                    United States Court of Appeals,

                                Eleventh Circuit.

                                  No. 94-6316.

             Jerroll RICHARDSON, Plaintiff-Appellant,

                                         v.

 LEEDS POLICE DEPARTMENT;         Leeds, City of, Defendants-Appellees.

                                 Dec. 15, 1995.

Appeal from the United States District Court for the Northern
District of Alabama. (No. CV-92-AR-1588-S), William M. Acker, Jr.,
Judge.

Before EDMONDSON and BIRCH, Circuit Judges, and HENDERSON, Senior
Circuit Judge.

     PER CURIAM:

     Jerroll Richardson, a former police officer for the City of

Leeds, Alabama ("City"), appeals from the judgment of the United

States   District    Court      for    the    Northern   District      of    Alabama

dismissing this action alleging racial discrimination in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq., 42 U.S.C. § 1981 and 42 U.S.C. § 1983.             We reverse and remand

for further proceedings.

                         I. STATEMENT OF THE CASE

      Richardson, an African American, was an officer of the Leeds

Police   Department      ("Department")        from   January       1989    until   he

resigned in May 1991.      A short time after leaving the Department he

changed his mind and sought reinstatement.                     His efforts were

unsuccessful.       On   July    29,   1991,    he    filed    an   administrative

complaint with the Equal Employment Opportunity Commission ("EEOC")

alleging that he resigned because of disparate treatment in job

assignments during his period of employment.                  He also accused the
Department of refusing to rehire him because of his race.               After

receiving a right to sue letter from the EEOC, Richardson commenced

this action in the district court against the City and the Chief of

Police, Thomas W. McDonald.         He alleged in deposition testimony

that his resignation amounted to a constructive discharge because

it stemmed from the denial of opportunities for advancement while

employed by the City, as well as racial slurs directed at him by a

fellow officer and general hostility within the Department toward

black citizens.    He also claimed that he was not restored to his
former position with the Department on account of his race and

because   he   complained   that    black   citizens   were   treated   more

severely by the City's police officers than were white citizens.

The complaint as amended included causes of action for alleged

violations of Title VII of the Civil Rights Act of 1964 ("1964

Act"), § 1981 and § 1983.1         He sought declaratory and injunctive


     1
      The petition did not specify the provision or provisions of
Title VII relied upon by Richardson. Section 2000e-2(a)(1) of
the 1964 Act, however, clearly applies to the allegations. It
states:

           It shall be an unlawful employment practice for an
           employer—

                 (1) to fail or refuse to hire or to discharge any
                 individual, or otherwise to discriminate against
                 any individual with respect to his compensation,
                 terms, conditions, or privileges of employment,
                 because of such individual's race, color,
                 religion, sex, or national origin....

     Section 1981 bars racial discrimination in the making and
     enforcement of contracts. Richardson's cause of action
     under § 1983, which prohibits the deprivation of federal
     rights, privileges or immunities under color of state law,
     was based upon charges that the defendants violated his
     equal protection rights protected by the United States
     Constitution.
relief,   backpay,     compensatory        and   punitive    damages      and

