Petition for ReHearing — Thweatt v. Electronic Data Systems Corp.

ro. Supreme Court, U.S.

of FILED

VY”

DEC 29 2003

No. 03-349

OFFICE OF THE CLERK

Jn The

Supreme Court of the Anited States

*

JACK THWEATT,

on behalf of himself and all others similarly situated,

Petitioner,

v.

ELECTRONIC DATA SYSTEMS CORPORATION,

Respondent.

~

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

PETITION FOR REHEARING

.

Of counsel: JOHN G. CRABTREE

Parnick J. BALLARD Counsel of Record

BALLARD LAW OFFICES JOHN G. CRABTREE, P.A.

205 Twentieth Street North 240 Crandon Boulevard

Suite 629 Suite 279

Birmingham, Alabama Key Biscayne, Florida 33149

35203 Telephone (305) 423-4350

Telephone (205) 321-9600

EDWARD L. SCOTT

409 Southeast Fort King

Street

Ocala, Florida 34471

SCOTT CHARLTON

CLARK, CHARLTON &

MARTINO, P.A.

3407 West Kennedy

Boulevard

Tampa, Florida 33623

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

es

1

PETITION FOR REHEARING

The petitioner moves the Court to hold this petition

for rehearing until the Court decides whether to grant

certiorari in Smith v. City of Jackson and, if certiorari is

granted in Smith, to grant rehearing and dispose of this

case in accordance with the Court’s decision in Smith.

THE PLAINTIFFS IN SMITH V. CITY OF

JACKSON WILL SOON BE PETITIONING

THIS COURT FOR A WRIT OF CERTIO-

RARI.

On November 13, 2003, the Fifth Circuit issued its

decision in Smith v. City of Jackson, __ F.3d _, 2003 WL

22671061 (CA5 Nov. 13, 2003), a case addressing the same

issue presented in this case: whether disparate impact

claims should be permitted under the ADEA. With the

Smith decision, there is now a 5-3 split in the circuits on

that important federal question. Counsel of record in this

case has learned that the plaintiffs in Smith will soon be

filing a petition for a writ of certiorari. Although the Court

has issued an order denying review of the Eleventh Cir-

cuit’s unpublished decision in this case, the Court may

decide to accept review in Smith because the published

decision in that case arises in a far more factually devel-

oped context and provides a substantial analysis of the

disparate impact question presented in both cases.

y

v

CONCLUSION

For the reasons set forth above, as well as those

contained in the petition for a writ of certiorari, the

petitioner prays that the Court will hold this petition for

rehearing until the Court disposes of the Smith petition,

and then grant rehearing and dispose of this case in

accordance with the decision in Smith if certiorari is

granted in that case.

Respectfully submitted,

Of counsel: JOHN G. CRABTREE

PaTrick J. BALLARD Counsel of Record

BALLARD LAW OFFICES JOHN G. CRABTREE, P.A.

205 Twentieth Street North 9240 Crandon Boulevard

Suite 629 Suite 279

Birmingham, Alabama _Key Biscayne, Florida 33149

35203 Telephone (305) 423-4350

Telephone (205) 321-9600

EDWARD L. SCOTT

409 Southeast Fort King

Street

Ocala, Florida 34471

SCOTT CHARLTON

CLARK, CHARLTON &

MARTINO, P.A.

3407 West Kennedy

Boulevard

Tampa, Florida 33623

Counsel for Petitioner

December 29, 2003

3

CERTIFICATE OF COUNSEL

As counsel for the petitioner, I hereby certify that this

petition for rehearing is presented in good faith and not for

delay and is restricted to the grounds specified in Rule

44.2.