UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: February 2, 1989.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
WESTINGHOUSE ELECTRIC CORPORATION, APPELLANT
Appeal from D.C. Civil Nos. 83-5457 and 84-4799.
Higginbotham, Scirica and Garth, Circuit Judges. Garth, Circuit Judge, dissenting in part.
SUR PETITION FOR PANEL REHEARING
1. After consideration of the contentions raised in the petition for rehearing filed by Westinghouse Electric Corporation in the above-entitled case and the response thereto by the Equal Opportunity Employment Commission, and all judges who participated in the decision of this Court having asked for rehearing on the basis of the contentions raised in the petition for panel rehearing, the petition for rehearing is granted. Reargument is not granted in this matter. The panel is unanimously of the opinion that the facts and legal arguments are adequately presented in the briefs and record. Rules of the United States Court of Appeals for the Third Circuit, Court Rule 12(6)(a).
2. After rehearing, the opinion in the above-entitled matter filed on November 30, 1988, is vacated, and an amended opinion is hereby filed.
3. Judge Garth would also have granted Westinghouse's petition with regard the panel's decision to remand the issue of willfulness to the district court, rather than reversing the district court's willfulness determination. In so voting, Judge Garth relies upon the analysis and reasons set forth in his separate opinion which dissented from the panel's disposition of the willfulness issue. In that opinion, Judge Garth urged that the only appropriate disposition of the willfulness issue was an outright reversal of the district court's willfulness finding.
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