(c) Showing of Pretext or Discriminatory Reason
The proffer of vague and nonobjective observations as the bases for discharging Mr. Allen presents the problem with which the Second Circuit was concerned in Sweeney, 711 F.2d at 1185, and which the Supreme Court recognized in Burdine, 450 U.S. at 254-56. The vague nature of these criticisms makes it difficult for a plaintiff to refute them. I have concluded, after comparing the laundry lists of purported weaknesses in plaintiff's performance to his actual record that they are pretextual, and that the actual reason that Mr. Allen was discharged is because he was black.
Pursuant to the framework set out in McDonnell Douglas, if the employer has articulated a non-discriminatory reason for the discharge, the employee has the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against him. "However, this ultimate burden is in effect narrowed once the employer has set forth its proffered reasons for its actions, and the plaintiff may focus on 'specific reasons advanced by the employer'" Sweeney v. Research Foundation, 711 F.2d at 1186 (citing Wright v. National Archives and Records Service, 609 F.2d 702, 716 (4th Cir. 1979)). A plaintiff may satisfy this ultimate burden in one of two ways: "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, supra, 450 U.S. at 256; Ibrahim v. New York State Dept. of Health, 904 F.2d 161, 167 (2d Cir. 1990).
In this case, for the reasons given above, I do not find the reasons given for plaintiff's dismissal real or substantive, but rather merely excuses and pretexts. Moreover, I find that the racial factor as described above is the more likely reason for the actions of the institutional defendants. See Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir. 1980). The more questionable the employer's reasons, the more susceptible they are to recognition as pretext. Dister at 1116. The more unreasonable or arbitrary the employer's reasons, the less likely it is that the court will find that the reasons given for the discharge were honestly and sincerely held.
I reject the defendants' claim that Mr. Allen was discharged because of his management of §§ 8 and 23 programs or his securing of § 108 funds. Neither Dr. Prezioso nor Mayor Martinelli provided concrete illustrations to justify their general criticisms of Mr. Allen in these areas. They were unable even to describe the §§ 8 and 23 programs. When asked during the trial to explain Mr. Allen's failings in administering the §§ 8 and 23 programs, Dr. Prezioso stated, "I can't get into that at this time." Mayor Martinelli admitted that he did not know of complaints concerning the management of these programs.
Similarly, I find that the complaints of Dr. Prezioso and Mayor Martinelli pertaining to Mr. Allen's securing of § 108 funds for the waterfront project to be incredible. Dr. Prezioso could not explain what § 108 funding was; neither he nor Mayor Martinelli knew that § 108 funds first became available to cities such as Yonkers in July 1982, the month that Mr. Allen undertook the necessary steps to secure such funds. While defendants did not have the burden of persuading me of their legitimate reasons for terminating plaintiff, the fact that defendants' witnesses had very limited, or no, familiarity with the reasons they have articulated to justify the dismissal spells pretext.
Defendants' criticism of plaintiff's management style lacks a basis in fact. Plaintiff was an able administrator of both the YCDA and DCD. Defendants highlighted the disingenuousness of their criticism of plaintiff's administration of the YCDA by their inability to reconcile their criticism with HUD's praise of plaintiff's administration, together with their admission that in October of 1982 they knew of HUD's positive evaluation. Prior to October 12, 1982, no complaint had been made by any of the defendants concerning Mr. Allen's administration of the DCD, and at the trial before me defendants were unable to particularize their criticism. I conclude that their complaints as to Mr. Allen's administrative abilities, as to his attitude, are pretextual.
Nor are the general assertions by defendants about plaintiff's attitude borne out by the facts.
There is no basis for defendants' criticism of Mr. Allen's performance relating to Urbanex's default and the Southwest Community Center project.
Mr. Allen is not to blame for the money lost as a result of the contractor's default. As previously noted, I reject Dr. Prezioso's statement that he directed Mr. Allen to file an insurance claim concerning Urbanex after Mr. Edelman complained that Mr. Allen had neglected to file such a claim; it is inconsistent with Mr. Edelman's deposition testimony that Mr. Allen was probably not at fault with respect to the Urbanex matter. The testimony of Dr. Prezioso and Mr. Martinelli that they were concerned about Mr. Allen's inaction regarding the Urbanex issue is further discredited by their admission that they never sought any information about what steps, if any, had already been taken by the city regarding the filing of an insurance claim.
