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Page 1 Not Reported in F.Supp.2d, 2007 WL 1858691 (D.Md.) (Cite as: 2007 WL 1858691 (D.Md.))

Only the Westlaw citation is currently available. United States District Court, D. Maryland. Loretta A. HONEYCUTT v. BALTIMORE COUNTY, MARYLAND. Civil No. JFM-06-0958. June 18, 2007. Robin R. Cockey, Heather Rose Konyar, Cockey Brennan and Maloney, Salisbury, MD, for Loretta Angel Honeycutt. James J. Nolan, Jr., Towson, MD, Jeffrey Alan Barmach, Karpinski, Colaresi & Karp, P.A., Baltimore, MD, for Baltimore County, Maryland. MEMORANDUM J. FREDERICK MOTZ, United States District Judge. *1 Plaintiff Loretta A. Honeycutt (Honeycutt) filed this action against defendant Baltimore County, Maryland (the County) alleging that her termination from the County's Bureau of Corrections violated the Family and Medical Leave Act (FMLA), 29 U.S.C. 2601 et seq. Now pending before me is the County's motion for summary judgment. For the reasons that follow, the motion is granted. I. Honeycutt began working for the Bureau of Corrections as an office assistant in 1995. (Honeycutt Dep. at 30, Ex. to Pl.'s Opp'n Mem.) On September 10, 2002, Honeycutt's son was killed by police officers after he murdered his common law wife. (Id. at 67.) These deaths caused Honeycutt to suffer severe depression and posttraumatic stress disorder. (Letter from Dr. Khin M. Tun to James O'Neal (Dec. 11, 2003), Ex. to Pl.'s Opp'n Mem.) Honeycutt began a leave of absence and did not re-

turn to work until November 6, 2002. (Honeycutt Dep. at 45, Ex. to Pl.'s Opp'n Mem.) While Honeycutt was away from work, Sharon Tyler, the program manager at the Bureau of Corrections, called to discuss Honeycutt's FMLA rights and mailed her an FMLA application. (Tyler Decl. 4, Ex. to Def.'s Mem.) Honeycutt applied for FMLA leave on October 25, 2002. (FMLA Request, Ex. to Pl.'s Opp'n Mem.) Nearly a month later, however, Tyler alerted Honeycutt that the County had not yet received the medical certification in support of her FMLA application. (Tyler Decl. 5, Ex. to Def.'s Mem.) Tyler further advised Honeycutt that she had until December 4 to submit the certification and explained that without it Honeycutt would be marked absent for any missed time and could be suspended or terminated. (Mem. from Sharon Tyler to Loretta Honeycutt (Nov. 22, 2002), Ex. to Def.'s Mem.) Honeycutt subsequently filed her first medical certification form, but her doctor failed to request intermittent leave. (FMLA Certification, Ex. to Def.'s Mem.) As a result, Jo Anne Krach, the County's chief of personnel records management, spoke with Honeycutt by phone about the need to obtain additional certification regarding such leave. (Krach Decl. 11-12, Ex. to Def.'s Mem.) On April 4, 2003, Honeycutt submitted the revised certification, in which her physician wrote that intermittent leave was necessary and that Honeycutt could be late one to two hours or miss one to two days on each occasion. (Id. 12.) The revised certification did not discuss whether Honeycutt could comply with the County's notification procedures on the days when she would be late or absent. Krach therefore sent an email to Honeycutt requesting additional details from her doctor regarding Honeycutt's ability to follow the County's notification policies and the anticipated frequency of Honeycutt's intermittent leave. (Email from Jo Anne Kincer to Loretta Honeycutt (May 2,

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Page 2 Not Reported in F.Supp.2d, 2007 WL 1858691 (D.Md.) (Cite as: 2007 WL 1858691 (D.Md.))

