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### NOT PRECEDENTIAL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 fro m 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 [thei r]2



### 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 o ur review of the District
Court’ s order is plenary. See Anjelin o 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 comply ing with the procedural requirements set forth in 42 U.S.C. § 2000e

- 5. Those re quirements 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 jurisdicti on, 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. R ay v. Kertes , 2 85 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 in3



### federal court. Specifically, Fernand ez 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 le tter .” 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 Robins on , 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.