April 17, 1980
OLD BEN COAL COMPANY
Before FAIRCHILD, Chief Judge, SWYGERT, CUMMINGS, PELL, SPRECHER, TONE, BAUER, WOOD, and CUDAHY, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*
The opinion in the case, issued February 4, 1980, is modified as follows:
Slip Opinion page 7, second paragraph line 15, add to end of sentence now ending "the employer was seeking applicants...."
"and that after her rejection the employer continued to seek applicants from persons of qualifications comparable to plaintiff's."
Slip opinion page 8, lines 7-10. Delete sentence reading "Thus, a Title VII plaintiff must foreclose this possible explanation for a hiring decision before her prima facie case is established. n.5 [footnote omitted] " And replace it with
"A Title VII plaintiff must show that the employer was seeking applicants of qualifications comparable to plaintiff's. McDonnell Douglas, 411 U.S. at 802, 5 FEP Cases at 969. The employer here consistently sought applicants for unskilled positions with mining related experience. The mere labeling of the job as unskilled does not make all applicants qualified within the meaning of McDonnell Douglas. The evidence fails to show that defendant ever sought or hired anyone with experience comparable to plaintiff's. Plaintiff has shown nothing more than she applied for a job labelled unskilled and she was rejected. This does not constitute a prima facie showing. n.5 [footnote omitted]
Slip opinion page 8, footnote 5, third paragraph, second line from the end of the paragraph between "was" and "as" add the word "relatively." That is, the last sentence of this paragraph would now read:
"There is no reason to relieve plaintiff of the burden of showing she was relatively as qualified as those hired."
On consideration of the petition for rehearing and suggestion for rehearing in banc filed in the above-entitled cause as amended, a vote of the active members of the Court was requested, and a majority*fn** of the members of the Court have voted to deny a rehearing in banc, and a majority of the judges on the original panel have voted to deny a rehearing.**fn**
IT IS ORDERED that the aforesaid petition for rehearing, and suggestion that said petition be reheard in banc be, and the same is hereby, DENIED.