CLD-146                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 12-3397
                                       ___________

                                WILLIE EDWARDS, JR.,
                                            Appellant

                                             v.

                           BAY STATE MILLING COMPANY
                        ____________________________________

                      On Appeal from the United States District Court
                                 for the District of New Jersey
                                (D.C. Civil No. 2:10-cv-05309)
                      District Judge: Honorable Dennis M. Cavanaugh
                        ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   March 7, 2013
        Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

                               (Opinion filed: April 2, 2013)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Willie Edwards, Jr., proceeding pro se, appeals from an order of the United States

District Court for the District of New Jersey granting Bay State Milling Company‟s (“the

Company”) motion to dismiss. Because his appeal is lacking an arguable basis in law,

we will dismiss it.
                                             I.

       Because we primarily write for the parties, we need only recite the facts necessary

for our discussion. Edwards is a former employee of the Company‟s Clifton, New Jersey

facility whose employment was terminated in February 2009. He filed a charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”) on May

18, 2009, alleging discrimination based upon his race. The EEOC sent him a Notice of

Right to Sue on, at the latest, December 31, 2009.1

       On October 6, 2010, Edwards filed his complaint alleging employment

discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e-5 and age discrimination in violation of the Age Discrimination in Employment

Act (“ADEA”) of 1967, 29 U.S.C. § 623, in the United States District Court for the

Southern District of New York. In his complaint, he alleged that the Company engaged

in race discrimination by subjecting only African-Americans to drug testing. On October

15, 2010, Edwards‟ case was transferred from the Southern District of New York to the

District of New Jersey. The Company filed a motion to dismiss on December 9, 2011,

which the District Court granted on July 31, 2012. Edwards timely filed this appeal.

                                            II.



1
  The EEOC‟s Notice of Right to Sue, submitted by the Company in support of its motion
to dismiss, is clearly dated December 2009. However, the day it was issued is not clear
from the date stamp. Accordingly, we assume that the Notice was issued, at the latest, on
December 31, 2009.

                                             2
       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise

plenary review over the District Court‟s dismissal order. See Allah v. Seiverling, 229

F.3d 220, 223 (3d Cir. 2000). To survive dismissal under Fed. R. Civ. P. 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to „state a claim to

relief that is plausible on its face.‟” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We look for “„enough facts

to raise a reasonable expectation that discovery will reveal evidence of‟ the necessary

elements” of a claim for relief. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir.

2008) (quoting Twombly, 550 U.S. at 556). Because Edwards is proceeding in forma

pauperis, we must dismiss his appeal under 28 U.S.C. § 1915(e)(2)(B) if it “lacks an

arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

                                             III.

       Under Title VII, a plaintiff wishing to file a complaint must do so in federal court

within ninety days of receipt of the EEOC‟s Notice of Right to Sue. 42 U.S.C. § 2000e-

5(f)(1); see also Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 470

(3d Cir. 2001). A letter is “received” when it is delivered to a claimant‟s residence or

post office box, not when the claimant has actual physical possession of the letter. See

Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 115 n.15 (3d Cir. 2003). When the

actual date of receipt is known, that date controls; where the actual date of receipt is

unknown, courts will presume receipt took place three days after the EEOC mailed it.

See Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999).
                                              3
       Here, Edwards filed his charge on May 18, 2009, and the EEOC issued a Notice of

Right to Sue on December 31, 2009 at the latest. Nothing in the record indicates the

actual date Edwards received the Notice; therefore, we presume that he received it on

January 4, 2010.2 See id. Edwards had ninety days from January 3, 2010, or until

Monday, April 5, 2010, to file his complaint.3 However, he did not do so until October 6,

2010, approximately six months too late. Accordingly, Edwards‟ Title VII claim was

untimely filed, and the District Court properly granted the Company‟s motion to dismiss

this claim.

       A plaintiff wishing to allege a violation of the ADEA must file an “administrative

discrimination charge [with the EEOC] within 300 days of the challenged employment

action.” Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000) (alteration in

original); see also 29 U.S.C. § 626(d)(2). Edwards‟ charge, filed within 300 days of his

termination, only alleged discrimination based upon his race, and he has not presented

any evidence that he ever filed an age discrimination charge with the EEOC within 300

days of a challenged employment act. Accordingly, the District Court properly granted

the Company‟s motion to dismiss Edwards‟ ADEA claim.

                                             IV.


2
  January 3, 2010 fell on a Sunday. Accordingly, January 4, 2010 is the third day after
December 31, 2009 on which mail would have been delivered.
3
  Ninety days after January 3, 2010 falls on Saturday, April 3, 2010. However, “the
period continues to run until the end of the next day that is not a Saturday, Sunday, or
legal holiday.” Fed. R. Civ. P. 6(a)(1)(C) (noting that the rule applies to “any statute that
does not specify a method of computing time”).
                                              4
      For the foregoing reasons, we hold that Edwards‟ appeal lacks an arguable basis in

law, and we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).4




4
  The District Court did not provide Edwards leave to amend his complaint before
dismissing it with prejudice. We conclude that the District Court did not err in declining
to allow Edwards an opportunity to amend because we do not see how any amendment to
his complaint would save his claims. See Grayson v. Mayview State Hosp., 293 F.3d
103, 114 (3d Cir. 2002) (noting that a court should not dismiss pro se complaints without
granting leave to amend unless “amendment would be inequitable or futile”).
                                            5
