REID v. VETERANS ADMINISTRATION, PITTSBURGH, PA

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH DIVISION

GARRETT R. REID, ) Civil Action No. 2:22-CV-01025-CBB

)

)

Plaintiff, )

) United States Magistrate Judge

vs. ) Christopher B. Brown

)

VETERANS ADMINISTRATION, )

PITTSBURGH, PA, )

)

)

Defendant, )

MEMORANDUM OPINION1

ON DEFENDANT’S MOTION TO DISMISS, OR IN THE ALTERNATIVE,

MOTION FOR SUMMARY JUDGMENT, ECF No. 14

I. Introduction

Plaintiff Garrett R. Reid (“Reid”) initiated this pro se civil action alleging his

employer, Defendant Veterans Administration, Pittsburgh, PA (“Defendant”),

discriminated against him by failing to accommodate his traumatic brain injury

after he returned from military service, in violation of Section 504 of the

Rehabilitation Act, 29 U.S.C. § 794, et seq. (“the Rehabilitation Act”), Title VII of

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

Age Discrimination in Employment Act of 1967, as amended 29 U.S.C. § 621, et seq.

1 All parties have consented to jurisdiction before a United States Magistrate Judge; therefore

the Court has the authority to decide dispositive motions, and to eventually enter final judgment.

See 28 U.S.C. § 636, et seq. This matter was originally assigned to Magistrate Judge Cynthia Reed

Eddy. Upon Judge Eddy’s retirement, the matter was reassigned on April 23, 2024, to Chief

Magistrate Judge Richard A. Lanzillo. On July 3, 2024, by Administrative Order 2024-07 filed at

2:24-mc-10001, the matter was reassigned to this member of the Court.

(“ADEA”), the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq. (“PHRA”),

and the Uniformed Services Employment and Reemployment Rights Act of 1994,

38 U.S.C. §§ 4301 to 4333 (“USERRA”). ECF No. 11. This court has subject matter

jurisdiction under 28 U.S.C. § 1331 for Reid’s federal claims.2

Presently pending before the Court is Defendant’s Motion to Dismiss, or in

the alternative, Motion for Summary Judgment. ECF No 14. The Court converted

the Motion to Dismiss to a Motion for Summary Judgment on the issue of

exhaustion only. ECF No. 16. The Motion is fully briefed and ripe for

consideration. ECF Nos. 14-15, 23, 28.

For the reasons set forth below, the Defendant’s Motion is GRANTED in part

and DENIED in part as follows:

• Defendant’s Motion to Dismiss for failure to state a claim with respect to

Reid’s Rehabilitation Act disability discrimination and failure-to-

accommodate claims is GRANTED without prejudice and with leave for Reid

to amend.

• Defendant’s Motion for Summary Judgment as to Reid’s exhaustion of

administrative remedies for his Rehabilitation Act claims will be DENIED

without prejudice for Defendant to reassert.

• Defendant’s Motion to Dismiss for failure to state a claim with respect to

Reid’s Title VII and ADEA claims is GRANTED without prejudice and with

leave for Reid to amend.

• Defendant’s Motion for Summary Judgment on Reid’s exhaustion of

administrative remedies for his Title VII and ADEA claims will be DENIED

without prejudice for Defendant to reassert.

2 Reid also brings a state law claim under the PHRA, which Defendant challenges for lack of

subject matter jurisdiction. ECF No. 15 at 17. Defendant is correct that the Court lacks subject

matter jurisdiction over Reid’s PHRA claim, as addressed infra.

• Defendant’s Motion to Dismiss for lack of subject matter jurisdiction with

respect to Reid’s PHRA claim is GRANTED with prejudice.

• Defendant’s Motion to Dismiss for failure to state a claim with respect to

Reid’s USERRA claim is GRANTED without prejudice and with leave for

Reid to amend.

Reid is granted thirty (30) days, or until July 30, 2025, to file an amended

complaint addressing the deficiencies set forth below. This case will be marked as

ADMINISTRATIVELY CLOSED unless and until Reid files the amended complaint

by the specified deadline.

II. Factual Background

Reid alleges he was an employee of the Defendant Veteran’s Administration

in the Aspinwall and Pittsburgh, PA locations. ECF No. 11 at 1. Following a leave

of absence, he returned to work in 2019 when the Defendant’s Human Resources

Department (“HR Department”) discriminated against him by failing to

accommodate his disability – specifically, a traumatic brain injury which he

sustained while on military deployment in Syria. Id.

Instead of accommodating him, Reid alleges the HR Department placed him

on leave without pay for sixteen months, refused him 120 hours of disability leave,

“dropped the ball on reasonable accommodation” twice, did not notify him that they

dismissed his reasonable accommodation, and “completely ignored and discarded

him.” Id. at 4. He alleges the HR Department’s mishandling of his accommodation

request made him unjustifiably compete for his employment. Id. Notably, Reid

does not specify what his job was at the Veterans Affairs, nor what reasonable

accommodations he requested. See generally, ECF No. 11. Nonetheless, he

demands sixteen months of lost pay, a COVID-19 bonus, and compensation for lost

training time, job credibility, and pain and suffering. Id. at 5.

