Self v. I Have a Dream Foundation-Colorado , 552 F. App'x 782 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 20, 2013
Elisabeth A. Shumaker
Clerk of Court
DONITA L. SELF,
Plaintiff - Appellant,
v. No. 13-1090
(D.C. No. 1:11-CV-00492-PAB-CBS)
I HAVE A DREAM (D. Colo.)
FOUNDATION-COLORADO,
Defendant - Appellee.
ORDER AND JUDGMENT*
Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
BACHARACH, Circuit Judge.
Pro se plaintiff Donita L. Self sued her former employer under the Americans
with Disabilities Act, alleging discrimination and retaliation. The district court
granted the employer’s dispositive motion, and Ms. Self appealed. We affirm on the
*
The Defendant requested oral argument; however, the Court has determined
that oral argument would not materially aid in the decision. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument.
This order and judgment does not constitute binding precedent except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir.
R. 32.1.
discrimination claim. On the retaliation claim, we vacate the award of summary
judgment and remand for the district court to order dismissal without prejudice.
I. Background
Ms. Self worked for the Colorado I Have A Dream Foundation from 2000 until
2008, when she was fired. After the firing, she filed a charge with the Equal
Employment Opportunity Commission, which issued her a right-to-sue letter.
Ms. Self then began the present action.
The Foundation filed a motion to dismiss or, in the alternative, a motion for
summary judgment. In these motions, the Foundation argued that: (1) It did not
qualify as an “employer” under the Americans with Disabilities Act because it had
fewer than fifteen employees, (2) Ms. Self did not exhaust her retaliation claim
because she had omitted retaliation in her EEOC charge, and (3) Ms. Self did not
sufficiently allege discrimination based on a disability.
The district court granted the motions, concluding that: (1) the ADA did not
apply because the Foundation had fewer than fifteen employees, and (2) the
retaliation claim was not administratively exhausted. Both conclusions are
challenged in this appeal. In addition, Ms. Self argues that opposing counsel
committed misconduct.
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II. The Nature of the District Court’s Ruling
The district court unambiguously ruled against the Plaintiff, but the nature of
the ruling is unclear. We must determine what the district court ruled before we can
engage in meaningful review.
The district court’s ruling addresses alternative motions, one for dismissal and
another for summary judgment. The magistrate judge recommended that the Court
grant the “motion,” but did not distinguish between the motions for dismissal and
summary judgment. This recommendation was ambiguous because dismissal and
summary judgment are two different dispositions. See Bradley Scott Shannon, A
Summary Judgment Is Not a Dismissal!, 56 Drake L. Rev. 1 (2007) (discussing the
differences between a dismissal and an award of summary judgment).
The magistrate judge added that the Court should enter summary judgment for
the Defendant. This addition suggests that the magistrate judge was intending to
recommend summary judgment rather than dismissal.
The district judge “accepted” the magistrate judge’s recommendation. In
doing so, the district judge stated that he would “grant” the motion for dismissal or
summary judgment even though these are two different dispositions.
Then, the district judge stated that the action would be “dismissed.”
Elsewhere, however, the district judge seemed to be relying on the summary
judgment standard. E.g., R. at 1164 (stating that the Plaintiff’s documents “do not
raise a genuine dispute of material fact” regarding the number of employees); id. at
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1165 (discussing the Plaintiff’s failure to submit evidence in response to the
summary judgment motion). And, as noted above, the district judge stated that he
was accepting the magistrate judge’s recommendation, which was to enter summary
judgment for the Defendant.
To review the district court’s ruling, we must discern whether it involved
dismissal or summary judgment because it could not be both. The district judge’s
references to summary judgment, coupled with the stated “acceptance” of the
magistrate judge’s recommendation, suggest that the district judge was intending to
grant summary judgment to the Defendant. Thus, we interpret the ruling as an award
of summary judgment to the Defendant.
III. ADA Discrimination Claim
The Americans with Disabilities Act applies only if the defendant is
considered an “employer.” See Butler v. City of Prairie Village, Kansas, 172 F.3d
736, 744 (10th Cir. 1999). And, to qualify as an employer, the company must
employ at least fifteen individuals. Americans with Disabilities Act, 42 U.S.C.
§ 12111(5)(A) (2006).
The Foundation had fewer than fifteen traditional employees. But, a number
of volunteers worked for the Foundation as volunteers. If these volunteers counted as
“employees,” the Foundation would qualify as an “employer” under the ADA.
Without these volunteers, however, Ms. Self acknowledges that the Foundation
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would lack enough employees to trigger the ADA. R. at 1025-26. The district court
concluded that the volunteers did not count as employees, and we agree.
