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Dwayne B.
Dwayne B., Lawyer
Category: Employment Law
Satisfied Customers: 27399
Experience:  Employment Law Expert
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I live and work here in Houston TX. I know that Texas is not

Resolved Question:

I live and work here in Houston TX. I know that Texas is not a right to work state. My employer has been trying to terminate and has asked me to resign since March. I have filed sexual harrasment on 2 different married women in Jan this year. The reason for the termination they are saying is related to disclipline for me "abusing" my system at work in December. I also filed a hostile working environment on my Manager when I returned to work for the 1 day suspension. We have a policy that you have to be logged into your computer for 6 hours and 40 minutes a day. They are saying I did not meet that and has not shown me the information eventhough I know I did not meet it because I have a medical condition which they have known about for years. Ive worked there for almost 5 years. I told them I was in the bathroom and now I have to respond in writing why I was not logged in. I need to know what are my rights and what to do and how to respond in writing, because if I am unsuccessful they will recommend me for indefinite suspension. I am now seeing a specialist for my deficiency monday but it may be too late, but there is nothing in writing informing employees on what they need to specifically submit in writing. I work for the City of Houston.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Dwayne B. replied 1 year ago.

JD 1992 :

Hello and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

JD 1992 :

A "rght to work" state means that you don't have to join a union and Texas is one of the states that prohibits that.

JD 1992 :

I need you to be a little more specific in your question(s) if you could. When we answer general ones like "what are my rights" we have to give general answers and, invariably, the customer responds with "I already knew that". This type of forum works better if you ask specific questions so we know exactly what you are looking for.

Customer:

ok sir what do you mean by prohibit? They try to stop you from joining a union or they don't recommend it.

JD 1992 :

In other words an employer can't force someone to join a union or pay dues as a condition of employment.

Customer:

ok Sir, my question is what do i respond to them by not meeting my log in time at the computer for being in the rest room

JD 1992 :

Was the condition related to sickle cell?

Customer:

I havent proved that yet but I had a doctors visit friday that sent me to see a specialist for monday. Either way the sickle cell trait (g6pd) is a red blood cell deficiency. Red blood cells are what carry oxygen to the rest of your body to function properly and with my condition it makes all of my organs work slower.

JD 1992 :

Was it an extended bathroom stay and was it the result of the sickle cell or its symptoms?

JD 1992 :

In your opinion?

Customer:

I always have extended bathroom stays, and its symptoms are talk about being related to urine. but I could have a another condition as well which is why im seeing a specialist monday. either way they said i should have had a doctors note on file before the complaint but no one ever told me what i had on file wasnt good enough and what is should say specifically.

JD 1992 :

This is one of those cases where you can try and do it yourself, but you really need to hire a local attorney to write the letter for you. If you had more knowledge of your condition I could point you in the right direction but since you don't it is going to have to be a "catch all" letter written pursuant to the ADA and possibly the anti-discrimination anti-retaliation statutes.

Customer:

how much is it?

JD 1992 :

Most attorneys will do it for $100-200 bucks at the most.

Customer:

ill pay it can you do it

JD 1992 :

Since you don't have the hard facts yet the letter has to include all possibilities at least briefly and it will be pretty complicated.

JD 1992 :

No, we aren't allowed to draft documents. If you go to www.lawyers.com and look for attorneys in your area who practice Employment Law you should be able to find one pretty easily.

Customer:

ive already written alot of it i just dont know what to pull from the ada

JD 1992 :

That's because you don't have a specific "reasonable accommodation" to request yet. That's what makes this so hard ESPECIALLY when you combine it with a possible continued retaliation claim. If you don't word it correctly you can waive the right to complain about retaliation and/or discrimination. None of the "form" letters are going to work, someone is going to have to sit down with you and go over the facts and then write the letter.

JD 1992 :

You could try hiring a contract lawyer on elance.com or odesk.com but a local lawyer woudl make more sense.

JD 1992 :

Still there?

Customer:

yea im here i just have to turn the letter in tomorrow, before monday morning for sure

JD 1992 :

That is going to make it difficult. You could put something in there like "as you know I suffer from (insert condition) and as a result it is taking a toll on my body and requiring me to take extended bathroom breaks. I am currently being evaluated by medical professionals and will provide a complete and specific request for a reasonable accommodation under the federal and state ADA as soon as possible but in the meantime I would ask that you allow me sufficient time to have the complete condition diagnosed and a plan of treatment developed".

JD 1992 :

Not optimal but it is better than nothing.

Customer:

i don't have a reasonable accommodation but they cannot time you in the bathroom anyways right?

Customer:

what does not optimal mean?

JD 1992 :

Sure, they can limit a bathroom break.

JD 1992 :

An employer can do almost anything in Texas.

Customer:

but if you cant leave then you cant leave, what do i say to that

JD 1992 :

I don't understand what you mean by that?