Prior to filing this action in federal court, Plaintiff contacted an Equal

Employment Opportunity (“EEO”) Counselor on April 13, 2021 regarding his

allegations of discrimination. ECF No. 14-1 at 2-5. The EEO issued him a Notice

of Right to File a Discrimination Complaint on May 11, 2021. ECF No. 14-2 at 2-6.

Reid received access to the Notice on May 13, 2021, which triggered his 15-day

window to file his formal complaint on or before May 28, 2021. Id. at 7. See also 29

C.F.R. § 1614.106. Reid filed his formal complaint on June 29, 2021. ECF No. 14-3

at 2. On September 9, 2021, the Department of Veterans Affairs Office of

Resolution Management issued a final agency decision and dismissed Reid’s claims

because they were raised beyond the 45-day reporting requirement, set forth in 29

C.F.R. § 1614.105 (a)(2), and because he filed his formal complaint beyond the 15-

day filing period. 29 C.F.R. § 1614.106. ECF No. 14-3 at 2-10.

Reid appealed the final agency decision to the Office of Federal Operations

for the Equal Employment Opportunity Commission. ECF No. 14-4 at 2-6. On

March 10, 2022, the Office of Federal Operations affirmed the final agency decision

because Reid filed his formal complaint outside the 15-day window but did not

address whether Reid missed the 45-day filing requirement. Id. The Office of

Federal Operations determined Reid failed to provide adequate justification to

excuse his untimely filing of the formal complaint, and even though Reid was on

military orders during that period, the record showed he had advanced notice of his

duty and access to email during the relevant period. Id. at 4.

III. District Court Proceedings

Reid, proceeding pro se and in forma pauperis, commenced this action on

June 27, 2022 in the United States District Court for the Eastern District of

Pennsylvania. ECF Nos. 1-2. On July 13, 2022, the case was transferred to the

Western District of Pennsylvania because the events giving rise to the claim

occurred in this district. ECF No. 5.

Thereafter, Defendant moved to dismiss the Complaint, or in the alternative,

for summary judgment on the issue of exhaustion of administrative remedies only.

ECF Nos. 14-15. Because Defendant presented EEO filings that were outside of the

Complaint, the Court converted the Motion into a Motion for Summary Judgment

on the issue of exhaustion only. ECF No. 16. Reid was advised that in converting

Defendant’s Motion to Dismiss into a Motion for Summary Judgment, the

exhaustion issue will be evaluated under the Fed. R. Civ. P. 56 standard. Id. Reid

was also advised that the remainder of Defendant’s Motion would be decided under

the well-established standards for deciding motions to dismiss.3

3 The Parties were also advised the requirements of Local Rule 56(B) and (C) regarding the

filing of a concise statement of facts and a responsive concise statement were waived. ECF No. 16.

IV. Standard of Review

a. Fed. R. Civ. P. 12(b)(1) – Motion to Dismiss for lack of subject

matter jurisdiction:

A motion filed under Fed. R. Civ. P. 12(b)(1) challenges whether the court has

subject matter jurisdiction, meaning the court’s “very power to hear the case.”

Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

Under Fed. R. Civ. P. 12(b)(1), the plaintiff is the party invoking a federal court’s

jurisdiction and therefore bears the burden of showing their claims are properly

before the court. Id.

A challenge under Fed. R. Civ. P. 12(b)(1) can be either facial or factual.

Petruska v. Gannon U., 462 F.3d 294, 302, n.3 (3d Cir. 2006). A facial attack

challenges jurisdiction based on the plaintiff's pleading, and when considering such

a challenge, a court must accept the allegations in the plaintiff's complaint as true.

Id. A factual challenge “attacks allegations underlying the assertion of jurisdiction

in the complaint, and it allows the defendant to present competing facts.” Huertas,

120 F.4th at 1174, n. 7 (citing Hartig Drug Co. Inc. v. Senju Pharm. Co., 836 F.3d

261, 268 (3d Cir. 2016)). In reviewing a factual challenge, “the court may consider

evidence outside the pleadings.” DiBease v. United States, No. 23-2779, 2024 WL

4234640, at *1 (3d Cir. Sept. 19, 2024) (citing U.S. ex rel. Customs Fraud

Investigations, LLC v. Victaulic Co., 839 F.3d 242, 251 (3d Cir. 2016)). A “12(b)(1)

factual challenge strips the plaintiff of the protections and factual deference

provided under 12(b)(6) review.” Hartig Drug Co., 836 F.3d at 268.

b. Fed. R. Civ. P. 12(b)(6) – Motion to Dismiss for failure to state a

claim:

A motion filed under Fed. R. Civ. P. 12(b)(6) challenges whether the

complaint states an actual claim. A complaint must contain a “short and plain

statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P.

8(a)(2), and can be dismissed for “failure to state a claim upon which relief can be

granted.” Fed. R. Civ. P. 12(b)(6). A defendant has the burden of showing that a

complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169,

178 (3d Cir. 2000).

