                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 MALIK HODGE,

    Plaintiff,
                                                             Civil Action No. 07-1527 (CKK)
      v.

 UNITED AIRLINES,

    Defendant.


                                  MEMORANDUM OPINION
                                     (October 26, 2009)

       This is an employment discrimination case alleging violations of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the Family Medical

Leave Act of 1990, 29 U.S.C. §§ 2611 et seq. (“FMLA”). Currently before the Court are the

merits of Defendant’s [4] Motion to Dismiss Plaintiff’s Complaint. The Court previously

granted Defendant’s motion as conceded due to Plaintiff’s failure to file a timely response and

dismissed the case without prejudice. See [5] Order (Jan. 4, 2008). The Court denied Plaintiff’s

motion for reconsideration of that decision. See [8] Order (Jan. 18, 2008). Plaintiff appealed,

and the Court of Appeals, on its own motion, remanded the case to allow this Court to determine

whether it wished to reconsider its decision in light of statute of limitations problems that might

prevent Plaintiff from refiling his Title VII claims. See [12] Order (Aug. 1, 2008). Accordingly,

this Court vacated its prior order of dismissal, reinstated the case, and ordered that Plaintiff

respond to Defendant’s pending motion to dismiss. See [13] Order (Aug. 7, 2008). The Court

now addresses the merits of Defendant’s motion.

       Defendant’s motion raises three primary arguments. First, Defendant contends that
Plaintiff’s Title VII claims are time-barred because he failed to exhaust administrative remedies

by filing a timely charge with the Equal Employment Opportunity Commission. Second,

Defendant contends that Plaintiff’s hostile work environment claim was never raised with the

EEOC and thus cannot be a part of this suit. Third, Defendant contends that Plaintiff’s FMLA

claim is time-barred because it was not filed within the two-year statute of limitations for

ordinary violations. In response, Plaintiff argues that he did timely file a charge with the EEOC,

that his hostile work environment claim was included in that charge, and that his FMLA claim

alleges a willful violation of the statute to which a three-year statute of limitations applies.

        Defendant styled its motion as one to dismiss the complaint for failure to state a claim

upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Alternatively,

Defendant asks this Court to dismiss Plaintiff’s Title VII claims for lack of subject matter

jurisdiction under Rule 12(b)(1) because of Plaintiff’s alleged failure to timely exhaust

administrative remedies prior to filing suit. See Def.’s Mem. P. &. A. Supp. Mot. Dismiss

(“Def.’s Mem.”) at 4. However, although exhaustion is required by the statute at issue, see 42

U.S.C. § 2000e-5(f), the statute does not clearly indicate that exhaustion is a jurisdictional

prerequisite as opposed to merely a required element of the claim. Federal courts must “presume

exhaustion is non-jurisdictional unless Congress states in clear, unequivocal terms that the

judiciary is barred from hearing an action until the administrative agency has come to a

decision.” Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir. 2004) (internal

quotation marks and citation omitted). Accordingly, the Supreme Court has held that “filing a

timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in

federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel,


                                                   2
and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Thus, the

Court cannot review Defendant’s motion pursuant to Rule 12(b)(1).

       This distinction is important because both parties have attached exhibits to their briefs so

as to provide the Court with additional documents pertaining to Plaintiff’s Title VII claims and

filings with the EEOC. “Generally, when a court relies upon matters outside the pleadings, a

motion to dismiss [under Rule 12(b)(6)] must be treated as one for summary judgment.”

Solomon v. Office of the Architect of the Capitol, 539 F. Supp. 2d 347, 349-50 (D.D.C. 2008);

Fed. R. Civ. P. 12(d). Therefore, the Court must either disregard the parties’ exhibits or convert

Defendant’s motion into one for summary judgment. Because the Court finds that the exhibits

attached are integral to the parties’ arguments regarding Plaintiff’s exhaustion of administrative

remedies, the Court shall treat Defendant’s motion as one for summary judgment with respect to

the Title VII claims.1 With respect to the FMLA claim, the Court shall rule on Defendant’s

motion to dismiss pursuant to Rule 12(b)(6).

