The opinion of the court was delivered by: William J. Martini Judge
This matter comes before the Court on Defendant Somerset Hills School's Motion to Dismiss the Fifth and Sixth Counts of Plaintiff Jorge Vanegas' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the motion. The Court adjudicates this matter on the papers. Fed. R. Civ. P. 78. For the reasons stated below, Defendant's motion is DENIED.
Plaintiff was employed by Defendant as a Maintenance Worker from April 1997 until his termination on September 3, 2004. In January 2004 Plaintiff had surgery and was placed on a disability leave of absence; and Defendant was informed of Plaintiff's medical condition. Plaintiff returned to work on April 19, 2004 with light duty restrictions from his doctor,*fn1 but he was told by Defendant that he could not return to work until he was fully able to complete his duties with no restrictions.*fn2 Plaintiff returned to work without restrictions on May 17, 2004. On September 3, 2004, Plaintiff was assigned to paint three classrooms; while completing this assignment, Plaintiff was terminated by Defendant. On November 9, 2004, Plaintiff filed a charge (the "Charge") with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination on the basis of age and perceived disability in violation of the Age Discrimination in Employment Act (the "ADEA")*fn3 and the Americans with Disabilities Act (the "ADA".)*fn4 On February 10, 2005, EEOC Area Director, Corrado Gigante, issued a Determination letter (the "EEOC Determination") as to Plaintiff's Charge in which EEOC found that Plaintiff was discriminated against based on his age and disability; EEOC invited the parties to attempt conciliation. On February 22, 2005, EEOC issued a Notice of Conciliation Failure referring the matter to the EEOC Legal Unit for possible litigation. No such litigation occurred and, on June 6, 2005, EEOC mailed a Notice of Right to Sue to Plaintiff. The Right to Sue notice concluded the EEOC's processing of Plaintiff's Charge and noted that the EEOC found reasonable cause that statutory violations may have occurred with respect to some or all of Plaintiff's Charge but could not obtain relief through settlement.
Plaintiff filed his Complaint with the Court on September 1, 2005 seeking injunctive and other relief on Six Counts:
* Count One claims Defendant violated the ADEA by terminating Plaintiff due to his age (Plaintiff was 49 years old) and replacing him with substantially younger man.
* Count Two asserts the Court's supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiff's state law claim for age discrimination in violation of the New Jersey Law Against Discrimination ("LAD".)*fn5
* Count Three is pursuant to the ADA and alleges that Defendant terminated him based on Plaintiff's having a disability, this disability being Plaintiff's medical condition resulting from surgery.
* Count Four once again alleges the Court's supplemental jurisdiction over Plaintiff's LAD claim, this Count relating to discrimination based on handicap.
* Count Five alleges Defendant violated the ADA by not providing reasonable accommodations to Defendant's known disability.
* Count Six is again brought under supplemental jurisdiction alleging Defendant did not provide reasonable accommodation for Plaintiff's disability in violation of the LAD.
On October 12, 2005, Defendant filed this Motion to Dismiss the Fifth and Sixth Counts of Plaintiff's Complaint. Defendant argues that Plaintiff, upon his return to work in April 2004, presented medical documentation from his physician stating that he was unable to work due to a "temporary total disability" and that Plaintiff's status would be re-evaluated at the next appointment which was to be on May 18, 2004. (Def's Brief at 5.)*fn6 Pursuant to this total work restriction, Defendant argues, "no accommodation could have been provided to Plaintiff." (Def's Brief at 7.)
Plaintiff counters that Defendant's brief is predicated on new evidence that should not be considered on a motion to dismiss. Plaintiff further suggests that if these new documents are considered, Defendant's motion to dismiss must be converted to a motion for summary judgment and that, if so converted, there are fact questions at ...