Nor can Mr. Allen's contribution to the completion of the Southwest Community Center be refuted. Plaintiff's efforts rescued this project, which had been derailed due to the contractor's default prior to his arrival at the YCDA. Dr. Prezioso's testimony that the Southwest Community Center project dragged until Mr. Rowe was assigned to work on it is incredible. Mr. Allen's testimony to the contrary, which I credit, set forth in specific terms what steps were taken. The documentary evidence, including YCDA board minutes, contains no reference to problems concerning the pace of the Southwest Community Center project. The fact is that Mr. Allen was not criticized concerning this project by a single YCDA board member until the October 12, 1982 memorandum. Defendants' claim that matters concerning the Southwest Community Center project were, in part, responsible for plaintiff's discharge, is pretextual.
Though the Commerce Kitchen rehabilitation project was not listed in Dr. Prezioso's memorandum as an example of the differences between plaintiff and defendants, Mayor Martinelli, at trial, referred to it as being a source of dispute in which plaintiff was involved. Plaintiff's actions concerning the Commerce Kitchen project were above reproach and were never the subject of criticism. Accordingly, defendants' citation of the Commerce Kitchen project as a basis for plaintiff's discharge is not supported by the facts and is deemed pretextual.
Plaintiff's position that the YCDA should not pay the library Con Edison bill, because HUD would consider it an ineligible expense, was a justified and responsible one. Dr. Prezioso agreed that Mr. Allen's primary responsibility as YCDA director was to insure that funds were spent in compliance with HUD's guidelines. I do not credit Dr. Prezioso's vague recollection, testified to at trial, that HUD subsequently sent correspondence indicating that payment of the bill would not be inconsistent with HUD guidelines. The mayor did not even consider the Con Ed bill matter even a partial basis for any action taken.
Conflicts with those in authority may constitute valid reasons for discharge, see Davis v. State University of New York, 802 F.2d 638, 692-643 (2d Cir. 1986), Meiri v. Dawn, 759 F.2d 989, 997 (2d Cir. 1985); Thermidor v. Beth Israel Medical Center, 683 F. Supp. 403, 412 (S.D.N.Y. 1988), whether or not the conflict entails fault on the part of the employee. In Davis the evidence indicated that plaintiff had been unable to work with others. In Tolliver v. Community Action Commission to Help the Economy, 613 F. Supp. 1070 (S.D.N.Y. 1985), aff'd, 800 F.2d 1128 (1986), cert. denied, 479 U.S. (1986); the court dismissed the action, finding that the employers had found Mr. Tolliver to be "hypertechnical and extremely difficult to work with.":
"Title VII does not require that a Board of Directors or any employer be constrained to maintain in its employ a person who created or promotes extreme difficulty in effecting the legitimate objectives of the employer."
613 F. Supp. at 1073.
In Sweeney v. Research Foundation of State University of New York, 711 F.2d 1179 (2d Cir. 1983), plaintiff was not given the position she desired, in part because she was caught in the crossfire of an intra-organizational dispute. The court noted that while this was unfortunate for plaintiff, it did not amount to discrimination. Sweeney, 711 F.2d at 1187.
At least one case, in dictum, has suggested that "there may be circumstances where a disagreement as to matters of policy, in which the plaintiff is unquestionably correct, may permit an inference of illegal discrimination." Tolliver, 613 F. Supp. at 1073. Other cases have focussed on the legitimacy of the employer's demands upon the plaintiff. See Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985); (this issue considered at the prima facie stage of the McDonnell Douglas analysis); Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1223 (7th Cir. 1980) cert. denied, 450 U.S. 959, 67 L. Ed. 2d 383, 101 S. Ct. 1418 (1981) (same).
But when an employer's reason for the action complained of has been shown to be idiosyncratic, unreasonable or riddled with error and where demeanor evidence and vagueness indicate that a pretext is involved, a factfinder may conclude, as I do in this case, that the alleged reasons are not the true rationale behind the action. See Dister, 859 F.2d at 1116; Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1564 (11th Cir. 1987).
The record provides no support for the vague complaints concerning the plaintiff's management style and method of communication.
Discrimination of the type I find here was not and need not be citywide affecting all positions. It was the nature of plaintiff's duties combined with his race at the particular time in Yonkers history which made him vulnerable to dismissal without regard to performance. In reaching this conclusion I give no weight to any asserted racial comments by individuals which cannot as such be attributed to the ultimate decisionmakers of the institutional defendants.
