD, to meet on a regular basis with the directors of planning and of housing and building, and to provide reports to the city manager. The new mayor and city manager quickly learned of the strides of YCDA under Mr. Allen’s directorship, which were the subject of local publicity in Yonkers. Mayor Martinelli and City Manager Prezioso attended, a meeting with HUD officials in March 1982, at which HUD officials were complimentary of the management of YCDA. In May 1982, the city manager wrote to a HUD official expressing his pleasure with HUD’s positive evaluation of YCDA. Moreover, on October 8, 1982, Dr.. Prezioso and Mayor Martinelli received an audit of certain aspects of YCDA which again confirmed the improvements at YCDA instituted by Mr. Allen. From the start, plaintiffs relationship with the new mayor turned out to be strained. At one of their first meetings, Mayor Martinelli told Mr. Allen that he envisioned himself as a strong mayor who would control the economic development of Yonkers. During a trip to Boston in June 1982, Mayor Martinelli explained to Mr. Allen that Mr. Allen was not popular with some of his Republican colleagues, but that the mayor would be satisfied if Mr. Allen did what the mayor wanted. The mayor’s desire to dominate economic development in Yonkers concerned the plaintiff since as a result, plaintiff’s authority as commissioner of DCD and director of YCDA would be undercut. In early 1982 the city council adopted a resolution which delegated to the office of the mayor primary responsibility for economic development activities. Prior to this, responsibility for this area rested primarily with YCDA. In addition, in 1982, the IDA, which had been dormant since 1980, was reactivated, and the mayor was designated as chairman. That position had previously been held by the city manager. With respect to some of the projects which had been undertaken by YCDA prior to Mayor Martinelli coming to office, there were differences of opinion between plaintiff and the mayor. The events surrounding the Nepperhan development project and the waterfront project are illustrative. The Nepperhan development project involved the rehabilitation by YCDA of an old A & P building, located in a predominantly minority neighborhood in Yonkers, for use as a community facility. As of 1982, YCDA had a standing commitment to rehabilitate the building. HUD had approved the project, and YCDA was prepared to allow contractors to make bids on the project when Mayor Martinelli decided that the project should be halted. Mayor Martinelli explained that in his opinion the neighborhood group did not possess the skills to maintain and manage such a facility. The mayor also indicated that he did not feel much responsibility towards the neighborhood since it did not support his election. Mr. Allen disagreed with the mayor: he felt that the neighborhood group was capable of managing the project and that the YCDA had an obligation to complete the project. As a result of the mayor’s opposition, the YCDA board voted that no further work be done on the Nepperhan development project. The waterfront project was another project which provoked tension between plaintiff and Mayor Martinelli. In early 1980, at the time Mr. Allen was being hired, the City of Yonkers finalized a contractual memorandum of understanding with Yonkers Waterfront Associates (“YWA”), a developer chosen to develop the waterfront area of Yonkers. The memorandum of understanding identified the contracting parties and set forth their respective responsibilities regarding the development project. The waterfront project, as conceived in 1980, was a $166 million undertaking to consist of a marina, luxury housing, commercial space and a hotel. Under the memorandum of understanding, the city had an obligation to make a good faith effort to raise a portion of the $166 million; the rest was to be raised by the developer. In particular the city was required to submit a UDAG application for $20 million and to attempt to raise another $19 million from other sources. In early 1981, the YCDA under plaintiff’s direction submitted the UDAG application to HUD. HUD refused to approve the application because (1) the project was too large and (2) the developer, YWA, had not secured firm financial commitments. In August 1981, HUD rejected a second UDAG application submitted by the YCDA because of the developer’s inability to secure capital. In December 1981, the consultant hired by the YCDA to assess the environmental impact of the project expressed concern that the project, as proposed by YWA, was too expansive and recommended that a small scale alternative project be initiated. When Mayor Martinelli took office he displayed an avid interest in the waterfront project, and made it clear to Mr. Allen that he would control every aspect of the project. In January 1982, just after he assumed office, the mayor organized a tour of the waterfront for all the dignitaries connected to the city, plaintiff was not invited to attend. The mayor stated that the exclusion of plaintiff from the tour was intended to signal the mayor’s dominance in this area. Allen continued to endeavor to be of assistance to the mayor; he apprised the mayor of the project’s history, and informed the mayor that another potential source of income for the project existed— the § 108 loan program. He