Dulin v. Bd. of Comm'rs of the Greenwood LeFlore Hosp.

Full title: GEORGE DULIN, Plaintiff - Appellant v. BOARD OF COMMISSIONERS OF THE…

Court: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Date published: Sep 15, 2011

657 F.3d 251 (5th Cir. 2011)

94 Empl. Prac. Dec. P. 44300

113 Fair. Empl. Prac. Cas. 524

Opinion

No. 10–60095.

2011-09-15

George DULIN, Plaintiff–Appellant,v.BOARD OF COMMISSIONERS OF the GREENWOOD LEFLORE HOSPITAL, Defendant–Appellee.

Jim D. Waide, III, Waide & Associates, P.A., Tupelo, MS, for Plaintiff–Appellant.Susan Fahey Desmond, Jackson Lewis, L.L.P., New Orleans, LA, Karen Gwinn Clay, Watkins, Ludlam, Winter & Stennis, P.A., Jackson, MS, for Defendant–Appellee.Appeal from the United States District Court for the Northern District of Mississippi.

Before BARKSDALE, CLEMENT and PRADO, Circuit Judges.

Jim D. Waide, III, Waide & Associates, P.A., Tupelo, MS, for Plaintiff–Appellant.Susan Fahey Desmond, Jackson Lewis, L.L.P., New Orleans, LA, Karen Gwinn Clay, Watkins, Ludlam, Winter & Stennis, P.A., Jackson, MS, for Defendant–Appellee.Appeal from the United States District Court for the Northern District of Mississippi.

PER CURIAM:

ON PETITION FOR REHEARING

The petition for rehearing is GRANTED. We WITHDRAW our earlier opinion, Dulin v. Board of Commissioners of Greenwood Leflore Hospital, 646 F.3d 232 (5th Cir.2011), in its entirety, and substitute the following:

We have reconsidered our opinion in the light of the Supreme Court's holding in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) that a “plaintiff's prima facie case [of discrimination], combined with sufficient evidence to find that the employer's asserted justification [for termination] is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Upon reconsideration, we now conclude that there is a triable issue of fact that requires a jury to decide fact and credibility issues. See id. at 150, 120 S.Ct. 2097 (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (internal quotation

marks omitted)). We hold that the district court reversibly erred in granting judgment as a matter of law under Federal Rule of Civil Procedure 50(a) to the Board of Commissioners on Dulin's claim under 42 U.S.C. § 1981. Consequently, the judgment of the district court is VACATED, and the case is REMANDED for further proceedings consistent with this order.