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socrateaser
socrateaser, Lawyer
Category: Employment Law
Satisfied Customers: 37972
Experience:  Retired (mostly)
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I have been working Permanente 20 years now.I am 62 years

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I have been working for Kaiser Permanente for over 20 years now.I am 62 years old RN.Recently , the bosses supposedly opened a job for a PEEC LEAD nurse.I did not know anything about it because it was not posted.Only 2 people applied because the bosses told them about the opening.One nurse got the job,she just came back from maternity leave and is being oriented at the PEEC area where I work.She has been working for Kaiser for 2-3 years only.We have a union.This is not fair the way they did the promotion process.I plan to file a grievance and also sue them for discrimination.What are my chances?
Submitted: 1 year ago.
Category: Employment Law
Expert:  socrateaser replied 1 year ago.

Hello,

The following case law is taken from a recent case of employment discrimination reviewed by the U.S. Sixth Circuit Court of Appeals:

  • To establish a prima facie case of discrimination on a disparate-impact theory, a plaintiff must 1) identify a specific employment practice to be challenged and 2) prove through relevant statistical analysis that the challenged practice has an adverse impact on a protected group. Id. (citing Johnson v. U.S. Dep't of Health & Human Servs., 30 F.3d 45, 48 (6th Cir. 1994)). We have found that, under the basic principles of legal standing, the plaintiff must also have "'a personal stake in the outcome of the controversy' and that the plaintiff must have suffered some real or threatened injury." Bacon v. Honda of America Mfg., Inc., 370 F.3d 565, 577 (6th Cir. 2004) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Thus, a*1313plaintiff making an individual disparate-impact claim for discrimination must show "that the challenged policy directly disadvantaged him in some fashion." Id. (citing Bowdish v. Cont'l Accessories, Inc., No. 91-1548, 1992 WL 133022, at *5 (6th Cir. June 12, 1992) ("An individual plaintiff in an employment discrimination case must present some evidence that demonstrates that his or her individual discharge was the result of discrimination." (emphasis in original)) (holding that "[w]hatever the validity of [plaintiffs'] disparate impact claims . . . the plaintiffs [could] not show that the policies injured them personally, and therefore their claim must fail").

Based upon the above-quoted case law, you may have a case of employment discrimination, since you apparently were disadvantaged because you were qualified for a job about which you were entirely unaware, due to its not being reasonably advertised to employees and non-employees alike. Winning largely depends on your ability to show that you were fully qualified for the job, and that the person who was hired was preferred due to some discriminatory reason (race, color, nationality, religion, sex, age, disability).

Your seniority may be a basis to sue for breach of the union collective bargaining agreement -- however, it is not a basis to sue for unlawful [age] discrimination. Rather, you would have to show that the person hired is substantially younger than you are (20 years is a good minimum -- but, the younger the better). If you can prove this, then you may have a good case.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

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