                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       SEP 21 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 McKENZIE DANIELS,                               No. 14-56967

                  Plaintiff-Appellant,           D.C. No. 2:14-cv-06731-JFW-PJW

   v.
                                                 MEMORANDUM*
 PATRICK R. DONAHOE, Postmaster U.S.
 Postal Service,

                  Defendant-Appellee.

                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                          Submitted September 13, 2016**

Before:        HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.

        McKenzie Daniels appeals pro se from the district court’s order dismissing

his employment action alleging violations of Title VII and the Age Discrimination

in Employment Act (“ADEA”), and breach of implied contract. We have


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to

exhaust administrative remedies. Vinieratos v. United States, 939 F.2d 762, 768

(9th Cir. 1991). We reverse and remand.

      Dismissal of Daniels’ action for failure to exhaust was premature at the

pleading stage because it is not obvious from the face of the complaint and

attached exhibits when Daniels became aware of the alleged discriminatory acts

and, therefore, whether Daniels’ contact with an Equal Employment Opportunity

counselor was timely. See Kraus v. Presidio Tr. Facilities Div./Residential Mgmt.

Branch, 572 F.3d 1039, 1046 n.7 (9th Cir. 2009) (“Whether a plaintiff in a Title

VII action has timely exhausted her administrative remedies is an affirmative

defense, [so] the defendant bears the burden of pleading and proving it.” (citation

and internal quotation marks omitted)); see also Rivera v. Peri & Sons Farms, Inc.,

735 F.3d 892, 902 (9th Cir. 2013) (“[P]laintiffs ordinarily need not plead on the

subject of an anticipated affirmative defense. When an affirmative defense is

obvious on the face of a complaint, however, a defendant can raise that defense in

a motion to dismiss.” (citation and internal quotation marks omitted)).

      Because we are remanding, we do not address the merits of Daniels’ breach

of implied contract claim, which the district court may address in the first instance.

                                          2                                    14-56967
      We treat Daniels’ October 9, 2015 filing as both a request to supplement the

opening brief and a supplement to the opening brief, and we deny the request as

unnecessary.

      REVERSED and REMANDED.




                                        3                                   14-56967