explained to the mayor HUD’s previous responses to the UDAG applications filed by the city, and suggested that HUD would be more favorably disposed to the waterfront project if it was scaled down. He further suggested that a less ambitious project would be more manageable. Though May- or Martinelli initially opposed scaling down the project, by late 1982 he supported plaintiff’s proposal. Despite YWA’s persistent failure to fulfill many of its obligations under the memorandum of understanding, Mayor Martinelli repeatedly extended the deadlines for YWA, as set forth in the memorandum of understanding. In plaintiff’s opinion, the YWA had been given an adequate amount of time and opportunity to move the project forward and it was not in the city’s interest to continue to grant YWA extensions to fulfill the terms of the memorandum of understanding. Though he voiced his concern, plaintiff took no formal position. Instead, the plaintiff, realizing that the may- or was content with YWA, endeavored to help the YWA fulfill certain of its obligations outlined in the memorandum of understanding. Under the memorandum of understanding, the YWA was to prepare a site plan, the document on which the project would base an application for zoning changes. The memorandum of understanding specified that the site plan contain features required by city laws, such as: a zoning classification of the property, a description of property lines, locations and dimensions of existing and proposed streets, existing services in the area, topographic features of the area, maps showing city blocks and lots, and a “metes and bounds” description of the area. The site plan submitted by the YWA was reviewed by plaintiff and Planning Director Pistone; both found it lacking many of the features listed above. Despite these evaluations of the site plan the mayor insisted that the site plan was acceptable. Plaintiff asked YWA on three different occasions to submit a more appropriate plan. Finally, to insure that the YWA prepared an adequate site plan, the YCDA, under plaintiff’s leadership, hired a surveyor to conduct the “metes and bounds” survey. Plaintiff took other steps to provide assistance to the waterfront project. He provided information to the mayor and organized the city’s role in furthering the project. He arranged for Mayor Martinelli to attend a meeting in June 1982 in Boston on waterfront development. Also in early 1982, he developed a schedule of the remaining outstanding steps .that would need to be taken to complete the waterfront project and summarized sources of potential funding. After consulting with, among others, City Manager Prezioso and Mayor Martinelli, he had the YCDA perform various tasks outlined in the schedule. In another attempt to assist the waterfront project, plaintiff encouraged the city manager to submit an environmental impact statement regarding the project to the city council for its approval. He explained to City Manager Prezioso that in order for the project to qualify for federal funds, the city had to issue an environmental impact statement. Despite plaintiffs urging, no action was taken by the city manager concerning such a statement. Furthermore, the city manager never instructed plaintiff to take any action with respect to it. Beginning in January 1982, Mr. Allen raised with the mayor the possibility that another source of funding could be tapped for the waterfront project. In July 1982, Mr. Allen, after learning from a HUD official that additional funds might be available and that applications were due on August 15, 1982, consulted with the mayor and took the necessary steps to apply for the funds. HUD had become aware of the city’s interest in securing additional funds for the waterfront development as a result of many inquiries made by Mr. Allen. Thus as soon as funds became available, HUD notified Mr. Allen. In September of 1982, the New York area office of HUD advised Mr. Allen that the loan application had been favorably reviewed and forwarded to the Washington office. In August 1982 a difference' of opinion between Mr. Allen and Mayor Martinelli' arose over whether several pieces of property within the waterfront redevelopment area known as “Buena Vista Properties,” which were in substantial arrears in taxes, should be seized by the city through a sometimes Draconian expedited procedure known as in rem foreclosure for nonpayment of these taxes. Mayor Martinelli’s position was that the foreclosure should be withheld if the taxes were paid. Mr. Allen’s view was that the city should acquire these properties through in rem proceedings because such an acquisition would diminish the cost of acquiring properties for the waterfront project and because the city in its UDAG application had represented that these properties would be so acquired. Corporation Counsel Edelman agreed with plaintiff that, given the representation in the UDAG application, the city should acquire the properties through in rem proceedings. The mayor asked the city council to allow the owners to pay the back taxes in exchange for the properties. While plaintiff did not support the mayor’s request to the city council, he did not openly oppose it. The city council granted the mayor’s application. A disagreement of this type is normal among officials with responsibilities of any calibre; if silence were