JD 1992 :

Are you saying they don't allow you any time for bathroom breaks?

Customer:

if im not finished in the bathroom i cant just get up and return to work

Customer:

they allow exactly and no more than 20 minutes a day to not be logged in

JD 1992 :

I understand but when I asked earlier you said you didn't know if your condition had anything to do with the bathroom needs. If it does then you can add something like "While the full extent of my condition is not known yet, it is obvious that it is requiring some time spent in the bathroom and I am asking to be able to attend to those needs as a reasonable accommodation and can make up the time later in the day to still meet my time quota".

JD 1992 :

That puts the burden back on them to show it is not a reasonable request.

Customer:

being in the bathroom for an extended period of time has been an issue my entire life.

Customer:

your right, but their policy to your statement will be about not being able to be at your desk during your scheduled breaks, you have to leave.

JD 1992 :

The problem with that is if it is not related to a medical condition then it won't be considered a disability and the employer can terminate you for it.

Customer:

how can they prove that its not related, and there is not a doctor who can tell me whats a normal time to be in the bathroom

JD 1992 :

The burden is first on you to show that it is related, then the burden shifts to them.

JD 1992 :

You have to provide medical documentation.

JD 1992 :

And while a doctor can't tell you a "normal time" they will probably be willing to state that "extended time" is necessary due to your condition.

Customer:

how can i request more time to give the medical documentation, because then there claim will be that I should have already had it on file. i found that out from a good friend

JD 1992 :

That is why I gave you the language above and also why I suggested hiring a local lawyer.

JD 1992 :

This is like a chess game.

JD 1992 :

You have to set them up, plan responses to what they do, etc.

Customer:

right im gonna write that and i will hire a local lawyer but i have to have something in writing monday morning, and i plan to meet with a lawyer to write it monday morning. so i basically have to turn it in before i even meet with the lawyer

JD 1992 :

If you use that language I gave you that covers the basics and then get the lawyer to help you draft a more complete response.

Customer:

and i love playing chess by the way. from everything you know what do you think there response will be cause i can gaurantee they have lawyers working on it

JD 1992 :

They will likely respond saying they need more specifics or medical documentation but that will buy you a few days.

Customer:

when is my last opportunity to resign before termination rather then damaging my career and do i qualify for unemployment if i resign for complaining of discrimination and retaliation

JD 1992 :

Usually they will offer you a chance to resign before you are terminated but if you resign one second before being terminated it is sufficient. If the unemployment person believes you resigned due to a "hostile work environment" based on the facts you have given then you would qualify for unemployment since it is the same as "constructive termination".

Customer:

and my last question is how can they terminate me based on this if i havent been able to appeal the suspension. and the termination is based on the suspension and this.

JD 1992 :

They will say that this alone is sufficient for termination.

Customer:

yea but if they serve me with the indefinite suspension letter i have to go to that meeting right?

JD 1992 :

You would if it is a required meeting.

Customer:

it is required, when can they technically give me the letter?

JD 1992 :

There is no time limit set by law.

JD 1992 :

They can give it to you at any point and set the meeting at any point.

Customer:

and can i just turn in a 30 days notice or 2 weeks notice for resignation without them giving me an indefinite suspension letter

JD 1992 :

You can't stop them from giving you the letter but your notice/resignation would supercede it.

Customer:

you think i should submit that before responding?

JD 1992 :

I can't offer an opinion on that. That's a personal choice.

Customer:

i just need to know if i qualify for unemployment if i resign after complaining of retaliation

JD 1992 :

It's not automatic.

Customer:

cause i dont have enough time to find another job and i dont want a termination on my record

JD 1992 :

I understand the situation. It all depends on who you get at the unemployment office.

JD 1992 :

You likely will stand a better chance of getting it if you request a reasonable accommodation and they refuse it but you will want to discuss this with your local lawyer as well.

Customer:

how far in advace can i make the resignation letter? 1 month 2months. Im really just trying to make it to october 6th so im vested and they are trying to prevent that

JD 1992 :

I don't think it is viable to submit it months in the future and not expect them to be able to sanction you. Probably a couple of weeks but there is no law on it.

Customer:

but there has been someone that submitted it 4 months in advance

JD 1992 :

I think you can submit it whenever you want. The issue is whether they can terminate you in the intervening time and whether you can collect unemployment then.

Customer:

do i need to include a copy of any ada document in my response, and i forgot to mention i was taking mulit vitamins which could have had an adverse reaction on my body. i have proof of that

Customer:

even if i submit that do you think they could push for a medical separation?

JD 1992 :

Yes, probably so.

JD 1992 :

To both questions.

Customer:

where do i get a copy related to the ada document

JD 1992 :

But by "ada doc" it is only if the employer requires a specific form. Otherwise the language I gave you should suffice.

JD 1992 :

I have to switch computers. Be back in a sec.