       For the reasons expressed below, the Court finds that Plaintiff did timely exhaust his Title

VII claims for discrimination and retaliation but did not exhaust any claims for hostile work

environment. The Court also finds that Plaintiff has alleged a willful violation of the FMLA

subject to the three-year statute of limitations. The Court shall therefore deny Defendant’s

motion to dismiss Plaintiff’s Title VII claims as untimely, grant Defendant’s motion as to any

hostile work environment claims, and deny Defendant’s motion to dismiss Plaintiff’s FMLA


       1
         Federal Rule of Civil Procedure 12(d) requires the Court to give all parties “a reasonable
opportunity to present all the material that is pertinent to the motion.” Because both parties
voluntarily attached exhibits to their briefs on the issue of exhaustion and no discovery should be
necessary to uncover relevant information, the Court finds that the parties have been afforded a
reasonable opportunity to present all the relevant materials to the Court.

                                                 3
claim as time-barred.

                                        I. BACKGROUND

       Plaintiff Malik Hodge worked as a flight attendant for Defendant United Airlines

(“United”) from February 26, 1995 until he was terminated on March 10, 2005. Compl. ¶ 5.

Hodge claims that during the last three years of his employment, he was subjected to harassment

based on his race (African American) and ethnic appearance. Id. ¶¶ 5-6. In his Complaint,

Hodge describes several instances in which his supervisors and co-workers criticized his ethnic

hairstyles and hair coverings. Id. ¶¶ 6-9. On October 20, 2004, Hodge was injured in an

automobile accident in the District of Columbia. Id. ¶ 10. He began receiving physical therapy

shortly thereafter and informed United of his need for continued medical care. Id. Hodge

returned to work in December 2004, requiring him to decrease his physical therapy. Id. ¶ 11. On

December 23, 2004, he suffered a recurrence of the injury to his back, leaving him in a

debilitated state, and his doctors restricted him from work activities. Id.

       While Hodge was out of work with the injury and awaiting treatment, one of his

supervisors sent him an email indicating that she had made several unsuccessful attempts to

reach him and that she needed him to provide medical documentation for his absence by no later

than January 7, 2005. Compl. ¶ 12. However, the supervisor’s phone calls were directed to

Hodge’s residence in Hong Kong, not Washington, D.C., where Hodge was staying, and Hodge

did not receive her email immediately because he was unable to check his email on a regular

basis. Id. ¶¶ 12-13. Hodge first became aware that his supervisor was trying to reach him on or

about January 11, 2005, when his father notified him that he had received a package from United

containing a letter of charge. Id. ¶ 13. Hodge faxed the requested medical documentation to


                                                  4
United on January 12 and 18, 2005. Id.

       In February 2005, Hodge filed an internal complaint of discrimination against United.

Compl. ¶ 13. United’s management conducted a hearing, charged Hodge with unauthorized

absence from work, invalid sick leave, and failure to comply with a written directive. Id. ¶ 14.

Hodge was terminated on March 10, 2005. Id. Hodge claims that he was treated differently than

a similarly situated white employee, who was also absent from work without leave but was given

an opportunity to resolve his situation before proceeding to hearing. Id.

       On November 23, 2005, Hodge submitted a “Charge Questionnaire” (Form 283) with the

Equal Employment Opportunity Commission indicating that United had discriminated against

him on the basis of race, color, disability and “other.” See Pl.’s Opp’n to Def.’s Mot. to Dismiss

(“Pl.’s Opp’n”), Ex. A (Charge Questionnaire) at 2-3.2 The Charge Questionnaire cited Hodge’s

discharge on March 10, 2005, and in response to the question “Explain why you feel the action

taken against you was discriminatory,” Hodge wrote “someone (white male) in similar

circumstances wasn’t terminated.” Id. at 3. When asked to state the disability for which he felt

he was being discriminated, Hodge wrote “I had back problems that prevented me from

working.” Id. Hodge further explained in response to a question asking if any actions were

retaliatory: “I wrote a letter of harrassment [sic] to headquarters in Chicago and a month later I



       2
          The opposition brief filed by Plaintiff in this case references two exhibits—a “charge of
discrimination filed with the EEOC” (Ex. A) and a “finding of probable cause” issued by the
EEOC (Ex. B). See Opp’n at 4. The Court notes that Plaintiff did not attach these exhibits to his
opposition in this case, but he did attach them to his nearly identical opposition brief in the
related case, Hodge v. United Airlines, Civ. Action No. 08-232 (Hodge II), also before this Court.
See Hodge II, Pl.’s Opp’n to Def.’s Mot. to Dismiss (Dkt. 11), Exs. A, B. Because Plaintiff
clearly intended to incorporate the same exhibits in his opposition in Hodge I as he did in Hodge
II, the Court shall treat Plaintiff’s opposition as if the referenced exhibits were in fact attached.

