The opinion
OPINION ON REHEARING
On March 19, 1979, this Court granted summary judgment in favor of the defendant, and entered a judgment. On March 23rd, 1979, the plaintiff filed a motion to vacate that judgment, and later, on April 11, 1979, the plaintiff filed a notice of appeal. The Court is faced with the preliminary question of whether it has jurisdiction to consider the motion to vacate judgment, because the filing of a notice of appeal usually divests the District Court of jurisdiction. Turner v. HMH Publishing Co., 328 F.2d 136 (5th Cir. 1964).
A motion to alter or amend a judgment [Fed.R.Civ.Pro. 59(e)] or a motion for new trial [Fed.R.Civ.Pro. 59(b)] filed within ten days of the entry of judgment suspends the time for filing a notice of appeal. Fed.R.App.Pro. 4(a). A motion for relief from judgment filed more than ten days after the .entry of judgment under Rule 60(b) does not suspend the time for filing a notice of appeal. Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382 (5th Cir. 1978). 1
The Court should liberally construe motions filed within ten days after the entry of judgment, and if they seek relief from the judgment, they should either be interpreted as motions for new trial or motions to alter or amend the judgment, thus suspending the time for appeal. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kurtenbach, 525 F.2d 1179 (8th Cir. 1975) (motion for “reconsideration” and “clarification” under Rule 60(b) filed three days after entry of judgment construed as Rule 59(e) motion; “nomenclature is not controlling”); Jones v. Nelson, 484 F.2d 1165 (5th Cir. 1973) (motion for new trial after summary judgment entered is technically incorrect, but Court construes as proper motion under Rule 59, and time for appeal is suspended); Theodoropoulos v. Thompson-Starrett Co., 418 F.2d 350 (2d Cir. 1969), cert. den’d, 398 U.S. 905 , 90 S.Ct. 1697 , 26 L.Ed.2d 65 (1970) (motion to vacate dismissal for lack of prosecution, filed 10 days of the entry of judgment, equitably construed as motion under Rule 59); Vine v. Beneficial Finance Co., 374 F.2d 627, 632 (2d Cir.) cert, den’d, 389 U.S. 970 , 88 S.Ct. 463 , 19 L.Ed.2d 460 (1967). Plaintiff’s motion to vacate judgment, equitably construed, is a motion under Rule *1118 59(e) to alter or amend the judgment which suspends the time for filing of a notice of appeal. Fed.R.Civ.Pro. 59(e); Fed.R.App. Pro. 4(a).
The plaintiff filed a premature notice of appeal before this court ruled on her motion to alter or amend the judgment. A premature filing of a motion does not divest the district court of jurisdiction to consider and rule on a Rule 59 motion to alter or amend judgment (or a motion for new trial). United States v. Crescent Amusement Co., 323 U.S. 173, 177 , 65 S.Ct. 254 , 89 L.Ed. 160 (1944); Hawkins v. Lindsley, 327 F.2d 356, 359 (2d Cir. 1964); Turner v. HMH Publishing Co., 328 F.2d 136 (5th Cir. 1964); Sampson v. Ampex Corp., 335 F.Supp. 242 (S.D.N.Y.1971). The Court may consider and rule on Plaintiff’s motion to vacate judgment, which the Court has construed as a motion to alter or amend the judgment. 2
Plaintiff first contends that the Court should not have considered Defendant’s motion for summary judgment. The Court’s memorandum opinion explains why this position is incorrect as a matter of law.
Plaintiff also contends that the court overlooked an issue of material fact. Mr. Hassell testified on deposition that Ms. Consor was instructed by him to get back in touch with his office, while Ms. Consor testified at the class action hearing that Mr. Hassell said that he would contact her. In my entry of summary judgment for the defendant, I assumed that Ms. Consor’s version was correct, and still concluded that Ms. Consor could not prevail on the merits of her claim. If I were to assume that Mr. Hassell requested Ms. Consor to get in touch with his office, her failure to do so supports my decision that she was never “rejected”.
Plaintiff finally contends that the Court erred in holding that McDonnell Douglas provides the only means for establishing a prima facie case of individual discrimination. Plaintiff argues that prima facie discrimination may also be shown through evidence of a broad-based policy of discrimination.
“A broad-based policy of employment discrimination” may establish a prima facie case of individual discrimination. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 359 , 97 S.Ct. 1843, 1866 , 52 L.Ed.2d 396 (1977). Plaintiff introduced statistical evidence at the class action hearing which indicates that defendant has hired few female sales representatives and has never hired a female sales representative for the Dallas office. Plaintiff can survive a motion for summary judgment on her individual claim on the basis of this evidence.
For the reasons stated, I hereby grant Plaintiff’s motion to alter or amend the judgment, deny Defendant’s motion for summary judgment as to plaintiff’s individual claim, deny class certification for the reasons stated in my memorandum opinion, and set this case for trial on August 20, 1979.
It is so ORDERED.
. Parties seeking to appeal a final judgment must file a notice of appeal within thirty days or the Court of Appeals does not have jurisdiction over the appeal. Fed.R.App.Pro. 4; Edwards v. Joyner, 566 F.2d 960 (5th Cir. 1978). A court may consider a motion for relief from judgment, filed more than ten days after entry of judgment, during the pendency of an appeal and if the district court decides the motion should be granted, counsel for the movant should request the Court of Appeals to remand the case so that a proper order can be entered. Pioneer Insurance Co. v. Gelt, 558 F.2d 1303 (8th Cir. 1977); First National Bank of Salem v. Hirsch, 535 F.2d 343 (6th Cir. 1976); Lairsey v. Advance Abrasives Co., 542 F.2d 928 (5th Cir. 1976).
While a motion filed under Rule 60(b), or construed by the court as a motion under Rule 60(b) does not suspend the time for filing an appeal, the denial of a motion under Rule 60(b) may itself be appealed within thirty days of its entry. Edwards v. Joyner, 566 F.2d 960 (5th Cir. 1978). if an appeal is not also filed within thirty days of the entry of the original judgment, the only issues on appeal involve the denial of the Rule 60 motion. Id.; Cline v. Hoogiand, 518 F.2d 776 (8th Cir. 1975).
. Effective August 1, 1979 “(i)f a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party . . . .tpnder Rule 59 to alter or amend the judgment the time for appeal for all parties shall un from the entry of the order denying a new |al or granting or denying any other such *i>tion. A notice of appeal filed before the Position of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. . . . ” Fed.R. App.Pro. 4(a)(4), effective August 1, 1979.
The new rules will codify the current law in the Fifth Circuit and the result in this case, hopefully making it unnecessary to rule on this question again.