* District Judge of the Southern District of Texas, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 91–6214.

Wilma Becky CASH, Plaintiff–Appellant,

v.

JEFFERSON ASSOCIATES, INC., Defendant–Appellee.

Dec. 2, 1992.

Appeal from the United States District Court For the Southern District of Texas.

Before REYNALDO G. GARZA and GAR WOOD, Circuit Judges, and ROSENTHAL, * *District

Judge.

PER CURIAM:

This is an appeal from an order of dismissal granted on defendant's motion to dismiss based

on improper pleading under Fed.R.Civ.P. 12(b)(6). We find that the appellant 's response to the

motion to dismiss clearly showed that her claim was for willful discrimination and therefore was not

time-barred under the three-year statute of limitations.

FACTS

Wilma Becky Cash worked for Jefferson Associates, Inc. ("JAI") for over twelve years as an

executive secretary. Cash was fired on February 10, 1989 at the age of 49. She requested and

received a right to sue letter from the Equal Employment Opportunity Commission on February 6,

1990. She then filed a pro se suit against JAI on February 9, 1990. In that suit Cash charged that

she was dismissed because of her age and that Limas Jefferson, owner of JAI, stated that he needed

"younger blood" in the company. She also claimed she was a victim of sexual harassment throughout

her employment and that she was assaulted in September of 1988. On May 24, 1990, she filed an

ame n ded complaint adding Limas Jefferson, president and owner of JAI, as a defendant. He was

served and answered, but no service was e ver had on JAI and on June 18, 1991 the district court

dismissed her suit against JAI for failure to serve JAI within the 120 days required by the rules. Atthe same time the court denied the motion to dismiss as to Limas Jefferson. Cash again filed a new

suit on July 12, 1991, again realleging and charging JAI with violations of Ti tle VII, the Age

Discrimination in Employment Act ("ADEA") and pendent state tort claims of assault and intentional

infliction of emotional distress.

Her co mplaint shows that she intended to file a willful violation of ADEA, which would

invoke the three-year statute of limitations. In her pleading she claimed intentional discrimination and

this accompanied by her claim of deliberate and planned discrimination over a period of time suggest

that she wanted to sue under the willful clause. The Supreme Court stated in M claughlin v. Richland

Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 1681, 100 L.Ed.2d 115 (1988) that:

In common usage t he wo rd willful is considered synonymous with such words as

voluntary, deliberate, and intentional. See Roget's International Thesaurus § 622.7, p. 479;

§ 653.9 p. 501 (4th ed. 1977). The word willful is widely used in the law, and, although it

has not by any means been give n a perfectly consistent interpretation, it is generally

understood to refer to conduct that is not merely negligent. Id.

Appellant's use of the word intentional, the deliberate and methodical fact pattern she alleges,

plus her request for liquidated damages, which is only available if the discrimination was willful, all

indicate that she wanted to plead willfulness. We do not need to go into the merits of the claim under

12(b)(6) motion. We only need to find that the pleading was sufficiently clear.

JAI filed a 12(b)(6) motion to dismiss and appellant Cash filed a response to the motion to

dismiss on August 27, 1991. In her response she used the term "willful". The court apparently was

not aware of this response when he entered an order dismissing the case as being barre d by the

two-year statute of limitations on August 29, 1991. The court later acknowledged the filing of Cash's

response but decided anyway to dismiss the action.

It seems that her answer to the motion to dismiss was two days late, but justice requires that

we consider the appellant's response as a leave to a mend her pleading. Fed.R.Civ.P. 15(a). S ee

Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir.1972).

Under the circumstances of this case there is no question that the court was aware that the

appellant was claiming a willful violation invoking the three-year statute of limitations and that her

ADEA claim was still alive.The trial court also dismissed state tort claims because of being barred by the two-year statute

of limitations. However, we cannot say for sure that the court made a finding that they were barred

by the two-year statute because in the order dismissing the case, the trial judge made a finding that

the state claims were barred and they might well be, but he said that if they were not barred he would

not entertain

t hem because the federal claim was time-barred, which is the ruling that we are

reversing.

We therefore REVERSE the dismissal of the appellant's cause of action and REMAND it for

trial.