1

 Ms. Weber has since changed her last name and is now known as Cheryl

Kobel. However, for present purposes, we will refer to her as Defendant Weber.

2

 Plaintiff purports to assert claims based on alleged violations of various

“regulations for federally assisted programs” whose purpose is to effectuate

implementation of Section 504 of the Rehabilitation Act. See 28 C.F.R. §§ 39.101 et

seq.; id. at §§ 42.501 et seq. (Department of Justice); 34 C.F.R. §§ 104.1 et seq.

(Department of Education); 45 C.F.R. §§ 84.1 et seq. (Department of Health and

Human Services). To the extent these regulations are applicable to Plaintiff’s case,

they are redundant of her Rehabilitation Act claim and provide no independent right of

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CAROL HAYLETT, )

 )

Plaintiff, )

v. ) 1: 05cv299

 )

LESLIE BOHRER, CHERYL WEBER )

and ST. MARTIN DAY CARE CENTER, )

 )

Defendants. )

MEMORANDUM OPINION

McLAUGHLIN, SEAN J., District J.

Plaintiff Carol Haylett has filed this pro se civil action against her former

employer, St. Martin Day Care Center (“St. Martin”) as well as two of her former

supervisors, Leslie Bohrer and Cheryl Weber.1 Plaintiff asserts violations of her rights

under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., and Title VII of

the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. §

2000e et seq. (“Title VII”), 42 U.S.C. § 1981. In addition, she seeks damages for

various personal injuries, both physical and emotional, allegedly caused by the

Defendants’ actions as well as damages under the Rehabilitation Act of 1973, Pub. L.

93-112, as amended, 29 U.S.C. §§ 701 et seq..

2

 We have jurisdiction over these

Case 1:05-cv-00299-SJM Document 23 Filed 08/15/06 Page 1 of 11
action.

Plaintiff also purports to assert claims based on Defendants’ alleged acts of

retaliation against her daughter, who is not a named plaintiff in this action. Insofar as

Plaintiff asserts acts of retaliatory employment discrimination committed against her

daughter, such claims belong to Plaintiff’s daughter, not to Plaintiff, and they cannot be

prosecuted by Plaintiff in this action. See Dockins v. , No. Civ. 98-3035, 2000 WL

146792 *2 at n.2 (E.D. Pa. Feb. 8, 2000) (“To the extent plaintiff seeks to complain in

this action of the treatment of her son by defendant, she does not have standing to

assert such a claim.”).

2

claims pursuant to 28 U.S.C. §§ 1331 and 1367(a).

Defendants have filed a motion to dismiss Plaintiff’s claims or, in the alternative,

for summary judgment. For the reasons set forth below, Defendants’ motion will be

granted in part and denied in part.

I. STANDARD OF REVIEW

Defendants have moved for relief under Rule 12(b)(6) or, alternatively, Rule 56,

of the Federal Rules of Civil Procedure. In considering a motion to dismiss under Rule

12(b)(6), we are required to accept as true all allegations in the complaint and all

reasonable inferences that can be drawn therefrom, viewing them in the light most

favorable to the plaintiff. A Rule 12(b)(6) motion should be granted if it appears to a

certainty that no relief could be granted under any set of facts which could be proved. 

See Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). Summary judgment under

Rule 56 is appropriate only if there are no genuine issues of material fact and the

movant is entitled to judgment as a matter of law. In reviewing a motion for summary

judgment, we must view the facts in the light most favorable to the nonmoving party. 

See Fed. R. Civ. P. 56; Gottshall v. Consol. Rail Corp., 56 F.3d 530, 533 (3d Cir. 1995).

Additional consideration must be given to the fact that the Plaintiff here is

proceeding pro se. Pro se pleadings, “however inartfully pleaded,” must be held to

“less stringent standards than formal pleadings drafted by lawyers” and can only be

Case 1:05-cv-00299-SJM Document 23 Filed 08/15/06 Page 2 of 11
3

dismissed for failure to state a claim if it appears “<beyond a doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief.’” Haines v.

Kerner, 404 U.S. 519, 520-521(1972), quoting Conley v. Gibson, 355 U.S. 41, 45-46

(1957). If the court can reasonably read pleadings to state a valid claim on which the

litigant could prevail, it should do so despite failure to cite proper legal authority,

confusion of legal theories, poor syntax and sentence construction, or litigant’s

unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982);

United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition

prepared by a prisoner may be inartfully drawn and should be read “with a measure of

tolerance”); Smith v. U.S. District Court, 956 F.2d 295 (D.C. Cir. 1992); Freeman v.

Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading

rules, during the initial stages of litigation, a district court should construe all allegations

in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997).

See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P.

12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir.

1990)(same).

II. DISCUSSION

Plaintiff was employed at St. Martin from approximately July 1994 to October

2001 when she claims she was constructively discharged. Plaintiff asserts that, during

her tenure at St. Martin, she suffered various forms of discrimination at the hands of

Weber and Bohrer, including adverse work assignments, a reduction of work hours and

benefits, verbal harassment, refusal to reasonably accommodate Plaintiff’s back and

hip injuries and, ultimately, loss of employment.

Defendants assert several bases for dismissing Plaintiff’s claims. We will

consider each basis in turn.

Case 1:05-cv-00299-SJM Document 23 Filed 08/15/06 Page 3 of 11
3

 Plaintiff avers that the PHRC complaint was actually filed in July 2001 and

amended on August 23, 2001 and that the amendment included claims against

Defendants Weber and Bohrer. We need not resolve these issues because they are

immaterial for present purposes.

4

A.

First, Defendants move to dismiss from this lawsuit Cheryl Weber and Leslie

Bohrer – respectively, the Executive Director and Director of St. Martin. We agree with

Defendants that neither of these individuals is a properly named defendant for

purposes of Plaintiff’s federal claims. Discrimination claims under the ADA, ADEA and

Title VII of the Civil Rights Act can only be brought against the plaintiff’s “employer.” 29

U.S.C. § 623; 42 U.S.C.A. §§ 2000e-2, 12111(2) and (5) and 12112. It is clear from

Plaintiff’s allegation that her “employer” was St. Martin Center, not Defendants Weber

or Bohrer. Similarly, our circuit court of appeals has held that there is no individual

liability under Section 504 of the Rehabilitation Act. See Emerson v. Thiel College, 296

F.3d 184, 189-90 (3d Cir. 2002). Accordingly, Plaintiff has not stated a claim against

the individual defendants under any of the anti-discrimination laws upon which relief

can properly be granted.

B.

Defendants’ second argument is that Plaintiff’s claims under the ADA, ADEA and

Title VII must be dismissed in their entirety as untimely. Defendants’ exhibits show that

Plaintiff filed a complaint against St. Martin with the Pennsylvania Human Rights

Commission (“PHRC”) on August 23, 2001.3 (Def.s’ Ex. A.) On April 23, 2003, the

PHRC dismissed the complaint on the basis that it found no probable cause to support

Plaintiff’s allegations. (Def.s’ Ex. B.)

Plaintiff’s PHRC complaint was cross-filed with the EEOC and, on September 25,

2003, the EEOC issued a dismissal of the complaint and notice of Plaintiff’s right to file

suit (“Notice of Right to Sue”). (Def.s’ Ex. E.) Based on additional information

Case 1:05-cv-00299-SJM Document 23 Filed 08/15/06 Page 4 of 11
5

subsequently submitted by Plaintiff in support of her claims, the EEOC on January 6,

2004 issued a notice of intent to reconsider Plaintiff’s claims and rescinded its prior

dismissal. (Def.s’ Ex. F.) Upon reconsideration, the EEOC found reasonable cause to

support at least some of Plaintiff’s charges; when conciliation efforts failed, however,

the EEOC issued a second Notice of Right to Sue dated July 12, 2005. (Def.s’ Ex. G.)

Pursuant to 29 C.F.R. § 1601.28(e), a claimant wishing to preserve her rights

under the federal employment discrimination statutes is required to file a complaint

within 90 days of her receipt of the Notice of Right to Sue. Defendants contend that,

because Plaintiff never filed a complaint within 90 days of the initial September 25,

2003 Notice of Right to Sue, her claims are now untimely. And, while the EEOC

purported to rescind that initial Notice of Right to Sue through its January 6, 2004 notice

of reconsideration, Defendants contend that the Commission was without any legal

authority to do so. Irrespective of that problem, Defendants argue, the Plaintiff failed to

file suit within 90 days of the second Notice of Right to Sue which was issued on July

12, 2005. Defendants thus assert that Plaintiff’s ADA, ADEA, and Title VII claims are

now time-barred. We will address these arguments in reverse order.