reinstatement   to   the   position   he   would   have   held   absent   the

purported discrimination.2

     2
      The complaint also invoked the Civil Rights Act of 1991
("1991 Act" or "Act"), which expanded the scope of § 1981 and
provided for the recovery of compensatory and punitive damages
for certain violations of Title VII, as well as the right to a
jury trial when such damages are sought. The 1991 Act did not
apply to the defendants' conduct alleged here, however, because
it occurred prior to the Act's November 21, 1991 effective date.
Landgraf v. USI Film Prods., 511 U.S. ----, 114 S.Ct. 1483, 128
L.Ed.2d 229 (1994); Rivers v. Roadway Express, Inc., 511 U.S. --
--, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994); Goldsmith v. City of
Atmore, 996 F.2d 1155, 1159 (11th Cir.1993). Consequently, under
this court's precedent, which construed Title VII claims as
equitable in nature, Richardson was not entitled to a jury trial
on his Title VII cause of action. Lincoln v. Board of Regents of
the Univ. Sys. of Ga., 697 F.2d 928, 934 (11th Cir.), cert.
denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983). Nor
was he permitted to seek Title VII compensatory or punitive
damages. Walker v. Ford Motor Co., 684 F.2d 1355, 1364 (11th
Cir.1982). Moreover, Richardson's § 1981 allegations were
governed by the pre-1991 Act rule of law announced in Patterson
v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d
132 (1989), in which the Court held that the reach of § 1981 was
limited to discriminatory actions taken during the initial
formation of a contract and conduct designed to impair the
enforcement of contracts through the legal process. Id. at 179-
80, 109 S.Ct. at 2374, 105 L.Ed.2d at 152. Accordingly,
Richardson's complaints of constructive discharge and disparate
treatment during the course of his employment were not actionable
under that statute, but only under Title VII and § 1983. We need
not decide whether Richardson's claim for failure to rehire was
cognizable under § 1981 as interpreted by Patterson, see Wall v.
Trust Co. of Ga., 946 F.2d 805, 808 (11th Cir.1991) (test is
whether a "new and distinct" relationship would be formed),
because the procedures and relief available under that law,
including the right to have a jury determine compensatory and
punitive damages, are duplicative of those afforded by § 1983
when, as here, state actors are sued as defendants. See Johnson
v. Railway Express Agency, Inc., 421 U.S. 454, 460, 95 S.Ct.
1716, 1720, 44 L.Ed.2d 295, 301 (1975) (§ 1981 plaintiffs may
seek both equitable and legal relief, including compensatory
damages and, in limited circumstances, punitive damages); Smith
v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (both
compensatory and punitive damages are available under § 1983);
but see City of Newport v. Fact Concerts, Inc., 453 U.S. 247,
271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616, 634-35 (1981)
(punitive damages may not be assessed against municipalities).
We therefore treat the complaint as alleging infractions of Title
     The City subsequently filed a motion for summary judgment on

all charges against it. The district court granted the motion with

respect to the claim for constructive discharge, finding that

Richardson's    reapplication    for   his    old   position     foreclosed   a

conclusion     that   he   resigned    because      of    unbearable    working

conditions. See Morgan v. Ford, 6 F.3d 750, 755-56 (11th Cir.1993)

(employee    who      involuntarily     resigns          to   escape    illegal

discrimination must prove that his employment situation was so

intolerable that a reasonable person his position would have felt

compelled to leave), cert. denied, --- U.S. ----, 114 S.Ct. 2708,

129 L.Ed.2d 836 (1994).      The court denied summary judgment on all

other claims.      The court then, on July 23, 1993, entered final

judgment for the City on the constructive discharge issue pursuant

to Fed.R.Civ.P. 54(b).3      Richardson did not appeal.

     A jury trial on the § 1983 cause of action stemming from the

alleged disparate treatment during the course of employment and in

rehiring was held in 1994.        At the conclusion of Richardson's

case-in-chief, the defendants moved for judgment as a matter of law

in compliance with Fed.R.Civ.P. 50.          The district court denied the

motions and continued with the trial.          After the close of all the

evidence, the defendants renewed their Rule 50 motions.                The court

took the motions under advisement and submitted the case to the

jury, which was instructed to respond to a set of interrogatories

VII and § 1983.
     3
      When more than one claim for relief is presented             in an
action, Rule 54(b) permits the entry of final judgment             on a
single count "upon an express determination that there             is no just
reason for delay and upon an express direction for the             entry of
judgment."
as part of its deliberations.        By its answers the jury exonerated

McDonald of all alleged wrongdoing.        It also found that the City

did not discriminate against Richardson during his tenure with the

Department. It could not reach a verdict, however, on the question

of whether Richardson's race played a part in the City's refusal to

rehire him.    The district court announced that it would enter

orders on the partial verdict and released the jury.

     Thereafter, in a memorandum opinion, the court granted the

City's motion for judgment as a matter of law on the reinstatement

claim.   In   arriving   at   this    decision,   the   court   found   that

Richardson failed to prove a prima facie case of discrimination in

the rehiring context because, unlike other white officers who were

reemployed after they resigned, Richardson indicated when he left

the Department that he was "burned out."          The court consequently

determined that Richardson was not similarly situated to the

nonminority officers who were restored to their former positions.

