                                                                           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      This order and judgment is not binding precedent, except under the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

                                         -2-
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


                                              -3-
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.



                                             -4-
       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.


                                            -5-
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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