As for Defendants’ assertion that Plaintiff failed to file suit within the 90-day

period following receipt of the second Notice of Right to Sue, we find this argument to

be in error. As the second notice was issued on July 12, 2005, the 90-day filing period

would have begun to run on July 15, 2005 (assuming 3 days are added to account for

service, see Mosel v. Hills Dept. Store, 789 F.2d 251 (3d Cir. 1986)) and would have

ended on October 13, 2005. In this case, Plaintiff’s complaint was received by the

Clerk of Courts on October 12, 2005, along with Plaintiff’s motion for leave to proceed

in forma pauperis, although the complaint was not officially docketed until October 18,

2005 when the IFP motion was granted. Therefore, Plaintiff’s complaint was technically

submitted in a timely fashion as measured from the EEOC’s second Notice of Right to

Case 1:05-cv-00299-SJM Document 23 Filed 08/15/06 Page 5 of 11
6

Sue. 

We next consider Defendants’ argument that the EEOC lacked the authority to

rescind the original Notice of Right to Sue dated September 25, 2003. Because it is

undisputed that Plaintiff did not file her complaint within 90 days of this initial notice, the

critical question is whether the EEOC could have lawfully rescinded Plaintiff’s right to

bring suit during this period and whether, by issuing the second Notice of Right to Sue,

the EEOC effectively created a new 90-day period for filing suit.

The operative provision is 29 C.F.R. § 1601.19, which allows the EEOC or an

issuing director to issue, sua sponte, a notice of intent to reconsider a previous “no

reasonable cause” determination. Pursuant to § 1601.19:

[i]f the Commission or an issuing director decides to reconsider a

final no cause determination, a notice of intent to reconsider shall

promptly issue to all parties to the charge. If such notice of intent

to reconsider is issued within 90 days of receipt of the final no

cause determination, and the person claiming to be aggrieved ...

has not filed suit and did not request and receive a notice of right to

sue pursuant to § 1601.28(a)(1) or (2), the notice of intent to

reconsider shall vacate the letter of determination and shall revoke

the charging party’s right to bring suit within 90 days. If the 90 day

suit period has expired, the charging party has filed suit, or the

charging party had requested a notice of right to sue pursuant to

§ 1601.28(a)(1) or (2), the notice of intent to reconsider shall

vacate the letter of determination, but shall not revoke the charging

party’s right to sue in 90 days. ... In those circumstances where the

charging party’s right to bring suit in 90 days was revoked, the

[new] determination shall include notice that a new 90 day suit

period shall begin upon the charging party’s receipt of the

determination.

29 C.F.R. § 1601.19(b). Thus, § 1601.19(b) nullifies the original 90-day period for filing

suit only if (among other things) the EEOC issues a notice of its intent to reconsider

within 90 days of the claimant’s receipt of the prior no cause determination. See

McCray v. Corry Mfg. Co., 61 F.3d 224, 229 (3d Cir. 1995). Defendants contend that,

because the EEOC did not issue its notice of intent to reconsider within 90 days from

the September 25, 2003 dismissal and notice of right to sue letter (i.e., by December

Case 1:05-cv-00299-SJM Document 23 Filed 08/15/06 Page 6 of 11
7

24, 2003), its subsequent issuance of the notice of intent to reconsider on January 6,

2004 could not have revoked the Plaintiff’s 90-day period for filing suit.

We do not believe the issue can be definitively resolved on this record, however. 

According to the regulation, it is the claimant’s receipt of the Notice of Right to Sue

which triggers the 90-day period for filing a civil action. See 29 C.F.R. § 1601.19(a)

(where a determination of no reasonable cause is made, EEOC’s letter of determination

shall advise claimant of his/her right to sue in federal district court within 90 days of

receipt of the letter of determination) (emphasis added); id. at § 1601.28(e). Here,

Plaintiff seems to be alleging, albeit somewhat inartfully, that she did not receive notice

of her right to sue until December 23, 2003. If this allegation is credited, the 90-day

period for filing suit would have ended on March 23, 2004. This in turn would mean that

the EEOC’s issuance of its January 6, 2004 notice of intent to reconsider occurred

within the applicable 90-day period for purposes of § 1601.19(b) and thereby effectively

revoked Plaintiff’s right to file suit during that period. Under this scenario, Plaintiff’s 90-

day period for filing suit would have run from her receipt of the EEOC’s July 12, 2005

notice of dismissal and right-to-sue. As we have already discussed, Plaintiff timely filed

her complaint during that period.

