Termination of a Disabled Employee

My question involves labor and employment law for the state of: Texas

Hello,

I know brevity is the soul of wit; I must just be dull-witted. Apologies in advance; it's a sticky case.

I have two work-related situations for which I need counsel.

First of all, I was forced to resign my job as a high school teacher in February which would go into effect at the end of my contract year (which ends this Friday, June 6).

There are some mitigating factors, both in their favor and mine, within the case:
a) My "final act" that they may claim when I file for unemployment was solely a he-said-she-said (literally) disagreement, although I was punished and made to apologize in written form and take flowers to the woman by my principal.
b) I have been ill most of the year and am currently on disability leave. The last few months I hung on at work, my work admittedly suffered, but I told my principal that it was due to my illness.
c) There were days when I did not come to work and failed to report it, thus my boss has called those "fraud", despite my not really having control mentally and physically at the time to report them. They also have not pursued any legal action against me for those days, as of yet.
d) Their reason for firing me (forcing my resignation) was that I was not the "right fit" for this school and would do better somewhere else. I was not given one specific reason, although the aforementioned, unwitnessed, altercation was the last thing that occurred before my termination
...these next two are harder to prove, but...
e) My disability leave was treated differently from other employees' in the past, and whereas all contact has been cut off to me by the district, I know they did not enforce that against other employees in the past
and f) I feel that my boss created an environment--through constant hovering and micromanaging, and not even listening to or believing my side of reports (she instructed me to do penetential things like write abject apology letters to people I did not owe an apology)--in which I was unable to succeed and felt bullied. She was also harder on me while trying to "bring me back in line" than she was with other employees who were not in trouble. Also, I had told her more than once that her methods of "fixing" me were antithetical to her purposes, and that they were making me feel less able to do my job.
f) I was on a probationary contract this year.
g) The principal claims in one of my two disciplinary write-ups that I broke district policy...where it was, she didn't know at first; I had never been told to read it or where it was; I was following the common practice of those in my position in the past; and when she did let me know where it was, it *was not there*, at all, in printed form, whatsoever.
h) She still has "failure to follow policy" and a notice of the unwitnessed altercation on my permanent record, both with the district, and also on my employee performance review.

And as far as disability goes, I have long-term disability insurance through my employer, but am I right in assuming that once my contract is over, I no longer have access to those benefits? And I don't think I can claim disability through the SSA because schools don't pay into SS.

Sorry, but this is a tricky case, at least from my perspective, and I believe that they will seek to deny me unemployment, even if there is no viable wrongful termination suit (could there be?).

Thank you so much for your time and advisement.

And as far as disability goes, I have long-term disability insurance through my employer, but am I right in assuming that once my contract is over, I no longer have access to those benefits? No. You are not right. While the eligibility for benefits is determined by the actual LTD policy itself and not law, in 35 years of administering employer-sponsored benefits I have yet to see an LTD policy that determined eligibility on the basis of your employment status on the date you applied for LTD benefits. Just about 100% of the policies I've ever seen or heard of determined eligibility on the basis of your employment status on the date of the onset of your disability. There would be no point to even having such a thing as an LTD policy if that were not the case since by law, an employer can legal fire an employee after their FMLA expires. FMLA expires after 12 weeks. I've never seen an LTD policy that went into effect after less than 13 weeks, and most of them don't go into effect until 26 weeks.

So, moving on. Before I address your questions, please tell me how much time you have missed in the past 12 months due to this condition, and what, if anything, your contract says about medical leave.

Hi

Thank you for your help. Prior to my taking disability leave, I had missed somewhere around 20-25 days of school.

Can you be more specific as to what I might look for while reading the medical leave sections? I've read it recently, but there's a lot of information there.

Thanks again.

That isn't what I asked for. I need to know how much time you have missed including your disability leave.

What you want to be looking for in your contract is anything that suggests you are GUARANTEED more time than is provided by law, or anything to suggest that you are entitled, by the terms of the contract, to X amount of time.