FN1 2003), Ex. to Def.'s Mem.) Krach also reminded Honeycutt how much FMLA leave remained and urged her to call or email with any further questions. (Id.) FN1. At the time of the email, Krach's last name was Kincer. *2 The notification policy to which Krach referred mandated that all employees unable to work on any given day notify their supervisors at least one hour prior to the beginning of their shift. (Sick Leave Usage Policy at 2, Ex. to Def.'s Mem.) In addition, pursuant to the agreement entered into between the County and Honeycutt's union, employees who missed work because of illness or injury were required to call their supervisor within one hour prior to, or one-half hour after, the beginning of the employee's shift, unless a documented emergency justified further delay. (Mem. of Understanding at 19, Ex. to Def.'s Mem.) Failure to adhere to these guidelines resulted in an unauthorized absence. (Sick Leave Usage Policy at 2, Ex. to Def.'s Mem.) Honeycutt's depression and posttraumatic stress disorder made it difficult to comply with these requirements. (Honeycutt Dep. at 63, Ex. to Pl.'s Opp'n Mem.) Because the onset of her condition was unpredictable, Honeycutt wished to instead call a twenty-four-hour Central Control line to report her absences as the need arose. According to Honeycutt, however, after her son's death, while all other Bureau of Corrections employees continued to utilize the Central Control line, she was required to speak with her supervisor directly each time she could not work. (Id. at 56.) One supervisor, George Jackson, allegedly left Honeycutt on hold when she called in and marked her absent for being just five minutes late. (Sheridan Dep. at 17, 44-45, Ex. to Pl.'s Opp'n Mem.) Jackson, who resigned in March 2003, apparently disliked Honeycutt because she had gone over his head on a project sometime in the past. (Id. at 15, 17; Tyler Decl. 7, Ex. to Def.'s Mem.)

Aside from Jackson, however, other County employees attempted to help Honeycutt cope with the depression and posttraumatic stress disorder that resulted from the loss of her son. For instance, so that she could more easily transport her remaining children to and from school, the County altered Honeycutt's starting time and allowed her to use her lunch hour at the end of the day. (Tyler Decl. 6, Ex. to Def.'s Mem.; Richardson Decl. 5, Ex. to Def.'s Mem.) Other concessions included permitting Honeycutt to work extra hours in order to accrue compensatory leave time, granting her extensions for the submission of FMLA paperwork, and providing her with alternate contact information-including her program manager's home phone number-for requesting leave. (Krach Decl. 13, Ex. to Def.'s Mem.; Richardson Decl. 4, Ex. to Def.'s Mem.) Despite these accommodations, Honeycutt not only exhausted her FMLA leave but also amassed dozens of unexcused absences where she either FN2 missed work entirely or arrived late. (Krach Decl. 22, Ex. to Def.'s Mem.; Krach Decl. 12, Ex. to Def.'s Reply Mem.) Honeycutt's unexcused absences initially resulted in three and five-day suspensions. After Honeycutt's poor attendance persisted, the County terminated her on November 24, 2003. (Siakor-Sirleaf Decl. 10-11, Ex. to Def.'s Mem.) FN2. At first, the County maintained that Honeycutt was absent or late for work on forty occasions. (Def.'s Mem. at 6-7.) The evidence submitted in support of the County's reply memorandum, however, lists forty-eight such instances. (Krach Decl. 12, Ex. to Def.'s Reply Mem.) This discrepancy does not affect the resolution of the County's motion for summary judgment. *3 Honeycutt filed this action over two years later on April 14, 2006. She alleges that the County violated the FMLA by refusing to transfer her to a more accommodating position, by imposing upon

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Page 3 Not Reported in F.Supp.2d, 2007 WL 1858691 (D.Md.) (Cite as: 2007 WL 1858691 (D.Md.))

