UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

DONITA L. SELF, Plaintiff - Appellant,

v. I HAVE A DREAM FOUNDATION-COLORADO, Defendant - Appellee. No. 13-1090 (D.C. No. 1:11-CV-00492-PAB-CBS) (D. Colo.)

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 discriminatio n and retaliation. The district court granted the employer’s dispositive motion, a nd Ms. Self appealed. We affirm on the

* The Defendant requested oral argumen t; however, the Court has determined that oral argument would not mate rially 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. FILED United States Court of Appeals Tenth Circuit 

### December 20, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - discrimination claim. On the retaliation claim, we vacate the award of summary judgment and remand for the district cour t 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 fi ring, she filed a char ge with the Equal Employment Opportunity Commission, whic h issued her a right-to-sue letter. Ms. Self then began the present action. The Foundation filed a motion to dismiss or, in the alterna tive, a motion for summary judgment. In thes e motions, the Foundation argue d that: (1) It did not qualify as an “employer” under the American s with Disabilities Act because it had fewer than fifteen employees, (2) Ms. Se lf did not exhaust her retaliation claim because she had omitted retaliation in he r EEOC charge, and (3) Ms. Self did not sufficiently allege discrimina tion 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 ad ministratively exhausted. Both conclusions are challenged in this appeal. In additi on, Ms. Self argues that opposing counsel committed misconduct.- 3 - II. The Nature of the District Court’s Ruling The district court unambiguously ruled ag ainst the Plaintiff, but the nature of the ruling is unclear. We must determine wh at the district court ruled before we can engage in meaningful review. The district court’s ruling addresses al ternative motions, one for dismissal and another for summary judgment. The magist rate judge recommended that the Court grant the “motion,” but did not distinguish between the motions for dismissal and summary judgment. This recommendati on was ambiguous becau se dismissal and summary judgment are two different dispositions. See Bradley Scott Shannon, A Summary Judgment Is Not a Dismissal! , 56 Drake L. Rev. 1 (2 007) (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 additi on suggests that the magist rate judge was intending to recommend summary judgment ra ther than dismissal. The district judge “accepted” the magi strate judge’s recommendation. In doing so, the district judge stated that he would “grant” the motion for dismissal or summary judgment even though thes e 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 th e Plaintiff’s documents “do not raise a genuine dispute of material f act” regarding the number of employees); id . at- 4 - 1165 (discussing the Plaintif f’s failure to submit evid ence in response to the summary judgment motion). And, as noted above, the district judge stated that he was accepting the magistrate judge’s reco mmendation, which was to enter summary judgment for the Defendant. To review the district court’s ruli ng, we must discer n whether it involved dismissal or summary judgment because it could not be bot h. The district judge’s references to summary j udgment, coupled with the stated “acceptance” of the magistrate judge’s recommenda tion, suggest that the dist rict judge was intending to grant summary judgment to th e Defendant. Thus, we interpret the ruling as an award of summary judgment to the Defendant. III. ADA Discrimination Claim The Americans with Di sabilities Act applies onl y 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 qua lify as an employer, the company must employ at least fifteen individuals. Amer icans with Disabiliti es Act, 42 U.S.C. § 12111(5)(A) (2006). The Foundation had fewer than fiftee n traditional employees. But, a number of volunteers worked for the Foundation as volunteers. If these vol unteers counted as “employees,” the Foundation would qualify as an “emp loyer” under the ADA. Without these volunteers, however, Ms. Self acknowledges that the Foundation- 5 - would lack enough employees to trigger the ADA. R. at 1025-26. The district court concluded that the volunt eers did not count as em ployees, and we agree. We must uphold the award of summary judgment if the Defe ndant 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 Ci r. 2013). To determine whether this test was met, we view the ev idence in the light mo st 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 Fou ndation used AmeriC orps 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 obt ained a living allowance. The living allowance is not considered a “wage.” 45 C.F.R. § 2522.245. And, when the Plaintiff allegedl y encountered discrimination (2008), federal law provided that volunteers participating in AmeriC orps and other programs would not be considered employees of the organizat ions 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- 6 - Programs , 212 F.3d 80, 84 (1st Cir. 2000) (“Since 1991, the [National Community Service Act] has provided that participants in an approved Amer iCorps 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 declarat ion, the Plaintiff argues: (1) Tax records show that the Foun dation treated AmeriCor ps participants as employees; (2) the Foundation was not a “s ub-grantee”; (3) the volunteers were not students; and (4) two of the affiants (Ms. Mary Hanewall and Ms. Stephanie Schooley) were not credible witnesse s. These argumen ts are meritless. The Plaintiff bases her first argumen t 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 th e 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, stati ng that she “has disputed th e 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 wa s 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 ar e considered an employee or not, she knows that they are not.” R. at 840 (emphasis in original).- 7 - The Plaintiff also denies that the Fou ndation was a sub-grant ee. This issue, however, is immaterial. In its summary j udgment papers, the Foundation stated that Regis University had obtained a grant fo r 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 pr ohibits classification of the AmeriCorps volunteers as “employees,” regardless of wh ether Regis passed along the grant to the Foundation. See supra pp. 5-6 (citing authorities). Ms. Self also denies that the volunt eers 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 d ecided on summary judgment. Hansen v. PT Bank Negara Indonesia (Persero) , 706 F.3d 1244, 1251 (10th Ci r. 2013). As discussed above, we view all of the evidence in th e Plaintiff’s favor, regardless of the credibility of any of the affiants. Under federal law, AmeriCorps particip ants are not considered “employees” of the Foundation. Indeed, as discussed above, Ms. Self conceded in the district court that AmeriCorps participants are not considered “employ ees.” This concession is fatal to the discrimination claim. W ithout the AmeriCorps participants, the- 8 - Foundation had fewer than fifteen empl oyees. And without fifteen or more employees, the ADA does not apply. IV. ADA Retaliation Claim Ms. Self also challenges the dismissa l of her ADA retaliation claim for failure to exhaust administrative re medies. 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 ove r the retaliation clai m only if Ms. Self exhausted administra tive 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 ju risdiction, 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 disabili ty. 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 gro cery shopping. This upset the Executive Director and she starte d 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 ups et me, so I left work. I tried to call b ack 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- 9 - 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 si gn 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 cal l 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 pers onal belongings. [sic] I believe that I have b een discriminated against due to my disability within the meaning of the American s with Disabilities Act of 1990, as amended.
R. at 723. The EEOC form contained boxes for “discr imination” and “retaliation” claims. Ms. Self checked the box for “discrimination, ” but not for “retaliation.” “The failure to mark a particular box creat es a presumption that the ch arging 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 rebutte d, 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. Ra ther, she allege s 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, wh ich she reviewed and signed. By failing to check the box fo r “retaliation,” we presum e that Ms. Self was not asserting retaliation in the EEOC charge. This presumpti on is unrebutted. Thus, the- 10 - retaliation claim is unexhausted; and in the absence of exhaustion, the district court lacked jurisdiction over the re taliation claim. As a re sult, the claim was properly rejected. Still, we must address the way that the di strict court disposed of the claim. Though the district court was right to reje ct the claim, the actual disposition was

