UNPUBLISHED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Affirmed by unpublished per curiam opinion.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 Car-
olina, 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Unpublished opinions are not binding precedent in this circuit.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 examina-
tion. Sanhueza's doctor diagnosed her with carpal tunnel syndrome
and ordered her to cease working until she could have corrective sur-
gery. 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. San-
hueza's doctor instructed her to avoid using her hands for lifting, pull-
ing, 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 depart-
ment, 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 pre-
ferred jobs remained unavailable. When Sanhueza's six-month leave
ran out on January 7, 1994 and she still could not return to work, Dil-
lard 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 emo-
tional 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 dis-
missed 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 Caro-
lina 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 strug-
gled to accommodate her. Because there was little to do at the Distri-
bution 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 peo-
ple simply because they file workers' compensation claims. Dillard
introduced unchallenged evidence that in the last few years the com-
pany 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 demon-
strated a discriminatory intent by failing to consider more than one
department store when it tried to place her and by firing her immedi-
ately 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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