Defendants have styled the instant motion as a motion to dismiss or,

alternatively, for summary judgment. District courts retain the discretion to convert a

Rule 12(b)(6) motion to a Rule 56 motion for summary judgment only when all parties

have had a “reasonable opportunity to present all material made pertinent to such a

motion by Rule 56.” Fed. R. Civ. P. 12(b)(6). See Franklin v. National Maritime Union

of America (MEBA/NMU), Civ. A. No. 91-480, 1991 WL 131182 at *5 n. 3 (D.N. J. July

16, 1991). Thus, our circuit court of appeals requires that notice be given to all parties

before such a conversion is made. See Rose v. Bartles, 871 F.2d 331, 340 (3d Cir.

1989). Here, Plaintiff has appended no exhibits or affidavits in defense of the instant

Case 1:05-cv-00299-SJM Document 23 Filed 08/15/06 Page 7 of 11
8

motion, but she has raised allegations which could arguably establish the timeliness of

her employment discrimination claims. Given the fact that no formal discovery has as

yet been conducted and considering Plaintiff’s status as a pro se litigant, the Court is

not satisfied that Plaintiff has had a sufficient opportunity to present all materials

relevant to a Rule 56 disposition. We will therefore decline at this time to convert

Defendants’ motion into a Rule 56 motion for summary judgment, instead allowing the

parties time to engage in discovery. Accordingly, the Defendants are not prohibited

from raising the timeliness issue on a subsequent Rule 56 motion with the benefit of a

more fully developed record. For present purposes, however, we will deny Defendants’

motion to dismiss the Plaintiff’s Title VII and ADA claims.

Plaintiff’s ADEA claim, on the other hand, is a different matter. As the foregoing

discussion illustrates, the timeliness of Plaintiff’s federal employment discrimination

claims hinges on our application of 29 C.F.R. § 1601.19(b) to the facts of this case. 

Plaintiff does not appear to raise any argument or allegation that would contradict this

conclusion. Our circuit court of appeals has observed that, while the EEOC’s grant of

reconsideration under § 1601.19(b) may impact the statute of limitations for filing Title

VII and ADA claims, there is no counterpart regulation governing reconsideration of

claims under the ADEA. See McCray, 61 F.3d at 228. Thus, even if Plaintiff did not

receive the EEOC’s right-to-sue notice until December 23, 2003 as she suggests, her

90-day period for filing a civil action under the ADEA closed on March 23, 2004. 

Because Plaintiff failed to file her lawsuit within that period and, because the period

could not be further extended by virtue of § 1601.19(b), her ADEA claim is untimely.

We will therefore grant the Defendants’ motion to dismiss that claim.

C. 

Finally, Defendants move to dismiss Plaintiff’s complaint insofar as it asserts a

claim for personal injury damages premised on state law tort theory and/or the

Case 1:05-cv-00299-SJM Document 23 Filed 08/15/06 Page 8 of 11
4

 To the extent Defendants are suggesting that the exclusivity provision of

Pennsylvania’s Worker’s Compensation Law would also bar Plaintiff’s Rehabilitation Act

claim, we disagree. The Supremacy Clause of the U.S. Constitution would require that

Plaintiff’s Rehabilitation Act claim take precedence over 77 P.S. § 481.

9

Rehabilitation Act of 1973. Plaintiff’s state law claim seeks compensation for injuries to

her back, hip, and shoulders allegedly causing loss of future employment and also

seeks restitution for pain and suffering, loss of enjoyment of life, emotional and mental

anguish, and future medical expenses. With regard to Plaintiff’s state law claim, we

agree with Defendants that this claim is barred by the exclusivity provision of

Pennsylvania’s Worker’s Compensation Law, 77 P.S. § 481. Plaintiff does not dispute

the applicability of this provision; she argues, however, that it should not bar her claim

because she was unaware of the need to seek relief under the worker’s compensation

law, because she has medical documentation to support her claim, and because

personal circumstances required her to find alternative employment despite her injuries. 

