MEMORANDUM-DECISION AND ORDER
Plaintiff Lisa K. Garneau ("Plaintiff"), a New York State resident, filed this action alleging federal and state law claims against Empire Vision Centers, Inc. ("Defendant" or "Empire"), a New York State corporation, on September 23, 2009. Dkt. No. 1. Presently before the Court is Defendant's November 17, 2009 Motion seeking dismissal of Plaintiff's three count Complaint in its entirety. Dkt. No. 9. Specifically, Defendant moves to dismiss Plaintiff's Americans with Disabilities Act ("ADA") claim pursuant to Federal Rule of Civil Procedure 12(b)(6); seeks summary judgment pursuant to Federal Rule of Civil Procedure 56 on Plaintiff's Family and Medical Leave Act ("FMLA") claim; and, assuming dismissal of these federal claims is granted, moves for the Court to decline to exercise supplemental jurisdiction over Plaintiff's remaining state law claim brought under the New York Human Rights Law.
Plaintiff alleges that she worked for approximately three years as an optician in the employ of Empire prior to her termination, the subject of this action. Compl. ¶ 6. Plaintiff periodically suffers from cardiac arrhythmia, which involves a rapidly beating heart, fatigue and dizziness; the incidence of such episodes is "an erratic and random occurrence that rarely occurs during the course of the year." Compl. Ex. A ¶ 2. According to Plaintiff, her condition was known by Defendant, and "did not prevent her from performing the essential functions of her position, with or without accommodation." Compl. ¶¶ 8-9. On those occasions when cardiac arrhythmia incidents beset Plaintiff, they "last a short time . . . [and require] a short leave of absence until the condition passes." Compl. Ex. A ¶ 4.
On February 9, 2008, Plaintiff experienced a cardiac arrhythmia episode while on the job at Defendant's store in Niskayuna, New York. Plaintiff alleges that she informed the store manager of the episode and that no objection was made to her leaving; subsequently, on February 12, 2008, Plaintiff alleges that when she returned to work, the regional manager informed her that her action of leaving work constituted self-termination. Compl. Ex. A ¶¶ 4-5. At this time, Plaintiff contends that she denied ever having any intent to resign and explained that the store manager had been notified of her departure and its reasons. The regional manager "said he would get back to [her]." Id. ¶ 6. Thereafter, on February 20, 2008, Plaintiff received notice from Empire that she was terminated effective February 9, 2008. Id. ¶ 7.
Asserting that she had been discriminated against on the basis of her cardiac arrhythmia, Plaintiff proceeded to file charges with the Equal Employment Opportunity Commission, which ultimately resulted in a right to sue letter. Compl. ¶ 17; see also Ex. B. This instant action followed within 90 days. Plaintiff sets forth three causes of action. First, she alleges her termination was an unlawful discriminatory practice in violation of the Americans with Disabilities Act, 42 U.S.C. §12101 et seq. Compl. ¶¶ 19-24. Second, Plaintiff contends that the termination was an unlawful discriminatory practice in violation of the New York State Human Rights Law, New York State Executive Law § 296 et seq. Id. ¶¶ 25-28. Third, Plaintiff asserts that the termination violated the Family Medical Leave Act, 29 U.S.C. § 2601. Id. ¶¶ 29-35. Assorted compensatory and punitive damages, as well as costs and attorneys' fees, are sought.
When considering a motion to dismiss pursuant to Rule 12(b)(6), a district court must accept the allegations made by the non-moving party in its pleading as true and "draw all inferences in the light most favorable" to the non-moving party. In re NYSE Specialists Securities Litig., 503 F.3d 89, 95 (2d Cir. 2007). A party seeking dismissal of a pleading under Rule 12(b)(6) bears a heavy burden, as the question presented by such a motion is not whether the claimant is ultimately likely to prevail, "'but whether the claimant is entitled to offer evidence to support the claims.'" Log On America, Inc. v. Promethean Asset Mgmt. L.L.C., 223 F. Supp. 2d 435, 441 (S.D.N.Y. 2001) (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d. Cir. 1995) (internal quotation and citations omitted)). "In order to withstand a motion to dismiss, a complaint must plead 'enough facts to state a claim for relief that is plausible on its face.'" Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "While Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [the non-moving party's] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570).
In reviewing a motion to dismiss a pleading for failure to state a claim, a court "may consider all papers and exhibits appended to the [pleading], as well as any matters of which judicial notice may be taken." Hirsch v. Arthur Andersen and Co., 72 F.3d 1085, 1092 (2d Cir. 1995); see Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) ("the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.") (citation omitted). However, if a court considers materials other than those listed above, "the motion must be treated as one for summary judgment under Rule 56." FED. R. CIV. P. 12(d); see Global Network Communications, Inc. v. City of New York, 458 F.3d 150, 154-56 (2d Cir. 2006).
