UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LORIE SANHUEZA,

Plaintiff-Appellant,

v.

No. 98-1788

DILLARD DEPARTMENT STORES,

INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, Chief District Judge.

(CA-97-98-3-MU)

Argued: March 2, 1999

Decided: April 29, 1999

Before WILKINSON, Chief Judge, KING, Circuit Judge,

and LEE, United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Roger Wade Rizk, ROGER W. RIZK, P.A., Charlotte,

North Carolina, for Appellant. Jacob John Modla, HAYNSWORTH,

BALDWIN, JOHNSON & GREAVES, L.L.C., Charlotte, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Lorie Sanhueza brought suit against her former employer, Dillard

Department Stores, Incorporated, claiming that Dillard fired her in

retaliation for filing a workers' compensation claim. The district court

granted Dillard's motion for summary judgment. Because we agree

with the district court that Sanhueza does not raise a triable issue of

fact as to whether Dillard fired her because of her claim, we affirm.

I.

In 1993 Sanhueza was employed in Dillard's Distribution Center

in Charlotte, North Carolina receiving and checking merchandise. In

May 1993 Sanhueza complained of hand and arm pain to the Center's

Personnel Manager, who instructed her to obtain a medical examination. Sanhueza's doctor diagnosed her with carpal tunnel syndrome

and ordered her to cease working until she could have corrective surgery. Sanhueza filed a claim for workers' compensation benefits on

June 23, 1993 and took a six-month leave of absence effective July

6, 1993.

After Sanhueza recovered from her surgery, she attempted to return

to Dillard. Because the Distribution Center had little work, Dillard

placed her in the shipping department of one of its department stores

in the Charlotte area. Unfortunately, Sanhueza's pain returned. Sanhueza's doctor instructed her to avoid using her hands for lifting, pulling, pushing, or carrying in a repetitive manner.

With these restrictions in mind, Dillard and Sanhueza discussed

jobs in which she might be interested. Sanhueza listed security guard,

quality control person, sales representative in the children's department, and cologne sprayer in the cosmetics department. All of these

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positions were unavailable, however, and Sanhueza remained on

leave.

Sanhueza made one more attempt to return to work on November

30, 1993, but her doctor's restrictions were still in effect and her preferred jobs remained unavailable. When Sanhueza's six-month leave

ran out on January 7, 1994 and she still could not return to work, Dillard terminated her employment.

After receiving her right to sue letter from the North Carolina

Department of Labor, Sanhueza filed suit in North Carolina state

court alleging wrongful discharge and intentional infliction of emotional distress. Sanhueza claimed that Dillard terminated her because

she filed a workers' compensation claim in violation of N.C. Gen.

Stat. § 95-241(a)(1). Dillard removed the action to the United States

District Court for the Western District of North Carolina, which dismissed Sanhueza's emotional distress claim and granted summary

judgment to Dillard on her wrongful discharge claim. Sanhueza

appeals only the latter ruling.

II.

North Carolina law prohibits any person from discriminating

against an employee because that employee in good faith files or

threatens to file a workers' compensation claim under the North Carolina Workers' Compensation Act. N.C. Gen. Stat.§ 95-241(a)(1). We

agree with the district court that Sanhueza cannot show she was fired

because she filed a workers' compensation claim.

Far from spurning Sanhueza after she filed her claim, Dillard struggled to accommodate her. Because there was little to do at the Distribution Center where Sanhueza was originally employed, Dillard

worked to locate a position for her at one of its department stores.

When Sanhueza's condition made it difficult for her to continue in

this new position, Dillard asked her what other jobs she might like to

have. Although Sanhueza listed several options -- security guard,

sales representative, cologne sprayer, and quality control person -- it

is undisputed that each one was unavailable. Dillard contracted with

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an outside firm to provide its security. Moreover, all sales positions,

including cologne sprayer, were under a hiring freeze at the time.

Finally, the quality control positions were entirely full.

In addition, there is ample evidence that Dillard does not fire people simply because they file workers' compensation claims. Dillard

introduced unchallenged evidence that in the last few years the company has continued to employ multiple individuals after they filed

such claims. Indeed, one employee filed four claims, and three others

filed two each. All were employed by Dillard at the time the district

court granted summary judgment.

In the face of this evidence, Sanhueza claims that Dillard demonstrated a discriminatory intent by failing to consider more than one

department store when it tried to place her and by firing her immediately upon the expiration of her leave. Dillard, however, introduced

unrefuted evidence that in both instances it treated Sanhueza just as

it does all of its employees.

In sum, Dillard fired Sanhueza because it had no work that she

could perform, not because she filed a workers' compensation claim.

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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