The court found further that, even assuming Richardson carried his

initial burden of proof, he did not actually want the job for which

he made application.     In support of this finding the court relied

on the jury's negative response to interrogatory number five, which

inquired whether Richardson "presently" desired a position with the

City as a police patrolman.4     The court concluded that Richardson

     4
      Richardson testified as follows:

          Q. Do you wish to go back to work for the City of Leeds
          as a police officer if you win this case?

          A. I'm afraid.

          Q. Afraid of what?
could not prevail on the claim for reinstatement under any theory

of recovery given this circumstance.         The court found additionally

that, to the extent that the evidence presented an issue of

credibility, Richardson's admission that he resigned because he was

"burned out" was a legitimate reason for declining to rehire him

which was not pretextual.

     Pursuant to the jury's partial verdict and the ruling on the

motion   for   judgment   as   a   matter   of   law,   the   district   court

dismissed the action in its entirety against both defendants.

           A. I have put so many people in prison for drugs that
           it would be too easy for a while on the night shift or
           patrolling or an abandoned car stop for someone to
           shoot me. I'm not necessarily saying that it would be
           an individual that I had arrested. But when the
           investigation took place, then that, that is what would
           probably come out.

           ....

           Q. ... you said you didn't think you wanted your job
           back, that you were afraid to go back?

           A. No, sir, that's not what I said. I did not say that
           I didn't want my job back. I still want my job back.
           I'm just afraid, and that fear is a fear that I did not
           have at the time that I went and asked to be rehired.

           Q. You say that whatever that fear is, you still want
           your job back now?

           A. After taking certain precautions, yes, sir.

           Q. So that fear, whatever it is, was not so great that
           you don't want your job back now?

           A. Sir?

           Q. You want it back? You want to go back to work with
           the City of Leeds doing what you were doing?

           A. I want to go back to work for the City of Leeds,
           yes, sir.

     (R4 at 196-97, 325-26).
Richardson subsequently filed this appeal in which he challenges

only the judgment rendered as a matter of law in favor of the City

on the § 1983 and Title VII causes of action arising from the

failure to restore him to his former position.

                          II. DISCUSSION

      We review a decision to grant a judgment as a matter of law

de novo, applying the same standards utilized by the district

court.     Daniel v. City of Tampa, Fla., 38 F.3d 546, 549 (11th

Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2557, 132 L.Ed.2d

811 (1995).     A judgment as a matter of law is warranted "[i]f

during a trial by jury a party has been fully heard on an issue and

there is no legally sufficient evidentiary basis for a reasonable

jury to find for that party on that issue." Fed.R.Civ.P. 50(a)(1).

When evaluating a Rule 50 motion, the court must consider all of

the evidence and reasonable inferences arising therefrom in the

light most favorable to the nonmoving party.     Beckwith v. City of

Daytona Beach Shores, Fla., 58 F.3d 1554, 1560 (11th Cir.1995).   A

judgment as a matter of law may be affirmed only when " "the facts

and inferences point so overwhelmingly in favor of the movant ...

that reasonable people could not arrive at a contrary verdict.' "

Pulte Home Corp. v. Osmose Wood Preserving, Inc., 60 F.3d 734, 739

(11th Cir.1995) (quoting Roboserve, Ltd. v. Tom's Foods, Inc., 940

F.2d 1441, 1448 (11th Cir.1991)).

     In a case such as this alleging disparate treatment, in which

§ 1983 is employed as a remedy for the same conduct attacked under

Title VII, " "the elements of the two causes of action are the

same.' "      Cross v. State of Ala., 49 F.3d 1490, 1508 (11th
Cir.1995) (quoting Hardin v. Stynchcomb, 691 F.2d 1364, 1369 n. 16

(11th Cir.1982)). In both instances, the plaintiff must prove that

the defendant acted with discriminatory intent.      Hardin, 691 F.2d

at 1369 n. 16.