Plaintiff's first claim asserts that her termination resulted from discrimination by Defendant in violation of the American Disabilities Act. 42 U.S.C. § 12101 et seq. In order to establish a prima facie case of discriminatory discharge, which Plaintiff bears the initial burden of providing to prevail on her claim, she must show that: "(1) her employer is subject to the ADA; (2) she suffers from a disability within the meaning of the ADA; (3) she could perform the essential functions of her job with or without reasonable accommodation; and (4) she was fired because of her disability." Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998). In seeking dismissal of the ADA claim, Defendant must demonstrate as a matter of law that when the Court assumes as true Plaintiff's factual allegations and renders all reasonable inferences in her favor, Plaintiff is nonetheless unable to establish the necessary prima facie elements. The ADA Amendments Act of 2008, changed the threshold standard for determining whether an ADA plaintiff is disabled; however, the Amendments do not apply retroactively to ADA claims that arose before January 1, 2009, which is the case with Plaintiff's alleged discrimination. See, e.g., Lytes v. D.C. Water and Sewer Auth., 572 F.3d 936, 941 (D.C. Cir. 2009).
For purposes of consideration of the instant Motion, only the legal possibility of the second element of Plaintiff's prima facie case is subject to dispute -- whether Plaintiff suffers from a disability within the meaning of the ADA. The ADA defines "disability," with respect to an individual, as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). According to Plaintiff, "on or about February 2008 Plaintiff suffered from a disability as  defined under the ADA and NYSHRL." Compl. ¶ 7. Thus, her claim proceeds under subsection (A) of § 12102(2) on the basis that she is alleged to be subject to a qualifying substantial impairment. Plaintiff, in her Complaint, makes no allegations that speak to subsections (B) or (C), such that there are no suggestions of a record of impairment or that Defendant regarded Plaintiff as disabled within the meaning of the ADA.*fn1
In seeking dismissal, Defendant argues that Plaintiff's factual allegations describing the nature of her alleged disability negate the possibility that she actually has a disability within the meaning of the ADA. Def.'s Memo. at 4 (Dkt. No. 9). The Court follows a three-step inquiry for determining whether a plaintiff has a disability under subsection (A) of the ADA's definition, 42 U.S.C. § 12102(2). See Bragdon v. Abbott, 524 U.S. 624 (1988). First, a court determines "whether the plaintiff suffered from a physical or mental impairment." Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998) (citation and quotations omitted). Second, that court "identifie[s] the life activity upon which the plaintiff relie[s] and determine[s] whether it constitutes a major life activity under the ADA." Id. Third, the court "inquire[s] whether the plaintiff's impairment substantially limited a major life activity identified in step two." Id. A plaintiff must satisfy each of step of the inquiry in order to be considered disabled under subsection (A). "The determination of whether an individual is disabled under the ADA is made on an individualized, case-by-case basis." Reeves v. Johnson Controls World Servs., 140 F.3d 144, 151 (2d Cir. 1998). In undertaking this inquiry, the Court is "guided by interpretations of parallel definitions in previous statutes and the views of various administrative agencies that have considered these questions." Colwell,158 F.3d at 641.
Plaintiff sufficiently alleges an impairment under the ADA by asserting that she suffers from cardiac arrhythmia. Under regulations issued by the Equal Employment Opportunity Commission, a "physical or mental impairment is defined as "[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: . . . cardiovascular." 29 C.F.R. §1630.2(h)(1). Thus, assuming the truth of Plaintiff's factual allegations, she suffers from a physical impairment of her heart that is cognizable under the first step of the Court's inquiry.
Next, the Court turns to identify the activities alleged to be compromised by Plaintiff's condition and looks to whether her impairment may be found to affect major life activities. "The term 'major life activity,' by its ordinary and natural meaning, directs [courts] to distinguish between life activities of greater and lesser significance." Reeves, 140 F.3d at 151. "Major life activities . . . refers to those activities that are of central importance to daily life." Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 197 (2002). The relevant Equal Employment Opportunity Commission regulations define major life activities as including "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. §1630.2(h)(2)(i). It is not entirely clear from Plaintiff's Complaint what major life activity she relies on in asserting her claim. Nonetheless, making all reasonable inferences in Plaintiff's favor based on the allegations contained in her pleadings, the Court will assume that she has sufficiently indicated that her cardiac impairment affects on or more major life activities, particularly the activity of "working," as she alleges the need to cease working for a period of time after a cardiac incident. "If an individual is not substantially limited with respect to any other major life activity, the individual's ability to perform the major life activity of working should be considered." C.F.R. Part 1630, App. § 1630.2(j).
This conclusion, however, reflects only the Court's reading of the Complaint and incorporated material. Plaintiff submitted material, including an affidavit by Plaintiff, in response to Defendant's Motion; critically, the Court has "two options when matters outside the pleadings are presented in response to a 12(b)(6) motion: the court may exclude the additional material and decide the motion on the complaint alone or it may convert the motion to one for summary judgment . . ." under Rule 56 and allow "all parties the opportunity to present supporting material." Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988). As the Court declines to convert the Defendant's Motion to dismiss, which rests on Plaintiff's pleadings, the Court will not consider the Plaintiff's submissions in opposition in ruling on the Motion to dismiss her ADA claim.
Lastly, the third step asks whether plaintiff's impairment imposes a substantial limitation on her ability to work, the major life activity previously identified. "This inquiry is individualized and fact-specific." Colwell, 158 F.3d at 643. It is at this step that Defendant contends Plaintiff's Complaint is self-defeating, in that her own factual allegations attest to the moderate, as opposed to substantial, impact of her condition and preclude the possibility of a meritorious ADA claim as a matter of law. The Equal Employment Opportunity Commission has promulgated regulations which guide courts' interpretation and application of the term "substantially limits" and provides specific instruction on ...