June 25, 1973
JOSEPHINE JURINKO ET AL., APPELLANTS
EDWIN L. WIEGAND COMPANY ET AL., APPELLEES. SAME, APPELLEES V. SAME, APPELLANTS.
Before BIGGS, JR. and GIBBONS, Circuit Judges and HUYETT, District Judge.
BIGGS, JR., D. J.: And Now, to wit, this 25th day of June 1973, it is Ordered that the slip opinion filed herein on April 17, 1973, be and the same hereby is amended by revising footnote 18, appearing on page 12, to read as follows:
18. See New Amsterdam Casualty Co. v. Waller, 323 F.2d 20 (4 Cir. 1963).
We do not think that we are foreclosed from considering this theory of recovery for the issue of discrimination against women as a class was injected into the case by Wiegand and was therefore tried below with Wiegand's implied consent. By its own admission and evidence, Wiegand discriminated against women by employing a stereotyped characterization that women were physically unqualified for the jobs the plaintiffs had applied for. See note 11, supra . See F.R. Civ. P. 15(b) and 16. Rule 16 should be read in light of Rule 15(b). See 3 Moore's Federal Practice P 15.13, at 982 and note 11 cited to that text.
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