The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
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  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  Order (Jan. 4, 2008). The Court denied Plaintiff's motion for reconsideration of that decision. See  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  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  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, 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.*fn1 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 claim as time-barred.
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 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.*fn2 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 was fired!" Id.*fn3
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 ...