552 F. App'x 782
10th Cir.2013Background
- Pro se plaintiff Donita L. Self sued her former employer under the ADA for discrimination and retaliation.
- The district court granted the employer’s dispositive motion, which the court of appeals partly affirmed and partly remanded.
- Foundation had 2000–2008 employment and was fired; Self filed an EEOC charge and then suit.
- District court held ADA inapplicable due to fewer than 15 employees and dismissed retaliation as unexhausted.
- Volunteers (AmeriCorps) were counted to determine employee threshold; court concluded they were not employees under the ADA.
- Retaliation claim dismissed for failure to exhaust, but the court vacated the summary-judgment ruling and remanded to dismiss retaliation without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ADA coverage based on employer threshold | Self argues AmeriCorps volunteers count as employees | Foundation contends volunteers do not count; not employees under ADA | ADA does not apply; no 15+ employees; discrimination claim affirmed |
| Exhaustion of retaliation claim | Self contends she raised retaliation in EEOC charge | Charge lacked retaliation box; not exhausted | Retaliation unexhausted; district court lacked jurisdiction; dismissal without prejudice on remand |
| District court disposition | N/A | N/A | Ruling treated as summary judgment; proper disposition analyzed on exhaustion basis; remand to dismiss without prejudice |
Key Cases Cited
- Butler v. City of Prairie Village, Kansas, 172 F.3d 736 (10th Cir. 1999) (ADA employer status and threshold analysis)
- James v. Wadas, 724 F.3d 1312 (10th Cir. 2013) (summary judgment standard and evidentiary review)
- Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005) (liberal view of pro se filings; not attorney in record)
- Jones v. UPS, Inc., 502 F.3d 1176 (10th Cir. 2007) (EEOC charge scope; exhaustion presumption unless text shows retaliation)
- Wheeler v. Hurdman, 825 F.2d 257 (10th Cir. 1987) (summary judgment versus dismissal; prejudice when merits resolved)
- Brereton v. Bountiful City Corp., 434 F.3d 1213 (10th Cir. 2006) (dismissal for lack of jurisdiction must be without prejudice)
- Twombly v. Ass’n of Farmworker Opportunity Programs, 212 F.3d 80 (1st Cir. 2000) (pleading standards relevant to evaluating claims)