Customer:

if they require that form then who is the burden on if they didnt let me know

JD 1992 :

They do.

JD 1992 :

If you send a letter in and they require it on a form then they should tell you that.

Customer:

ok you mean if i send a letter to them now about my condition or i should have already sent them a letter. I just gave them copies of my medical record

JD 1992 :

If you send them a letter now and they require a form they should make you aware of it.

Customer:

what should my letter say, but then they will say it is after the fact of the complaint

JD 1992 :

I gave you sample language above, that's about the best I can give through this type of forum.

JD 1992 :

That should buy you enough time to get a local lawyer to review it while they decide what to do.

Customer:

ok heres the deal my document goes to the internal affairs manager monday, he either sustains it or rejects. which he will reject it. then it goes to a committee to either reject it or sustain it. which is why i need to be sure to have something good enough in my response monday that buys me time to have a lawyer right it.

Customer:

im sorry he will sustain it. is what i meant

JD 1992 :

That language I gave you should be sufficient to get you through the initial stages,

Customer:

should i make it only about medical or include something else.

JD 1992 :

Since this is medical related you would start with that although you can mention that you feel it is partially motivated by continued retaliation for filing the complaints.

Customer:

I mean like the other "special assignments" they have me do like going to there car to get things like a popcorn machine. yes that happened last week. and special assignments like my leadership role there in speaking to the employees

JD 1992 :

No, it probably is not necessary to mention those for this response.

Customer:

but it takes away from my log in time

JD 1992 :

If that affected it on the date they are complaining about then you can mention it but if not then don't.

Customer:

why would i not i dont get it

JD 1992 :

It's not really relevant to his complaint.

Customer:

that took 15 minutes

JD 1992 :

If they aren't complaining of the shortage on that day then it isn't relevant.

Customer:

how is it not relelvant if its a violation of the policy no matter what day its for

Customer:

why would she ask me specifically to do that if she felt i had a time problem

JD 1992 :

Because they aren't complaining about that day. The employer can assign you to do other things and you have to do them. If they then complained you didn't work enough hours it would be relevant but under your facts it isn't.

Customer:

getting a popcorn machine out of her vehicle is not work related

JD 1992 :

We are going to have to wrap this thread up pretty quickly. When they get too long the program starts glitching.

JD 1992 :

Anything an employer asks you to do is work related.

JD 1992 :

Texas allows an employer to define, redefine, or modify job duties as they see fit.

Customer:

so are you saying i couldnt refuse?

JD 1992 :

Correct.

Customer:

thats not a lawful order and its not written anywhere

JD 1992 :

An employer has the right to give you duties to perform and you have to perform them.

JD 1992 :

It doesn't have to be written in Texas.

Customer:

yea i quit, i need a lawyer. thanks for your time i aprreciate it

JD 1992 :

Glad to be of assistance. The laws in Texas all favor the employer, it is absolutely not a fair state to be an employee in.

Customer:

true i wont take up anymore of your time i appreciate the info, and i wish i had known this about texas beforehand

JD 1992 :

Best wishes to you on this!

Customer:

thanks have a good day Sir,

JD 1992 :

Please don;t forget to leave a Positive Rating so I get credit for my work today.

JD 1992 :

To you as well.

Dwayne B., Lawyer
Category: Employment Law
Satisfied Customers: 27399
Experience: Employment Law Expert
Dwayne B. and 10 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

ok I have a question for you, i contacted a local lawyer and she wasn't too helpful i think i just wasted money on that. she didn't write the letter for me she just had an initial consultation and gathered some facts. and she kept having to ask another lawyer that was in another room questions about the case. to briefly explain the new situation. I just received a more specific complaint for about 8 days that I did not meet my log in time. 6 hours 40 mins a day. I have a doctors note for my medical condition and now they want me to do it on a form (FMLA). The FMLA should cover me for the future, but what do i respond now to them about the past, those 8 days about to the complaint.

Expert:  Dwayne B. replied 1 year ago.
You would just explain to them that the problem was caused by your condition and they were aware of the condition although its manifestations can vary. You can also state that you are asking them to take into account that you are still being diagnosed and the full extent of your symptoms and disability is only now becoming clear.
Customer: replied 1 year ago.

ok so i have just asked for the form and they are now saying it might not be covered for the past only for the future. is that true or is there something I should say to that? I have to respond by friday. my director also told me that if i quit or if im fired i wont qualify for unemployment. how true is that?

Expert:  Dwayne B. replied 1 year ago.
FMLA can be retroactive but the language you have been using is for the ADA as well so you should be covered under one or the other.

