Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, we note that Defendants did not cite or rely on Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), in the district court or to the panel. We therefore decline to consider that case now. Both the majority and the dissent agree that the issue in this case is factual, more particularly, what inferences can or will be drawn by the jury from the evidence.

The majority continues to adhere to its view that fact issues are presented that preclude summary judgment. The dissent disagrees and would affirm the district court. The petition for panel rehearing is therefore DENIED . Accordingly, the judgment of the district court is reversed, and the case is remanded for further proceedings.

No member of the panel nor judge in regular active service of the court1 having requested that the court be polled on Rehearing En Banc (FED. R. APP. P. and 5TH CIR. R. 35 ), the Petition for Rehearing En Banc is DENIED .