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Employment Law/ADA discrimination


My doctor recently wrote a letter stating that I can no longer work front desk night audit (11 p.m. to 7 a.m.) due to my illness (fibromyalgia).  I am employed in the state of Texas.  My GM and AGM first accused me of procuring this job by means of fraud.  I had NO idea that working the night shift caused progression of this disease.  I had not been treated for it in over a decade because when I was diagnosed there was no understanding/treatment for it.  Only recently (3 months ago) have I found a specialist in this area for my treatment and education of this disease.  I have worked the night shift for almost 4 years and had no idea it was detrimental to my condition.  

The only day time positions my GM and AGM will consider letting me work are designated as part time (I am currently a full time employee with benefits) and pay considerably less than a front desk position.  I am not sure what my pay will be when I go to days as there is a shift differential that I will lose, however, I do not know if my pay will be decreased beyond what I would get as a day-time front desk agent.  My AGM & GM mentioned letting me work 5-9 on the front desk once business picks up (usually in the summertime).

As it turns out, the person they hired to replace me on the night audit shift has been trained on the front desk 7-3 shift and as of today, 2-1-13, is working it two days a week.  So far she has not been trained on the 11 p.m. to 7 a.m. shift.  I have been working the night shift since presenting my doctor's letter to management (1-17-13) and am scheduled to work it through 2-2-13.  Our schedules are posted for only one week at a time.

I have 5 1/2 years experience in this industry.  I have to wonder why I am not trained/allowed to work this 7-3 shift 2 days a week along with the part time position they offered me.  (I have never been trained on the 7-3 shift, or any other, even though our GM instituted a cross-training program last fall).  Since the training of the new employee started, I have seen management maybe once at the end of my shift.  I have waited up to 30 minutes past my shift to talk to them about this face to face and even though they're scheduled to start work at 7 a.m. they are still not there.

I feel as though I am being discriminated against because of my disability and that management is attempting to force me out of my employment with them.  (There are other EEOC issues in addition to this.)  Can I quit this job on based on discrimination due to my disability and receive unemployment?


As in most states, in Texas a person may still collect unemployment benefits after a resignation if they can show the Texas Workforce Commission (TWC) that, in essence, the resignation was not truly voluntary.  The following excerpt from the TWC website illustrates the standards applied in such a case:

"•You quit your job for a good well-documented work-related or medical reason. You should be prepared to present evidence that you tried to correct the problem before you quit.
TWC may rule good cause if the work situation would cause a person who truly wants to keep the job to leave it. ◦Examples of possible good cause are unsafe working conditions or a significant change in hiring agreement, or not receiving payment for your work.
◦Examples of medical reasons are quitting on your doctor's advice, or quitting to provide care for a minor child who has a medically verifiable illness if there is no alternative care provider, or quitting to provide care for a terminally ill spouse if there is no alternative care provider. "

This was taken from

As you can see, the burden would be primarily on you to show that your resignation was justified, so I would not advise you to quit your job just yet, unless you already have another one lined up. There are additional facts the TWC would want to consider, beyond what you have presented, most importantly the employer's stated reasons for their handling of this situation.  

I do think there is enough circumstantial evidence to warrant further investigation of your case.  However, the safer course for you would be to contact the U.S. Equal Employment Opportunity Commission (EEOC) to speak with a staff investigator, and consider filing a charge of disability discrimination.  You can find the closest EEOC office here:

Look on the right side of this page, where there is a map of the USA you can use to locate your nearest field office.  

It is often helpful to have an experienced employment attorney represent you even as you are preparing for this step, as he or she will have previous experience dealing with the EEOC on behalf of other clients, and can make the process easier and more effective for you. If you don't know an attorney, your local Bar Association web site will have a page dedicated to a lawyer referral service where you can find an attorney who specializes in employment law.  Just do an Internet search on the name of your county and/or city and the words "bar association referral."  The same attorney can also evaluate whether you have enough facts, now or after an EEOC investigation, to warrant resigning from the job and filing for unemployment compensation.

I hope this helps and I wish you the best in resolving your situation.

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Frank C. Magill


I can answer questions about any U.S. labor or employment law question. I cannot answer questions about non-US law. I am not a specialist in employee benefit law (ERISA and HIPAA) or Workers' Compensation law, but will do my best to point questioners toward good resources availabe online. Expertise includes, without limitation, EEO/Affirmative Action/Employment discrimination (Title VII, Age Discrimination in Employment Act, Americans With Disabilities Act, GINA, Fair Credit Reporting Act as applied to employment); Fair Labor Standards Act; Texas labor code; Family Medical Leave Act; employee compensation; discipline and dismissal; force reductions, severance pay programs and administration; collective bargaining, union representation, grievances and arbitration, National Labor Relations Act and National Labor Relations Board; employee handbooks; staffing; dispute resolution outside of traditional labor agreements; employee communications; employment policies and compliance programs; codes of ethics; employment or labor litigation.


30+ years experience as corporate counsel for a Fortune 100 telecom company, specializing in labor and employment law issues. In addition to providing day-to-day advice to my company's internal HR leadership and staff, I've represented the company in numerous labor arbitration cases and at the bargaining table.

Texas, Illinois and Missouri state bars

J.D. 1979, Harvard Law School. B.A., Summa Cum Laude, 1976, Illinois Wesleyan University.

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