It is certainly possible that unemployment will be denied, as we discussed earlier. However, there is also a decent chance that if they fire you because of this you will be able to draw unemployment and will also be able to pursue a lawsuit against them.
Customer: replied 1 year ago.

they are going to try and deny it if the physician doesn't list it as a serious medical condition in the FMLA documents. they know im not well but this is all a legal matter at this point. what should i advise the physician to write, if anything because he has already written me a good enough doctors note. you are a great lawyer by the way. i just cant seem to find that here in houston. his letter reads as follows:


 


Mr. Jones is my patient. He has long-standing gastrointestinal issues with a slow digestive system. His medical condition may need him to be in the restroom for longer than usual and sometimes up to 20-30 minutes.


 


I think he covered everything but they are giving me a hard time with this. Where can I leave you more money because your advice has been very helpful.


 


 

Expert:  Dwayne B. replied 1 year ago.
That letter covers you for the ADA and should cover you for FMLA. The doctor doesn't have to use the "magic words" a serious medical condition although if he could add hat it would certainly be helpful.

You can add a Tip or Bonus on if you would like. There should be a button for that somewhere on your screen. If not, let me know and I'll ask the moderator to help.
Customer: replied 1 year ago.

ok i just did it. ..... quick question because he hasn't prescribed me any medication as of yet. what should i tell him to write on the FMLA. I know they are looking for a way to deny it, and then try and terminate me. he has me taking over the counter meds and then in 3 months I go back for a follow up. He said if the condition doesnt improve he may have to have surgery.

Expert:  Dwayne B. replied 1 year ago.
He should write it is a serious medical condition that requires a little extra time away from the computer each day, up to 30 minutes, so long as the condition is active.
Customer: replied 1 year ago.

I was given the FMLA package and given a deadline of august 1st to turn it in. It was just faxed to them by my doctors office, but last night I received a letter for the indefinite suspension hearing. its on august 7th. at this point i really dont know what to do and the local lawyers I have come in contact with here are not as good as you, its like they just wanted to take my money. 1 of the of employees i filed sexual harrasment on recently tried to run me over in the parking lot and i reported it to the supervisor and she did nothing. should i file a complaint on the supervisor or the employee to the office of inspector general?

Expert:  Dwayne B. replied 1 year ago.
Welcome back, although I hate it is for an unfortunate reason.

What Office of Inspector General are you referring to?
Customer: replied 1 year ago.

city of houston office of inspector general i think, im not too sure i just know the name

Expert:  Dwayne B. replied 1 year ago.
That would probably be best. Once again it puts the burden on them to either follow procedure or provide additional evidence of discrimination.
Customer: replied 1 year ago.

so I should say something like on... (date) I reported to mrs.............. that the employee attempted to run me over and she never reported it up the chain of the command. she only asked me "now why would you say that" and laughed.

Expert:  Dwayne B. replied 1 year ago.
Yes, I think that would convey what you want conveyed.
Customer: replied 1 year ago.

ok the loudermill hearing is on the 7th, do you think I could win that or is it a decided process already. the director told me he is pushing for indefinite suspenion and i have representation with the hope union, but im thinking about just resigning and not going to the loudermill hearing. can i do that with an immediate resignation or can i turn in a 2 week resignation before the hearing and it not affect me. or do i have to just flat out quit before the hearing.

Expert:  Dwayne B. replied 1 year ago.
You would likely have to just quit to avoid having it on your record.

I can't tell whether the matter is already decided or whether you have a chance at the hearing. I certainly think you have grounds to complain but often these are only resolved at the federal court level.
Customer: replied 1 year ago.

but if i quit because i just cant deal with the retaliation is that suitable, will it uphold in court? or do they have to fire me? i dont want them to damage my career because it will be hard to get a job if im terminated. he also said if i quit they will say it was because indefinite suspension. i cant win at that but i can win in federal courts. i just dont wanna be terminated. so i guess ill go to the unemployment office tomorrow to see if i can quit.

Expert:  Dwayne B. replied 1 year ago.
It makes it much harder if you quit, without a doubt. It is still possible to sue under a theory of "constructive termination" which just means they made it unbearable to work there.
Customer: replied 1 year ago.

ok well when i sue, can i get the termination off my record? Im filing the complaint with the office of inspector general, then im turning in my resignation. should i include constructive termination on it or what should i mention in the resignation letter to be covered and not waive any rights to sue

Expert:  Dwayne B. replied 1 year ago.
Yes, you can ask for it to be removed from your record. You can mention that you feel you were constructively terminated since working conditions became not only unbearable but also dangerous.
Customer: replied 1 year ago.

honestly your a smart guy, what im really trying to do is resign without being terminated, sue asap and receive unemployment which im sure i can get another job in 2 or 3 months. that's why i ask so many questions cause it seem so hard to do. if i had another job right now i would be good to go.

Expert:  Dwayne B. replied 1 year ago.
I understand the predicament, it's the same one a lot of people face. Just be honest in what you are saying, explain how it is affecting you and why you are resigning. You did have a good idea of talking to the unemployment people first.
Customer: replied 1 year ago.

ok Sir what order should i submit these documents. suspension grievance, complaint, and then resignation. and when i write it as a FORMAL COMPLAINT should I put it on the department or a specific individual while mentioning others.