erroneous. As discussed above, the di strict 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 discus sed above, exhaustion i nvolves a jurisdictional defect under the ADA. Because the pleadi ng defect was jurisd ictional, the claim should have been dismi ssed without prejudice. See Brereton v. Bo untiful 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 mu st be without prejudice.”). Thus, we vacate the award of summary j udgment on the retaliation claim and remand for the limited purpose of directing the distri ct court to dismiss the retaliation claim without prejudice.- 11 - V. Attorney Misconduct Claim Finally, we consider Ms. Self’s ar gument that opposing counsel committed misconduct. Ms. Self waived this argum ent by omitting it in her objections to the magistrate judge’s recommendation. “We have adopted a firm waiver rule when a party fail s to object to the findings and recommendations of the magistrate [judge]. Th e failure to timely object to a magistrate [judge]’s reco mmendations waives appellate review of both factual and legal questions.” Duffield v. Jackson , 545 F.3d 1234, 1237 (10th Cir. 2008) (citation, brackets, and inte rnal 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 requi red in the interests of justice. Id. The magistrate judge informed the par ties 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 j udgment on Ms. Self’s ADA discrimination claim. The retaliation claim was unexhausted, as the district cour t stated. But we- 12 - vacate the award of summary judgment on the retaliation claim and remand with instructions to order dism issal without prejudice. Entered for the Court

Robert E. Bacharach Circuit Judge