To survive a motion to dismiss, “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). A complaint must be dismissed if it merely alleges

entitlement to relief without supporting facts. Fowler v. UPMC Shadyside, 578

F.3d 203, 211 (3d Cir. 2009). This “‘does not impose a probability requirement at

the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable

expectation that discovery will reveal evidence of’ the necessary element.’” Phillips,

515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). The court need not accept as

true “unsupported conclusions and unwarranted inferences,” Doug Grant, Inc. v.

Great Bay Casino Corp., 232 F.3d 173, 183–84 (3d Cir. 2000), nor a plaintiff's “bald

assertions or legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902,

906 (3d Cir. 1997). The court's role is limited to determining if a plaintiff is entitled

to offer evidence in support of their claims – not if they will ultimately prevail.

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (overruled on other grounds).

“In deciding a Rule 12(b)(6) motion, a court must consider only the complaint,

exhibits attached to the complaint, matters of public record, as well as undisputedly

authentic documents if the complainant's claims are based upon these documents.”

Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010); In re Burlington Coat Factory

Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). When matters outside of the

pleadings are presented to the Court on a Rule 12(b)(6) motion, the Court has the

discretion to exclude such matters from consideration. Fed.R.Civ.P. 12(d); Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 905 n.3 (3d Cir. 1997). If matters outside

the pleadings are presented to, and not excluded by, the court, a motion to dismiss

must be converted to a motion for summary judgment. See Fed.R.Civ.P.12(d).

Reid is proceeding pro se, and he is entitled to a liberal reading of his

pleadings and documents filed in opposition to the pending Motion. Higgs v. Atty.

Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011), as amended (Sept. 19, 2011) (“The

obligation to liberally construe a pro se litigant's pleadings is well-established.”). If

the Court can reasonably read pleadings to state a valid claim on which the plaintiff

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

of legal theories, poor syntax, and sentence construction, or the litigant's

unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364

(1982). Additionally, a pro se plaintiff may be granted “leave [to amend] . . . when

justice so requires,” Foman v. Davis, 371 U.S. 178, 182 (1962), unless amendment

would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 114

(3d Cir. 2002).

c. Fed. R. Civ. P. 56 – Motion for Summary Judgment

A motion for summary judgment filed under Fed. R. Civ. P. 56 is granted “if

the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court

must ask whether the evidence presents “a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as a

matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

In making this determination, “all reasonable inferences from the record

must be drawn in favor of the nonmoving party and the court may not weigh the

evidence or assess credibility.” Goldenstein v. Repossessors Inc., 815 F.3d 142, 146

(3d Cir. 2016) (cleaned up). “Only disputes over facts that might affect the outcome

of the suit under the governing law will properly preclude the entry of summary

judgment.” Anderson, 477 U.S at 247-48. An issue is “genuine” if a reasonable jury

could possibly hold in the nonmovant’s favor with respect to that issue. Id. This

standard is somewhat relaxed with respect to pro se litigants. Simmons v. Gilmore,

No. 2:17-CV-00996, 2021 WL 1215773, at *8 (W.D. Pa. Mar. 31, 2021) (citing

Anderson, 477 U.S. at 256). Where a party is pro se, the complaint is to be

construed liberally. Renchenski v. Williams, 622 F.3d 315, 337 (3d Cir. 2010).

At the summary judgment stage of the proceedings, the Court need not credit

bald assertions or legal conclusions unaccompanied by evidentiary support. Jones,

214 F.3d at 407. “[A] pro se plaintiff is not relieved of his obligation under [Federal

Rule of Civil Procedure] 56 to point to competent evidence in the record that is

capable of refuting a defendant's motion for summary judgment.” Dawson v. Cook,

238 F. Supp. 3d 712, 717 (E.D. Pa. 2017) (citation omitted). See also Boyd v.

Citizens Bank of Pa., Inc., 2014 WL 2154902, at *3 (W.D. Pa. May 22, 2014) (stating

“[t]o the extent Plaintiff's statement of ‘fact’ specifically controverts Defendant’s, the

Court will consider these facts in determining whether summary judgment should

be granted”). Because Reid is a pro se litigant, this Court will consider the facts and

make inferences where it is appropriate.

V. Discussion

Defendant moves to dismiss all of Reid’s claims, and seeks summary

judgment regarding his Rehabilitation Act, Title VII, and ADEA claims for failure

to exhaust. Each are discussed in turn.

a. Rehabilitation Act4

Defendant moves to dismiss Reid’s Rehabilitation Act claim for failure to

state a claim and because he failed to exhaust administrative remedies. As

4 Reid noted in his Complaint that he is bringing his disability discrimination claim under the

Americans with Disabilities Act (“ADA”). ECF No. 11 at 1. However, “the ADA does not apply to

federal agencies.” Smith v. Pallman, 420 F. App'x 208, 214 (3d Cir. 2011) (citing 42 U.S.C. § 12132).