her extraordinary requirements for reporting her absences, and by suspending and later firing her in retaliation for taking leave. (Compl. 13.) On July 7, 2006, I dismissed the first of these assertions but permitted the other claims to proceed. Honeycutt v.. Balt. County, Civil No. JFM-06-0958, 2006 WL 1892275 (D.Md. July 7, 2006). The parties have since completed discovery, and the County now moves for summary judgment. It argues that it did not willfully violate the FMLA and that consequently Honeycutt's action is barred by the two-year statute of limitations. (Def.'s Mem. at 3.) Although I previously found Honeycutt's allegations sufficient to withstand a motion to dismiss, the record now shows no willfulness on the County's part, and therefore I agree that the limitations period has run. Thus, there is no need to adFN3 dress the County's additional contentions. FN3. Even if I reached the merits of Honeycutt's claims and found that the evidence supported a prima facie case of retaliation, it is unclear whether Honeycutt could ultimately demonstrate that the County's nondiscriminatory explanation for her termination-excessive absences and tardiness-was pretext for FMLA retaliation. See Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 502 (4th Cir.2001) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973)). II. Motions for summary judgment should be granted when the record establishes that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The substantive law of the cause of action determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The existence of other factual disputes between the litigants does not defeat an otherwise proper motion for summary judgment if none of the material facts are in dispute. Id. A dispute about a

material fact is genuine and summary judgment is inappropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. In analyzing whether a genuine issue of material fact exists, the evidence and reasonable inferences from that evidence must be viewed in the light most favorable to the nonmoving party. Id. at 255. In general, FMLA claims are subject to a twoyear statute of limitations. 29 U.S.C. 2617(c)(1). For willful violations of the FMLA, the limitations period extends to three years. Id. 2617(c)(2). Because Honeycutt filed her Complaint more than two years after her termination, this action is barred unless the record demonstrates a willful violation by the County. The term willful, which the FMLA leaves undefined, has been interpreted to mean where the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [Act]. See Settle v. S.W. Rodgers, Co., 998 F.Supp. 657, 663 (E.D.Va.1998) (alteration in original) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 130, 135 (1988)); see also Passauer v. Quest Diagnostics, Inc., No. Civ. CCB-03-159, 2004 WL 865829, at *2 (D.Md. Apr. 22, 2004). Courts applying this standard have required more than mere negligence, see Porter v. N.Y. Univ. Sch. of Law, 392 F.3d 530, 531-32 (2d Cir.2004) (citing McLaughlin, 486 U.S. at 135 n. 13), and have found no willfulness where the employer granted the employee's request for leave. See Samuels v. Kan. City Mo. Sch. Dist., 437 F.3d 797, 804 (8th Cir.2006); Edwards v. Ford Motor Co., 179 F.Supp.2d 714, 719-20 (W.D.Ky.2001). Attempts to accommodate an employee's disability or condition also indicate a lack of willfulness on the employer's part. See Samuels, 437 F.3d at 804; Passauer, 2004 WL 865829, at *2. Moreover, an employer that supplies the necessary FMLA forms, follows up with the employee regarding insufficient paperwork, and keeps the employee apprised of the application's status cannot be said to have willfully violated the

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Page 4 Not Reported in F.Supp.2d, 2007 WL 1858691 (D.Md.) (Cite as: 2007 WL 1858691 (D.Md.))

statute. See Porter v. N.Y. Univ. Sch. of Law, No. 99 Civ. 4693(TPG), 2003 WL 22004841, at *6-8 (S.D.N.Y. Aug. 25, 2003); Edwards, 179 F.Supp.2d at 720. *4 In light of these precedents, I conclude that the County did not willfully violate the FMLA and therefore Honeycutt's claim is barred. As in the cases above, the County granted Honeycutt's reFN4 quest for leave. Additionally, the County went to great lengths to accommodate Honeycutt's condition. For example, the County changed Honeycutt's starting time and allowed her to take her lunch hour at the end of the day so that she could more easily transport her children to and from school. (Tyler Decl. 6, Ex. to Def.'s Mem.; Richardson Decl. 5, Ex. to Def.'s Mem.) The County also permitted Honeycutt to work extra hours in order to accumulate compensatory leave time, granted her extensions for the submission of FMLA paperwork, and gave her alternate contact information-including her program manager's home phone number-for requesting leave. (Krach Decl. 13, Ex. to Def.'s Mem.; Richardson Decl. 4, Ex. to Def.'s Mem.) FN4. According to the County, Honeycutt exhausted her FMLA leave, with the exception of two hours, by June 12, 2003. (Krach Decl. 22, Ex. to Def.'s Mem.) On the other hand, in an unemployment benefits proceeding held after Honeycutt's termination, a hearing examiner found that Honeycutt had used all FMLA leave by May 22, 2003. (Unemployment Decision at 2, Ex. to Def.'s Mem.) Whether Honeycutt exhausted her leave in May or June 2003 is immaterial, because in either event the County clearly granted Honeycutt her FMLA leave. The County helped Honeycutt complete the necessary FMLA forms and kept her informed of her application's status. Sharon Tyler called Honeycutt on October 2, 2002 to discuss her FMLA options. (Tyler Decl. 4, Ex. to Def.'s Mem.) Tyler also mailed an FMLA application to Honeycutt and later

