Yvonne C. Wilson, Individually and on Behalf of Otherssimilarly Situated, Plaintiff-appellant, v. Monumental Life Insurance Company, Defendant-appellee, 820 F.2d 1220 (4th Cir. 1987)

Yvonne C. Wilson sued her former employer, Monumental Life Insurance Company, alleging that discrimination on the basis of race resulted in her termination from employment. Her cause of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., was dismissed as untimely because the complaint was not filed within 90 days of the notice of right to sue. See 42 U.S.C. § 2000e-5(f) (1). The case proceeded to trial, where the issue was whether Wilson was discriminated against under 42 U.S.C. § 1981. The district court, in a decision from the bench, found that there was no violation. Because the decision was not clearly erroneous, we affirm.

Wilson, who is black, alleged that she was discharged while a similarly situated white employee was not so treated. The district court correctly found that the two employees were not similarly situated: Wilson had a poor attendance record because of health reasons and was placed on disability for an indefinite period. The white employee had far fewer absences and went on a definite, four-week disability when she developed appendicitis. Wilson therefore failed to make out a prima facie case of disparate treatment. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Person v. J.S. Alberici Construction Co., 640 F.2d 916 (8th Cir. 1981).

As the dispositive issues recently have been decided authoritatively, we dispense with oral argument and affirm the judgment of the district court. Monumental's motion to strike portions of the informal brief addressing issues not raised at trial is granted.

AFFIRMED.