FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED ST ATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

June 8, 2005 

PATRICK FISHER 

Clerk 

SENECA NICHOLSON, and a class of 

African American Employees and 

ex-employees of Jefferson County who 

have [been] unfairly treated and/or 

terminated, and a class of probationary 

employees who have been 

disadvantage [sic] in violation of the 

Fair Labor Standards Act by the 

customs and policies of Jefferson 

County, including the failure to pay 

overtime wages owed, 

Plaintiff - Appellant, 

V. 

JEFFERSON COUNTY; JEFFERSON 

COUNTY DIRECTOR OF 

ADMINISTRATIVE SERVICES; 

JEFFERSON COUNTY 

DEPARTMENT OF HEALTH AND 

ENVIRONMENT, (EPSDT); CHRIS 

SCHMIDT, 

Defendants - Appellees. 

No. 04-1140 

(D.C. No. 02-F-2036 (CBS)) 

(D. Colo.) 

ORDER AND JUDGMENT* 

This order and judgment is not binding precedent, except under the 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 I 0th Cir. R. 36.3. 

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Before HENRY, BRISCOE, 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. 

Plaintiff Seneca Nicholson, 1 a former employee of defendant Jefferson 

County Department of Health and Environment, appeals from two district court 

orders in this suit under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), 

Fair Labor Standards Act, 29 U.S.C. §§ 201-219, and 42 U.S.C. §§ 1981 and 

1985. The district court ruled in the first order that defendant Jefferson County 

was not a proper defendant and dismissed it from the proceedings. The second 

order disposed of the case on the merits, dismissing some claims under 

Fed. R. Civ. P. 12(b)(6) and granting summary judgment on the rest. We affirm 

for the reasons stated below. 

Firm Waiver Rule 

Defendants argue that plaintiff lost her right to challenge the dispositive 

orders issued by the district court by failing to file timely objections to the 

magistrate judge's prior recommendations. We agree as to the second order but 

Plaintiff initially sought certification for a class action, but this was denied 

and the matter has not been pursued on appeal. 

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disagree as to the first. Before addressing each specific order, we set out the 

general principles that govern the matter. 

A. General Legal Principles 

"Within ten days after being served with a copy [ of the proposed findings 

and recommendations of a magistrate judge], any party may serve and file written 

objections to such proposed findings and recommendations as provided by rules 

of court[, and a] judge of the court shall make a de novo determination of those 

portions ... to which objection is made." 28 U.S.C. § 636(b)(l). The statutory 

objection period has significant appellate repercussions: "This court has adopted 

a firm waiver rule which provides that a litigant's failure to file timely objections 

to a magistrate's report and recommendation waives appellate review of both the 

factual and legal determinations." Key Energy Res. Inc. v. Merrill (In re Key 

Energy Res. Inc.), 230 F.3d 1197, 1199-1200 (10th Cir. 2000) (quotations and 

alteration omitted). 

The waiver rule applies to pro se litigants, "so long as they were properly 

informed of the consequences of their failure to object." Theede v. United States 

Dep't of Labor, 172 F.3d 1262, 1268 (10th Cir. 1999) (quotation and alteration 

omitted); see, e.g., Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 

1533 & n.5 (10th Cir. 1996); Fattier v. United States, 73 F.3d 1064, 1065 (10th 

Cir. 1996). And a district court's discretionary election to excuse noncompliance 

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with § 636(b )(1) and consider the merits of a matter for purposes of its own 

review does not negate the appellate-waiver consequences of the noncompliance. 

Key Energy Res. Inc., 230 F.3d at 1201 n.3 (following Vega v. Suthers, 195 F.3d 

573,580 (10th Cir. 1999)). 

The waiver rule is subject to exception "where the interests of justice so 

require." Theede, 172 F.3d at 1268 (quotation omitted). A prose litigant's effort 

to comply, the force and plausibility of the explanation for her failure to comply, 

and the substance of her arguments on the merits are all relevant considerations in 

this regard. See generally Wirsching v. Colorado, 360 F.3d 1191, 1197-98 (10th 

Cir. 2004 ); Theede, 172 F .3d at 1268. 

