UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MIA M. SHIELDS, Plaintiff - Appellant,

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

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , HARTZ , and McHUGH , Circuit Judges.

________________ _________________ Plaintiff Mia M. Shields appeals the dism issal 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 Ac t (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 re cord, this panel has determined unanimously that oral argument would not ma terially 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 This order and judg ment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 The Complaint might be broadly read to incl ude 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. FILED United States Court of Appeals Tenth Circuit 

### June 28, 2018
Elisabeth A. Shumaker Clerk of Court2 Sinclair v. Auto. Cl ub 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 cl aim). We reverse. We review de novo a district-court dismis sal 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 mu st plead facts sufficien t to state a claim to relief that is plausible on its face.” Id. (internal quotation marks omitted). “[W]e must construe a pro se appella nt’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 De fendant 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 re sponsibility, 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, do es 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 out3 that the Complaint was filed more than two y ears after the date of Plaintiff’s termination by Defendant (the termination not ice was attached to the origin al 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 th e 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 impos e 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 “onl y when the complaint itself admits all the elements of the affirmative defense by allegi ng the factual basis for those elements.” Id

. Here, as we said above, the Co mplaint states the elements of an EPA claim; and Plaintiff had no burden to allege willf ulness in anticipation of a limitations defense. Since the complaint does not affirmativel y allege lack of willfulness, dismissal of the complaint was improper. Defendant’s statute-of-limitati ons 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 th e burden of pleading, [Fed. R. Civ. P.] 8(c)(1) controls. This is one of the unusua l circumstances where the burdens of pleading and persuasion are not on the same party.” (citations omitted)).4 CONCLUSION We REVERSE the judgment below and REMAND for further proceedings. We GRANT Plaintiff’s mo tion to proceed in forma pauperis

. Entered for the Court

Harris L Hartz Circuit Judge