## Facts

- Jess D. McCavitt worked for Swiss Reinsurance America Corporation and became a corporate officer; his performance was highly regarded.
- McCavitt entered a romantic relationship with a fellow corporate officer, Diane Butler.
- The relationship consisted of dating and spending time together outside working hours and away from the workplace.
- McCavitt alleged the relationship caused no adverse effect on either party’s work performance and that the employer lacked a written anti-fraternization or anti-nepotism policy.
- McCavitt alleged Swiss Re denied him a promotion and then terminated him because of the relationship.
- He sued under New York Labor Law § 201-d(2)(c), asserting the relationship was a “legal recreational activit[y] outside work hours.”

## Issues

1. Whether “romantic dating” qualifies as a “recreational activity” under New York Labor Law § 201-d(1)(b), such that an employer may not take adverse action based on it under § 201-d(2)(c).
2. Whether the complaint stated a claim under § 201-d sufficient to survive a Rule 12(b)(6) motion to dismiss.

## Decision

- The Second Circuit affirmed the district court’s Rule 12(b)(6) dismissal.
- The court held that romantic dating is not a “recreational activity” within the meaning of New York Labor Law § 201-d.
- Applying Erie principles, the court followed a New York Appellate Division decision holding the same, finding no reliable indication the New York Court of Appeals would rule differently.

## Legal Principles

- When applying state law, a federal court generally follows the relevant intermediate state appellate court’s interpretation unless other persuasive evidence indicates the state’s highest court would decide otherwise.
- Under New York Labor Law § 201-d, “recreational activities” are defined by reference to lawful, unpaid leisure-time pursuits, with illustrative examples such as sports, games, hobbies, exercise, reading, and viewing movies or television.
- Statutory examples may limit a broad general phrase; under *noscitur a sociis*, listed “pastime” examples supported construing “recreational activities” to exclude romantic dating.
- Legislative history that does not clearly address the activity at issue may be insufficient to expand statutory coverage beyond authoritative state appellate precedent.

## Conclusion

The Second Circuit concluded that New York Labor Law § 201-d does not protect an employee from adverse employment action based on off-duty romantic dating with a coworker, and it upheld dismissal of the complaint for failure to state a claim.


McCavitt v. Swiss Reinsurance Am. Corp., 237 F.3d 166 (2d Cir. 2001)