“The ADA's definition of a public entity includes state and local governments and agencies, but does

not include the United States Government, federal agencies, or federal employees.” Combs v. Gopel,

No. 23CV6502 (EP) (CLW), 2025 WL 325766, at *4 (D.N.J. Jan. 29, 2025). Accordingly, the only way

Reid can raise a disability claim against a federal employer is under Section 504 of the

Rehabilitation Act. Nolan v. Shinseki, No. 07-813, 2009 WL 3536628, at *15 (W.D. Pa. Oct. 30,

2009). See also Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998) (“As a federal employee, Rivera

has no remedy for employment discrimination under the ADA. His sole claim for discrimination on

the basis of disability is under the Rehabilitation Act”). Given Reid’s pro se status, the Court will

review Reid’s disability discrimination claim under the standards of the Rehabilitation Act.

explained below, Defendant’s Motion to dismiss Reid’s Rehabilitation Act claim for

failure to state a claim will be GRANTED without prejudice and with leave for Reid

to amend. Defendant’s Motion for summary judgment on Reid’s failure to exhaust

administrative remedies will be DENIED without prejudice.

i. Motion to Dismiss - Failure to State a Claim

Construing his Complaint liberally, Reid is alleging claims for discrimination

and failure to accommodate under the Rehabilitation Act. ECF No. 11 at 1, 4.

Defendant moves to dismiss both claims under the Rehabilitation Act, arguing that

Reid has failed to allege the elements of the claims. ECF No. 15 at 15. Reid does

not respond to Defendant’s arguments in his Opposition. ECF No. 23.

The Rehabilitation Act prohibits federal employers from discriminating

against persons with disabilities in matters of hiring, placement, or advancement.

Sever v. Henderson, 220 F. App'x 159, 161 (3d Cir. 2007). Rehabilitation Act

discrimination claims are governed by the same standards as the ADA. Id. (citing

29 U.S.C. § 794(d)). Reid’s claims are addressed in turn.

1. Rehabilitation Act - Discrimination Claim

To state a discrimination claim under the Rehabilitation Act, Reid, as the

employee, bears the burden of demonstrating (1) that he has a disability, (2) that he

is otherwise qualified to perform the essential functions of the job, with or without

reasonable accommodations by the employer; and (3) that he was nonetheless

terminated or otherwise prevented from performing the job. Shiring v. Runyon, 90

F.3d 827, 831 (3d Cir. 1996). Reid must also allege that a reasonable

accommodation is possible. Dalzell v. Astrue, No. 2:05CV755, 2008 WL 598307, at

*4 (W.D. Pa. Mar. 3, 2008). If Reid alleges these elements, then the burden shifts to

the Defendant to prove, as an affirmative defense, that the accommodations are

unreasonable or would cause an undue hardship on the employer. Id.

Defendant moves to dismiss Reid’s claim, arguing Reid does not plead he was

otherwise qualified to perform the essential functions of the job. ECF No. 15 at 15.

The Court agrees. Reid’s Complaint sufficiently alleges at this stage of the

litigation that he had a disability – namely a traumatic brain injury – and that he

was placed on leave without pay. ECF No. 11 at 1, 4. Reid’s Complaint lacks,

however, sufficient detail about his job and its essential functions, and he does not

allege he was otherwise qualified to perform the essential functions of his job with

or without a reasonable accommodation. Id.

However, as leave to amend is not futile, the Court will dismiss Reid’s

Rehabilitation Act claim without prejudice and with leave to amend what it lacks.

See Grayson, 293 F.3d at 114 (stating that a pro se plaintiff must be granted leave

to amend unless amendment would be futile).

2. Rehabilitation Act - Failure-to-Accommodate Claim

Construing his Complaint liberally, Reid is also bringing a claim for failure-

to-accommodate his disability. ECF No. 11 at 1, 4. To state a claim for failure to

accommodate under the Rehabilitation Act, Reid must allege: “(1) he was disabled

and his employer knew it; (2) he requested an accommodation or assistance; (3) his

employer did not make a good faith effort to assist; and (4) he could have been

reasonably accommodated.” Capps v. Mondelez Glob., LLC, 847 F.3d 144, 157 (3d

Cir. 2017) (quoting Armstrong v. Burdette Tomlin Mem'l Hosp., 438 F.3d 240, 246

(3d Cir. 2006)). See also Sinico v. Pennsylvania, No. 22-2998, 2024 WL 510521, at

*7 (3d Cir. Feb. 9, 2024) (applying same standard to Rehabilitation Act failure to

accommodate claim). Defendant argues his failure to accommodate claim must be

dismissed because his allegations are conclusory. ECF No. 15 at 15.

Reid’s Complaint only alleges that he had a disability – a traumatic brain

injury – and that he requested an accommodation. ECF No. 11 at 1, 4. His

Complaint does not allege: (a) that his employer knew about his disability; (b) what

the requested accommodation was; (c) that his employer did not make a good faith

effort to asset (d) or that he could have been reasonably accommodated. Id.

Accordingly, his claim will be dismissed.

However, his failure-to-accommodate claim is not necessarily futile. See

Grayson, 293 F.3d at 114. The Court will grant Defendant’s Motion to Dismiss

Reid’s failure to accommodate claim without prejudice and with leave to amend.

Reid is encouraged to address the missing elements of his failure to accommodate

claim in his amended complaint.

ii. Motion for Summary Judgment – Failure to Exhaust

Administrative Remedies

Defendant moves, in the alternative, to challenge Reid’s Rehabilitation Act

claims on the grounds of exhaustion of administrative remedies. ECF No. 15 at 8-

13. Defendants argue Reid did not timely exhaust his administrative remedies

because he filed the formal complaint outside of the allotted 15-day window. Id. at

11 (citing 29 C.F.R. § 1614.106(b)). As explained below, Defendant’s Motion for

Summary Judgment is denied without prejudice to reassert.

A plaintiff must exhaust their administrative remedies before they are able

to bring an employment discrimination suit in federal court. Wilson v. MVM, Inc.,

475 F.3d 166, 173 (3d Cir. 2007) (noting that Title VII and Rehabilitation Act claims

brought by federal employees against federal employers require exhaustion of

administrative remedies). [A] plaintiff’s failure to timely exhaust administrative

remedies bars his subsequent claim in federal court.” Harris v. Postmaster Gen. of

U.S., No. 21-1589, 2022 WL 336999, at *1 (3d Cir. Feb. 4, 2022) (unpublished).

To exhaust administrative remedies for an employment discrimination claim

against a federal employer, a plaintiff must comply with EEOC regulations and

administrative processes. First, an employee who believes they have been

discriminated against on the basis of an enumerated protected class – including for

a disability or related medical condition – must “consult a[n EEO] Counselor prior

to filing a complaint in order to try to informally resolve the matter,” and must do so

within “45 days of the date of the matter alleged to be discriminatory.” 29 C.F.R. §

1614.105(a)(1). Second, if the complaint cannot be resolved informally, a plaintiff

must file a formal complaint with the relevant federal agency within 15 days of

receiving a Notice of Right to File Complaint from the EEO counselor, explaining

that the matter cannot be resolved informally. 29 C.F.R. § 1614.106. In Reid’s case,

to file a formal complaint, he needed to submit a copy of Form VA 4939. See U.S.

Department of Veterans Affairs, Office of Resolution Management, Filing an EEO

Complaint: https://www.va.gov/orm/eeocomplaint/fileacomplaint.asp (last visited

June 30, 2025). Defendant argues Reid did not file the formal complaint within the

15-day window and therefore has not timely exhausted. ECF No. 15 at 11.

These time limits are not jurisdictional and instead considered an

“affirmative defense in the nature of statute of limitations,” Williams v. Runyon,

130 F.3d 568, 573 (3d Cir. 1997), and are subject to the equitable legal defenses of

waiver, estoppel, and tolling. 29 C.F.R. § 1614.604(f). See also King v. Mansfield

Univ. of Pennsylvania, 645 F. App'x 131, 132 (3d Cir. 2016) (explaining equitable

tolling can apply to Rehabilitation Act claims because the Act “incorporates by

reference Title VII's powers, remedies, and procedures”) (cleaned up).

As an affirmative defense, the defendant bears the initial burden of proving

untimely exhaustion. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002); Bowden v.

U.S., 106 F.3d 433, 437 (D.C. Cir. 1997). Once that burden has been met, “the

obligation shifts to the plaintiff to support avoidance of the exhaustion bar, such as

by asserting equitable defenses.” Hill v. Garland, No. CV 19-3389 (JEB), 2021 WL

965624, at *4 (D.D.C. Mar. 15, 2021) (citing Bowden, 106 F.3d at 437).

Here, it is undisputed that Reid filed his formal complaint more than 15 days

after receiving the Notice of Right to File Discrimination Complaint. See 29 C.F.R.

§ 1614.106(b). Reid received the Notice on May 13, 2021, which triggered the 15-

day window – or until May 28, 2021 – to file the formal complaint. ECF No. 14-2 at

2-6. See also 29 C.F.R. § 1614.106. However, Reid did not file his formal complaint

until June 29, 2021, after he returned from his military duties. ECF No. 14-3 at 7;

ECF No. 14-4 at 4. Therefore, Reid did not timely exhaust his administrative

remedies with respect to the Rehabilitation Act claims. See 29 C.F.R. § 1614.106.

See also Welker v. Perdue, No. CV 17-230, 2018 WL 1305639, at *4 (W.D. Pa. Mar.

13, 2018) (granting summary judgment because plaintiff filed formal complaint

outside of 15-day window).