                                                 5
was fired!” Id.3

       On January 12, 2006, the EEOC’s Chicago District Office received a formal Charge of

Discrimination (Form 5) from Hodge. See Def.’s Mot. to Dismiss, Ex. 1 (Charge of

Discrimination). The charge indicated that Hodge had been discriminated based on race and

retaliation and explained as follows:

       I was hired by Respondent in or around February 1995. On or about October 20,
       2004 I was involved in a car accident which caused me to be placed on pain
       medication. I called in and placed myself on the company sick list on or about
       December 23, 2004. On or about January 3, 2005, I was falsely accused by
       Respondent. Subsequently, I complained of racial discrimination regarding the
       charges against me to Human Resources on or about February 3, 2005. On March
       10, 2005 I was discharged. I believe I have been subjected to retaliation for
       complaining of discrimination against because of my race, Black, in violation of Title
       VII of the Civil Rights Act of 1964, as amended.

Id. The charge was signed by Hodge on January 6, 2006. Id. On May 29, 2007, the EEOC

issued a Notice of Right to Sue letter to Hodge. See Def.’s Mot. to Dismiss, Ex. 2 (Notice of

Right to Sue).

       Hodge filed this action (Hodge I) on August 27, 2007. Following this Court’s first order

dismissing his Complaint without prejudice, Hodge filed a second action (Hodge II) raising the

same claims and adding claims for wrongful discharge, breach of contract, and violation of 42

U.S.C. § 1981. See Complaint, Hodge v. United Airlines, Civ. Action No. 08-232 (filed Feb. 12,


       3
         Plaintiff’s Exhibit A appears to be a faxed copy of his Charge Questionnaire, along with
three pages of handwritten notes dated December 7, 2005. Two of these pages appear to be a
detailed chronology of the events giving rise to Plaintiff’s discharge from United. See Pl.’s
Opp’n to Mot. to Dismiss, Ex. A at 5-6. Although more detailed, the substance of this
chronology is essentially identical to the facts alleged in the Complaint. It is not clear whether
these handwritten pages were ever submitted to the EEOC, although their later date makes it
highly improbable that they were submitted along with the Charge Questionnaire on November
23, 2005. Ultimately, however, the Court need not make a factual determination with regard to
these handwritten pages.

                                                 6
2008). On August 25, 2008, this Court stayed Hodge II so that it could first address the issues

raised in Hodge I.

                                    II. LEGAL STANDARD

        A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

should be granted when it appears that, under any reasonable reading of the complaint, the

plaintiff will be unable to prove any set of facts in support of his claim that would entitle him to

relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A defendant may raise the affirmative

defense of statute of limitations in a Rule 12(b)(6) motion when the facts that give rise to the

defense are clear from the face of the complaint. See Smith-Haynie v. District of Columbia, 155

F.3d 575, 578 (D.C. Cir. 1998). The court should grant a motion to dismiss only if the complaint

on its face is conclusively time-barred. Id.; Doe v. Dep’t of Justice, 753 F.2d 1092, 1115 (D.C.

Cir. 1985).

        Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary judgment

“if the pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” To determine which facts are “material,” a court must look to the substantive law

on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As with

a motion to dismiss, a court ruling on a motion for summary judgment must draw all justifiable

inferences in favor of the nonmoving party and accept the nonmoving party’s evidence as true.

Id. at 255.