notified Honeycutt when she did not receive her medical certification. (Mem. from Sharon Tyler to Loretta Honeycutt (Nov. 22, 2002), Ex. to Def.'s Mem.) At that time, Tyler explained not only what was needed from Honeycutt, but also reminded her of the consequences for failure to submit the required documentation. (Id.) Later, when the first medical certification form failed to request intermittent leave, Jo Anne Krach spoke with Honeycutt about the need to provide additional information pertaining to such leave. (Krach Decl. 11-12, Ex. to Def.'s Mem.) Krach also sent an email to Honeycutt requesting further details from her doctor regarding her need for intermittent leave and asking whether she could comply with the County's notification procedures. (Email from Jo Anne Kincer to Loretta Honeycutt (May 2, 2003), Ex. to Def.'s Mem .) Krach's email outlined the amount of FMLA leave remaining and recommended that Honeycutt contact her with any questions. (Id.) The foregoing evidence belies any suggestion that the County willfully violated the FMLA, particularly given the paucity of other FMLA complaints against the County. The County typically receives hundreds of FMLA applications each year. (Krach Decl. 5, Ex. to Def.'s Mem.) Only a handful of employees, however, have filed internal grievances alleging FMLA violations against the County, and no one other than Honeycutt has ever filed an FMLA action in state or federal court against the County. (Id. 6; Nolan Decl. 2-5, Ex. to Def.'s Reply Mem.) Such a record renders it unlikely that the County willfully violated the FMLA in Honeycutt's case. Honeycutt's arguments to the contrary are unavailing. For instance, she urges the Court to find a willful violation on the grounds that the County's correspondence was confusing and because certain County officials failed to investigate her claim that she was subjected to unfair reporting requirements. (Pl.'s Opp'n Mem. at 17-18.) Neither Honeycutt's confusion, nor the County's alleged negligence,

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Page 5 Not Reported in F.Supp.2d, 2007 WL 1858691 (D.Md.) (Cite as: 2007 WL 1858691 (D.Md.))

however, evidences a willful violation of the FMLA. See Porter, 392 F.3d at 531-32; Edwards, 179 F.Supp.2d at 720 n. 6. *5 The County's requirement that Honeycutt notify her supervisor of her absences within a window of time each day also does not amount to a willful violation of the FMLA. Although Honeycutt argues that she should have been permitted to call the twenty-four-hour Central Control line because her depression and posttraumatic stress disorder impeded her ability to contact her supervisor, she never offered medical documentation to that effect. Furthermore, it is unclear whether the County in fact permitted other employees to report their absences to the Central Control line. (Krach Dep. at 55, Ex. to Pl.'s Opp'n Mem.; Sheridan Dep. at 32, Ex. to Pl.'s Opp'n Mem.) Assuming that employees could report their absences in this manner, it is important to note that one of Honeycutt's coworkers testified that whenever she missed work, she notified both Central Control and her supervisor. (Sheridan Dep. at 34, Ex. to Pl.'s Opp'n Mem.) The fact that this coworker contacted her supervisor on each occurrence suggests that the County did not willfully violate the FMLA when it required Honeycutt to do the same pursuant to its internal policy and the agreement with Honeycutt's union. Finally, I find unpersuasive Honeycutt's conclusory assertion that her superiors manipulated her and treated her cruelly. (Pl.'s Opp'n Mem. at 18.) She avers that her supervisor George Jackson, to whom she was to report her absences, would maliciously and purposefully leave her on hold, sometimes for up to fifteen minutes. (Id.) Honeycutt fails to support this allegation with references to the record, but a coworker confirmed that Jackson was not particularly compassionate toward Honeycutt, occasionally left her on hold when she called in, and marked her absent for being just five minutes late. (Sheridan Dep. at 17, 44-45, Ex. to Pl.'s Opp'n Mem.) This evidence, however, does not prove that the County willfully violated the FMLA. As an initial