required, the ultimate employer would obviously suffer. Mr. Allen did not express affirmative public opposition to the mayoral view. The interest of the city in acquiring property and deterring tax delinquency must obviously be balanced with its need to collect taxes if this is feasible, and to prevent abandonment of property that may remain useful to the citizenry, as well as to be fair as well as just to residents who may have experienced difficulty and have a right to appeal to whatever discretion the city may have in dealing with such matters. See generally Friarton Estates Corp. v. City of New York, 681 F.2d 150 (2d Cir.1982), rev’g on res judicata grounds, 525 F.Supp. 1250 (S.D.N.Y.1981) (containing further discussion of the procedure). Thus, the positions of both Mr. Allen and the mayor on this subject were reasonable. Early October, 1982, Mr. Allen attended meetings convened by the mayor concerning the waterfront project, the slow progress of which had attracted public attention. During the meeting of October 5, the mayor asked Mr. Rowe, an assistant of Dr. Prezioso, to become the waterfront project director; he also approved a scaled back version of the project. The mayor, however, spent a large part of each meeting taking Mr. Allen to task for the waterfront project's lack of success. These complaints were pretextual and baseless. Inability of the developer to secure funding constituted the central reason behind the waterfront project’s failure. There was nothing that plaintiff, as director of the YCDA or as commissioner of DCD, could have done to help YWA secure firm financial commitments. The developer was solely responsible for that. The lack of progress of the waterfront project had become an embarrassment to the administration and attacks were directed at plaintiff to shift the blame. For at least four years after plaintiff’s termination, there was little progress on the waterfront project. Another project on which Mr. Allen worked was the Southwest Community Center Project. This project was designed to rehabilitate the Southwest Community Center for use as a community center and a police precinct. A controversy involving the contractor on the project, Urbanex, had developed before plaintiff began working in Yonkers. Under a contract with YCDA, Urbanex was to be paid approximately $250,000. Contrary to custom, no performance bond had been required by YCDA from Urbanex. Moreover, Urbanex had secured a loan for $100,000 from Citibank for which YCDA put up the collateral with CDBG funds. Urbanex took out the loan in order to buy equipment and materials for the project. Approximately eight months later, before Mr. Allen was hired by the YCDA, Urbanex was terminated because it did not perform its duties properly. Urbanex defaulted on the loan and Citibank seized the collateral posted by YCDA. In its audit of 1980, HUD found the use of CDBG funds as collateral on a loan to a contractor to have been improper. It also found that YCDA’s failure to negotiate a performance bond was not consistent with HUD’s regulations. When Mr. Allen became YCDA director, he received no instructions on this matter. He was informed that the issue of whether to file an insurance claim for the funds lost as a result of Urbanex’s default was no longer in the hands of the YCDA, but was being addressed by City Manager Fox and Corporation Counsel Doran. To keep abreast of the Urbanex matter, plaintiff met several times • with members of the corporation counsel’s office. A determination by the corporation counsel’s office concerning whether to. file an insurance claim was delayed pending the outcome of an investigation by the Federal Bureau of Investigation into whether or not the actions of certain YCDA employees who had dealt with Urbanex amounted to criminal violations of the law. In August 1982, in response to inquiries by Dr. Prezioso, Mr. Allen sent Dr. Prezioso a memorandum setting forth the history of the Urbanex default. Mr. Allen was never directed by any member of the board to take any steps to secure indemnification for the moneys which had been pledged and lost prior to his tenure as director of the YCDA. Nor did he receive any criticism concerning the Urbanex matter from any members of the YCDA board. When Mr. Allen took the reins of the YCDA, the rehabilitation of the Southwest Community Center had come to a halt, because of Urbanex’ default. One of Mr. Allen’s responsibilities was to finish the rehabilitation of the facility. In 1981, the YCDA arranged for new contractors to develop the facility, and supervised the construction of the project. During plaintiff’s tenure as director of the YCDA, the community center and police precinct were 95% completed. No one ever expressed any criticism of Mr. Allen concerning the completion of the Southwest Community Center Project. To the contrary, Dr. Prezioso and Police Chief Connally while on tours of the facility, both conveyed their great satisfaction with the outcome of the project. The Commerce Kitchen Project was another matter concerning which confusion arose. Shortly after Mr. Allen became director of the YCDA, he was directed by City Manager Fox to assist the Office of Aging, which had responsibility for the rehabilitation of a community kitchen located in the Commerce Building, to expedite the construction work so that the project