The 15-day time limit to file a formal complaint, however, is subject to

equitable tolling. King, 645 F. App'x at 132. Courts may permit equitable tolling:

“(1) where the defendant has actively misled the plaintiff respecting the plaintiff’s

cause of action; (2) where the plaintiff in some extraordinary way has been

prevented from asserting his or her rights; or (3) where the plaintiff has timely

asserted his or her rights mistakenly in the wrong forum.” Hedges v. U.S., 404 F.3d

744, 751 (3d Cir. 2005) (cleaned up). Equitable tolling is an “extraordinary remedy”

that should be granted “sparingly.” Id. (citing Irwin v. Dept. of Veterans Affairs,

498 U.S. 89, 96 (1990)). Reid bears the burden to show he is entitled to tolling and

must show he exercised due diligence to preserve his claim. Irwin, 498 U.S. at 96.

Reid, proceeding pro se, did not address the three grounds for equitable

tolling in his Opposition brief. See generally ECF No. 23.5 A close review of the

current record precludes finding grounds for equitable tolling under the first and

5 Reid argues he struggled to navigate the administrative process due to his traumatic brain

injury. ECF No. 23 at 2. Here, where Reid otherwise pursued his claims through the EEO process

and brought his current complaint in Federal Court, his traumatic brain injury is not grounds for

equitable tolling because he “cannot demonstrate [an] inability to manage [his] affairs or

comprehend [his] legal rights.” Speiser v. U.S. Dep't. of Health and Human Services, 670 F.Supp.

380, 384 (D.D.C.1986), aff'd., 818 F.2d 95 (D.C.Cir.1987). See also Smith–Haynie v. District of

Columbia, 155 F.3d 575, 580 (D.C.Cir.1998) (indicating that to warrant equitable tolling, the

plaintiff's disability “must be ‘of such a nature as to show she is unable to manage her business

affairs or estate, or to comprehend her legal rights or liabilities”).

third circumstances since there is no evidence that Reid was actively misled by the

Defendant nor that Reid timely asserted his rights mistakenly in the wrong forum.

Hedges, 404 F.3d at 751. However, under the second prong, there is not currently

enough evidence before the Court to determine whether Reid was prevented from

timely filing his formal complaint due to his military orders.

The “extraordinary circumstances” prong is a high-bar. Adams v. United

States, No. 2:12-CV-1178, 2013 WL 4666329, at *8 (W.D. Pa. Aug. 30, 2013).

“[W]hile the facts of a case ‘may certainly be described as ‘extraordinary’ in the

vernacular sense of the word,’ they may not be sufficient to warrant the application

of the federal equitable tolling rule.” Id. (quoting Kach v. Hose, 589 F.3d 626, 645

(3d Cir.2009)). A “garden-variety claim of excusable neglect” is not an

extraordinary circumstance warranting equitable tolling. Jones v. United States,

366 F. App'x 436, 441 (3d Cir. 2010).

The EEO documents introduce the fact that Reid was on military duty at

least some time during the relevant period. See ECF No. 14-3 at 7. Per the

Department of Veterans Affairs Office of Resolution Management’s Notice of

Dismissal which recounted the facts of the case, Reid gave his EEO Counselor the

dates of his upcoming military duty. Id. Reid continued to have access to email

until at least May 24, 2021, when he sent an email to “remind” his EEO Counselor

“that he will be away on official orders and will have limited ability to download,

print, or sign.” Id. Then, when he returned from his military duties on June 25,

2021, he immediately contacted his EEO Counselor to inquire about his formal

complaint. Id. See also ECF No. 14-4 at 4.

It is not clear from the current record exactly when Reid was away on

military duties, whether it was during the 15-day window to file a formal complaint,

and whether the nature of his particular role while on duty would have allowed him

to have access to the internet or other means to file a formal complaint. Notably,

Reid was diligent with following up on his formal complaint when he returned from

his military orders on June 25, 2021. ECF No. 14-3 at 7. See also Baker v.

Henderson, 150 F.Supp.2d 17, 21–22 (D.D.C.2001) (time period equitably tolled

where plaintiff, in exercising due diligence, acted “swiftly” to file the complaint as

soon as she discovered error).

Reid has not met his burden of showing grounds for equitable tolling. Irwin,

498 U.S. at 96. Given his pro se status and as his Rehabilitation Act claims are

already being dismissed without prejudice, the Court will give Reid another

opportunity to show grounds for equitable tolling. See Fed. R. Civ. P. 56(e)(1) (“If a

party fails to properly support an assertion of fact or fails to properly address

another party’s assertion of fact as required by Rule 56(c), the court may . . . give an

opportunity to properly support or address the fact”). See also Arizmendi v. Lawson,

914 F. Supp. 1157, 1163 (E.D. Pa. 1996) (“[Plaintiff] is proceeding pro se and the

court will make every reasonable allowance for her . . . the court will [allow plaintiff

to amend] . . . to show the possible applicability of the equitable tolling doctrine if

plaintiff can do so in good faith”).

The Court does not have enough information before it to determine whether

Reid was prevented from timely filing his formal complaint because of his military

orders. Given this open question and Reid’s pro se status, Defendant’s Motion for

Summary Judgment is denied without prejudice to reassert. Defendant is not

prohibited from raising the affirmative defense of failure to exhaust later, should

Reid amend.

b. Title VII and ADEA

Reid notes in his Complaint that he is bringing a Title VII discrimination

claim and an ADEA age discrimination claim. ECF No. 11 at 7. Defendant moves

to dismiss both claims because Reid did not plead any allegations in his Complaint

supporting those claims, and likewise moves for summary judgment because Reid

did not exhaust his administrative remedies. ECF No. 15 at 16.

