Case Number: 17-1394

Judge: Harris L. Hartz

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Colorado (Denver County)

Plaintiff's Attorney: Pro Se

Defendant's Attorney: Lauren Marie Dickey and Mark S. Pestal

Description: Plaintiff Mia M. Shields appeals the dismissal by the United States District Court
for the District of Colorado of her third amended complaint (the Complaint), which
alleged that her former employer, the United States Postal Service (Defendant), had
violated the Equal Pay Act (EPA), 29 U.S.C. § 206.1 Defendant had moved to dismiss on
the ground that the claim was barred by the EPA statute of limitations. See id. § 255(a);
* After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
2
Sinclair v. Auto. Club of Oklahoma, Inc., 733 F.2d 726, 728–29 (10th Cir. 1984)
(applying 29 U.S.C. § 255(a) as the statute of limitations for EPA claim). We reverse.
We review de novo a district-court dismissal of a complaint for failure to state a
claim. See Slater v. A.G. Edwards & Sons, Inc., 719 F.3d 1190, 1196 (10th Cir. 2013).
“To defeat a motion to dismiss, a complaint must plead facts sufficient to state a claim to
relief that is plausible on its face.” Id. (internal quotation marks omitted). “[W]e must
construe a pro se appellant’s complaint liberally” Gaines v. Stenseng, 292 F.3d 1222,
1224 (10th Cir. 2002). Thus, “[d]ismissal of a pro se complaint for failure to state a
claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he
has alleged . . . .” Id.
The Complaint alleged that Defendant paid her less than men working in the same
position. This, she claimed, violated the EPA. See 29 U.S.C. § 206(d)(1) (prohibiting an
employer from “paying wages to employees . . . at a rate less than the rate at which he
pays wages to employees of the opposite sex . . . for equal work on jobs the performance
of which requires equal skill, effort, and responsibility, and which are performed under
similar working conditions . . . .”). The EPA’s prohibition does not require that the
employer pay such differential wages with any particular mental state; so the employer’s
scienter is not an element of an EPA claim. See id.; Mickelson v. New York Life Ins. Co.,
460 F.3d 1304, 1310–11 (10th Cir. 2006).
The EPA statute of limitations, however, does have a scienter component. The
limitations period is ordinarily two years, but it extends to three years if the employer’s
violation was willful. See 29 U.S.C. § 255(a). Defendant’s motion to dismiss pointed out
3
that the Complaint was filed more than two years after the date of Plaintiff’s termination
by Defendant (the termination notice was attached to the original complaint) and that the
Complaint does not allege willfulness.
Nevertheless, dismissal of the complaint was error. As we stated in a recent
opinion, the bar of the statute of limitations is an affirmative defense, and therefore need
not be anticipated in the plaintiff’s complaint. See Fernandez v. Clean House, LLC, 883
F.3d 1296, 1298–99 (10th Cir. 2018). “Further, even after the defendant has pleaded an
affirmative defense, the federal rules impose on the plaintiff no obligation to file a
responsive pleading.” Id. at 1299. Dismissal under Fed. R. Civ. P. 12(b)(6) ordinarily
can be based on an affirmative defense “only when the complaint itself admits all the
elements of the affirmative defense by alleging the factual basis for those elements.” Id.
Here, as we said above, the Complaint states the elements of an EPA claim; and Plaintiff
had no burden to allege willfulness in anticipation of a limitations defense. Since the
complaint does not affirmatively allege lack of willfulness, dismissal of the complaint
was improper. Defendant’s statute-of-limitations defense must await a trial or a motion
for summary judgment. See id. (“Ultimately, Plaintiffs will have the burden of
persuasion on the willfulness issue. But on the burden of pleading, [Fed. R. Civ. P.]
8(c)(1) controls. This is one of the unusual circumstances where the burdens of pleading
and persuasion are not on the same party.” (citations omitted)).

Outcome: We REVERSE the judgment below and REMAND for further proceedings. We
GRANT Plaintiff’s motion to proceed in forma pauperis.

Plaintiff's Experts:

Defendant's Experts:

Comments: