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Can i file a law suite for being passed over for a promotion

Roswell, NM |

i have worked in the retail hardware industry for 32 years i have worked for the same company for 25 years i have been assistant manager for 20 years i workwd under my now district manager for 15 years when he was promoted 5 years ago i put in for the manages position and an outside canadite was hired over me, I was acting manager for 6 months before he was hired. the manager resigned in January 2012 and I put in for the position again, after being acting manager again this time for 3 months I was told that they have again hired outside the company. I have a very good work record and can manage the business I am female and the company has 87 stores and only one female manager do I have a case?

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Attorney answers 2


I am a California attorney and not eligible to give legal advice in your state. My comments are for information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT PROVIDE SIMILAR OR GREATER PROTECTION. If I refer to your state's laws, that only means I did a quick Internet search and found something that appeared relevant. You should not rely on any comment I make regarding your state's law. You MUST check with an attorney licensed in your state.

From the facts as you present them, you might have a case for sex discrimination. It is significant that there is only one female manager in all of these stores, and that it is a traditionally male job – one that used to be considered available to men only.

Have you ever been told why you were not promoted? If the employer only gives vague reasons, such as "there was a better candidate" but is not able to articulate something specific in his skill set that you lack, it will be more difficult (though not impossible) for your employer to defend its decisions.

Please look at my guide to unlawful discrimination: which should help you understand lawful and unlawful discrimination. The guide also discusses how to pursue a claim of prohibited employment discrimination and how to find an attorney. Note your deadline for taking action may be as short as 180 days.

I hope you get the promotion you deserve!

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***


It would be helpful to know whether the company compiles and relies on any measures or metrics of performance for the managers of its stores and, if so, what the metrics are for the times that you were in charge of the store. Almost any employer that operates 87 stores will have a very elaborate and detailed set of performance measures that it relies on for many purposes including the assessment of the effectiveness of managers and supervisors.

I agree that the "1 out of 87" number is very suggestive of gender bias. But the performance numbers will tell the tale, and it will be very difficult to construct any narrative that overrides the meaning and importance of the numbers. So, if the store's numbers (sales, profits, traffic, rank -- whatever numbers the employer has previously used) dropped when you you were acting manager for 6 months the first time, then improved under the outside candidate hired, then dropped again in early 2012 on your watch, or some variation of that that shows a decrease in business success when you are in charge, then it is unlikely that even the "1 out of 87" stat will trump the performance record. It may be that these numbers are known or available to you, or you could ask point blank about them. If necessary, an employment attorney can probably get ahold of at least some of them -- enough to determine whether this is the employer's case.

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

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