                                                              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


                                         -3-
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


                                          -5-
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

                                         -8-
       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

                                           -9-
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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