Expert:  Dwayne B. replied 1 year ago.
I would think that is the correct order but I'm not familiar with the policies there and so can't say for sure.
Customer: replied 1 year ago.

alright and then im cool do i have to attend the loudermill hearing? if i quit before then?

Expert:  Dwayne B. replied 1 year ago.
No, I wouldn't think you would have to attend if you were already gone.
Customer: replied 1 year ago.

I have received the FMLA approval but it is effective for july 11. The complaint is for june 18th to the 29th. Should I resign or is my job safe with the FMLA approval

Expert:  Dwayne B. replied 1 year ago.
Did the FMLA letter state that you had the same condition back in that time frame?
Customer: replied 1 year ago.

no sir i saw them on july 11, thats the only day they could put it for

Expert:  Dwayne B. replied 1 year ago.
I'm not sure that it is going to protect you. It would be better if they could say it was an ongoing condition that you have had for some time.

However, if the employer didn't ask you for FMLA information for those days you may still be okay.
Customer: replied 1 year ago.

they said that in the doctors note, and then i went and got the fmla, but the employer did not ask me to get it. the employer gave be a deadline of august 1 to submit an fmla package after i requested it. they gave me a letter of recommendation for termination on july 30th. the meeting is wednesday, and im not sure if i should resign. they said they would give me time to get it but then gave me the letter before the deadline. the doctors office faxed it and they had to approve it, but i think they only approved it because they had to and because its not dated for june. they are trying

Expert:  Dwayne B. replied 1 year ago.
See if you can get the doctor's note and submit it as well.
Customer: replied 1 year ago.

I did they have it on file already, they had the doctors note on file before the fmla package.

Expert:  Dwayne B. replied 1 year ago.
I think that should be about as much as you can do if the doctor won't say it specifically. That should protect you as much as possible in a lawsuit.
Customer: replied 1 year ago.

So the doctors note would have to say. on June 18th to June 30th my patient was experiencing..... or i dont know how to really word it, but im sure they will not have a problem with wording it however. I just dont know how it should be legally worded. They have already determined my complications was serious during the visit. otherwise they would even write anything. I just didnt know they needed to write it had to do with those days. its like im playing catch up. should they make that statement on another doctors note or add it to fmla package. i didnt think they could do that.

Expert:  Dwayne B. replied 1 year ago.
Yes, that would be what it needed to say. You could just have them write the note and then you could give it to them and ask that it be put in your file as well.
Customer: replied 1 year ago.

I can kind of figure there counter, they would just say you dont have the fmla for that time period. would it be better or legal to have her add those dates to the fmla package? or even possible or just have them do it on a doctors note?

Expert:  Dwayne B. replied 1 year ago.
It would be better to do an amendment to the FMLA package.
Customer: replied 1 year ago.

how long does that take, and where do i get the paperwork for that. but then its like saying I do an amendment to that package to mention those dates?

Expert:  Dwayne B. replied 1 year ago.
We're kind of going past what I'm allowed to do here since we are specifically forbidden from offering legal advice. I really can't tell you any more than I've told you here on this particular topic because you're getting into the strategy area which in this instance is legal advice.
Customer: replied 1 year ago.

ok that doesnt make sense, people go to lawyers for legal advice. the situation kept slightly changing but now that i know what it is. i was trying to see if i was covered. not for any type of strategy, just for my rights in employment law that i know nothing about. i now know they they will complain about my time in the bathroom. returning late from break or lunch and signing out like 10 secs some days but clocking out everyday on time. i was just trying to figure out a way to keep my job at least for a few more months.

Expert:  Dwayne B. replied 1 year ago.
The website expressly states in the click throughs that we don't provide legal advice, just legal information.

I can give you general directions but I can't give specific courses of actions. I've tried to be as specific as I can but it's getting to the point where you really need someone giving you specific legal advice rather than just a general course or information on a topic. In addition, the thread is getting long and at some point will start glitching because the software only handles a certain number of back and forths before it starts acting up.

I can tell you there are usually no forms for amending the FMLA forms so what a doctor has to do is send a letter and just state the employer should consider it an amendment or supplement to the FMLA form they submitted earlier.
Customer: replied 1 year ago.

ok cool just so im clear on the whole thing, when we first started talkin I didn't have the fmla approval. now I have it effective as of july 11th. what I need to know is does the fmla protect my job. effective date is july 11th. I received notice of the approval july 30th. time frame the employer is complaining is june 18th to june 29 of not meeting my log in time. they also said some days I return a couple minutes late from break and said I left a couple seconds early on some days. but I clock out on time everyday. the fmla time frame is 12 months. September 1st to august 31, which should cover me for this benefit year but the effective date is july 11th. where is that tip thing on here, I haven't been on here in some time.

