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50 Fair empl.prac.cas. 1728, 44 Empl. Prac. Dec. P 37,362 A.M. Jatoi, Md v. Hurst-Euless-Bedford Hospital Authority
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinion January 14, 5th Cir.1987, 807 F.2d 1214)
Before CLARK, Chief Judge, REAVLEY, and WILLIAMS, Circuit Judges.
PER CURIAM:
On Petition for Rehearing the panel modifies its opinion to include the test for racial discrimination in § 1981 cases announced by the Supreme Court in Saint Francis College, et al. v. Al-Khazraji, — U.S. -, -, 107 S.Ct. 2022, 2026, 95 L.Ed.2d 582 (1987). In St. Francis the Supreme Court explained that “a distinctive physiognomy is not essential to qualify for § 1981 protection.” This test modifies the statement in our original opinion that a plaintiff must allege he suffered discrimination based on his membership in a group that is ethnically and physiognomically distinct. 807 F.2d at 1218.
On remand defendant Methodist Affiliated Hospitals will have the opportunity to seek dismissal of the case against it based on the assertion it made to this Court that no evidence has connected it to Dr. Jatoi’s claims..
No member of this panel nor Judge in regular active service on this Court having requested that the Court be polled on rehearing en banc, (Federal Rules of Appellate Procedure and Local Rule 35) the Suggestion for Rehearing En Banc is DENIED.