matter, Jackson's hostility toward Honeycutt did not stem from her leave of absence, but instead related to an earlier project in which Honeycutt had embarrassed him. (Id. at 15, 17.) Jackson also resigned in March 2003 and therefore played no role in the decision to terminate Honeycutt in November of that year. (Siakor-Sirleaf Decl. 5, 8, Ex. to Def.'s Mem.) At most, the record discloses that for a period of time, one of Honeycutt's supervisors disliked her for reasons unrelated to her FMLA leave. This is not tantamount to a willful violation by the FN5 County. FN5. I noted in my previous opinion that if it was determined later that the County had not acted willfully, the issue of whether Honeycutt was an intended beneficiary of a tolling agreement between the Department of Labor and the County would need to be resolved. Honeycutt, 2006 WL 1892275, at *2 n. 4. However, I need not consider that issue here because in her memorandum opposing summary judgment, Honeycutt makes no attempt to avail herself of the agreement. Accordingly, the County's motion for summary judgment is granted. A separate order follows herewith. ORDER For the reasons stated in the accompanying memorandum, it is, this 18th day of June 2007, ORDERED that the County's motion for summary judgment is granted. D.Md.,2007. Honeycutt v. Baltimore County, Md. Not Reported in F.Supp.2d, 2007 WL 1858691 (D.Md.) END OF DOCUMENT

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Page 1 Not Reported in F.Supp.2d, 2006 WL 1892275 (D.Md.), 33 NDLR P 19 (Cite as: 2006 WL 1892275 (D.Md.))

United States District Court, D. Maryland. Loretta A. HONEYCUTT v. BALTIMORE COUNTY, MARYLAND. Civil No. JFM-06-0958. July 7, 2006. Robin R. Cockey, Cockey Brennan and Maloney, Salisbury, MD, for Plaintiff. James J. Nolan, Jr., Baltimore County Office of Law, Towson, MD, for Defendant. MEMORANDUM J. FREDERICK MOTZ, District Judge. *1 Plaintiff Loretta A. Honeycutt (Honeycutt) has brought this action against defendant Baltimore County (the County) alleging that her termination from the County's Bureau of Corrections violated the Family and Medical Leave Act (FMLA), 29 U.S.C. 2601 et seq. Before me now is the County's motion to dismiss or for summary judgment. For the following reasons, the motion is granted in part and denied in part. I The County's Bureau of Corrections hired Honeycutt as an office assistant on October 25, 1995. (Compl. 5). She served without incident for close to seven years, all the while receiving above-average evaluations from her supervisors. (Id. 5-6). All that changed beginning September 11, 2002, when tragedy struck her family. Her son murdered his common law wife, absconded with their child, and was eventually shot and killed by police officers. (Id. 6; County Br. at 4). Consumed by depression and post-traumatic stress disorder, Honeycutt did not return to work until November 6, 2002. (Compl. 7-8; County Br. at 4). From that point forward her attendance was punctuated with

tardiness and absences. (Compl. 9; County Br. at 5). The County considered most of these instances to constitute unexcused leave, and over the course of the next year it took progressive discipline against Honeycutt, including suspensions from work and culminating in her termination on November 24, 2003. (See Compl. 10; County Br. at 6-8, 11). The parties agree that the reason the County considered Honeycutt's leave to be unexcused is that she frequently failed to follow a particular procedure for reporting her absences and tardiness. ( See Compl. 9; County Br. at 6-7). This procedure was contained in a Memorandum of Understanding (MOU) entered into between the County and the union to which Honeycutt belonged, the Federation of Public Employees, FPE/AFT, AFL-CIO, Local # 4883. (County Br. at 6-7). It stated in full: An employee who is unable to report to work because of illness or injury is required to personally call the employee's supervisor (or the supervisor's designee), or have a member of the immediate family or designated representative call, within (1) hour prior to or one-half (1/2) hour after the time the employee was to report for duty, unless the delay is caused by a documented emergency. (Id. at 7). Honeycutt claims that she was not responsible for her noncompliance. Her depression was often so debilitating that she simply could not rise herself in the early morning hours to make the call, and even if she did, she would sometimes be incoherent on the phone. (Honeycutt Affidavit 2, Exhibit 1 to Honeycutt Opp. Br.). In those instances in which she did call and was coherent, she was not allowed to leave a message for her supervisor even though he frequently did not arrive in the office until after 8:00am, which was thirty minutes beyond her regular start time. (Id.). Given these difficulties, Honeycutt asserts that the County should have allowed