                                                  7
                                        III. DISCUSSION

A.     The Timeliness of Hodge’s Charge Filed with the EEOC

       United argues that Hodge’s Title VII claims should be dismissed because he did not file a

formal charge with the EEOC within 300 days of his allegedly wrongful discharge.4 A plaintiff

challenging an employment practice under Title VII must first file a charge with the EEOC, and

the charge “must be filed within a specified period (either 180 or 300 days, depending on the

State) after the alleged unlawful employment practice occurred.” Ledbetter v. Goodyear Tire &

Rubber Co., Inc., 550 U.S. 618, 623-24 (2007) (citing 42 U.S.C. § 2000e-5(e)(1)), superseded by

statute, Lily Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009). “[I]f the

employee does not submit a timely EEOC charge, the employee may not challenge that practice

in court.” Id. (citing 42 U.S.C. § 2000e-5(f)(1)). Here, there is no dispute that the challenged

employment practice occurred on March 10, 2005, the date that Hodge was discharged by

United. Moreover, the parties appear to agree that Hodge had 300 days in which to file his

charge with the EEOC.5 The dispute revolves around whether Hodge’s filing of a “Charge


       4
          United also claims that Hodge’s Title VII claims should be dismissed because Hodge
failed to allege that he exhausted his administrative remedies. Def.’s Mem. at 5. However,
exhaustion of administrative remedies is an affirmative defense for which the Defendant, not the
Plaintiff, bears the burdens of pleading and proof. Bowden v. United States, 106 F.3d 433, 437
(D.C. Cir. 1997); Rattigan v. Gonzales, 503 F. Supp. 2d 56, 68 (D.D.C. 2007). Accordingly,
Hodge’s failure to allege in his Complaint that he exhausted administrative remedies is not a
ground for dismissing his claims.
       5
           United initially suggests in its opening brief that a 180-day limitations period is
applicable, see Def.’s Mem. at 6, but backs off this argument in its reply brief, claiming only that
Hodge failed to timely file within 300 days of his termination. See Def.’s Reply Mem. Supp.
Def.’s Mot. Dismiss (“Def.’s Reply”). The 300-day window applies when the aggrieved person
first filed a complaint with a state or local agency with the authority to grant relief. See 42
U.S.C. § 2000e-5(e)(1). Although Hodge did not file with a state or local agency first, employees
are entitled to a 300-day window when a “worksharing agreement” exists between the EEOC and

                                                 8
Questionnaire” with the EEOC on November 23, 2005 constitutes a valid charge, or whether

Hodge cannot be considered to have filed until the EEOC received his formal “Charge of

Discrimination” form on January 12, 2006, which was more than 300 days after his termination.

       The Supreme Court was faced with a nearly identical question in Federal Express Corp.

v. Holowecki, 128 S. Ct. 1147 (2008). In Holowecki, the plaintiff had filed an “Intake

Questionnaire” with the EEOC along with a signed affidavit describing the alleged

discriminatory employment practices in greater detail. See 128 S. Ct. at 1154. The Supreme

Court upheld the EEOC’s conclusion that these documents could constitute a “charge” for

purposes of the filing requirements in the Age Discrimination in Employment Act (ADEA). Id.

at 1155-58. In doing so, the Court held that “[i]n addition to the information required by the

regulations, i.e., an allegation and the name of the charged party, if a filing is to be deemed a

charge it must be reasonably construed as a request for the agency to take remedial action to

protect the employee’s rights or otherwise settle a dispute between the employer and the

employee.” Id. at 1157-58. “[T]he filing must be examined from the standpoint of an objective

observer to determine whether, by a reasonable construction of its terms, the filer requests the

agency to activate its machinery and remedial processes.” Id. at 1158. Although the Court noted

that the Intake Questionnaire itself was merely aimed at facilitating “pre-charge filing

counseling,” the fact that the plaintiff had attached a detailed affidavit asking the EEOC to take

action against her employer indicated that her filing could be considered a charge within the



a local fair employment practices office. Akonji v. Unity Healthcare, Inc., 517 F. Supp. 2d 83, 91
(D.D.C. 2007) (citing 29 C.F.R. § 1601.13(a)(4)(ii)(A)). Illinois, the state where Hodge filed his
charge with the EEOC, has such an agreement, so the 300-day window is appropriate. See
Russell v. Declo Remy Div. of Gen. Motors, 51 F.3d 746, 751 (7th Cir. 1995).

                                                  9
meaning of the statute. Id. at 1159-60.