B. March 2004 Order 

On March 16, 2004, the magistrate judge recommended that the district 

court grant pending motions for dismissal/summary judgment filed by defendants 

Jefferson County Department of Health and Environment and Chris Schmidt. The 

recommendation was mailed the same day, but not stamped filed until March 18. 

Calculated from the date of service, see 28 U.S.C. § 636(b)(l), and extended by 

Fed. R. Civ. P. 6(a) ( excluding weekends and holidays from deadlines of ten days 

or less) and Fed. R. Civ. P. 6(e) (adding three days when relevant period follows 

service by mail), the deadline for objections was April 2, 2004. On that date, the 

district court entered an order in which it noted that no objections had been filed, 

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reviewed the matter de novo nevertheless, and summarily adopted the magistrate 

judge's recommendation. No objections from plaintiff arrived that day or in the 

days that followed. Instead, plaintiff eventually filed this appeal. 

Based on the principles set out above, we conclude that plaintiff has waived 

her right to appellate review in connection with this order. The only argument 

she advances against application of the waiver rule here is unpersuasive, and no 

others appear from the record. She argues, based on the March 18 filing date 

stamped on the magistrate judge's recommendation, that she believed (and still 

contends) that the deadline for objections was April 5 and, thus, the order was 

premature. Aplt. Opening Br. at 8. Actually, as just noted, the deadline properly 

determined from the date of mailing was April 2, the day on which the district 

court entered its order. And any argument regarding deadline confusion loses its 

force in light of plaintiffs unexplained failure to file objections when she thought 

they were due. Finally, given the thorough, reasoned, and authoritatively 

supported analysis set out by the magistrate judge and adopted by the district 

court after its de novo review, this is not a case where special concerns about the 

merits compel us to overlook the other considerations and excuse plaintiffs 

waiver. 

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C. January 2004 Order 

On January 2, 2004, the magistrate judge recommended granting Jefferson 

County's motion to dismiss, which asserted that Jefferson County Department of 

Health and Environment was plaintiff's employer and that the two entities were 

legally distinct. The recommendation was filed and served by mail three days 

later. On January 20, 2004, the district court issued an order noting that no 

objections to the magistrate judge's recommendation had been filed, reviewing 

the matter de novo nonetheless, and summarily adopting the recommendation to 

dismiss Jefferson County from the case. 

In this instance, the district court did act prematurely. Measured from the 

date of service and extended by the pertinent provisions of Rule 6, plaintiff had 

until January 23 to file objections. More importantly, plaintiff may have received 

the district court's order granting Jefferson County's motion to dismiss before the 

time for objection expired, in which event she would understandably have been 

deterred from filing objections in light of their evident futility. Under these 

circumstances, we deem it appropriate to resolve plaintiff's appeal on the merits. 

Review of January 2004 Order on the Merits 

The district court adopted the magistrate judge's recommendation to 

dismiss Jefferson County from the case because it is an entity distinct from 

plaintiff's employer and, thus, was not a proper defendant here. We agree. 

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Plaintiff's claims relate to her employment with the Jefferson County 

Department of Health and Environment (JCDHE). The JCDHE is "a political 

subdivision of the state with its own statutory rights and mandate" and, as such, 

"is a legal entity, separate and distinct from the board of county commissioners 

[i.e., from Jefferson County2]." Jefferson County Health Servs. Ass 'n v. Feeney, 

974 P.2d 1001, 1004 (Colo. 1998) (en bane). Under the governing statutory 

scheme, a county board of health appoints a public health administrator who, as 

executive and administrative head of the department, is responsible for hiring, 

compensating, and directing department personnel consistent with policies set by 

the board of health. See Colo. Rev. Stat. § 25-1-505(1 ), (3 ). See generally id. 

