an adjunct to such controversies is contrary to the spirit and purpose of anti-discrimination legislation unless invidious selection can be shown to have occurred.
The paucity of non-speculative evidence of discrimination argues strongly in favor of the agency's motion for summary judgment. See Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir 1983). At the same time, evaluation of the credibility of the witnesses, including observation of their demeanor, may be crucial to determining the truth. See United States v. Zafiro, 945 F.2d 881 (7th Cir 1991), aff'd on other issues 113 S. Ct. 933, 112 L Ed 2d 317 (1993).
Deterrence of illegal discrimination, one of the chief objectives of Title VII, requires that invidious action lead to appropriate legal sanctions. The purposes of Title VII also require that fear of unjustified lawsuits not impair the neutrality of employing agency decisionmaking which is sought by the statute.
Where as here, monetary damage claims are time-barred, the risk of chilling what may turn out on an all-facts-known basis to be legitimate neutral agency decisionmaking is minimized.
Not without difficulty, I conclude that summary judgment should be denied with respect to the injunctive claims which survive time limitations.
The limitations period applicable to claims under 42 USC 1981 is ordinarily treated as three years. Ingram v. Madison Square Garden, 709 F.2d 807, 811 (2d Cir 1983), cert. denied 464 U.S. 937 (1983). This period is not tolled by filing an administrative complaint under Title VII. Johnson v. Railway Express Agency, 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975); Tuckett v. Police Dept. of the City of New York, 708 F. Supp. 77 (SDNY 1989). Where money damages are sought relating to a finite incident, prompt notice is critical to permit effective investigation and trial while memories are fresh. The complaint was filed on August 16, 1991, more than three years after the 1987 failure to promote, which is the sole basis asserted for seeking damages under § 1981. Equitable relief for an ongoing failure to promote may be another matter, but this need not be considered in regard to § 1981 since Title VII would provide effective relief.
The parties are directed to revisit options for settlement of this case. The agency has made no contention that plaintiff is not qualified to be a sergeant, but rather solely that others who were promoted in the past were more qualified. The agency's papers indicate that plaintiff received a positive recommendation and at one point was placed above another officer with greater seniority on a list relevant to future promotion.
If settlement is not reached within 45 days of this memorandum order, or judicial assistance in connection with settlement negotiations requested by both parties, the parties will submit by that time the materials called for by Rule 7.2 of my Individual Rules of Practice with respect to bench trials.
Dated: White Plains, N.Y.
September 13, 1993
VINCENT L. BRODERICK, U.S.D.J.