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 dismissal 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 Act (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 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 This order and judgment is not binding precedent, except under 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. 

1

 The Complaint might be broadly read to include 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 Court
2 

Sinclair v. Auto. Club 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 claim). We reverse. 

We review de novo a district-court dismissal 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 must plead facts sufficient to state a claim to 

relief that is plausible on its face.” Id. (internal quotation marks omitted). “[W]e must 

construe a pro se appellant’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 Defendant 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 responsibility, 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, does 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 out 
3 

that the Complaint was filed more than two years after the date of Plaintiff’s termination 

by Defendant (the termination notice was attached to the original 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 the 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 impose 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 “only when the complaint itself admits all the 

elements of the affirmative defense by alleging the factual basis for those elements.” Id. 

Here, as we said above, the Complaint states the elements of an EPA claim; and Plaintiff 

had no burden to allege willfulness in anticipation of a limitations defense. Since the 

complaint does not affirmatively allege lack of willfulness, dismissal of the complaint 

was improper. Defendant’s statute-of-limitations 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 the burden of pleading, [Fed. R. Civ. P.] 

8(c)(1) controls. This is one of the unusual 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 motion to proceed in forma pauperis. 

Entered for the Court 

Harris L Hartz 

Circuit Judge