       The Court in Holowecki cautioned that because the EEOC’s enforcement mechanisms for

ADEA claims differ slightly from those pertaining to Title VII, courts should be careful “not to

apply rules applicable under one statute to a different statute without careful and critical

examination.” 128 S. Ct. at 1153. However, one court within this District has already held that

Holowecki applies to a Charge Questionnaire filed by a Title VII plaintiff. See Beckham v. Nat’l

R.R. Passenger Corp., 590 F. Supp. 2d 82 (D.D.C. 2008). As in this case, the plaintiff in

Beckham did not file her formal “Charge of Discrimination” (EEOC Form 5) until after the 300-

day window, but she timely filed a “Charge Questionnaire” (EEOC Form 283). See 590 F. Supp.

2d at 85. Judge Rosemary M. Collyer determined that the Intake Questionnaire discussed in

Holowecki was the predecessor to the Charge Questionnaire filed by Beckham, and there were

several significant differences between the forms. Id. at 86. For example, the Charge

Questionnaire explicitly states that “[w]hen this form constitutes the only timely written

statement of allegations of employment discrimination, the Commission will . . . consider it to be

a sufficient charge of discrimination under the relevant statute(s).” Id.; Pl.’s Opp’n, Ex. A

(Charge Questionnaire) at 3 n.3. The Charge Questionnaire states that its purpose “is to solicit

information in an acceptable form consistent with statutory requirements to enable the

Commission to act on matters within its jurisdiction.” 590 F. Supp. 2d at 87; Pl.’s Opp’n, Ex. A

at 3 n.3. Given the Holowecki Court’s guidance that a charge must be a request that the

Commission take remedial action, Judge Collyer deemed these differences in the forms to be

legally significant. 590 F. Supp. 2d at 87.

       This Court agrees with Judge Collyer’s analysis. Hodge’s filing of the Charge


                                                 10
Questionnaire contained all the legally required elements of a charge: it named his employer

(United) and his direct supervisor, listed the approximate number of employees for United, and

provided a concise statement of the facts, including dates, of the alleged discriminatory practices.

See 29 C.F.R. § 1601.12(a) (describing the required contents of a charge). Moreover, EEOC’s

regulations state that “a charge is sufficient when the Commission receives from the person

making the charge a written statement sufficiently precise to identify the parties, and to describe

generally the action or practices complained of.” 29 C.F.R. § 1601.12(b). Hodge’s Charge

Questionnaire satisfies this standard. Because that Charge Questionnaire was filed within 300

days of his termination, the Court shall deny United’s motion to dismiss Hodge’s Title VII claims

as untimely.

B.     Hodge’s Hostile Work Environment Claim

       United next argues that Hodge’s hostile work environment claim should be dismissed

because it was never raised with the EEOC, and thus he did not exhaust his administrative

remedies with respect to that claim. The Court begins by noting that Hodge’s complaint does not

identify discrete claims under Title VII, although it appears that he intended to enumerate three

separate counts of violations because the next heading following his Title VII claims is titled

“Count IV.” See Compl. at 5, 7. United reads Hodge’s Complaint as alleging three separate

Title VII claims: discriminatory discharge, retaliatory discharge, and hostile work environment.

See Def.’s Mem. at 3 n.1. Hodge does not appear to challenge this reading of his complaint,

although his only response to United’s argument on this ground is “Mr. Hodge is not pursuing a

separate hostile work environment claim.” Pl.’s Opp’n at 6.

       Paragraph 17 of the Complaint alleges that


                                                 11
       Defendant, and through its agents knowingly and intentionally engaged in unlawful
       discrimination and retaliation, based on Hodge’s race by subjecting Hodge to
       disparate treatment and a hostile work environment, including but not limited to
       subjecting Mr. Hodge to a harassment and a hostile work environment based on his
       race as detailed above, issuing Mr. Hodge unwarranted discipline, and terminating
       his employment after he filed a complaint of discrimination. . . .

The Court agrees with United that Hodge’s Complaint appears to state three separate claims

under Title VII. It is not clear from Hodge’s statement in his opposition whether he is not

pursuing any hostile work environment claim or whether he is not simply not pursuing one that

involves events separate from those alleged in his Complaint. The Court shall presume in favor

of Hodge that he intends to preserve some form of hostile work environment claim.

       The question, then, is whether Hodge has properly exhausted any such claim by including

it in his charge filed with the EEOC. The lawsuit following a charge is “limited in scope to

claims that are like or reasonably related to the allegations of the charge and growing out of such

allegations.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (citation and internal

quotation marks omitted). “At a minimum, the Title VII claims must arise from the

administrative investigation that can reasonably be expected to follow the charge of

discrimination.” Id. In this case, the information described in both the Charge Questionnaire and

the formal Charge of Discrimination relates only to Hodge’s sick leave, retaliation, and

termination. The only possible reference to a hostile work environment could be Hodge’s

indication that he “wrote a letter of harrassment” [sic] to headquarters, but this information is not

specific or elaborate enough to allow the EEOC to infer the existence of a hostile work

environment. Indeed, the crux of Hodge’s discrimination charge with the EEOC seems to be that

a white male in similar circumstances was not terminated. The EEOC’s administrative



                                                 12
investigation could not be reasonably expected to uncover the allegations of hostile work

environment contained in Hodge’s complaint. Therefore, the Court finds that Hodge has

exhausted only those Title VII claims directly relating to his termination on March 10, 2005.6

Accordingly, the Court shall dismiss Hodge’s hostile work environment claim, to the extent he

has pled one.

C.     Hodge’s FMLA Claim

       United contends that Hodge’s FMLA claim is time-barred because it was filed more than

two years after the alleged violation. Def.’s Mem. at 10-11. The FMLA provides that actions

must be brought “not later than 2 years after the date of the last event constituting the alleged

violation for which the action is brought,” 29 U.S.C. § 2617(c)(1), except that “in the case of

such action brought for a willful violation of [29 U.S.C. §] 2615 . . ., such action may be brought

within 3 years . . . .” Id. § 2617(c)(2). Hodge contends that he is alleging a willful violation and

that it is timely because it was filed within three years of United’s failure to provide him with

medical leave. See Pl.’s Opp’n at 6.

       The three-year statute of limitations for willful violations does not apply unless the

complaint contains some express or implied allegation of willful conduct. Sampson v. Citibank,

F.S.B., 53 F. Supp. 2d 13, 19 (D.D.C. 1999). In the context of the FMLA, willful conduct is

generally viewed as “an employer that knows its conduct to be wrong or has shown reckless

disregard for the matter in light of the statute.” Id.; see McLaughlin v. Richland Shoe Co., 486


       6
          Moreover, unless Hodge’s hostile work environment claim is connected to his allegedly
discriminatory or retaliatory termination, his claim may be time-barred. See Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002) (holding that employees cannot recover
for acts creating a hostile work environment outside the limitations period unless they are related
to acts within the limitations period).

                                                 13
U.S. 128, (1988) (adopting “knowing or reckless disregard” standard in the analogous Fair Labor

Standards Act context); Bass v. Potter, 522 F.3d 1098, 1103-04 (10th Cir. 2008) (following

decisions of the First, Second, Sixth, and Eighth Circuits in applying the McLaughlin standard to

the FMLA). In paragraph 24 of the Complaint, Hodge alleges, “[i]n violation of the Family and

Medical Leave Act, Defendant knowingly and intentionally rejected or refused to accept a

request for leave for medical attention, and ultimately terminated Mr. Hodge’s employment.”

Compl. ¶ 24.

           While Hodge does not use the magic word “willful” in his complaint, his allegations of

knowledge and intentionality are sufficient to indicate that he believes United’s violation of the

statute was willful. See Fed. R. Civ. P. 9(b) (“Malice, intent, knowledge, and other conditions of

a person’s mind may be alleged generally.”) At this early stage in the litigation, those allegations

are sufficient. See Ricco v. Potter, 377 F.3d 599, 603 (6th Cir. 2004) (“Because a plaintiff’s

factual allegations must be taken as true for purposes of a Rule 12(b)(6) motion, a plaintiff may

survive merely by having alleged that the FMLA violation was willful.”) Accordingly, the Court

finds that Hodge’s FMLA is not time-barred to the extent it claims a willful violation of the

statute.



                                         IV. CONCLUSION

           For the foregoing reasons, the Court shall DENY Defendant’s motion with respect to the

timeliness of Plaintiff’s exhaustion of his Title VII claims, GRANT Defendant’s motion with

respect to Plaintiff’s hostile work environment claim, and DENY Defendant’s motion to dismiss

Plaintiff’s FMLA claim. In light of this ruling, the Court shall order the parties to file a joint


                                                  14
status report as to how they propose to proceed with this litigation and Hodge II.



Date: October 26, 2009

                                                          /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     United States District Judge




                                                15