         Identical methods of proof, as described in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),

are also employed.     See St. Mary's Honor Center v. Hicks, 509 U.S.

----, ---- n. 1, 113 S.Ct. 2742, 2746 n. 1, 125 L.Ed.2d 407, 415 n.

1 (1993) (assuming that the McDonnell Douglas analysis applies

equally to § 1983 and Title VII claims of discrimination).     First,

the plaintiff must establish a prima facie case, which raises a

presumption that the employer's decision was more likely than not

based upon an impermissible factor.5     McDonnell Douglas Corp., 411

U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 677;      Texas Dep't of

Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089,

1094, 67 L.Ed.2d 207, 216 (1981).       The defendant may rebut this

presumption by articulating a legitimate, nondiscriminatory reason

for its decision.      McDonnell Douglas Corp., 411 U.S. at 802, 93

S.Ct. at 1824, 36 L.Ed.2d at 678;          Texas Dep't of Community

Affairs, 450 U.S. at 254-55, 101 S.Ct. at 1094, 67 L.Ed.2d at 216.

If the defendant meets this burden, the plaintiff must then have

     5
      The proof required to establish a prima facie case will
vary depending on the circumstances. McDonnell Douglas Corp.,
411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13, 36 L.Ed.2d at 677
n. 13. In McDonnell Douglas Corp., in which the plaintiff
likewise alleged that his former employer refused to rehire him
on account of his race, the Court stated that this initial burden
may be satisfied with evidence that (1) the applicant belonged to
a racial minority; (2) he applied and was qualified for the job;
(3) he was rejected; and (4) after his rejection, the position
remained open and the employer continued to seek qualified
applicants. Id. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 677.
the   opportunity     to    persuade   the   trier   of    fact,   through    the

presentation of his own case and by cross-examining the defendant's

witnesses, that the reason proffered was not the real basis for the

decision, but a pretext for discrimination.                 McDonnell Douglas

Corp., 411 U.S. at 804, 93 S.Ct. at 1825, 36 L.Ed.2d at 679;                  St.

Mary's Honor Center, 509 U.S. at ----, 113 S.Ct. at 2747, 125

L.Ed.2d at 416.

       The distinction between the Title VII and § 1983 causes in

the present case was in the availability of a jury trial and

compensatory damages under § 1983, but not with respect to the

Title VII equitable claims, which were tried to the court.                    See

supra note 2.     When legal and equitable causes are joined in one

action, the legal issues must be decided first.             Dairy Queen, Inc.

v. Wood, 369 U.S. 469, 479, 82 S.Ct. 894, 900-01, 8 L.Ed.2d 44, 52

(1962).    To the extent that the elements of the two types of claims

mirror one another, the jury's findings on the legal questions are

binding in resolving the equitable issues.                Lincoln v. Board of

Regents of the Univ. Sys. of Ga., 697 F.2d 928, 934 (11th Cir.),

cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983).

       Richardson argues on appeal that the district court erred by

visiting    whether    he    had   established   a   prima    facie    case    of

discrimination after the action was fully tried on the merits, in

violation of United States Postal Serv. Bd. of Governors v. Aikens,

460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983).               We agree that

it was wrong for the court to follow this procedure.                 In Aikens,

the Supreme Court held that

      when the defendant fails to persuade the district court to
      dismiss the action for lack of a prima facie case, and
       responds to the plaintiff's proof by offering evidence of the
       reason for the plaintiff's rejection, the factfinder must then
       decide whether the rejection was discriminatory within the
       meaning of Title VII.

Id. at 714-15, 103 S.Ct. at 1481, 75 L.Ed.2d at 410 (footnote

omitted).    When the trier of fact has before it all the evidence

needed to decide the ultimate issue of whether the defendant

intentionally discriminated against the plaintiff, the question of

whether the plaintiff properly made out a prima facie case "is no

longer relevant."     Id. at 715, 103 S.Ct. at 1482, 75 L.Ed.2d at

410;    see also Wall v. Trust Co. of Georgia, 946 F.2d 805, 809-10

(11th Cir.1991).

