2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-26-2011

Edward Fernandez v. Rose Trucking

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3409

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Recommended Citation

"Edward Fernandez v. Rose Trucking" (2011). 2011 Decisions. Paper 1192.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3409

___________

EDWARD J. FERNANDEZ,

Appellant

v.

ROSE TRUCKING and WHITE ROSE FOODS

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 09-cv-04915)

District Judge: Honorable William J. Martini

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 9, 2011

Before: SCIRICA, SMITH and VANASKIE, Circuit Judges

(Opinion filed: May 26, 2011)

___________

OPINION

___________

PER CURIAM

In September 2009, Edward J. Fernandez filed a Title VII employment

discrimination complaint, which he later amended, in the United States District Court for 

the District of New Jersey. He alleged that the defendants, Rose Trucking and White 

Rose Foods, “fire[d] [him] because of injuries . . . sustained while under [their] 
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employment.” The District Court sua sponte dismissed the complaint, based on 

Fernandez’s concession that he had not filed a charge with the Equal Employment 

Opportunity Commission (“EEOC”). See Webb v. City of Phila., 562 F.3d 256, 262 (3d 

Cir. 2009) (“Before bringing suit under Title VII in federal court, a plaintiff must first file 

a charge with the EEOC.”). Fernandez appealed. 

We have jurisdiction pursuant to 28 U.S.C. § 1291, and our review of the District 

Court’s order is plenary. See Anjelino v. N.Y. Times Co., 200 F.3d 73, 87 (3d Cir.

2000).

A plaintiff bringing an employment discrimination claim under Title VII must 

exhaust his administrative remedies by complying with the procedural requirements set 

forth in 42 U.S.C. § 2000e-5. Those requirements include filing a complaint with the 

EEOC or its state equivalent within 300 days of the alleged violation. See 42 U.S.C. 

§ 2000e-5(e)(1). Failure to exhaust administrative remedies does not affect the District 

Court’s subject matter jurisdiction, however. Robinson v. Dalton, 107 F.3d 1018, 1021 

(3d Cir. 1997) (citing Hornsby v. U.S. Postal Serv., 787 F.2d 87, 89 (3d Cir. 1986)). 

Rather, failure to exhaust in Title VII cases, which is akin to failing to comply with a 

statute of limitations, is an affirmative defense which must be pleaded by the defendant. 

Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997). Nevertheless, we have 

recognized that sua sponte dismissal may be appropriate where the plaintiff concedes that 

he failed to exhaust. Ray v. Kertes, 285 F.3d 287, 293 n.5 (3d Cir. 2002).

Fernandez made such a concession here. In his amended complaint, Fernandez 

clearly indicated that he did not file an administrative charge prior to bringing suit in 
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federal court. Specifically, Fernandez stated that “when I became aware that I could 

proce[e]d with the EEOC, I was told by that office that the time limit . . . had expire[d]. 

The lack of knowledge in the detailed steps made me ignorant to the fact that I could 

obtain a right to sue letter.” He also admitted, “I was not aware that I could contact the 

N.J. Division on Civil Rights in this matter.” Nowhere has Fernandez claimed that he 

pursued his administrative remedies with the EEOC or that he is entitled to equitable 

tolling. See Robinson, 107 F.3d at 1021 (stating that “in Title VII cases courts are 

permitted in certain limited circumstances to equitably toll filing requirements, even if 

there has been a complete failure to file . . . .”). Therefore, under these limited 

circumstances, we conclude that the District Court’s sua sponte dismissal of Fernandez’s 

complaint for failure to exhaust was proper. 

For the reasons given, we will affirm the judgment of the District Court.