UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

LAKESHA BRYANT, 

 Plaintiff - Appellant, 

v. 

UNITED STATES POSTAL SERVICE, 

 Defendant - Appellee. 

No. 18-3018 

(D.C. No. 2:17-CV-02244-CM-GLR) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, HARTZ, and McHUGH, Circuit Judges. 

_________________________________ 

Lakesha Bryant appeals the district court’s dismissal of her suit against the 

United States Postal Service for employment discrimination. The district court 

concluded it did not have subject matter jurisdiction over the case because Bryant 

failed to administratively exhaust her claims. Exercising jurisdiction under 28 U.S.C. 

§ 1291, we reverse and remand with instructions to dismiss the case based on the 

 * 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 2, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

affirmative defense of failure to exhaust administrative remedies, rather than lack of 

subject matter jurisdiction. 

I 

Bryant filed suit pro se1

 in 2017, alleging that the Postal Service had racially 

discriminated against her when it terminated her employment. In her form complaint, 

she left a series of check boxes blank regarding Equal Employment Opportunity 

Commission (“EEOC”) exhaustion. She checked a box marked “Other,” stating that 

the EEOC informed her that she “didn’t have a case, so I proceeded to the [Merit 

Systems Protection Board].” 

The Postal Service filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1), 

arguing that the district court lacked subject matter jurisdiction over Bryant’s claims 

because she failed to exhaust her administrative remedies. Bryant never responded to 

the motion. The district court concluded it lacked jurisdiction over her claims. 

Bryant now appeals. 

II

We review a dismissal under Rule 12(b)(1) de novo. Butler v. Kempthorne, 

532 F.3d 1108, 1110 (10th Cir. 2008). Some of our prior decisions held that failure 

to exhaust administrative remedies stripped a district court of jurisdiction over a Title 

VII claim. See, e.g., Khader v. Aspin, 1 F.3d 968, 970 (10th Cir. 1993). However, 

 1

 Because Bryant proceeds pro se, “we liberally construe [her] filings, but we 

will not act as [her] advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 

2013). 
3 

we recently overruled that precedent in order to bring our case law closer in line with 

that of the Supreme Court and our sibling circuits. In Lincoln v. BNSF Railway Co., 

900 F.3d 1166 (10th Cir. 2018), this court held en banc that “a plaintiff’s failure to 

file an EEOC charge regarding a discrete employment incident merely permits the 

employer to raise an affirmative defense of failure to exhaust but does not bar a 

federal court from assuming jurisdiction over a claim.” Id. at 1185. 

In this case, the Postal Service filed a motion to dismiss, pointing out that 

Bryant admitted in her complaint that she never received a right-to-sue letter from the 

EEOC. Although this failing does not deprive the district court of jurisdiction to hear 

the case, it is an effective affirmative defense. Because the factual basis for the 

defense is plain from the text of Bryant’s complaint, it may be properly raised in the 

Postal Service’s motion to dismiss, even though it is no longer a jurisdictional bar. 

Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965). Accordingly, although 

the district court’s dismissal for lack of subject matter jurisdiction no longer accords 

with our case law, dismissal remains appropriate. 

III

For the foregoing reasons, we REVERSE and REMAND the case to the 

district court with instructions to vacate the dismissal based on Rule 12(b)(1) and to 
4 

dismiss the case based on the Postal Service’s affirmative defense. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge