                                                             NOT PRECEDENTIAL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]
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

                                              2
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.




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