NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
McKENZIE DANIELS, No. 14-56967
Plaintiff-Appellant, D.C. No. 2:14-cv-06731-JFW-PJW
v.
MEMORANDUM*
PATRICK R. DONAHOE, Postmaster U.S.
Postal Service,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted September 13, 2016**
Before: HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.
McKenzie Daniels appeals pro se from the district court’s order dismissing
his employment action alleging violations of Title VII and the Age Discrimination
in Employment Act (“ADEA”), and breach of implied contract. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to
exhaust administrative remedies. Vinieratos v. United States, 939 F.2d 762, 768
(9th Cir. 1991). We reverse and remand.
Dismissal of Daniels’ action for failure to exhaust was premature at the
pleading stage because it is not obvious from the face of the complaint and
attached exhibits when Daniels became aware of the alleged discriminatory acts
and, therefore, whether Daniels’ contact with an Equal Employment Opportunity
counselor was timely. See Kraus v. Presidio Tr. Facilities Div./Residential Mgmt.
Branch, 572 F.3d 1039, 1046 n.7 (9th Cir. 2009) (“Whether a plaintiff in a Title
VII action has timely exhausted her administrative remedies is an affirmative
defense, [so] the defendant bears the burden of pleading and proving it.” (citation
and internal quotation marks omitted)); see also Rivera v. Peri & Sons Farms, Inc.,
735 F.3d 892, 902 (9th Cir. 2013) (“[P]laintiffs ordinarily need not plead on the
subject of an anticipated affirmative defense. When an affirmative defense is
obvious on the face of a complaint, however, a defendant can raise that defense in
a motion to dismiss.” (citation and internal quotation marks omitted)).
Because we are remanding, we do not address the merits of Daniels’ breach
of implied contract claim, which the district court may address in the first instance.
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We treat Daniels’ October 9, 2015 filing as both a request to supplement the
opening brief and a supplement to the opening brief, and we deny the request as
unnecessary.
REVERSED and REMANDED.
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