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Page 2 Not Reported in F.Supp.2d, 2006 WL 1892275 (D.Md.), 33 NDLR P 19 (Cite as: 2006 WL 1892275 (D.Md.))

her to take advantage of an alternative and more flexible reporting method that it provided its correction officers. (Id.). Instead of having to contact their supervisors directly and within a strict time window, these officers were able to call a 24-hour hotline and report any anticipated absence or tardiness. (Id.). She alleges that the County permitted her to use the hotline before September 2002, but that after her extended absence it revoked this privilege even though it continued to extend it to her civilian co-workers. (Id.). The County denies this. (County Reply Br. at 5-6). *2 Finally, Honeycutt alleges that the County refused her request for a transfer to another position that would have better accommodated her need for intermittent leave. The County denies that Honeycutt requested a transfer, and states that even if she had, there were none available that would have FN1 fit her needs. (County Br. at 6). FN1. Honeycutt also alleges in her affidavit submitted with her memorandum opposing the County's motion that the County denied her request to enroll in the County's one-year leave of absence program, which would have allowed her to be absent from the workplace without pay while still being considered a County employee. (Honeycutt Aff. 3). This allegation appears nowhere in the complaint. Thus, I express no opinion as to whether the County's alleged denial could constitute an FMLA violation. See 29 U.S.C. 2615(a) (prohibiting an employer from interfering with an employee's attempt to take FMLA leave and from discriminating against, including discharging, an employee for taking or attempting to take FMLA leave). II The FMLA provides two avenues of relief for employees who believe that their rights under the Act have been violated. See 29 U.S.C. 2617. They can file their own private action against their employer, id. 2617(a), or they can file a complaint

with the Secretary of Labor, who has the statutory authority to enforce the Act, id. 2617(b). Honeycutt pursued the latter option first, and attorneys for the Department of Labor then entered into a tolling agreement with the County that lasted until April 18, 2006. (Compl. 14). When the Department decided not to sue on her behalf, Honeycutt filed a complaint in this court on April 14, 2006. The complaint alleges that the County violated the FMLA in three ways. First, it denied her request for transfer to an equivalent position. Second, it imposed upon her extraordinary requirements for reporting her absences. Third, and finally, its progressive discipline and termination was in retaliation for her taking FMLA-protected leave, (id. 13). See 29 U.S.C. 2615(a). The County has responded by filing this motion to dismiss or for summary judgment. It advances two bases for dismissal: the statute of limitations has run, (County Br. at 10-11), and Honeycutt has failed to state a claim upon which relief can be FN2 granted, (id. at 11-13). As for its motion for summary judgment, the County argues that the record evidence it appended to its memoranda establishes as a matter of law that the County's actions were taken for legitimate, non-discriminatory reasons, namely, Honeycutt's failure to comply with the MOU call-in procedure. (Id. at 13-14). I will address each argument in turn. FN2. The County also argues in its initial memorandum that Honeycutt failed to exhaust her administrative remedies by not initiating the grievance procedure required under the Memorandum of Understanding between the County and Honeycutt's union. (County Br. at 14). The County does not provide any case law in support of this argument, and it does not discuss it all in its reply memorandum despite Honeycutt's counter-argument. I will therefore reserve judgment on this issue until such time as the County can provide a proper legal foundation for my consideration.

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Page 3 Not Reported in F.Supp.2d, 2006 WL 1892275 (D.Md.), 33 NDLR P 19 (Cite as: 2006 WL 1892275 (D.Md.))

