2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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- 301 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 3177

___________ DOREEN ERNANDEZ ,

Appellant

v. MERRILL LYNCH

____________________________________ On Appeal from the United States District Cou rt for the District of New Jersey (D.C. Civil No. 10

- cv - 05614 ) District Judge: Honorable Stanley R. Chesler

____________________________________ Submitted for Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6

September 29, 2011 Befor e: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

(Opinion filed : October 12, 2011 )

_________ OPINION

_________ PER CURIAM Doreen Ernandez appeals an order of the United States District Court for the District of New Jersey granting Defendant’s motion to dismiss. W e will affirm the judgment of the District Court.2 I. In October 2010, E rnandez filed a Title VII employment discrimination complaint in the District Court

. Ernandez , who was employed by Merrill Lynch as a Financial Advisor from February 2001 until July 2 002 , alleged that she was terminated from the
company because of her race. Merrill Lynch moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

. See Fed. R. Civ. P. 12(b)(6) . The District Court granted the motio n to dismiss, finding that Ernandez failed to timely exhaust her administrative remedies

. The Court declined to grant Erna n dez leave to amend the complaint on the ground of futility. Ernandez appeals.
II. We have appellate jurisdiction under 28 U.S. C. § 1291 , and review the District Court’s decision to dismis s the complai nt under Rule 12(b)(6) de novo. Dique v. New Jersey State Police , 603 F.3d 181, 188 (3d Cir. 2010)

. A plaintiff bringing an employment discrimination claim under Title VII must exha ust his or h er administrative remedies by complying with the procedural requirements se t forth in 42 U.S.C. § 2000e

- 5

. Those requirements include filing a complaint with the Equal Employment Opportunity Commission (“ EEOC ”) within 180 days of the alleged u nlaw ful employment practice, or, if the plaintiff initially instituted proceedings with a state agency, within 300 days of the alleg ed unlawful employment practice. See 42 U.S.C. § 2000e

- 5(e)(1) ; Burgh v. Borough Council of Montrose , 251 F.3d 465, 472 (3d Cir. 2001)

.3

Because Ernandez did no t file her charge with the EEOC until July 22, 2010, approximately eight years after the limitations period had started, we agree with the District Court that her charge was untimely filed. Although EEOC procedural

r equirements are subject to equitable tolling, see Ruehl v. Viacom, Inc. , 500 F.3d 375, 384 (3d Cir. 2007) and Robinson v. Dalton , 107 F.3d 1018, 1021 (3d Cir. 1997) ; 1
Ernandez did not allege any facts supporting equitable tolling in her complaint , nor did she in her response to Defendant’s motion to dismiss

. On appeal, Ernandez does not argue that the District Court erred in determining that she failed to timely pursue her administrative remedies with the EEOC, or that amendment of her complaint would be
f utile

. Grayson v. Mayview State Hosp. , 293 F.3d 103, 108 (3d Cir. 2002)

. As w e conclude that the District Court’s dismissal of E rnandez’s complaint for failure to exhaust was proper and agree that , under these circumstances, amendment of her complaint would be futile , we will summarily affirm the j udgment of the District
Court. See 3d Cir. LAR 27.4; I.O.P. 10.6.

1 A court will excuse a plaintiff’s failure to follow EEOC deadlines: “(1) where the defendant has actively misled the plaintiff respecting the plaintiff’s cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.” See Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1387 (3d Cir. 1994).