Unfortunately for Plaintiff, ignorance of the law is not sufficient grounds to withstand the

Defendants’ motion under these circumstances, notwithstanding her pro se status. See

e.g., Lee v. Thompson, 163 Fed. Appx. 142, 144, 2006 WL 162643 at **2 (3d Cir. Jan

23, 2006) (despite court’s obligation to liberally construe a pro se litigant's pleadings,

ignorance of the law or failure to seek legal advice will not excuse failure to meet a filing

deadline).

With regard to Plaintiff’s claim under § 504 of the Rehabilitation Act, Defendants

argue that this claim should be dismissed because it is untimely and because Plaintiff

has pleaded no facts to establish a causal connection between the Defendants’ actions

and Plaintiff’s injuries.4 We agree that the Rehabilitation Act claim must be dismissed

as untimely. 

Courts have held that Pennsylvania’s two-year statute of limitations governing

personal injury claims is applicable to claims brought under § 504 of the Rehabilitation

Case 1:05-cv-00299-SJM Document 23 Filed 08/15/06 Page 9 of 11
10

Act of 1973. See DeMedio v. Girard Bank, 1987 WL 9410 (E.D. Pa. 1987), aff’d 835

F.2d 282 (3d Cir. 1987). Moreover, under federal law, a claim accrues when the

plaintiff knows or has reason to know of the injury that is the basis of the action. See

Holland v. Allied Serv. For Handicapped, Civ. No. 92-0814, 1993 WL 668670 at *3

(M.D. Pa. May 21, 1993) (citing Morse v. University of Vermont, 973 F.2d 122 (2d Cir.

1992)). The Supreme Court has held, in the context of discrimination cases, that “the

proper focus is on the time of the discriminatory act, not the point at which the

consequences of the act become painful.” Id. (emphasis in the original) (citing Chardon

v. Fernandez, 454 U.S. 6, 8 (1981); Delaware State College v. Ricks, 449 U.S. 250, 258

(1980)). Here, Plaintiff complains that St. Martin Center, through its employees,

discriminated against her because of her disability and constructively discharged her in

October 2001. Because Plaintiff did not file her complaint until some four years later,

her Rehabilitation Act claim is untimely.

Plaintiff insists that her claim is not untimely because it was being litigated at the

administrative level until 2005. However, Plaintiff was not required to exhaust

administrative remedies prior to filing her claim under § 504 of the Rehabilitation Act. 

See Freed v. Consolidated Rail Corp., 201 F.3d 188, 191 (3d Cir. 2000); Holland,

supra, at *2. 

III. CONCLUSION

Based upon the foregoing discussion, Plaintiff’s claims against Defendants

Bohrer and Weber will be dismissed in their entirety. Plaintiffs’ claims against St. Martin

Center will likewise be dismissed, except for her claims under the ADA and Title VII. An

appropriate order follows.

Case 1:05-cv-00299-SJM Document 23 Filed 08/15/06 Page 10 of 11
11

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CAROL HAYLETT, )

 )

Plaintiff, )

v. ) 1: 05cv299

 )

LESLIE BOHRER, CHERYL WEBER )

and ST. MARTIN DAY CARE CENTER, )

 )

Defendants. )

O R D E R

AND NOW, to wit, this 15th day of August, 2006, for the reasons set forth in the

accompanying Memorandum Opinion,

IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss Pursuant to

Fed.R.Civ.P. 12(b)(6) or, in the Alternative, Motion for Summary Judgment Pursuant to

Fed.R.Civ.P. 56 [Doc. # 17] is GRANTED in part and DENIED in part as follows:

1. Said motion is GRANTED with respect to all claims directed against

Defendants Bohrer and Weber; and

2. With respect to Plaintiff’s claims against St. Martin Day Care Center, said

motion is DENIED as to Plaintiff’s claims under the Americans with

Disabilities Act and Title VII of the Civil Rights Act and GRANTED in all

other respects. 

S/ Sean J. McLaughlin

U.S. District Judge

cm: All parties of record.

Case 1:05-cv-00299-SJM Document 23 Filed 08/15/06 Page 11 of 11