UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HEIDI SONNICHSEN,
Plaintiff-Appellant,

v.                                                             No. 95-1866

SEARS, ROEBUCK AND COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CA-94-48-H2-4)

Argued: April 3, 1996

Decided: January 9, 1997

Before WIDENER, MURNAGHAN, and WILLIAMS,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Ralph Thomas Bryant, Jr., Morehead City, North Caro-
lina, for Appellant. James Bernard Spears, Jr., HAYNSWORTH,
BALDWIN, JOHNSON & GREAVES, P.A., Charlotte, North Caro-
lina, for Appellee. ON BRIEF: Stephen D. Dellinger, HAYNS-
WORTH, BALDWIN, JOHNSON & GREAVES, P.A., Charlotte,
North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The plaintiff, Heidi Sonnichsen, filed suit against the defendant,
Sears, Roebuck and Company, on April 15, 1994 and alleged gender
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e
et seq. Since 1990, Mrs. Sonnichsen has been an employee of the
automotive department of the Morehead City, North Carolina Sears
store. She was initially hired part-time as a greeter for the department,
but she became a full-time employee in 1992. In May 1993, Mrs.
Sonnichsen was not promoted to the position of Auto Center Man-
ager, and she subsequently filed EEOC charges and later, this suit.
The district court granted summary judgment in favor of Sears and
the plaintiff appeals. We affirm.

Mrs. Sonnichsen alleged that the automotive department manager,
Clay Braddy, told her in January 1993 that he would recommend her
for his position when he left the department. When Mr. Braddy left
the department, the store manager, Robert Schulz, promoted Craig
Simmons, who had supervisory experience, to the position. Mrs. Son-
nichsen alleged that she was more qualified than Mr. Simmons
because he had not worked in the automotive department yet she had
been there since 1990. She alleged that Schulz's reason for not pro-
moting her was that he could not put her in charge of her peers. She
also alleged, however, that Mr. Braddy had been promoted to the
position from within the department and that normal or common prac-
tice was to promote persons with automotive department experience
to the position of automotive department manager. In his deposition
testimony, Schulz stated that he would not promote Mrs. Sonnichsen
to Auto Center Manager because that was a checklist position and she
should have been in a supervisory position before she could be pro-
moted to a checklist position.1 Mrs. Sonnichsen had a job grade level
_________________________________________________________________
1 Schulz identified a checklist position as one in which the employee
received a salary rather than an hourly wage.

                     2
of 7, and the checklist position had a job grade level of 13. Schulz tes-
tified that he considered only employees with a supervisory job grade
of 11 or higher for the checklist manager position.

The district court granted Sears' motion for summary judgment.
The court found that Mrs. Sonnichsen established her prima facie case
of discrimination under the four-part McDonnell Douglas test. See
McDonnell Douglas Corp. v. Green, 

, 802 (1973). The
court found that Mrs. Sonnichsen was a member of a protected class
under Title VII, that she informally applied for the position or at least
expressed an interest to her immediate supervisor and her store man-
ager, that viewing the evidence in the light most favorable to her, she
was qualified for the position, and that despite her qualifications, she
was not promoted. The court then determined that Sears successfully
rebutted the presumption of discrimination by providing a nondis-
criminatory reason why Mrs. Sonnichsen was not promoted to the
position of Auto Center Manager. Finally, the court determined that
Mrs. Sonnichsen failed to show that Schulz's reason for not promot-
ing her was a pretext for intentional discrimination.

We review a grant of summary judgment de novo . In re Bulldog
Trucking, Inc., 

, 1395 (4th Cir. 1995). We have reviewed
the briefs and the record in this case, and after oral argument we are
of opinion that the district court correctly granted summary judgment
for Sears.

We agree with the district court that viewing the evidence in the
light most favorable to Mrs. Sonnichsen, she established a prima facie
case of gender discrimination. Once an employee establishes a prima
facie case of discrimination, a rebuttable presumption of discrimina-
tion is established. Texas Dep't of Community Affairs v. Burdine, 

, 254 (1981). We also agree with the district court that Sears
successfully rebutted this presumption of discrimination. Schulz testi-
fied that he would not promote an employee to the automotive depart-
ment manager position unless that employee had supervisory
experience at Sears and a job grade level of at least 11. That is a legit-
imate business reason for not promoting Mrs. Sonnichsen, a nons-
upervisory employee with a job grade level of 7, and Mrs. Sonnichsen
did not provide evidence that it was not a legitimate business reason.

                     3
Mrs. Sonnichsen is entitled to show that Schulz's proffered reason
was not the true reason for his decision. Burdine, 450 U.S. at 256. To
prove that the offered reason is a pretext for discrimination, she must
show "both that the reason was false, and that discrimination was the
real reason." St. Mary's Honor Center v. Hicks, 

, 515
(1993) (italics are the Court's). The district court found that Mrs. Son-
nichsen did not provide evidence that Schulz's nondiscriminatory rea-
son was a pretext for an intentionally discriminatory reason, and we
agree.

Mrs. Sonnichsen offered evidence that Schulz on one occasion had
promoted an employee from job grade level 7 to job grade level 13
contrary to his statement that he would not make such a promotion.2
The record does not contain evidence of a requirement or company
policy that either required or forbad Schulz to consider nonsupervi-
sory employees for every managerial position. If Schulz did do it
once, he is not required to do it on every occasion.

Mrs. Sonnichsen also appeals the January 11, 1995 order of the
magistrate judge denying her motion to compel certain discovery. She
failed to file objections to the order with the district court within ten
days, therefore her appeal is untimely. Fed. R. Civ. P. 72(a); E.D.
N.C. R. 63.01.

Accordingly, the judgment of the district court is

AFFIRMED.
_________________________________________________________________

2 Interestingly, the employee promoted from a level 7 to a level 13 was
a female employee.

Along the same line, we note that Schulz has been an employee of
Sears for 25 years and a store manager at least since 1991. As store man-
ager, he has promoted 31 employees to supervisory or managerial posi-
tions and of those 31 employees promoted, 25 were female.




                     4