Expert:  Dwayne B. replied 1 year ago.
Not sure where the tip thing is, I'll ask the moderator to let you know. I do appreciate the consideration.

If you can get something from the doctor saying that the problem was occurring back in June then that should cover you for the FMLA but, if they decide it doesn't, it definitely covers you for the ADA. I personally think it will be good for the FMLA as well.
Customer: replied 1 year ago.

of courses I know yall should be paid for what you do, nothing is free.


 


ok so if im covered for the ada then I should not quit. my only other concern is that they are going to say I logged out a couple seconds early which there is no policy saying you have to log out a certain time. 10 seconds before 10pm but then I logged out of the time clock at 10:01. I have something from the doctor saying the problem was occurring back then, the doctor said its been an on going issue for 10 years back. in my medical facts it ask specifically.... 1. Approximate date condition commenced. answer is ( more than 10 years ago )


Probable duration of condition: ( long term )


 


I just wanna know what to say in the meeting because I don't have good representation, and they have great representation. I have someone from the union. that's not really fair. I haven't been impressed by the lawyers here, at least the 3 ive met with. I wish you were in Houston seriously.

Expert:  Dwayne B. replied 1 year ago.
There are some great lawyers in Houston but like everywhere else, the bad ones outnumber the good ones.

As far as what to say in the meeting just be honest, keep referring to it being a medical necessity and as a result of your condition. Stay focused on that.
Customer: replied 1 year ago.


I have a voice recording of me and a coworker. I reported to my supervisor that the same person I reported sexual harassment on tried to run me over in the parking lot some weeks ago. I don't know if the Supervior ever reported it, but no one spoke with me about it. So I assume she did not report it. That employee is afraid to be a witness but I have a voice recording of him admitting that I told the Supervisor what happened. Should I write a notification of what happened because if I tell them verbally they will deny I said anything. Or should I just save the recording for a suit.

Expert:  Dwayne B. replied 1 year ago.
If it just verifies what you told them then there is no need to reveal or hide it. If it comes up, fine, but don't make an effort to bring it up.
Customer: replied 1 year ago.

ok that does sound smarter. and I have other recordings of co workers as evidence. I just spoke with my doc office and they are worried if they can amend the fmla and not get in trouble. she just wants to know if its possible and what to say. the meeting is trmw.

Expert:  Dwayne B. replied 1 year ago.
There's nothing there that can get them in trouble. They can just add that the conditions is chronic and has been long lasting and was occurring on whatever date the employer is griping about.
Customer: replied 1 year ago.

i was given a medical questionairre for transitional duty, i dont know if that is good or bad. but i went to the hearing and they put me on admin leave. then called me about an hour later saying they had a "long talk" as if it was giving my situation help. i don't trust these ppl. they gave me 15 calendar days to return it. but if im not on admin leave then it means i wasnt terminated. I think they are either gonna push for a medical separation or transitional duty and if its not approved then they will try and terminate me, i think they are trying to find a contradiction in the fmla. either way you my friend a very smart. o how i wish you lived in houston.

Expert:  Dwayne B. replied 1 year ago.
Thanks for the compliment. Like I said, it's a chess match and you seem to be one move ahead of them so...well done!
Customer: replied 1 year ago.

I have been trying to find the tip thing on here but i cant, its only about rating you. its hard figuring them out, but i know they are highly upset because they were not able to terminate me. which is why i have to fill out the medical questionairre for transitional duty. I dont know what that means or if i get compensated or whats the point. If im being treated for the condition it doesnt make sense for them to not allow me to be treated and then get the outcome i already asked that according to a.d.a. guidlines. I already beat em but i dont know anything about a medical separation or transitional duty.

Expert:  Dwayne B. replied 1 year ago.
I suspect form will be the be that tells them how to best accommodate your disability. That makes the most sense.

I'll ask them again to contact you about leaving a tip. It is much appreciated.
Customer: replied 1 year ago.

that's the same thing i thought, that it would be to accommodate my disability, but then she started threatening about a medical separation and that i could apply to get my job back after a year if the transitional duty is approved. she basically said either i would be terminated or medically separated. i wonder if i can file a suit for a medical separation.

Expert:  Dwayne B. replied 1 year ago.
Probably so. They would have to prove that the illness and its symptoms prevent you from doing the work, which they can't prove. Otherwise it's discrimination based on the condition.
Customer: replied 1 year ago.

the medical questionairre for transitional duty they gave me is tailored to that. it seems like they are trying to make me and the doctor prove i cant do the job. there are four main questions set up with the response.... can perform now, or cannot perform now. when the doc basically just started treating me in july. I haven't even been for another visit yet but he determined on a visit that i had a serious issue. he wasn't goin off nothin i said he found out for himself. my question is am i required to fill out the med questionnaire and if so can they make him answer every question on there. or can he just respond he dont know, or just answer differently on some questions with a response that says... he is being treated. rather than saying yes or no. thats not just a questionnaire that they give everybody my name is in every question. thats weird.