       The district court's reliance on Richardson's statement that

he was "burned out" to find that he failed to establish a prima

facie case was substantively flawed as well.             "The burden of

establishing a prima facie case of disparate treatment is not

onerous."    Texas Dep't of Community Affairs, 450 U.S. at 253, 101

S.Ct. at 1094, 67 L.Ed.2d at 215;        see also Howard v. BP Oil Co.,

Inc.,   32   F.3d   520,   524   (11th   Cir.1994)   (characterizing   the

requirements of demonstrating a prima facie case as "minimal"). To

raise an inference of discrimination, it was not necessary for

Richardson to show that he and the nonminority applicants who were

rehired gave the same reason or reasons for resigning.        Rather, it

was sufficient for him to show that he belonged to a racial

minority, that he applied for and was qualified for the job and

that after his rejection, the position remained open and the

Department continued to seek qualified applicants.         See supra note

5.

       The district court also decided that Richardson's admission of
"burn out" was a legally acceptable ground for the City's decision,

which was not pretextual.          Richardson urges us to hold that the

evidence relating to pretext was sufficient to create a jury

issue.6   After reviewing the trial transcript, we agree that the

district court could have reached its conclusion only by improperly

resolving conflicting inferences arising from the evidence in the

light most favorable to the City.

      The proof at the trial established that Richardson worked

initially in the detective division as an undercover narcotics

officer, which he understood would be a temporary assignment.                In

April 1989, after the undercover detail ended, he was reassigned to

patrol duty.     While working the 11:00 p.m. to 7:00 a.m. shift, he

was   required   to    testify    during   the   day    in   court   proceedings

resulting from his prior undercover work.              During this time he was

also "loaned" to several other police departments to assist in

narcotics   work      conducted   in   nearby    counties.      After    certain

      6
      Richardson argues on appeal that Lynn Maxey, the City's
mayor with whom the decision ultimately rested, never proffered
Richardson's "burnout" as a reason for not rehiring him. Maxey
testified, however, that he was aware that Richardson complained
of being "burned out" when he resigned. (R6 at 674-75).
Although Maxey did not directly state that this influenced his
decision, the jury could have inferred that it did. Maxey cited
additional reasons for not rehiring Richardson, chief among them
that he already had someone else in mind for the position when
Richardson expressed an interest. Richardson maintains that the
evidence reveals the existence of an issue of fact as to whether
the other grounds given by the mayor were also pretextual. The
district court specifically declined to consider these various
explanations, however (R2-96 at 4), and rested its judgment
solely on its finding that Richardson was "burned out" (id. at
9). We confine our review, therefore, to whether this particular
motive cited by the district court must lead inexorably to a
finding of no discrimination. We also note that the City's
contention on appeal that Richardson failed to demonstrate that
the mayor was the final decisionmaker for purposes of municipal
liability under § 1983 is without merit.
conversations with McDonald, Richardson expected to be considered

for   the   next    available   permanent    position   in   the   detective

division, which McDonald indicated would be filled by someone from

within the Department.       Instead, the next opening went to a white

applicant from outside the Department.           Richardson remained in a

patrol slot until his resignation.

      Richardson testified that he left "basically due to the

adverse treatment, the type of double standards.               I was, I was

burnt out."     (R4 at 168).    He explained that

      between working narcotics, patrol, narcotics on loan, court
      time, and all of this running together, trying to perform my
      job the best that I could in patrol, that culminated with, at
      the time that the position was filled in the detective
      division, it was from outside and not from within. Also when
      the DARE program came around, it was filled from the outside,
      not from within.

           When the subject that had went to the DARE program left,
      leaving a slot open again, and two hires were made and then
      the slot was filled by one of the hires coming in, it was just
      all culminating. And at the time I felt that I was fighting
      a losing battle.

(Id. at 170).7      He stated further that he informed McDonald of the

foregoing reasons when he submitted his letter of resignation.

(Id. at 183).      Later, after time for reflection, he decided that he

wished to continue in his old job.          (Id. at 184-85).   After he was

turned down by the mayor, he sought out and obtained other police

work.     (Id. at 191-93).