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While you're looking that up, let me talk about unemployment for a bit. Your employer does NOT decide whether you get unemployment or not. They have the absolute right to contest, just as you have the absolute right to file, and whichever one of you loses has the absolute right to appeal. But the state, and only the state, decides whether or not you're eligible.

However, one of the requirements for collecting UI is that you must be able to work, actively looking for work, and be available to accept work if offered. Being on LTD indicates that you are NOT able to work, which means that as long as you are collecting LTD, you are NOT eligible for unemployment, regardless of what your employer says. You should still apply, because you want to set up your claim and have it established for when you ARE able to work. But you will not be able to collect benefits as long as you are on LTD.

10-4

My illness makes me very dense at times, which is frustrating for someone who's supposed to be very intelligent. :-(

Ah. As I said, my illness makes me very dense at times, so I thank you for putting up with me very much.

I have missed two months already due to medical leave; I know I'm entitled to a third. There is also 180-day leave eligible to employees, but since I resigned, I don't know if I can apply for that. Additionally, I don't know if I can apply for long-term disability (coverage I currently have) after my contract has run out, although I have elected to receive benefits through August...

As for the unemployment part: right. I simply expect them to say all the right things to get me denied; it's not their first rodeo. And as soon as I go off disability, I would/should be eligible, correct?

It's the seeming complexity of the situation which has me both confused as to what reason I should give for qualifying, and how they may counter.

You're not quite getting it. If you're too ill to work, your employer doesn't have to say a word; you're going to be denied even if your employer submits a signed and notarized statement to the effect that they want you to receive benefits and they don't mind if their account is charged. If you are unable to work, you don't qualify. But yes, once you are medically cleared for work, I would anticipate your being able to collect benefits then.

A few things; there are no circumstances whatsoever under which your employer is required to accept sub-standard work. If your work suffered it doesn't matter if it's due to your illness or not; the employer does not have to tolerate it. They may LEGALLY discipline you for poor performance EVEN IF it is work related.

You have not said enough for me to know if the Americans with Disabilities Act applies here. Not all or even most illnesses do. But IF the ADA applies, then it is your responsibility to tell your employer that you need an accommodation to get your work done. Multiple courts have ruled that an employer is not liable for failure to accommodate a disability that they have not been advised of. One more time to make sure it's clear - NOT EVERY ILLNESS QUALIFIES FOR ADA ACCOMMODATIONS. The fact that they know you are ill does not mean that the ADA applies or that they are aware that you need an accommodation. The definition of disability for the ADA and the definition for your disability benefits is NOT the same.


Not coming to work and not reporting it may not be "fraud" but it is nonetheless a fire-able offense.

You haven't posted anything that stands out and shouts, "This is illegal and the OP was wrongfully terminated". I see a couple of things that are questionable but you don't have anything resembling a strong case for wrongful termination - or anything else, for that matter. But I have read neither your contract nor your LTD policy and it's possible - not likely, but possible - that there's something in there that makes a difference. Take both documents to a Texas attorney and see what they think. But I wouldn't hold my breath expecting a whole lot.

I guess my questions can be summed up neatly into these three, with supporting information in the original post:

1) Is there sufficient evidence, based on what I've listed, for a wrongful termination case?

2) Is there sufficient evidence, based on what I've listed, for a defamation and/or fraud case against my assistant?

3) What avenues may exist for me, in my situation, for receiving any kind of pay supplementation during my unemployment (which should be at least 1 yr)?

Thank you so much to anyone who will respond--my livelihood depends on it :-)

1.) No

2.) No

3.) Your best bet is the LTD policy.

Hi...I do understand that illness procludes me from unemployment. My illness is listed under the ADA. I may be going off of disability shortly.

Unfortunate that my firing is completely legitimate, even as rudely as it was handled

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Re: 1) 2) 3)

Okay