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Fernando R. GUTIERREZ v. EL PASO COMMUNITY ACTION PROGRAM (Project Bravo, Inc.)

4 Fair empl.prac.cas. 411, 4 Empl. Prac. Dec. P 7759 Fernando R. Gutierrez v. El Paso Community Action Program (Project Bravo, Inc.)

Gutierrez v. EL PASO COMMUNITY ACTION PROGRAM (Project Bravo, Inc.), 462 F.2d 121 (5th Cir. 1972)
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Court
Court of Appeals for the Fifth Circuit · U.S. Courts of Appeals
Decided
March 28, 1972
Docket
No. 71-2269
Judges
Brown, Ingraham, Roney
Citations
462 F.2d 121

Opinion — Per Curiam

PER CURIAM:

The District Court dismissed this case for failure to state a claim of discriminatory discharge under the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e, which is alleged in the complaint to give the Federal court jurisdiction.

An opportunity to amend should have been accorded, so dismissal with prejudice was unwarranted. Whether plaintiff can state a claim under this statute, we do not determine or even faintly intimate.

The fact that the Judge considered affidavits from both sides does not save the order of dismissal with prejudice. Under Rule 12(b) such affidavits at best might bring into play Rule 56, Federal Rules of Civil Procedure, Georgia, Southern & F. Ry. Co. v. Atlantic *122 Coast Line R. Co., 5 Cir. 1967, 373 F.2d 493 , but the 10 day notice that it would be treated as a motion for summary judgment and the opportunity to furnish additional material were not given. The case could not be decided in this way at this stage.

Reversed and remanded.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1973: 11976: 11977: 21978: 11979: 21982: 11990: 119732026peak 1977 · 2

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Ga. Southern & Fla. Ry. Co. v. Atl. Coast Line R.R. Co., 373 F.2d 493 (5th Cir. 1967) 60

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