      There was also evidence that the mayor reinstated three white

patrolmen after they had resigned.      McDonald testified that one of

the officers left the Department because he was unhappy over the

      7
      Richardson had expressed an interest in participating in
DARE, which was a Department-sponsored drug awareness program for
teenagers.
denial of a promotion.           (R5 at 403).       Another was dissatisfied with

his pay and felt he had been treated unfairly with respect to a

request for military leave.                ( Id. at 406-07, 416-17).            The third

was rehired despite a poor work record and an evident lack of

interest in performing cooperatively with other members of the

force.       (Id. at 424-25).

       The district court apparently believed that the evidence

failed to create an issue of fact as to the decisionmaker's intent

with       respect    to    Richardson      because    it     was    undisputed        that

Richardson      complained       he   was    "burned       out"    when    he   left    the

Department.           Although      the    evidence    would        have   permitted     a

reasonable jury to infer an innocent motive on the City's part—that

the mayor viewed Richardson as a poor candidate for reemployment

because he was "burned out" by police work and no longer inspired

to perform to the best of his ability—a reasonable jury could also

have concluded that Richardson's professed "burn out" was not the

true reason he was not rehired.               Like Richardson, two of the white

officers      who    were    rehired       voiced    dissatisfaction        with    their

treatment within the Department.                    Richardson was arguably more

qualified      than    the    third       reinstated   patrolman.8          Apart      from

Richardson's         race,    the     evidence       did     not     demonstrate        any

circumstances peculiar to his situation which set him apart from

the white officers who were restored to their jobs.9                       In short, the

       8
      Although Richardson's record was not unblemished, he
received commendations for his undercover work. In addition,
McDonald recommended against rehiring the poorly qualified white
officer, but did not oppose Richardson's reapplication.
       9
      In each case, the applicant sought to return to the same
position he had vacated, a similar length of time elapsed between
evidence presented a question of fact as to whether the mayor's

decision not to rehire Richardson was racially motivated.

        As additional support for the judgment, the district court

cited the jury's finding that Richardson did not "presently" desire

to be reinstated.10           This factor, of course, could not have served

as a rationale for the mayor's decision to reject Richardson's

application in 1991, because it came to light for the first time

during the trial in 1994.                      The district court construed this

circumstance,          however,        as   interposing      a    complete   obstacle    to

granting any type of relief.                   In doing so the court confused the

issue of liability with the type of warranted relief.

        According to an "Amended Damage List" which was filed in

support of the action, Richardson asked for backpay, reinstatement,

declaratory and injunctive relief, costs and attorney's fees under

Title        VII.     In    his    §    1983    suit   he    sought    compensation     for

"financial hardship, pain, suffering and mental anguish." (R2-49).

The jury's finding that, at the time of trial, Richardson no longer

wanted his old job, may well have been relevant to fashioning a

remedy in the event of the City's liability.                           See Goldstein v.

Manhattan Indus., Inc.,                 758 F.2d 1435, 1448 (11th Cir.) (the

decision of whether reinstatement should be ordered is within the

sound discretion of the district court),                         cert. denied, 474 U.S.

1005,        106    S.Ct.   525,       88   L.Ed.2d    457   (1985);      Carmichael     v.


the officer's departure and his request to be rehired and the
mayor made the final decision.
        10
      We reject without discussion Richardson's assertion that
the jury's finding was inconsistent with its deadlock on the
issue of whether the City's refusal to rehire him was motivated
by a discriminatory purpose.
Birmingham      Saw    Works,     738   F.2d    1126,    1136   (11th   Cir.1984)

(injunction     ordering      employer     to   refrain    from   discriminatory

practices not justified where the plaintiff is not reinstated).

But it would not have foreclosed a declaratory judgment that the

City acted with bad intent, making it liable for backpay and

compensatory damages.         The district court's alternative reasoning

for ordering judgment as a matter of law was therefore erroneous.

                                  III. CONCLUSION

     The judgment rendered as a matter of law in favor of the City

on Richardson's § 1983 and Title VII causes of action alleging he

was not rehired on account of his race is hereby VACATED.                The case

is   REMANDED     to    the     district   court   for    further    proceedings

consistent with this opinion.
