The opinion of the court was delivered by: VINCENT L. BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
Plaintiff has unsuccessfully applied for promotion, or has been passed over by not being considered for promotion, on nine instances between 1988 and 1990. She contends that her race was the reason. The defendant asserts that all but two of these instances are time barred, but adjudication of that contention at this stage would serve little purpose since conduct even if time-barred as a separate ground for relief, can shed light on claims which are within applicable time limits. See Local Lodge 1424 v. NLRB, 362 U.S. 411, 416, 4 L. Ed. 2d 832, 80 S. Ct. 822 (1960).
In one of the two instances not claimed by the defendant to be time barred, see Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir 1993), it is contended that plaintiff was unqualified because she lacked at least two years of administrative or supervisory experience. The person in fact selected in that instance did not have such experience within the defendant agency. Where a policy, be it formal or informal, is "not . . . consistently applied . . . [but in a particular instance is] invoked with a strictness . . . that could only demonstrate some underlying motive," Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 269, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977), an adverse inference can be drawn. Defendant, however, has provided an affidavit by the applicant chosen that he did have such experience elsewhere. That affidavit has not been contradicted by direct evidence or through impeachment of the affiant through discovery.
Moreover, the initial interviews for this promotion resulted in three African-American and three other finalists, and the final selection resulted in one African-American and one other person (but not plaintiff) receiving the promotion.
In regard to the remaining instance of nonpromotion, and throughout, defendant relies on interview reports rating others above plaintiff. Fourteen candidates, including two African-Americans and one Asian, rated above plaintiff in the interviewing.
Selection of candidates for supervisory positions inherently involves judgmental aspects which are difficult to evaluate. See generally Smith v. American Express Co, 853 F.2d 151 (2d Cir 1988).
Subjective factors neither suggest illegal discrimination nor do they provide a curtain which insulates an employer from the obligation to obey equal opportunity legislation. See Watson v. Fort Worth Bank & Trust Co, 487 U.S. 977, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988); Mertens, "Watson v. Fort Worth Bank & Trust," 14 Employee Rel LJ No 2 at 163 (Fall 1988).
Statistics regarding the two particular promotions not received by plaintiff and not claimed to be beyond the statute of limitations favor the defendant's contention that no discrimination occurred. Plaintiff, however, points to the appearance of lack of diversity in selection of employees for tryouts as acting supervisors, a phenomenon which is troublesome if it cut off the only realistic avenue open to plaintiff to satisfy the employer's experience requirement for promotion.
Requiring employers to justify disparities in work assignments carrying degrees of responsibility would tend to compel accumulation of paperwork to justify such day-to-day decisions and shift attention from the work to be done, focusing it instead on who is doing what, with destructive consequences to the viability of the enterprises involved. See Fasman, "Legal Obstacles to Alternative Workforce Designs," 8 Employee Rel LJ 146 (1982). For this reason, courts have never held so-called "pre-selection" to be an independent per se violation of antidiscrimination laws or adequate evidence of such ...