Title VII prevents discrimination “against any individual with respect to his

compensation, terms, conditions, or privileges of employment because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

The ADEA prevents discrimination based on a plaintiff’s age. 29 U.S.C. § 623(a).

Based on the current record before the Court, it appears that Reid has not

exhausted his administrative remedies as to his Title VII and ADEA claims. Title

VII has the same exhaustion requirements as the Rehabilitation Act. See generally

29 C.F.R. §§ 1614.104-110. The ADEA requires a separate process, where a federal

employee must give the EEOC notice of an unlawful practice within 180 days of the

unlawful practice, and then can only file suit in federal court 30 days after

providing that original notice to the EEOC. 29 U.S.C. § 633a(d).

There is no evidence in the record that Reid correctly followed either the

relevant administrative processes. Additionally, Reid cannot rely on the same EEO

filings supporting his disability discrimination claim – including Reid’s initial

interview with the EEO counselor, the subsequent ruling, and his appeal (ECF Nos.

14-1 – 14-4) – because they only mention disability discrimination and do not

mention the types of discrimination covered by Title VII (race, color, religion, sex, or

national original) or the ADEA (age). See ECF Nos. 14-1 – 14-4.

To the extent Reid can, in good faith, show he fully exhausted the rest of his

administrative remedies through the EEO administrative processes for Title VII

and the ADEA during the relevant time period in 2021, then he is allowed to further

support his Title VII and ADEA claims. See Fed. R. Civ. P. 56(e). Notably, his

current Complaint in the United States District Court for the Western District of

Pennsylvania is devoid of allegations of any other type of discrimination beyond

disability. See generally, ECF No. 11. If Reid can show, in good faith, that he went

through the EEO administrative processes as to those claims, he is also permitted

to amend his Complaint to better incorporate the allegations.

Accordingly, Defendant’s Motion for Summary Judgment on Reid’s failure to

exhaust administrative remedies as to his Title VII and ADEA claims will be denied

without prejudice. Defendant’s Motion to Dismiss Reid’s Title VII and ADEA claims

for failure to state a claim will also be granted without prejudice and with leave for

Reid to amend, if he can do so in good faith.

c. PHRA

In addition to the Rehabilitation Act, Title VII, and ADEA claims, it appears

to the Court that Reid also attempts to bring a PHRA claim related to his alleged

handicap/disability. ECF No. 11 at 7. Defendant moves to dismiss Reid’s PHRA

claim with prejudice under Fed. R. Civ. P. 12(b)(1)6 because the United States has

sovereign immunity from state-law anti-discrimination claims, the United States

has not waived that immunity, and the Court therefore does not have subject

matter jurisdiction. ECF No. 15 at 17. The Court agrees with Defendant and will

dismiss Reid’s PHRA claim with prejudice.

Reid is attempting to bring an employment discrimination claim against the

Veterans Affairs, which is an agency of the Federal Government.7 “Absent a

waiver,” the principle of sovereign immunity “shields the Federal Government and

its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). The United States

has not waived the right to sovereign immunity in employment discrimination suits

and the United States Supreme Court has held Title VII is the “exclusive,

preemptive administrative and judicial scheme for the redress of federal

employment discrimination.” Brown v. General Services Administration, 425 U.S.

6 Defendant states it is levying a factual attack against Plaintiff’s Complaint, and in the

alternative, are levying a facial attack to Plaintiff’s Complaint. ECF No. 15 at 6.

7 This will remain true even if Reid moves to substitute the Secretary of Veterans Affairs as

the correct Defendant, as he is a federal employee. Rippy v. Pub. Health Mgmt. Corp., No. 19-1839,

2020 WL 832088, at *6 (E.D. Pa. Feb. 19, 2020) (dismissing PHRA claim against an individual who is

an employee of a federal agency).

820, 829 (1976). Thus, “any claim against . . . federal defendants based on the

PHRA must be dismissed for lack of subject matter jurisdiction because the federal

government has not waived sovereign immunity with respect to state anti-

discrimination laws.” Welker v. Perdue, No. CV 17-230, 2018 WL 1305639, at *3

(W.D. Pa. Mar. 13, 2018) (quoting Wilson v. MVM, Inc., 2004 WL 765103, at *12

(E.D. Pa. Apr. 1, 2004)). See also Payne v. Dep't of Veteran Affs. Ins. Ctr., 2023 WL

7706322, at *4 (E.D. Pa. Nov. 15, 2023) (“[T]he United States has not waived its

sovereign immunity with respect to state anti-discrimination laws like the PHRA”).

