McKenzie Daniels v. Patrick Donahoe

MEMORANDUM

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 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, 672 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., 736 F.3d 892 , 902 (9th Cir. 2013)…