Nor can the totality of the acts of the institutional defendants be attributed to individuals with separate partial roles. As noted in United States v. Yonkers Board of Education, 624 F. Supp. 1276, 1289 (S.D.N.Y. 1985), aff'd 837 F.2d 1181 (2d Cir. 1988), cert. denied 486 U.S. 1055, 100 L. Ed. 2d 922, 108 S. Ct. 2821 (1988):
In performing this inquiry, we have examined the actions of many officials who, we are certain, were entirely well-meaning public servants acting in accordance with their perception of what was feasible in the political and socioeconomic circumstances of Yonkers and in the best interests of that community. In many instances, acts were taken by elected officials in response to strong constituent pressures and perceptions of political reality."
Id. at 1289.
Under the circumstances, the institutional but not individual defendants are found liable as noted above. In sum, with respect to plaintiff's claims under § 1983 and Title VII, I find that plaintiff has sustained his burden and has demonstrated that his discharge was the result of racial discrimination.
3. Pendent Contract Claim
Plaintiff also seeks to recover for breach of his employment contract, awarded to him by the YCDA board in November 1981. The contract provided that plaintiff would be employed at the YCDA for two years at an annual salary of $ 44,900.00. The contract also provided that defendant could be discharged only for cause. It further provided for certain steps to be followed in the event that the YCDA undertook to discharge plaintiff for cause.
Plaintiff asserts that the YCDA committed a breach of its employment contract with him when it discharged him in October 1982. Defendant YCDA asserts that at the time of plaintiff's discharge, and as a result of the YCDA board's vote not to ratify, the contract was no longer in existence.
Generally, an employee who does not work under an agreement for a definite term of employment may be discharged at any time, with or without cause. Rothenberg v. Lincoln Farm Camp, Inc., 755 F.2d 1017, 1020-1021 (2d Cir. 1985). However, where the employment is for a definite term, an employee may not be discharged by the employer without cause. Rothenberg at 1020-1021; see also, Kemelhor v. Penthouse International, Inc., 689 F. Supp. 205, 213 (S.D.N.Y. 1988); aff'd, 873 F.2d 1435 (2d Cir. 1989). If the contract sets forth steps to be taken before an employee is terminated, failure to follow those steps would constitute a breach.
There was no cause for discharging plaintiff, and the procedures set forth in the contract for termination were not followed. Accordingly, the issue upon which plaintiff's contract claim succeeds or fails is whether or not an employment contract was in existence at the time of his discharge. To state it in another way, the issue is whether the YCDA board's vote against ratification of the contract entitled the board to rescind the contract.
The YCDA board grounds its decision to rescind the contract on HUD's March 1982 letter to Yonkers officials suggesting that the board vote on ratification of the contract with Mr. Pistone abstaining, and on the subsequent vote by the board declining to ratify the contract.
HUD's letter concerning possible ratification of the contract was merely a recommendation. The use of the term "ratify" indicates that HUD did not suggest that its letter constituted grounds to void the contract.
Though a tenet of contract law provides for performance under a contract to be excused if performance is made impracticable by a governmental regulation or order, Restatement of Contracts Second § 264, there was no such governmental regulation or order here. The letter from HUD in March, 1982 did not constitute a directive of any sort.
The party asserting a defense of impracticability has the burden of demonstrating that the event, in this case the HUD letter, made performance impracticable and that the event was not the result of that party's actions or inactions. Kama Rippa Music, Inc. v. Sherkeryk, 510 F.2d 837, 842-43 (2d Cir. 1975).
The YCDA board's resolution declining to ratify the contract, and the city manager's letter declaring the contract null and void, constituted an anticipatory repudiation of the contract. Upon learning of the YCDA board's anticipatory repudiation, Mr. Allen had three possible courses of action: he could have quit and sued on the contract; urged the board to retract its repudiation; or ignored the repudiation and continued to work. Plaintiff responded to the anticipatory repudiation by ignoring it, comporting himself on the basis that the contract remained in full force. Since there was no power reserved to the board unilaterally to cancel the contract, it did in fact remain in force. The procedures preceding his discharge were not consistent with those required under the contract. Accordingly, his discharge, not authorized by the contract, constituted a breach thereof. Mr. Allen is entitled to damages measured by the amount of salary he would have earned if his employment had run its course under the contract.
The parties are directed to submit to the court within 30 days memoranda not to exceed 10 pages exclusive of exhibits concerning the award of damages and attorney's fees to plaintiff in light of this decision. The memoranda shall include legal authority for the propositions asserted.
Dated: White Plains, New York
April 15, 1992
VINCENT L. BRODERICK, U.S.D.J.