Huber v. Wal-Mart Stores, Inc.

493 F.3d 1002, 2007 U.S. App. LEXIS 18190, 2007 WL 2121980

Opinion

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied. Judge Murphy, Judge Bye, Judge Melloy, and Judge Smith would grant the petition for rehearing en banc. Judge Gruender, Judge Benton, and Judge Shepherd did not participate in the consideration or decision of this matter.

MURPHY, Circuit Judge, with whom BYE, MELLOY, and SMITH, Circuit Judges, join, dissenting from denial of rehearing en banc.

Because the panel’s opinion renders a statutory provision in the ADA superfluous, overlooks EEOC guidance, and is contrary to the Supreme Court’s admonition in US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002), that preferences are a valid means to achieve the statutory goals, I respectfully dissent from the denial of an en banc rehearing of this case.