would remain eligible for certain funding that the Office of Aging had secured. In response to the request, Mr. Allen provided the Office of Aging with a YCDA staff architect to design the kitchen and to draft contract documents. In addition, the YCDA monitored construction activity for the Office of the Aging. In January or February 1982, the YCDA halted the construction of the project at the request of the acting City Manager because, according to him, the contractor was using the wrong type of tiles for the floor. Upon investigation, plaintiff learned that the contractor had been unable to secure the tile specified by the architect, but had secured an alternate tile that complied with the specifications outlined in the contract and which the architect for the Commerce Kitchen Project had approved. Accordingly, plaintiff made it possible for the contractor to continue the construction. Ultimately the contractor finished the job; however, he threatened to sue YCDA for the delay caused by the halting of the construction. Mayor Martinelli and City Manager Prezioso were anxious for the matter to be resolved. Because YCDA had halted the job at the behest of the city, plaintiff felt that YCDA should have separate legal representation from the city concerning this matter. Plaintiffs suggestion regarding the retention of outside counsel was put to a vote by the YCDA board and was approved. No suit ever evolved and the matter was settled for the most part in approximately April 1982. Questions were raised by the Martinelli and Prezioso administration as to whether the previous city manager should have directed YCDA to play such a significant role in a project of the Office of Aging. Plaintiff felt that since the Commerce Kitchen Project was within a target area, it was consistent with HUD’s regulations for YCDA to lend its assistance to the project, even though it was not, technically speaking, a YCDA project. No one ever criticized plaintiff’s handling of the project. Plaintiff cannot be faulted for any of his actions concerning the Commerce Kitchen project. An issue over which Mr. Allen and Dr. Prezioso disagreed concerned the payment of a Con Edison bill for the library premises at the Howlands Building site for the period of June 1, 1981 through July 16, 1981. The YCDA had rehabilitated the Howlands Building in Yonkers for use as a library. After the building was renovated and occupied by the library an electricity bill amounting to approximately $10,000 was incurred. Though the lease for the library had been sent to the library in June 1981 when the library took control of the building, it was not returned and signed until January 1982. The lease was made effective as of July 16, 1981. Payment of the Con Edison bill by YCDA was inconsistent with HUD guidelines, which provided that YCDA should not pay the operational costs of community facilities in public works. In 1981 City Manager Fox directed the commissioner of fiscal services of Yonkers to pay the bill out of the city’s operating funds. Despite this directive the bill remained outstanding. In 1982 Dr. Prezioso, the successor city manager, directed Mr. Allen to pay the bill out of YCDA funds. Mr. Allen explained that such a payment was contrary to HUD rules. His characterization of the HUD regulations was confirmed in three letters from HUD, written in the summer of 1982, which stated that payment by YCDA of the utility expenses for the period in question was improper. Corporation Counsel Michael Edelman and Commissioner of Fiscal Services Harold Peterson agreed with Mr. Allen that the bill should not be paid out of the YCDA budget. Dr. Prezioso continued to maintain that the bill should be paid by YCDA. Ultimately, on September 20, 1982, the YCDA board voted to pay the bill from its funds. Messrs. Edelman and Peterson both voted against payment of the bill. Despite HUD’s position, Mr. Allen followed the board’s directive and paid the bill. VIII. The issue of low income housing was a hotly contested issue in Yonkers in 1981 and 1982. On this issue Mr. Allen took a view which differed from that of the administration. But the administration could and did override plaintiff on such policy points because he had no policymaking functions, power or authority, and the City might have retained him because of his professional expertise so long as he continued to carry out all assignments actually given him. But having a nonwhite in plaintiff’s position at that particular time in Yonkers history itself was in and of itself troubling to the policy makers in Yonkers: the quality of plaintiff’s performance, and the question of his intramural disagreements with anyone, or the lack of them, had relatively little significance. Plaintiff believed that low income housing should be built on the east side of Yonkers in order to meet HUD requirements. This position was contrary to the position of the majority of the city council, who in 1981 voted to delete from the CDBG application a commitment to support scattered-site housing as well as § 8 based housing in areas with a substantial non-minority population. Despite Mr. Allen’s difference of opinion, he did not refuse to carry out instructions given him and not having policymaking functions, he did not attempt to veto them. In the 1970’s Yonkers had made a commitment to HUD to build subsidized housing