582 F.2d 2
18 Fair Empl.Prac.Cas. 1749, 18 Empl. Prac.
Dec. P 8647
Johnny WILLIAMS, on behalf of himself and other persons
similarly situated, Plaintiffs-Appellants,
v.
DEKALB COUNTY, A Political Subdivision of the State of
Georgia, et al., Defendants-Appellees.
No. 76-2998.
United States Court of Appeals,
Fifth Circuit.
Oct. 10, 1978.
Edward Lundy Baety, Atlanta, Ga., Fletcher Farrington, Savannah, Ga., for plaintiffs-appellants.
George P. Dillard, Herbert O. Edwards, Wendell K. Willard, Decatur, Ga., J. Lewis Sapp, Charles K. Howard, Jr., Atlanta, Ga., for defendants-appellees.
On Petition for Rehearing and Petition for Rehearing En Banc.
(Opinion July 27 (1978, 5 Cir., 1978, 577 F.2d 248)).
Before TUTTLE and CLARK, Circuit Judges, and EDENFIELD,* District Judge.
PER CURIAM:
Upon motion for rehearing, a majority of the court agrees with Judge Clark's special concurring opinion. The opinion is accordingly modified to hold that under the teaching of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), the named plaintiff and the class must make a showing of purposeful discrimination before casting the burden on the defendant to rebut the charge; that a claim under § 1981 is, for this purpose, to be equated with a claim under the Fourteenth Amendment, dealt with by the court in Washington, rather than under Title VII of the Equal Employment Opportunity Act.
That part of the panel opinion headed "Conclusion" (577 F.2d at 256) is therefore deleted from the opinion as are the statements holding that a prima facie case is made by statistics alone. The following "Conclusion" is substituted for the corresponding part of the original opinion:
CONCLUSION
The trial court decided the case before Washington v. Davis, supra, and thus did not find it necessary to determine whether there was purposeful discrimination. The case must be remanded to the trial court to determine whether the plaintiff's evidence including the statistical data established a prima facie case of discriminatory purpose which, if unrebutted, would establish liability. If the court finds that such a prima facie case has been made out, we adhere to our other determinations contained in the original opinion1 and the trial court will then resolve the questions we have set forth there.
The judgment is REVERSED and the case is REMANDED for further proceedings not inconsistent with this opinion.
Judge Tuttle would adhere to the original opinion of the panel.
No member of this panel nor judge in regular active service on the court having requested that the court be polled on rehearing en banc (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12), the Petition for Rehearing En Banc is DENIED.
* U.S. District Judge of the Northern District of Georgia, sitting by designation.
None of the determinations in that opinion have been challenged by the petition for rehearing except that dealing with the standard of proof under § 1981