The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
On August 31, 2004, Plaintiff Constance Swanigan ("Swanigan"), as part of a proposed class, brought this discrimination action alleging that she was wrongfully terminated by Defendant in violation of 18 U.S.C. § 1981.*fn1 Pending is Defendant's Motion for Summary Judgment with Respect to All Claims Brought by Constance Swanigan (Doc. No. 114). Swanigan has responded (Doc. No. 135).
Plaintiff, who began working for Defendant in August 1999, argues that she was wrongly terminated on October 19, 2001 because of her race. Defendant maintains that Plaintiff was dismissed for excessive absenteeism in violation of company policy.
On May 19, 2001, Swanigan was given an initial written warning for disrupting work.*fn2
Then, on August 28, 2001, Human Resource Manager Frank Richardson ("Richardson"), a white male, gave Swanigan a final written warning for using vulgar and offensive language towards her co-workers and for again disrupting the workplace.*fn3 Defendant's progressive discipline policy provides that if an employee receives any written discipline while on an active final warning, the employee will be discharged.*fn4 Warnings are in effect for one year from the date issued.*fn5
Swanigan's shift supervisor Doris Windmon ("Windmon"), an African-American female, was charged with notifying the department secretary if an employee is absent.*fn6 According to Defendant's attendance records, Swanigan missed work nine times during the six months before her termination.*fn7 Swanigan maintains that some of her absences were due to doctor's visits. In particular, Swanigan had a worker's compensation related doctor's appointment scheduled for October 17, 2001.*fn8 However, Defendant maintains, and Swanigan does not dispute, that the appointment was scheduled for the morning so that it would not conflict with Swanigan's second-shift schedule.*fn9 Swanigan could not recall how many absences she had before her termination, but she thought it was under five.*fn10 Swanigan maintains that she logged her absences on a calendar, but she could not produce either the calendar or any evidence documenting her absences.*fn11
Defendant's attendance policy states that employees will face termination if they accrue more than five unexcused absences in a six-month period.*fn12 An exception exists, if an employee is absent to attend a doctor's appointment made by the company for treatment for a worker's compensation injury.*fn13 Defendant applies the attendance policy equally to all employees.*fn14
The attendance policy is included in Defendant's employee handbook, which is distributed to all employees.*fn15 Swanigan admits that she received a copy of the handbook, read, and understood the attendance policy.*fn16
Because Swanigan already had a written final warning, when Richardson became aware of Swanigan's absences, he made the decision to fire her.*fn17 Windmon informed Swanigan that she had been fired and explained that it was because of her excessive absences.
Swanigan filed a charge of discrimination with the EEOC and was sent a Right to Sue notification on February 4, 2003.*fn18
Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided on purely legal grounds.*fn19 The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because ...