The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Plaintiff filed a complaint alleging violations under the Age Discrimination in Employment Act ("ADEA"), the New York State Human Rights Law ("NYSHRL"), and the Family Medical Leave Act ("FMLA"). The case is now before the Court on Carestream Health, Inc.'s ("Carestream") motion to dismiss the complaint in its entirety for failure to state a claim upon which relief can be granted. For the reasons stated below, the application is granted and the Clerk is directed to enter judgment in favor of Defendant.
Since the motion is brought under Federal Rule of Civil Procedure 12, the Court must presume that the allegations in the complaint are true and resolve all doubts and inferences in favor of the nonmoving party. See Wright v. Ernst & Young LLP, 152 F.3d 169,173 (2d Cir.1998). Defendant has relied upon documents outside the complaint in support of their positions. As the Court of Appeals stated, "[f]or purposes of a motion to dismiss, we have deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.and documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (citation omitted). The Court will apply this direction from the Circuit to determine whether papers outside the complaint, relied upon by Defendant, should be considered.
The portions of the complaint relevant to the pending motion are as follows:
10. Plaintiff is a male and was born on December 21,1949.
11. Plaintiff was sixty (60) years old at the time of his termination.
12. Plaintiff was hired as a "Project Manager" in or about February of 1976 by Kodak, which became Carestream, on May 1, 2007.
13. Plaintiff maintained a stellar work record prior to his termination in June of 2010.
14. Due to a medical condition and subsequent surgery, both of which were FMLA qualifying, Plaintiff was out of work for four weeks from approximately September 21, 2009 through October 16, 2009.
15. Immediately upon his return to work, Plaintiff was subject to retaliation for having exercised his rights under the FMLA.
16. On or about October 29, 2009, Plaintiff's supervisor admonished him for a task that he did not, and could not, complete due to his FMLA qualifying medical leave.
17. On February 4, 2010, Plaintiff participated in a telephone conference with his supervisor in which his supervisor was critical of additional incomplete tasks that were due during Plaintiff's FMLA qualifying medical absence.
18. Plaintiff was also blamed for time frames not being adhered to for conditions out of Plaintiff's control.
19. This was Plaintiff's first indication he would be receiving a negative review.
20. On February 26, 2010 a bonus was given to the entire company. However, due to his poor performance appraisal, Plaintiff was not eligible for the bonus.
21. In or about March 2010, Plaintiff received a performance appraisal that indicated, for the first time in his career, that he was rated in the bottom ten (10) percent of all employees.
22. Plaintiff was shocked and humiliated since during his tenure he had previously been rated as an outstanding employee.
23. Plaintiff's projects have been written about in company newsletters and Plaintiff was also featured in the Society for Hispanic Professional Engineers for all of his successful contributions.
24. On April 15, 2010, Plaintiff was placed on a Performance Improvement Plan ("PIP") for the first time in his 34 years on the job.
25. On April 29, 2010 Plaintiff's team received an email congratulating them on completing their team project, Image Suite. Plaintiff did not receive the email in spite of being the Project Manager.
26. On April 29, 2010, Diana Nole, President of Digital Medical Solutions sent another email calling Image Suite "a great new product in the portfolio to drive more sales."
27. On May 6, 2010, Plaintiff received another PIP, which is updated from the one he received in April.
28. On June 30, 2010, Plaintiff attended what he thought was a meeting to discuss his PIP since he had ...