Thompson v. Cendant Corp.

130 F. Supp. 2d 1255, 2001 U.S. Dist. LEXIS 4211, 2001 WL 179783
CourtDistrict Court, N.D. Oklahoma
DecidedFebruary 5, 2001
DocketNo. 99-CV-1060-C
StatusPublished

This text of 130 F. Supp. 2d 1255 (Thompson v. Cendant Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. Cendant Corp., 130 F. Supp. 2d 1255, 2001 U.S. Dist. LEXIS 4211, 2001 WL 179783 (N.D. Okla. 2001).

Opinion

[1257]*1257ORDER

H. DALE COOK, Senior District Judge.

Before the Court is the motion for summary judgment filed by Cendant Corporation pursuant to Rule 56 F.R.Cv.P. The defendant contends that there exists no genuine issue of material facts and that it is entitled to summary judgment as a matter of law.

On December 13, 1999, plaintiff Sara-beth Thompson filed the present action against Avis Rent A Car System, IncJAvis) and Cendant Corporation (Cen-dant). The suit was filed under federal question jurisdiction, pursuant to 28 U.S.C. § 1331, and pendent jurisdiction for a state claim. The requested relief arises under the Americans With Disabilities Act (ADA) 42 U.S.C. § 12101, et. seq., Age Discrimh nation in Employment Act of 1967 (ADEA), as amended 29 U.S.C. § 621 et. seq., and a state law claim for Intentional Infliction of Emotional Distress. On January 31, 2000, the parties stipulated that Avis Rent A Car System, Inc should be dismissed from the lawsuit.

Cendant filed its motion and brief with supporting exhibits and Thompson has filed her response with supporting exhibits. After consideration of the briefs, exhibits, arguments of the parties and applicable law, the Court finds and concludes as follows.

Undisputed Statement of Facts

I. Plaintiff Sarabeth Thompson (Thompson) was hired by Avis on November 9, 1987, as a telephone reservation sales agent. As a sales agent her job was to respond to customer inquiries and coordinate car reservations. Thompson was 50 years old at the time she commenced her employment with Avis.

2.In August 1994, Thompson was diagnosed as suffering from Bell’s Palsy, a neurological disorder which causes Thompson’s facial muscles to retract, rendering speech difficult or impossible. The facial retractions and impairment can last in duration from a few hours to several days. During these episodes, Thompson describes her physical appearance as “horrible looking.” The onset of these retractions is random and unpredictable. The disease is permanent, progressive and chronic.

3. In 1996, Thompson was diagnosed as suffering from fibromyalgia, which is a progressively degenerative disease which impairs muscular coordination and impedes plaintiffs ability to walk.

4. As a reservation sales agent, Thompson was required to know Avis rental policies and procedures and be able to communicate with customers over the telephone in a clear and concise manner.

5. During Thompson’s employment with Avis she also worked briefly in corporate accounts placing telephone calls to companies soliciting their business with Avis, and in the cash qualifications department doing credit checks and verifying references. Both these positions required Thompson to communicate by telephone. Over 90 percent of Thompson’s work at Avis involved telephone communications.

6. Thompson admits that during her episodes with Bell’s Palsy, she could not perform the essential functions of her job as a reservation sales agent and there were no accommodations that her employer could make which would allow Thompson to perform her job as a reservation sales agent.

7. On December 31, 1998, Avis merged with Cendant and Thompson became an employee of Cendant.

8. Cendant’s attendance policy provides that an employee is subject to termination if the employee’s absences reach/exceed 100 hours in a rolling 12-month period. The 100 hours is in excess of absences accumulated under the Family Medical Leave Act (FMLA).

9. In August 1998, Thompson had used her eligible FMLA absences from work and had incurred 101.25 additional hours of year to date absences.

[1258]*125810. On August 14, 1998, Thompson’s supervisor conferred with her, and warned her that her absences were excessive.

11. On August 20, 1998, Thompson was again advised by her supervisor that absences in excess of 100 hours would subject Thompson to termination.

12. On September 8, 1998, Thompson’s absences exceeded 100 hours and she was issued a warning and “Final Notice” of excessive absences. On that date, Thompson executed a document acknowledging being advised of 1) actions needed to avoid putting her job in jeopardy, 2) absences of 101.25 hours, and 3) improvements needed to continue employment with Avis.

13. On December 23, 1998, Thompson was again counseled by her supervisor to discuss her absences from work. On that date, Thompson’s absences totaled 128.25 hours. Her supervisor “asked her to use extreme caution as she needed to drop below 100 hours as soon as she can.”

14. Cendant terminated Thompson on May 3, 1999. As of the date of termination, Thompson had incurred in excess of 200 hours of absences. Cendant’s stated reason for termination of Thompson was her excessive absences from work.

15. After termination, Thompson filed for retirement benefits with the Social Security Administration in early May 1999.

16. In May 1999, Thompson applied for admission to a senior citizen disability complex, a federal housing project, where she currently resides. Since termination Thompson has suffered from episodes of fibromyalgia which has rendered her bed-fast for periods of up to three months.

17. In October 1999, Thompson applied for a telemarketing position with Collins Street Bakery in Corsicana, Texas. Thompson was not offered the position. Thompson then filed for total disability benefits with the Social Security Administration in October 1999, and was approved for disability payment commencing March 2000.

18.Thompson was 61 years old at the time of her termination. Since termination from Cendant, Thompson has had no further employment.

Allegations of the Parties

Thompson contends that Cendant terminated her because of her disability. Thompson’s claim for disability discrimination rests solely on her affliction with Bell’s Palsy; she makes no claim of disability discrimination based on her affliction with fibromyalgia. Thompson contends there is no evidence that her fibromyalgia precluded her from employment with Cendant. Although Thompson admits that she was unable to perform the essential function of her job as a reservation sales agent during her episodes with Bell’s Palsy, Thompson contends that Cendant should have reasonably accommodated her disability by providing her with alternative work such as supervising other sales agents, paperwork and filing when she was experiencing episodes of Bell’s Palsy. Thompson also contends that Cendant should have reasonably accommodated her by allowing her unpaid absences during a flare up with Bell’s Palsy. Thompson further contends that her employer had provided her with accommodations since August 1994, and that suddenly in May 1999, Cendant no longer offered the accommodations and terminated her.1 Thompson contends that Cendant’s termination of her was due to her disability and not due to her absences from work.

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130 F. Supp. 2d 1255, 2001 U.S. Dist. LEXIS 4211, 2001 WL 179783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-cendant-corp-oknd-2001.