Persik v. Colorado State University

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 3 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RAYMOND CHARLES PERSIK,
Plaintiff - Appellant,
v. No. 02-1204
(D.C. No. 01-WM-934-(MJW))
COLORADO STATE UNIVERSITY; (D. Colorado)
ADECCO COLORADO,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. 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This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff-appellant Raymond Charles Persik appeals pro se from the district
court order dismissing his Title VII employment discrimination claims against
defendants-appellees Colorado State University (CSU) and Adecco Colorado
(Adecco). Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.
Mr. Persik was a graduate student and teaching assistant in the CSU
chemistry department and also an employee of Adecco, a temporary employment
agency. He filed a charge against CSU with the Equal Employment Opportunity
Commission (EEOC), alleging that he had been subjected to discrimination based
on his gender and also his religious/political pro-life beliefs. After the EEOC
dismissed the charge, Mr. Persik filed a complaint in district court naming both
CSU and Adecco as defendants. For numerous reasons, the magistrate judge
recommended dismissing the entire action with prejudice. The district court
reviewed de novo all portions of the magistrate judge’s recommendation to which
objections were filed, then adopted the recommendation.
Action against CSU
In the district court, CSU moved for dismissal contending that (1) service of
process was ineffective and (2) even if service had been accomplished, CSU is not
an entity that is capable of being sued. The magistrate judge agreed with CSU that
service was defective. He did not recommend, however, that the case be dismissed
without prejudice on that basis. Instead, he recommended dismissal with prejudice
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because CSU is not a proper defendant, determining that Mr. Persik should have
sued the Colorado State Board of Agriculture (SBA), the entity in financial control
of CSU.
Mr. Persik filed objections to the magistrate judge’s recommendation, but
did not address the issue of CSU’s status as a defendant. Rule 72 of the Federal
Rules of Civil Procedure provides that when a magistrate judge issues a ruling on
a dispositive pretrial motion, a party has ten days after service to “serve and file
specific, written objections to the proposed findings and recommendations.”
Fed. R. Civ. P. 72(b). The objections must be specific enough to focus the district
court’s attention on the factual and legal issues in dispute. See United States v.
2121 E. 30th St ., 73 F.3d 1057, 1060 (10th Cir. 1996). A failure to file a specific
objection to a magistrate judge’s report and recommendation generally constitutes
a waiver of appellate review. See id . at 1060-61. Although this court recognizes
an interests of justice exception to this “firm waiver rule,” see id . at 1060,
Mr. Persik has not offered any reasons why the interests of justice weigh against
application of the waiver rule in this case. Accordingly, Mr. Persik has waived
appellate review of the CSU dismissal.
In any event, a de novo review of the ruling would lead to the same result.
Under the statutory scheme which created SBA and CSU as separate entities, the
SBA is given “general control and supervisory power including power to adopt
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regulations to secure the successful operation of the university, hiring authority,
and complete financial control over CSU.” Roberts v. Colo. State Bd. of Agric.,
998 F.2d 824, 827 (10th Cir. 1993) (quotations and ellipses omitted). “SBA was
constituted as ‘a body corporate, capable in law of suing and being sued.’” Id.(quoting Colo. Rev. Stat. § 23-30-102). However, “the statutes and constitutional
provisions pertaining to CSU contain no similar grant.” Id. CSU is “powerless to
comply with [a] district court’s order on its own,” id., and is not an entity capable
of being sued, id. at 826 n.1. Because CSU is not subject to suit and cannot
provide the relief requested by Mr. Persik, the dismissal of CSU is correct as a
matter of law.
Action against Adecco Colorado
Adecco moved for dismissal of Mr. Persik’s claims on three grounds:
(1) Mr. Persik did not include Adecco in his EEOC charge; (2) the EEOC charge
was untimely; and (3) the district court complaint was untimely as well as
improperly served on Adecco. The magistrate judge agreed with all of Adecco’s
arguments and recommended dismissal on each of the asserted grounds. Upon its
review, the district court determined that the omission of Adecco in the EEOC
charge meant that the case should be dismissed for failure to exhaust
administrative remedies.
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The filing of a discrimination charge with either a state or federal
administrative agency is a jurisdictional prerequisite to filing a Title VII
discrimination suit in federal court. Seymore v. Shawver & Sons, Inc ., 111 F.3d
794, 799 (10th Cir. 1997). The charge provides the agency with the opportunity to
conciliate the claim, and gives the charged party notice of the alleged violation.
Id. “Thus, a plaintiff normally may not bring a Title VII action based upon claims
that were not part of a timely-filed EEOC charge for which the plaintiff has
received a right-to-sue letter.” Simms v. Okla. ex rel. Dep’t of Mental Health &
Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999).
The omission of a party’s name from the EEOC charge, however, does not
automatically mandate dismissal of a subsequent Title VII action. Romero v.
Union Pac. R.R. , 615 F.2d 1303, 1311 (10th Cir. 1980). To determine whether an
action should be dismissed for failure to name a defendant, the court considers
four factors:
1) whether the role of the unnamed party could through reasonable
effort by the complainant be ascertained at the time of the filing of
the EEOC complaint; 2) whether, under the circumstances, the
interests of a named are so similar as the unnamed party’s that for the
purpose of obtaining voluntary conciliation and compliance it would
be unnecessary to include the unnamed party in the EEOC
proceedings; 3) whether its absence from the EEOC proceedings
resulted in actual prejudice to the interests of the unnamed party;
[and] 4) whether the unnamed party has in some way represented to
the complainant that its relationship with the complainant is to be
through the named party.
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Id. at 1311-12 (quoting Glus v. G.C. Murphy Co. , 562 F.2d 880, 888 (3d Cir.
1977)).
A consideration of these four factors in light of the appellate record reveals
no reason to excuse Mr. Persik’s failure to name Adecco in the charge. Plainly,
CSU and Adecco are not related in any way. The district court properly dismissed
Mr. Persik’s claims against Adecco for failure to exhaust administrative remedies.
Conclusion
The district court’s dismissal of this action with prejudice is AFFIRMED.
Mr. Persik’s motion to file a reply brief out of time is GRANTED. His motion to
supplement the district court record is DENIED; his motion for leave to file a
reply to Adecco’s response to the motion to supplement the record is GRANTED.
ENTERED BY THE COURT
PER CURIAM
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