III An action brought under the FMLA generally is subject to a two-year statute of limitations. 29 U.C.S. 2617(c)(1). The limitations period is extended to three years, however, for actions alleging a willful violation. Id. 2617(c)(2). Honeycutt was terminated on November 24, 2003, (Compl. FN3 10), but she did not file her complaint until April 14, 2006. Facially, that places this action outside the two-year limitations period. The County argues that dismissal is therefore required because (1) Honeycutt has not alleged a willful violation; and (2) she is not an intended beneficiary of the tolling agreement between the Department of Labor and the County. (County Br. at 10-11; County Reply Br. at 2-5). There is no need for me to reach the second issue because the County is wrong as to the first. FN4 FN3. The County claims that Honeycutt actually was terminated on December 23, 2003. (Country Br. at 11). This discrepancy is immaterial to resolving the statute of limitations issue. FN4. Should it be determined at a later stage in the litigation that the County did not act willfully, the tolling agreement issue will need to be resolved. As such, it is incumbent upon me to flag now a material conflict between the parties' factual allegations concerning this issue. Honeycutt alleges that there was only a single tolling agreement that lasted until April 18, 2006. (Compl. 14). In contrast, the County claims that there were two tolling agreements, the first one lasting from November 17, 2005 to February 17, 2006, the second from February 17, 2006 to May 17, 2006. (County Reply Br. at 2). Appended to its reply memorandum are what the County claims are copies of the agreements. But both only talk about the Secretary of Labor's responsibility for enforcing the Fair Labor Standards Act (FLSA), 29

U.S.C. 201 et seq., not the FMLA. Moreover, they state that the agreement only tolls the statute of limitations set forth in Section 6 of the Portal to Portal Act, id. 255, which applies to claims under the FLSA, not the FMLA. When a plaintiff sufficiently alleges facts supporting the claimed violation of the FMLA, a general averment as to willfulness should be sufficient to trigger the three-year limitations period.' Ungerleider v. Fleet Mortg. Group of Fleet Bank, 329 F.Supp.2d 343, 362 (D.Conn.2004) (quoting Settle v. S.W. Rodgers Co., 998 F.Supp. 657, 664 (E.D.Va.1998)); see also Williams v. Schuller Int'l, Inc., 29 Fed. Appx. 306, 308-09 (6th Cir.2002) (treating the issue of willfulness as one to be resolved by the trier of fact); Degan v. Goldwell of New England, Inc., 2006 U.S. Dist. LEXIS 4349, at *5-8 (D.Mass. Feb. 6, 2006) (same); Majors v. Morgan Tire & Auto, Inc., 2005 U.S. Dist. LEXIS 35163, at *36-38 (S.D.Ga. Oct. 21, 2005) (same). Here, Honeycutt has done just that: Although the County knew or reasonably should have known that the leave in question was FMLA qualified, and subject to protection of that statute, the County nevertheless used this leave as the basis for adverse personnel action.... (Compl. 10 (emphasis added)). Thus, on the facts as pled by Honeywell, the threeyear statute of limitations applies. IV *3 The County argues that Honeywell's allegations that she was denied a transfer and that the call-in procedure dictated by the MOU was extraordinary fail to state a claim under the FMLA. (County Br. at 11-13). Though I agree with the County as to the transfer denial, I disagree with respect to the MOU call-in procedure. Contrary to Honeycutt's assertion, (Compl. 9 (citing 29 C.F.R. 825.117)), the FMLA does not require that an employer provide an employee who needs to take intermittent leave with a more accommodating position. Rather, it states:

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Page 4 Not Reported in F.Supp.2d, 2006 WL 1892275 (D.Md.), 33 NDLR P 19 (Cite as: 2006 WL 1892275 (D.Md.))

