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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 97-11135
__________________
RICHARD CASAREZ,
Plaintiff-Appellant,
v.
BURLINGTON NORTHERN/SANTA FE COMPANY,
Defendant-Appellee.
______________________________________________
Appeal from the United States District Court for the
Northern District of Texas
______________________________________________
January 14, 2000
ON PETITION FOR REHEARING AND REHEARING EN BANC
(Opinion 10/18/99, 5th Cir., _______, _______F.3d _______ )
Before JOLLY, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:
We have carefully examined Burlington's arguments in its
request for rehearing and find nothing to undermine our previous
determination that a fact issue exists with respect to whether a
discriminatory motive underlay Casarez's termination. We find no
merit in Burlington's arguments favoring judgment as a matter of
law, as they overlook several salient facts. First, the company
had advertised to replace Casarez even before the alleged
deficiencies in his job performance arose. Second, he was the only

Hispanic employee working in this area. Third, he was assigned
menial tasks rather than the supervisory duties he was accustomed
to performing. Finally, with respect to the alleged altercation
with co-workers at Zacha Junction, Lou Rees, Casarez's supervisor,
never told Casarez that complaints had been made about him and
never investigated the situation. It is clear that Casarez has met
his burden under the first prong of Rhodes by creating a factual
question as to what actually motivated Burlington to terminate his
employment.
The Petition for Rehearing is DENIED and 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, (FED.R.
APP.P. and 5TH CIR. R. 35) the Petition for rehearing En Banc is also
DENIED.
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