§§ 25-1-501 to 516. In Feeney, the Colorado Supreme Court underscored the 

independent legal status of the county board of health by holding that when suit is 

brought on a claim against the county health department, the notice requirements 

of the state governmental immunity act are not satisfied by sending a notice to the 

board of county commissioners, but only by sending a notice to the county board 

of health, since "the county board of health, not the board of county 

commissioners, is the governing body of a county health department." Feeney, 

974 P.2d at 1002. 

2 Under Colo. Rev. Stat.§ 30-11-105, actions against the county are brought 

against the county board of commissioners. See Calahan v. Jefferson County, 429 

P .2d 301, 302 (Colo. 1967) (applying predecessor statute). 

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Plaintiff points out that JCDHE follows personnel rules drafted by the 

Jefferson County commissioners. But that is only because the board of health 

overseeing JCDHE elected to adopt those rules, and such election did not, indeed 

could not, effect a relinquishment of its authority over personnel matters to the 

county commissioners. See Johnson v. Jefferson County Bd. of Health, 662 P .2d 

463,467,471 (Colo. 1983) (en bane) (noting JCDHE's adoption of county 

personnel rules but holding this did not override health board's statutory authority 

over employment of its administrator, because "[a] county board of health, as a 

political subdivision of the state, may not by rule or regulation abdicate the 

authority and responsibility delegated to it by the legislature''). Plaintiff also 

notes that her wages were paid by checks issued by the county treasurer, but this 

likewise does not undermine the district court's analysis. By statute, the county 

treasurer also serves as treasurer of the county health department, Colo. Rev. Stat. 

§ 25-1-505(2), and, in the latter role, the treasurer's issuance of checks to the 

department's employees is entirely consistent with the department's statutory 

responsibility over its own personnel matters. 

This court has emphasized the importance of legislative delineations of 

administrative responsibility and rejected efforts to extend Title VII liability 

beyond the plaintiff's direct governmental employer, "since such [an extension] 

effectively negates what we assume was a state's conscious choice to create 

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distinct organizations." Sandoval v. City of Boulder, 3 88 F .3d 1312, 1323 n.3 

(10th Cir. 2004); see also Bristol v. Bd. of County Comm 'rs, 312 F.3d 1213, 1219 

(10th Cir. 2002). "Absent some indication that the state's decision was motivated 

by a desire to circumvent the civil rights laws or other laws, principles of comity 

counsel federal courts not to be too quick to erase organizational dividing lines 

drawn up by state authorities." Sandoval, 3 88 F .3d at 1323 n.3. The district court 

properly accorded due effect to the organizational scheme drawn up by the state 

legislature here. 

Motions to Dismiss Appeal 

Before briefing this appeal, defendants moved for summary dismissal on 

two grounds, neither of which is cognizable under our local rules. Motions for 

summary disposition are limited to: "(a) a motion to dismiss the entire case for 

lack of appellate jurisdiction; (b) a motion for summary disposition because of a 

supervening change of law or mootness; or (c) a motion to remand for additional 

trial court or administrative proceedings." 10th Cir. R. 27.2(A)(l). Defendants' 

motions for dismissal, based on the waiver rule discussed above and on plaintiff's 

delay in seeking leave to proceed in forma pauperis, do not fall into any of the 

designated categories. Such non-jurisdictional deficiencies relating to the merits 

or to matters of procedure are not proper grounds for summary disposition. See, 

e.g., Joseph A. ex rel. Wolfe v. N.M Dep 't of Human Servs., 28 F .3d 1056, 1059 

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(10th Cir. 1994 ); Braley v. Campbell, 832 F .2d 1504, 1509 (10th Cir. 1987). 

Defendants' motions are, therefore, denied. 

The judgment of the district court is AFFIRMED. Defendants' motions for 

summary dismissal are DENIED. Plaintiffs motion to proceed in forma pauperis 

is GRANTED. The mandate shall issue forthwith. 

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Entered for the Court 

Mary Beck Briscoe 

Circuit Judge 

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