in east Yonkers, and in 1980 HUD had required the city to submit an inventory of potential sites for such housing. This requirement was satisfied in part due to Mr. Allen’s efforts. In April 1981, HUD found only three of the sites to be suitable for the construction of housing: the Neustader Home, 1919 Central Park Avenue and School 4. - ■ In the spring of 1981 a developer, which wished to construct a shopping center, successfully bid for the Neustader Home site. Mr. Allen did not oppose development of the site as a shopping center because he thought it would help ease the city’s fiscal problems and because two sites remained on the inventory. HUD approved the removal of the Neustader Home site from the inventory. The site at 1919 Central Park Avenue was not zoned for high density residential use, and the city council refused to change the zoning to make this site suitable for the development of low income housing. The only remaining site in east Yonkers for subsidized housing was School 4. Thus it became the battleground for the controversy concerning the placement of subsidized housing in east Yonkers. In compliance with the HUD requirement the YCDA, under Mr. Allen’s leadership, attempted to solicit developers to develop subsidized housing at this site. In June 1982 the city council created a special citizens’ committee to study the School 4 site and to make recommendations as to what the ultimate use of that site should be. Such a committee had never before been created to determine the use of city property. The five persons appointed as members of the citizens’ committee were white and lived in the predominantly white neighborhood surrounding School 4. Only one of the persons on the citizens’ committee had had any prior experience with development or zoning issues. Mr. Allen was not consulted concerning the creation of the citizens’ committee; he learned about it from a newspaper article. He promptly sent a memorandum to Dr. Prezioso and the corporation counsel reminding them that the School 4 site was the only site available with which Yonkers could fulfill its contractual obligation to HUD to build subsidized housing. In September 1982 the citizens’ committee recommended that the School 4 site be developed for luxury housing. On September 13, 1982, having received no response to his earlier memorandum, Mr. Allen notified the city manager and the mayor that such a use of the School 4 site would jeopardize the city’s position with HUD. He suggested that he and the corporation counsel should be consulted regarding the disposition of the School 4 site. The corporation counsel shared Mr. Allen’s concern that School 4 not be sold to a luxury housing developer. Nevertheless, the citizens’ committee continued to interview-various luxury housing developers. After interviews with a few prospective developers, the committee recommended that Melvin Weintraub (principal of YWA) be permitted to develop luxury condominiums on the School 4 site. The court takes judicial notice of the findings in United States v. Yonkers Board of Education, 624 F.Supp. 1276, 1363 (S.D.N.Y.1985), aff'd, 837 F.2d 1181 (2nd Cir.1987), cert. denied, 486 U.S. 1055, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988) that: “... attempted sale [of School 4 for development of luxury housing] was not a routine and race neutral disposition of surplus property, but an effort to ensure that the site could not be used for the construction of subsidized housing in East Yonkers. As such, it reflects a clear intent on the part of city officials to continue the thirty year pattern of discriminatory action that has operated to exclude subsidized housing for families from East and Northwest Yonkers.” 624 F.Supp. at 1363. When Mayor Martinelli took office, an issue arose concerning a former employee of the YCDA, Thomas Cleary. In 1980, when Mr. Allen began working at YCDA, Mr. Cleary was employed by the YCDA to work in the area of economic development. In the latter part of 1981 Mr. Cleary was terminated from YCDA because of cut backs in the administrative budget of the YCDA, and because three consecutive job performance evaluations conducted at six month intervals by Mr. Allen found Mr. Cleary’s work to be unsatisfactory. Additionally, Mr. Cleary had made racial slurs about Mr. Allen in his presence. In January 1982, at a meeting with May- or Martinelli, plaintiff was directed to rehire Mr. Cleary. Mr. Allen advised the mayor of his reasons for firing Mr. Cleary and that he did not want to rehire him. He suggested that the mayor's office hire Mr. Cleary. The following day, Mr. Allen was notified by the mayor that the mayor’s office would hire Mr. Cleary to work on economic development projects: the mayor directed Mr.. Allen to find funds within the YCDA budget to pay Mr. Cleary’s salary. Mr. Allen informed the mayor that such an arrangement would be inconsistent with HUD regulations unless he received monthly status reports from Mr. Cleary, which demonstrated that Mr. Cleary’s work had a direct relationship to the functions of YCDA. With the understanding that he would receive such reports, Mr. Cleary was hired. Several months passed, during which Mr. Allen received no status reports from Mr. Cleary. After inquiry to Mr. Cleary’s supervisor in the mayor’s office, to which he received no response, plaintiff sent a