Expert:  Dwayne B. replied 1 year ago.
Yes they can ask for the questionnaire and yes he has to fill it out. He can add on or answer however he wants.
Customer: replied 1 year ago.

it has a part a and part b. part a is only 1 question that says can he perform all of the duties, physical, and other requirements associated with the position. which the answer is going to be no, but it will be grounds for them to do a med separation. i almost want the answer to be yes and then still have part b completed. i wonder if he could just not check off either one of the yes or no and just write a complete sentence without them saying its unreasonable.

Expert:  Dwayne B. replied 1 year ago.
He could say "yes, with the following accommodation..."

He can say whatever he wants, they can't restrict opinion.
Customer: replied 1 year ago.

I can see why its more yes than no, but what I can't understand is why they need to challenge the fmla if they already approved it. they are the ones that approved it. i think the amendment is why they are upset and challenging it. the only reason she approved it is because it wasn't covered by the dates they were complaining about. its like it started all over again as to whether they are going to grant me fmla, but it expires on august 31st. I have to re-apply for it on September 1st. its almost like they are asking for more information to deny it, when they already approved it.

Expert:  Dwayne B. replied 1 year ago.
The likely answer is they don't really understand what they are doing.
Customer: replied 1 year ago.

hey hows it goin? i just found out that they are going to try and terminate me because my doc did answer yes. and he put on there he can perform all job duties with accomodations of needing extra time in the rest r. they are claiming that we have an hour and 20 mins to use the rest r but we dont. thats actualy a 45 min lunch and 15 minute break separate. which is an hour and then 20 mins we dont have to be logged in. lunch and break should not be counted. i may go to the doc early tomorrow and see what they think. they are saying that fmla is for when you leave work, but i know it says somewhere in there that it is also used while at work. "intermittent" or somethin like that

Expert:  Dwayne B. replied 1 year ago.
It can be used intermittently and, in addition, this implicates the ADA as well so if they terminate you then you probably have a couple of good bases for a lawsuit.
Customer: replied 1 year ago.

im having an issue finding a good lawyer here. its like they are making their own interpretation of what the doctor said. i just gotta be ready to counter it. im broke and in school i don't how i can get a good lawyer. they are actually pressing the doc they called them today. to get "clarification".. when they are really just trying to scare them.

Expert:  Dwayne B. replied 1 year ago.
As far as finding a lawyer you're just going to have to keep making calls. There aren't a lot of lawyers doing Plaintiff's employment law.
Customer: replied 1 year ago.

I have worked for ******** almost 5 years. I have been employee of the year, 2 years in a row 2010 and 2011. I applied for promotion in 2012 and was denied and never given any information regarding why I wasn't promoted or what I was ranked. I'm more qualified than all candidates and I'm a military veteran. I filled sexual harrassment on 2 married women in January 2013. I filled retaliation and hostile working environment on a Manager in March 2013. I have FMLA due to a medical issue and was given a medical questionnaire and told I would either be terminated or medically separated due to my condition....... its like Im all over the place with these issues but ima stick to the medical issue. that other stuff seems to be a distraction.

Expert:  Dwayne B. replied 1 year ago.
No, it all adds up. You can combine reasons or plead in the alternative and the jury can then find in your favor on any of the reasons.
Customer: replied 1 year ago.

they sent the questionnaire to their legal department. it doesnt mean i will be terminated but that's what they are trying to do. on another note all i would have to do is prove that i began receiving complaints after I told them I have a disability back in january 2012, which I have the email. it seems to me to be an open and shut case that i know i can win. its just that medical questionnaire is puzzling me. the doctor wrote the same things thats in the fmla on the questionnaire and they are believing they have grounds to terminate becuase he said i can do the job as if i havent been doing the job for the past 5 years anyways. its puzzling but thanks for your help. it may take a year to win the lawsuit but I hope I am able to tell you when I win. lol

Expert:  Dwayne B. replied 1 year ago.
I would sure like to know how it turns out.
Customer: replied 1 year ago.

true, they asked for clarification from the doc this morning so he wrote in there yes he can do the job with accommodation but his medical condition will require extended rest room breaks. so they re-sent it because my superiors wanted more clarification. they also wrote this is in response to the clarification my job asked for. so they basically sent it twice and then added things. im sure the can do that if they asked for clarification but she wants to speak to him over the phone. i told him it doesnt matter what he says over the phone cause you cant prove you told her that over the phone. i also told him he doesnt have to speak to her over the phone, just fax it in cause he is busy conducting procedures. sent the fax just to prove it is medical as if i havent already... i never knew how much a medical issue could be turned into some type of legal issue it seems. i dont know but Ill definitely let you know how it turns out. everything leans on this medical questionnaire looks like. lol