If an employee requests intermittent leave, or leave on a reduced leave schedule ... that is foreseeable based on planned medical treatment, the employer may require such employee to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified and that(A) has equivalent pay and benefits; and (B) better accommodates recurring periods of leave than the regular employment position of the employee. 29 U.S.C. 2612(b)(2) (emphasis added); see also 29 C.F.R. 825.117 (Employees needing intermittent FMLA leave or leave on a reduced leave schedule must attempt to schedule their leave so as not to disrupt the employer's operations. In addition, an employer may assign an employee to an alternative position with equivalent pay and benefits that better accommodates the employee's intermittent or reduced leave schedule.). This provision does not provide employees an entitlement to a new position, but rather affords flexibility to employers faced with the disruption caused by employees who cannot work a regular schedule. Honeycutt's claim, to the extent it is based on the County's refusal to transfer her, must therefore be dismissed. As for the MOU call-in procedure, the County relies upon the first half of an FMLA regulation promulgated by the Department of Labor: An employer may also require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave. For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. 29 C.F.R. 825.302(d); see also Callison v. City of Philadelphia, 430 F.3d 117, 121 (3d Cir.2005) (stating that [n]othing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave); Gilliam v. United Parcel Service, Inc., 233 F.3d 969, 972 (7th Cir.2000) (explaining

that nothing in the FMLA or the implementing regulations prevents an employer from enforcing a rule requiring employees on FMLA leave to keep the employer informed about the employee's plans). The County argues that all civilian employees were required to follow the MOU call-in procedure, and thus Honeycutt cannot challenge the County's insistence that she also adhere to the procedure. This argument is flawed for three reasons. *4 First, Honeycutt has alleged that the MOU call-in procedure was not the usual and customary notice and procedural requirement[ ] for requesting leave because the County permitted her coworkers to use the 24-hour hotline, (Compl. 9), and allowed her to use it prior to September 2002, (Honeycutt Aff. 3). Second, there is a third sentence in the regulation that the County cites which is relevant to this case but which the County fails to discuss: However, failure to follow such internal employer procedures will not permit an employer to disallow or delay an employee's taking FMLA leave if the employee gives timely verbal or other notice. 29 C.F.R. 825.302(d). This creates a factual question, unanswered at this stage in the litigation, as to whether the County received such notice. Finally, the regulation applies only in circumstances in which the employee's need for FMLA leave is foreseeable. See generally id. 825.302. Honeycutt, however, alleges that her need for leave was unpredictable. (Compl. 9). The applicable regulation, therefore, would seem to be 29 C.F.R. 825.303(a), which states: When the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible. In the case of a medical emergency requiring leave because of an employee's own

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Page 5 Not Reported in F.Supp.2d, 2006 WL 1892275 (D.Md.), 33 NDLR P 19 (Cite as: 2006 WL 1892275 (D.Md.))

serious health condition or to care for a family member with a serious health condition, written advance notice pursuant to an employer's internal rules and procedures may not be required when FMLA leave is involved. The County has not addressed this regulation. Thus, Honeycutt's noncompliance with the MOU call-in procedure does not preclude her from maintaining a suit against the County because it is not clear as a matter of law that the County was permitted to mark her absences as unexcused. To the extent the County's motion claims that it does, the motion is denied. V The sole reason the County advances in support of its motion for summary judgment is that both parties concede that Honeywell did not comply with the MOU call-in procedure. (County Br. at 13). Given my ruling above, this is not a sufficient basis on which to grant summary judgment in favor of the County. In sum, the County's motion to dismiss is granted with respect to Honeycutt's assertion that she was entitled under the FMLA to be transferred to a more accommodating position. As to all other arguments the County advances, the motion is denied. A separate order implementing these rulings follows. ORDER For the reasons stated in the accompanying memorandum, it is, this 7th day of July 2006, ORDERED that *5 1) Defendant Baltimore County's motion to dismiss is GRANTED with respect to Plaintiff Loretta A. Honeycutt's assertion that she was entitled under the Family and Medical Leave Act, 29 U.S.C. 2601 et seq., to be transferred to a more accommodating position; and 2) Defendant Baltimore County's motion to dismiss or for summary judgment is otherwise DENIED.

D.Md.,2006. Honeycutt v. Baltimore County, Maryland Not Reported in F.Supp.2d, 2006 WL 1892275 (D.Md.), 33 NDLR P 19 END OF DOCUMENT

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