memorandum to the mayor indicating that he had not received the necessary reports from Mr. Cleary. Mayor Martinelli responded that he would take care of it. After several months had passed, in which Mr. Allen still received no status reports, he sent a memorandum to the city manager indicating that he did not want Mr. Cleary to be paid with YCDA funds. Despite Mr. Allen’s memorandum, Mr. Cleary was paid after intercessions on his behalf were made by the mayor’s office. Ultimately, Mr. Allen did receive some status reports, of minimal quality and content. Mr. Cleary remained on the YCDA payroll throughout the remainder of Mr. Allen’s tenure as director. IX. By the summer of 1982, relations between the plaintiff on the one hand, and Mayor Martinelli and City Manager Prezioso on the other, had deteriorated. On October 8, 1982 City Manager Prezioso informed plaintiff that he was discharging him from the position of commissioner of DCD and recommending his discharge from the position of director of YCDA effective October 22, 1982. City Manager Prezioso stated that this action was necessitated by policy differences between plaintiff and the city council. Allen responded that he did not make policy but only administered the DCD and YCDA consistently with the policies set by the city manager and the YCDA board. City Manager Prezioso sent a memorandum dated October 12, 1982, to YCDA board members listing reasons why plaintiff should be terminated from the employ of the board: I am requesting that the Yonkers Community Development Agency Board meet in Executive Session at the earliest possible date to discuss the actions taken by the City Manager in reference to Mr. Allen’s functions both as Commissioner [of the City of Yonkers Department of Community Development] and Director of the Yonkers Community Development Agency. I have dismissed Mr. Allen as Commissioner effective October 22, 1982. Further, I am recommending that he also be dismissed as Director of the Yonkers Community Development Agency and that appropriate terms be made to give him his due vacation time and some relocation time. As I have explained to Mr. Allen, the reason for the severance of our professional relationship has to do with our basic and fundamental differences in policy implementation and management of Agency affairs. More specifically, let me state that I have found it difficult to comprehend Mr. Allen’s verbal communications which are seemingly predestined to confuse us. His continuance of flooding us with a mass of memorandum to cover up on matters which he had been assigned to attend to and numerous excuses and the continual reign of confusion, have made it difficult for me to continue my working relationship with him. Plaintiff responded to these charges in a memorandum to the YCDA board members dated October 14, 1982. Mr. Allen’s memorandum refuted each incident mentioned in Dr. Prezioso’s memorandum and concluded, “I suggest to you, that my proposed termination by the City Manager is based merely on expedient politics and should be viewed as such.” On October 14, 1982 the YCDA board met to consider Mr. Allen’s termination. There was no discussion of the allegations contained in Dr. Prezioso’s memorandum or of the responses contained in Mr. Allen’s memorandum. At the meeting, Comptroller Harold Peterson moved that the YCDA approve a resolution to terminate Wilbert Allen as director of the agency. The resolution was approved by a majority vote. With the exception of Mayor Martinelli, the board members had had relatively little contact with Mr. Allen and little familiarity with the issues touched upon in Dr. Prezioso’s memorandum. Some members may have simply honored the recommendation of the city manager who, they may have assumed, knew the facts. Whatever the members’ individual thinking or separate reasons for voting as they did, which cannot be determined with reliability as to the members taken separately, the action of these ultimate decisionmakers as a body was decisively influenced by Mr. Allen’s race at a time when his ethnicity was unpopular in the context of a locally unpopular national housing policy. The City of Yonkers is bound by the overall unconstitutional motivation of these actions even though probing beneath the action of the board as an ultimate decisionmaking body to assay separate independent motivation of the individual members would in this instance be akin to attempting to trace subatomic particles with an ordinary magnifying glass. Mr. Allen left his positions in the city on October 22, 1982. He was succeeded by Joseph Seymour, who is white. Mr. Seymour became YCDA director and commissioner of DCD in January 1983, at a yearly salary of $47,775. Mr. Seymour had previously worked in the city of Peekskill’s development department but had qualifications, which on an overall basis were inferi- or to those of plaintiff. A severance agreement between the YCDA and Mr. Seymour provided for him to be paid six months salary upon his termination, a practice followed in other instances in Yonkers, but a benefit — important as it turned out — never offered to plaintiff. As a result of the impact of the termination, Mr. Allen did not seek work for approximately a year. In November 1983, plaintiff became a general partner in a limited partnership involved in real estate development. The partnership wa