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 distri ct court’s dismissal of her su it against the United States Postal Service fo r employment disc rimination. Th e district court concluded it did not have subject matter jurisdiction over the case because Bryant failed to administratively exha ust her claims. Exercising juri sdiction under 28 U.S.C. § 1291, we reverse and remand w ith instructions to dismiss the case based on the

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he 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 ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 2, 2018
Elisabeth A. Shumaker Clerk of Court2 affirmative defense of failure t o exhaust administrative remedi es, rather than lack of subject matter jurisdiction.
I Bryant filed suit pro se 1 in 2017, alleging that the Pos tal Service had racially discriminated against her when it terminated her employment. I n her form complaint, she left a series of check boxes blank regarding Equal Employme nt Opportunity Commission (“EEOC”) exhaustion. S he checked a box marked “Othe r,” stating that the EEOC informed her t hat she “didn’t have a case, so I procee ded to the [Merit Systems Protection Board].” The Postal Service filed a moti on to dismiss under Fed. R. Civ. P. 12(b)(1), arguing that the district court lacked subject matter jurisdict ion over Bryant’s claims because she failed to exhaust he r administrative remedies. Bry ant never responded to the motion. The district court concluded it lacked jurisdictio n over her claims. Bryant now appeals.
II We review a dismissal under Rule 12(b)(1) de novo. Butler v. K empthorne, 532 F.3d 1108, 1110 ( 10th Cir. 2008). Some of our prior decisi ons held that failure to exhaust administrative remed ies stripped a district court of jurisdiction over a Title VII claim. See, e.g., Khader v . Aspin, 1 F.3d 968, 970 (10th C ir. 1993). However,

1 Because Bryant proceed s pro se, “we libera lly construe [her] f ilings, but we will not act as [her] advocate.” James v. Wadas, 724 F.3d 1312 , 1315 (10th Cir. 2013).3 we recently overruled that prece dent in order to bring our case law closer in line with that of the Supreme Court and ou r sibling circuits. In Lincoln v. BNSF Railway Co., 900 F.3d 1166 (10th Cir. 2018), thi s court held en banc that “a plaintiff’s failure to file an EEOC charge regarding a di screte employment incident me rely permits the employer to raise an affirmative defense of failure to exhaust but does not bar a federal court from assuming juri sdiction over a claim.” Id. at 1185. In this case, the Postal Servi ce filed a motion to dismiss, poi nting out that Bryant admitted in her complaint that she never received a righ t-to-sue letter from the EEOC. Although this failing does not deprive the district cour t of jurisdiction to hear the case, it is an effective affi rmative defense. Because the factual basis for the defense is plain from the text o f Bryant’s complaint, it may be properly raised in the Postal Service’s motion to dismi ss, even though it is no longer a jurisdictional bar. Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965). A ccordingly, although the district court’s dismissal fo r lack of subject matter juris diction no longer accords with our case law, dismi ssal 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 to4 dismiss the case based on the Po stal Service’s affirmative defe nse.

Entered for the Court

Carlos F. Lucero Circuit Judge