                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         June 28, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
MIA M. SHIELDS,

      Plaintiff - Appellant,

v.                                                          No. 17-1394
                                                   (D.C. No. 1:16-CV-02517-CBS)
THE UNITED STATES POSTAL                                      (D. Colo.)
SERVICE,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________

      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 This order and judgment is not binding precedent, except under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.
1
  The Complaint might be broadly read to include other claims; but at a status conference
at which the district court authorized the filing of the pleading, the court restricted
Plaintiff’s claims to those under the EPA.
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


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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)).




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      CONCLUSION

      We REVERSE the judgment below and REMAND for further proceedings. We

GRANT Plaintiff’s motion to proceed in forma pauperis.

                                          Entered for the Court


                                          Harris L Hartz
                                          Circuit Judge




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