We must uphold the award of summary judgment if the Defendant showed the
absence of a genuine dispute on any material fact and its entitlement to judgment as a
matter of law. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). To determine
whether this test was met, we view the evidence in the light most favorable to the
Plaintiff; however, we disregard unsupported conclusory allegations. Id. We
liberally construe Ms. Self’s pro se filings, but we do not act as her “attorney in
constructing arguments and searching the record.” Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Ms. Self acknowledges that the Foundation used AmeriCorps volunteers. E.g.,
Plaintiff’s Opening Br. at 2-3 ¶ 6 (Apr. 29, 2013). These volunteers were placed at
the Foundation through the Colorado Campus Compact. Once taken by the
Foundation, the volunteers obtained a living allowance.
The living allowance is not considered a “wage.” 45 C.F.R. § 2522.245. And,
when the Plaintiff allegedly encountered discrimination (2008), federal law provided
that volunteers participating in AmeriCorps and other programs would not be
considered employees of the organizations where they were volunteering. See
National and Community Service Act of 1990, 42 U.S.C. § 12511(17)(B) (2006) (“A
participant shall not be considered to be an employee of the program in which the
participant is enrolled.”); see also Twombly v. Ass’n of Farmworker Opportunity
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Programs, 212 F.3d 80, 84 (1st Cir. 2000) (“Since 1991, the [National Community
Service Act] has provided that participants in an approved AmeriCorps program . . .
‘shall not be considered employees of the program.’”). Thus, Ms. Self conceded in
the district court that the AmeriCorps participants are not considered “employees.”1
Against the backdrop of this unambiguous statutory declaration, the Plaintiff
argues: (1) Tax records show that the Foundation treated AmeriCorps participants as
employees; (2) the Foundation was not a “sub-grantee”; (3) the volunteers were not
students; and (4) two of the affiants (Ms. Mary Hanewall and Ms. Stephanie
Schooley) were not credible witnesses. These arguments are meritless.
The Plaintiff bases her first argument largely on the cover page to the
Foundation’s “Form 990,” which purported to list 26 employees of the Foundation.
But Ms. Self did not submit this page in response to the summary judgment motion;
instead, she submitted it in her objection to the magistrate judge’s report. R. at 1136.
As a result, the district judge declined to consider the form. That ruling was
permissible. See Fed. R. Civ. P. 72(b)(3).
Ms. Self disagrees, stating that she “has disputed the alleged AmeriCorps from
day one.” Appellant’s Opening Br. at 4. Perhaps she has. But she did not submit the
cover page to the Form 990, which was her evidence, until it was too late.
1
In responding to the summary judgment motion, Ms. Self stated: “Plaintiff is
NOT arguing whether AmeriCorps members are considered an employee or not, she
knows that they are not.” R. at 840 (emphasis in original).
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The Plaintiff also denies that the Foundation was a sub-grantee. This issue,
however, is immaterial. In its summary judgment papers, the Foundation stated that
Regis University had obtained a grant for the AmeriCorps program and passed along
part or all to the Foundation. The Plaintiff challenges this statement, but the point of
her challenge is unclear. Federal law prohibits classification of the AmeriCorps
volunteers as “employees,” regardless of whether Regis passed along the grant to the
Foundation. See supra pp. 5-6 (citing authorities).
Ms. Self also denies that the volunteers were students. But, AmeriCorps
volunteers did not have to be students. See 42 U.S.C. § 12591(a) (2006) (stating the
requirements of participation in the National and Community Service Grant
Program).
Finally, Ms. Self challenges the credibility of two of the Foundation’s affiants.
Credibility, however, cannot be decided on summary judgment. Hansen v. PT Bank
Negara Indonesia (Persero), 706 F.3d 1244, 1251 (10th Cir. 2013). As discussed
above, we view all of the evidence in the Plaintiff’s favor, regardless of the
credibility of any of the affiants.
Under federal law, AmeriCorps participants are not considered “employees” of
the Foundation. Indeed, as discussed above, Ms. Self conceded in the district court
that AmeriCorps participants are not considered “employees.” This concession is
fatal to the discrimination claim. Without the AmeriCorps participants, the
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Foundation had fewer than fifteen employees. And without fifteen or more
employees, the ADA does not apply.
IV. ADA Retaliation Claim
Ms. Self also challenges the dismissal of her ADA retaliation claim for failure
to exhaust administrative remedies. The district court held that Ms. Self had not
included any allegations of retaliation in her EEOC charge of discrimination.
The district court had jurisdiction over the retaliation claim only if Ms. Self
exhausted administrative remedies. Jones v. UPS, Inc., 502 F.3d 1176, 1183
(10th Cir. 2007). “We review the district court’s dismissal for lack of subject matter
jurisdiction de novo, and the findings of jurisdictional facts for clear error.” McBride
v. CITGO Petroleum Corp., 281 F.3d 1099, 1104-05 (10th Cir. 2002).
The jurisdictional issue turns on the scope of the EEOC charge. For the
district court to acquire jurisdiction, the EEOC charge had to contain the relevant
facts underlying the retaliation claim. See Jones, 502 F.3d at 1186.
The EEOC charge stated:
I was hired on or about November 29, 2000, as the Office Manager. I
performed my duties in a satisfactory manner. In approximately July
2009, I was diagnosed with my disability. I disclosed my disability to
the Executive Director. I was able to perform the essential functions of
my position. I did need assistance when I had to lift or carry a large or
heavy item and did the office grocery shopping. This upset the
Executive Director and she started to treat me in a rude and
unprofessional manner. On or about October 13, 2008, I learned that I
had been ‘locked’ out of the company database. This upset me, so I left
work. I tried to call back to my office phone to pick up messages but I
was not able to retrieve and/or access my phone and/or messages. On or
about October 14, 2008, I called in sick to work. Later that afternoon I
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found a letter in my door indicating that I had been discharged from my
position on October 13, 2008. There was also a Release included that
reflected if I signed it the company would pay my health insurance for
the next six months. I did not sign the release form. The Executive
Director called my cell phone several times and left messages inquiring
if I had signed the Release. When I did not call her back she called me
and left a message stating that she was going to stop payment on my
vacation pay out [sic] if I didn’t call her back. I did not call her and
eventually deposited the check. To date I have not been allowed to
come and pick up my personal belongings. [sic]
I believe that I have been discriminated against due to my disability
within the meaning of the Americans with Disabilities Act of 1990, as
amended.
R. at 723.
The EEOC form contained boxes for “discrimination” and “retaliation” claims.
Ms. Self checked the box for “discrimination,” but not for “retaliation.” “The failure
to mark a particular box creates a presumption that the charging party is not asserting
claims represented by that box.” See Jones v. UPS, Inc., 502 F.3d 1176, 1186 (10th
Cir. 2007). The presumption may be rebutted, however, if the text of the charge
clearly sets forth the basis of the claim. Id.Ms. Self does not challenge the district court’s conclusion that her charge did
not include allegations of retaliation. Rather, she alleges that she understood the act
of firing her to be prohibited retaliation and that she told the EEOC investigator
about her final days at the Foundation. These allegations do not change the
substance of her EEOC charge, which she reviewed and signed.
By failing to check the box for “retaliation,” we presume that Ms. Self was not
asserting retaliation in the EEOC charge. This presumption is unrebutted. Thus, the
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retaliation claim is unexhausted; and in the absence of exhaustion, the district court
lacked jurisdiction over the retaliation claim. As a result, the claim was properly
rejected.
Still, we must address the way that the district court disposed of the claim.
Though the district court was right to reject the claim, the actual disposition was
erroneous.
As discussed above, the district court apparently intended to award summary
judgment to the Defendant. This award of summary judgment would terminate the
retaliation claim with prejudice. See Wheeler v. Hurdman, 825 F.2d 257, 259 n.5
(10th Cir. 1987) (“A grant of summary judgment resolves the issue on the merits and
thus is with prejudice.”). But as discussed above, exhaustion involves a jurisdictional
defect under the ADA. Because the pleading defect was jurisdictional, the claim
should have been dismissed without prejudice. See Brereton v. Bountiful City Corp.,
434 F.3d 1213, 1216 (10th Cir. 2006) (“[W]here the district court dismisses an action
for lack of jurisdiction, as it did here, the dismissal must be without prejudice.”).
Thus, we vacate the award of summary judgment on the retaliation claim and remand
for the limited purpose of directing the district court to dismiss the retaliation claim
without prejudice.
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V. Attorney Misconduct Claim
Finally, we consider Ms. Self’s argument that opposing counsel committed
misconduct. Ms. Self waived this argument by omitting it in her objections to the
magistrate judge’s recommendation.
“We have adopted a firm waiver rule when a party fails to object to the
findings and recommendations of the magistrate [judge]. The failure to timely object
to a magistrate [judge]’s recommendations waives appellate review of both factual
and legal questions.” Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008)
(citation, brackets, and internal quotation marks omitted). Exceptions exist when:
(1) the district court does not notify a pro se litigant of the time period for objection
and the consequences of a failure to object, and (2) review is required in the interests
of justice. Id.The magistrate judge informed the parties of the necessity to file written
objections within fourteen days to preserve further review. Ms. Self did not heed this
warning, and the interests of justice do not require review of the new argument.
Therefore, we do not address Ms. Self’s complaint about opposing counsel.
VI. Conclusion
We affirm the award of summary judgment on Ms. Self’s ADA discrimination
claim. The retaliation claim was unexhausted, as the district court stated. But we
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vacate the award of summary judgment on the retaliation claim and remand with
instructions to order dismissal without prejudice.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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