Expert:  Dwayne B. replied 1 year ago.
I think they are probably past the boundaries at this point. They can't keep changing things. Once he says you meet the definitions and explains how things work then that covers it.
Customer: replied 1 year ago.

are you the same person ive been speaking with? the name changed it looks like. i think they were beyond the boundaries long time ago but it seems employers can do a lot in this state. im no too worried about it, but somethin is strange how they seem like vultures in this matter. i had no idea employees had to deal with things like this. and they even lied and said i have an hour and 20 mins to use the rest room. which is a lie, i have 20 minutes or 19 to be specific in which i dont have to be logged in. it takes 2 or 3 minutes returning and going to the rest room when i sign out. that 6 minutes right there just in transit.

Expert:  Dwayne B. replied 1 year ago.
Yes, it's still JD 1992. They are just changing our screen names.

Texas has the worst employee laws of any state.
Customer: replied 1 year ago.

ok cool so can the doc res-send the medical questionnaire and do they have to acknowledge it. or do they choose which one to go with, eventhough they asked for clarification and he added some things.

Expert:  Dwayne B. replied 1 year ago.
They don't get to choose one over the other, especially when they asked for clarification.
Customer: replied 1 year ago.

thats what i figured

Customer: replied 1 year ago.

im almost curious to know if i can file at this point without even being terminated. i could have a good one here. i really dont want it to affect it though if i just leave i may wave my rights. if they are smart they wont terminate me, but i sure would like to know if can anyways.

Expert:  Dwayne B. replied 1 year ago.
You could file now under ADA but not under FMLA since they haven't actually said not to the FMLA yet, it is still up in the air.
Customer: replied 1 year ago.

this just gets better and better, the veterans affairs have just diagnosed me with PTSD and some other stuff because of what I've been through in the Military with a screening they did... they prescribed medication already. do i have to tell them at work about this really cause i wanna know if it could affect me being medically discharged. they have about 6 other things they have to check buy they are all minor with my disabilities but I'm wondering how that affects anything.

Expert:  Dwayne B. replied 1 year ago.
You probably should tell them about it but you need to be able to explain how it affects you at work. If it doesn't affect you at work then there is no need to share it with them.
Customer: replied 1 year ago.

it only affects me if I take the medication, which I don't plan to do especially at the moment. there are some harsh side effects.... nausea dizziness, drowsiness etc.... Ill basically be out of it. so I don't plan to take it. even though the doc office re-sent the med questionnaire for clarification I wonder what could be a good response to that. cause that questionnaire is obviously a counter to the fmla. at this point i would only have to appeal to the civil service if they push for a termination cause they can't medically separate me like they had planned.

Customer: replied 1 year ago.

its weird because in the fmla paperwork it says after the approval they can ask for a medical questionairre and they can ask for another opinion from another doctor. they are now trying to get a doctor to speak with my doctor instead of having me to see a doctor for a second opinion. i dont think they can do that. because if i disagree with that doctors opinion we are supposed to agree on a third doctor. im gonna review the fmla paperwork but i didnt think they could do that. they want me to sign something authorizing their doctor to speak with mine. i feel like thats goin to far with it on their part.

Expert:  Dwayne B. replied 1 year ago.
I don't think that a "second opinion" which is allowed is just a matter of their doctor talking to yours. There needs to be an exam. However, I think that it actually would benefit you since if they just have the doctor talk to your sand then refuse to honor the FMLA that's a pretty good way to show bad faith on their part if you have to sue.
Customer: replied 1 year ago.

it says an employer can only request authenticity if the certification is incomplete and after they have given me an opportunity to correct the discrepancies if there are any. July 18th is the day they gave it to me to have completed so I wrote that as the date for the medical certification. i signed july 19th. they want me to change july 18th to july 30th on a new document, because thats the day the doc signed it, and thats a part of their game plan. its to have me to refuse to sign it and give authorizaton so they can deny the whole thing. i researched it, but i think its somethin else to it. The medical questionnaire. That same question, can he meet the log in time.. ( and then lie saying i have an hour and 20 minutes available when its really only 19 minutes.)

Expert:  Dwayne B. replied 1 year ago.
The ADA allows a second opinion, I thought FMLA did as well.
Customer: replied 1 year ago.

FMLA allows a second and a third opinion. I have read it. They are trying to negate the first opinion, which is the reason for the medical questionnaire. The question is can I perform all functions. Yes = termination, no = medical separation. They want either a yes or no answer which they could not get from the medical quesitonnaire. so they are calling my doc to speak with him and get a yes or no answer and im going to request all shared information. i cant figure out why they are trying to speak with him versus getting something on paper. that is very curious to me.

Expert:  Dwayne B. replied 1 year ago.
It's unusual.

We are going to have to close this question thread. It is starting to get so long that it is no longer opening properly on the expert side.

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