PHRA claims “cannot be maintained against a federal agency.” Payne, 2023

WL 7706322, at *4. See also Rippy, 2020 WL 832088, at *6 (dismissing plaintiff's

PHRA claims asserted against federal defendant). Accordingly, Reid’s claim under

the PHRA must be dismissed for lack of subject matter jurisdiction under Rule

12(b)(1). As any amendment to Reid’s PHRA claim would be futile, this claim is

dismissed with prejudice and Reid is not granted leave to amend this claim. See

LaSpina v. SEIU Pennsylvania State Council, 985 F.3d 278, 291 (3d Cir. 2021)

(“[L]eave to amend need not be granted if amendment would be futile”) (cleaned up).

d. USERRA

Lastly, in the cover letter attached to the Complaint, Reid states he is

bringing a claim under USERRA. See ECF No. 11 at 1. See also ECF No. 11-2 at 1.

USERRA was enacted, in part, “to prohibit discrimination against persons because

of their service in the uniformed services.” 38 U.S.C. § 4301(a)(3). It also “prohibits

discrimination in employment on the basis of military service.” Murphy v. Radnor

Twp., 542 F. App'x 173, 176 (3d Cir. 2013).

Defendant moves to dismiss this claim under Rule 12(b)(6) because Reid does

not state a specific violation of any part of this statute or plead any facts showing

discrimination based on his uniformed services. ECF No. 15 at 18. The Court

agrees. Other than mentioning the statute, Reid does not plead any facts in his

complaint that allege discrimination based on his work in the military. See

generally, ECF No. 11. However, as amendment is not futile, Defendant’s Motion to

Dismiss will be granted without prejudice as to Reid’s USERRA claim. Reid will be

permitted to amend to better articulate his USERRA claim if he can do so in good

faith. See Grayson, 293 F.3d at 114.

VI. Proper Defendant

As a final matter, the Defendant argues the Complaint should be dismissed

because the proper party has not been named as Defendant. The Court agrees with

the Defendant in so far as the proper party has not been named. The only proper

defendant in a Title VII, Rehabilitation Act, or ADEA action brought by a federal

employee is the head of the employing department. Parker v. Sec'y United States

Dep't of Veterans Affs., 676 F. App'x 101, 103 (3d Cir. 2017). See also Williams v.

Army & Air Force Exch. Serv., 830 F.2d 27, 29 (3d Cir. 1987) (“It is undisputed that

the correct defendant in this action is not [the agency] but the head of the

[Department or Agency] (citing 42 U.S.C. § 2000e–16(c) (1982) (“the head of the

department, agency, or unit, as appropriate, shall be the defendant.”)); Romain v.

Shear, 799 F.2d 1416, 1418 (9th Cir.1986) (the only proper defendant in a federal

employee's ADEA suit is the agency head).

Here, Reid has named the “Veterans Administration of Pittsburgh” as the

Defendant. ECF No. 11. The Veterans Administration of Pittsburgh is not the

proper defendant for Reid’s Title VII, Rehabilitation Act, or ADEA claims. The

proper party is the United States Secretary of Veterans Affairs. 8 As Reid has

already been given leave to amend his claims, he is likewise given leave to amend to

the name the proper party. See Blue v. Def. Logistics Agency, 181 F. App'x 272, 275

(3d Cir. 2006) (affirming District Court’s amendment of the caption to replace

defendant with agency secretary).

VII. Conclusion

For the reasons stated herein:

• Defendant’s Motion to Dismiss for failure to state a claim with respect to

Reid’s Rehabilitation Act disability discrimination and failure-to-

accommodate claims is GRANTED without prejudice and with leave for Reid

to amend.

• Defendant’s Motion for Summary Judgment as to Reid’s exhaustion of

administrative remedies for his Rehabilitation Act claims will be DENIED

without prejudice for Defendant to reassert.

• Defendant’s Motion to Dismiss for failure to state a claim with respect to

Reid’s Title VII and ADEA claims is GRANTED without prejudice and with

leave for Reid to amend.

• Defendant’s Motion for Summary Judgment on Reid’s exhaustion of

administrative remedies for his Title VII and ADEA claims will be DENIED

without prejudice for Defendant to reassert.

8 The Court takes judicial notice of the fact that as of the date of this Memorandum Opinion,

Douglas A. Collins is currently serving as the United States Secretary of Veterans Affairs.

• Defendant’s Motion to Dismiss for lack of subject matter jurisdiction with

respect to Reid’s PHRA claim is GRANTED with prejudice.

• Defendant’s Motion to Dismiss for failure to state a claim with respect to

Reid’s USERRA claim is GRANTED without prejudice and with leave for

Reid to amend.

It is further ORDERED that Reid is granted thirty (30) days, or until July

30, 2025, to file an amended complaint addressing the above deficiencies. This case

will be marked as ADMINISTRATIVELY CLOSED unless and until Reid files the

amended complaint by the deadline.

DATED this 30th day of June, 2025.

BY THE COURT:

s/Christopher B. Brown

Christopher B. Brown

United States Magistrate Judge

CC: GARRETT R. REID

1155 WALL AVENUE

PITCAIRN, PA 15140

All counsel of record, via ECF