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

                             FOR THE TENTH CIRCUIT                         December 5, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
ANNELISE BRIGHT,

      Plaintiff - Appellant,

v.                                                          No. 17-6101
                                                    (D.C. No. 5:16-CV-01188-M)
UNIVERSITY OF OKLAHOMA BOARD                               (W.D. Okla.)
OF REGENTS,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      Annelise Bright appeals from a district court order dismissing her complaint based

on sovereign immunity and failure to exhaust. We conclude that dismissal was

appropriate, but that the dismissal should have been without prejudice. Exercising

jurisdiction under 28 U.S.C. § 1291, we vacate and remand.




      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                            I

       Bright worked as a graduate teaching assistant in the University of Oklahoma’s

French Department. In 2015, the department’s coordinator allegedly denied Bright’s

request for disability accommodations and sent a libelous memo to various persons.

However, the director of the University’s Disabilities Resource Center mandated that

Bright receive accommodations. Bright’s work was subsequently restricted, and after

Bright complained to the Equal Employment Opportunity Commission, she was fired.

      In September 2016, Bright sued the University’s Board of Regents in state court

for violating the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213,

and state libel law. The Board removed the case to federal court and moved to dismiss.

The district court granted the Board’s motion, concluding that Bright’s ADA claim was

barred by sovereign immunity and her libel claim was unexhausted. Bright now appeals.1

                                           II

      “We review de novo the district court’s dismissal based on sovereign immunity.”

Mojsilovic v. Okla. ex rel. Bd. of Regents, 841 F.3d 1129, 1131 (10th Cir. 2016).

Sovereign immunity extends to arms of the state, such as the Board. See Hensel v. Office

of Chief Admin. Hearing Officer, 38 F.3d 505, 508 (10th Cir. 1994). It does not apply

when Congress, acting under the Fourteenth Amendment, has abrogated states’ immunity

or when the state waives its immunity. See Pettigrew v. Okla. ex rel. Okla. Dep’t of Pub.

Safety, 722 F.3d 1209, 1212 (10th Cir. 2013). Neither exception governs this case.

      1
        Because Bright is proceeding pro se, we liberally construe her filings, but we
do not act as her advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir.
2013).
                                            2
Congress has not effectively abrogated immunity for ADA employment claims. See Bd.

of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001); Elwell v. Okla. ex rel.

Bd. of Regents, 693 F.3d 1303, 1309-10 (10th Cir. 2012). And Oklahoma has retained its

sovereign immunity. See 51 Okla. Stat. § 152.1.2

       Bright does not argue otherwise. Instead, she recounts the circumstances leading

up to her termination and states that she was coerced to work under unfair conditions.

These arguments do not suggest that the district court erred in dismissing Bright’s ADA

claim. The district court did not, however, specify whether the dismissal was with or

without prejudice. “[A] dismissal on sovereign immunity grounds . . . must be without

prejudice.” Rural Water Sewer & Solid Waste Mgmt. v. Guthrie, 654 F.3d 1058, 1069

n.9 (10th Cir. 2011). We therefore remand this claim to the district court with

instructions to dismiss it without prejudice.

                                                III

       Oklahoma’s Governmental Tort Claims Act (“GTCA”), Okla. Stat. tit. 51,

§§ 151-171, “is the exclusive remedy for an injured plaintiff to recover against a

governmental entity in tort.” Simington v. Parker, 250 P.3d 351, 358 (Okla. Civ. App.

2011) (quotation omitted). A “suit against a governmental entity under the GTCA must

be based upon the claimant presenting written notice of a claim within one year of the


       2
         A state that removes a case to federal court waives its Eleventh Amendment
immunity from suit in federal court but not its sovereign immunity from liability.
Trant v. Oklahoma, 754 F.3d 1158, 1173 (10th Cir. 2014); see also Fed. Mar.
Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 753 (2002) (explaining that “the
Eleventh Amendment does not define the scope of the States’ sovereign immunity; it
is but one particular exemplification of that immunity”).
                                                3
date the loss occurs, or the claim is forever barred.” Id. Plaintiffs “must factually allege

compliance with the GTCA’s notice provisions.” Id.

       The district court dismissed Bright’s libel claim because she had not alleged

compliance with the GTCA’s presentment requirement. We review a district court’s

dismissal on exhaustion grounds for abuse of discretion, which encompasses erroneous

legal conclusions and clearly erroneous factual findings. Quarles v. U.S. ex rel. Bureau

of Indian Affairs, 372 F.3d 1169, 1171 (10th Cir. 2004).

       Bright does not dispute that her libel claim was unexhausted at the time she filed

suit. Rather, she indicates in her reply brief that she filed the necessary administrative

claim after the district court dismissed her complaint. But under Okla. Stat. tit. 51,

§ 157(B), “[n]o action for any cause arising under th[e] [GTCA] shall be maintained

unless valid notice has been given and the action is commenced within one hundred

eighty (180) days after denial of the claim.” However, we must remand for the district

court to clarify that the dismissal is without prejudice. See Gallagher v. Shelton, 587

F.3d 1063, 1068 (10th Cir. 2009) (remanding to allow district court to clarify that its

dismissal of claims for failure to exhaust was without prejudice).




                                              4
                                            IV

       We VACATE the judgment of the district court and REMAND for the district

court to clarify that the dismissal of Bright’s claims was without prejudice.


                                              Entered for the Court


                                              Carlos F. Lucero
                                              Circuit Judge




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