Appeal from a judgment of the United States District Court for the Southern District of New York (Charles L. Brieant, Judge) dismissing the plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. The complaint was dismissed on the ground that romantically dating a co-worker is not a protected "legal recreational activit[y] outside work hours" under New York Labor Law § 201-d.

Affirmed. Judge McLaughlin concurs in a separate opinion.

PER CURIAM:

The sole issue on this appeal is whether romantic dating constitutes a "recreational activity" as defined in New York Labor Law §201-d.

BACKGROUND

On November 30, 1999, the plaintiff, Jess D. McCavitt, brought suit against the defendant, Swiss Reinsurance America Corporation ("Swiss Re"), in the United States District Court for the Southern District of New York. The plaintiff alleges that he was hired by Swiss Re (or by a company related to Swiss Re; the complaint is unclear) in 1996, and that by January 1999, he was a Swiss Re officer whose performance was highly regarded by his superiors.

According to the complaint, "[s]ince 1999, plaintiff has been involved in a personal relationship with Diane Butler [also a Swiss Re officer] . . . . Plaintiff and Ms. Butler dated and spent time together after working hours." (At oral argument before us, the plaintiff through counsel confirmed that by "personal relationship" and "dated," the plaintiff meant that the plaintiff and Ms. Butler were romantically involved with one another.) The complaint alleges that even though "[t]he personal relationship between plaintiff and Ms. Butler has had no repercussions whatever for the professional responsibilities or accomplishments of either" and "Swiss Re . . . has no written anti-fraternization or anti-nepotism policy," the plaintiff was passed over for promotion and then discharged from employment largely because of their dating.

The plaintiff asserts that his termination violated New York Labor Law § 201-d, which states in pertinent part:

Id., § 201-d(2). The statute defines "recreational activities" as:

Id., § 201-d(1)(b).

On February 14, 2000, Swiss Re filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), arguing that romantic dating is not a protected "recreational activit[y]" under §201-d. The district court (Charles L. Brieant, Judge) agreed and on that basis granted Swiss Re's motion to dismiss. See McCavitt v. Swiss Reinsurance Am. Corp., 89 F. Supp. 2d 495, 499 (S.D.N.Y. 2000).

The district court noted that it was required to "accept as true all material facts alleged in the complaint and draw all reasonable inferences in favor of" the plaintiff, as the nonmoving party. Id. at 496 (citing Thomas v. City of New York, 143 F.3d 31, 36-37 (2d Cir. 1998)). Dismissal is appropriate only if "it appears beyond doubt that plaintiff can prove no set of facts in support of the claim which would entitle him to relief." Id. (quoting Thomas, 143 F.3d at 36 (internal quotation marks and additional citation omitted)). The question for the district court was therefore whether the termination of the plaintiff's employment resulting from his romantic dating of Ms. Butler, as alleged in the complaint, was a discharge prohibited by § 201-d(2)(c).

Although the New York Court of Appeals has never addressed this issue, the Appellate Division of the New York Supreme Court, Third Department, has. In State v. Wal-Mart Stores, Inc., 207 A.D.2d 150, 621 N.Y.S.2d 158 (3d Dep't 1995), that court held, albeit over a dissenting opinion, that romantic dating is not a protected "recreational activity." The district court considered itself bound by Wal-Mart because it was not "highly likely that the highest state court would reach a different conclusion," McCavitt, 89 F. Supp. 2d at 497 (citing Pahuta v. Massey-Ferguson Inc., 170 F.3d 125, 134 (2d Cir. 1999)). In reaching this conclusion, the district court relied in part on the principle that under New York law, "absent a Constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired." Id. (quoting Murphy v. American Home Products Corp., 58 N.Y.2d 293, 305, 448 N.E.2d 86, 91, 461 N.Y.S.2d 232, 237 (1983) (internal quotation marks and alteration omitted)). The court reviewed the legislative history of the statute, but found it to be inconclusive. See id. at 498. The district court also applied the cannon of statutory construction known as noscitur a sociis, "to prevent the concept of 'dating' from being regarded as within a statutory definition of recreational activities including sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material." Id.

The court noted that while two other Southern District courts had interpreted the statute more broadly than this district court thought warranted, see Pasch v. Katz Media Corp., No. 94 Civ. 8554, 1995 WL 469710, 1995 U.S. Dist. LEXIS 11153 (S.D.N.Y. Aug. 8, 1995) (deciding that New York Court of Appeals would deem co-habitation to be a protected recreational activity under § 201-d); Aquilone v. Republic Nat'l Bank of New York, No. 98 Civ. 5451, 1998 WL 872425, 1998 U.S. Dist. LEXIS 19531 (S.D.N.Y. Dec. 15, 1998) (holding that an employee's friendship with another person, where contacts between them took place off the employer's premises and not on the employer's time, was protected recreational activity under § 201-d), it was not bound by those decisions, see McCavitt, 89 F. Supp. 2d at 498-99 (citing, inter alia, United States v. Birney, 686 F.2d 102, 107 (2d Cir. 1982)).

DISCUSSION

Having reviewed de novo the district court's decision to dismiss the complaint for failure to state a cause of action, see Elec. Communications Corp. v. Toshiba Am. Consumer Prod., Inc., 129 F.3d 240, 242 (2d Cir. 1997), we affirm the court's judgment substantially for the reasons set forth in its opinion. We agree with the district court that our decision in this case is governed by the Third Department's decision in Wal-Mart. As the district court noted, see McCavitt, 89 F. Supp. 2d at 497, we "are bound . . . to apply [New York state] law as interpreted by New York's intermediate appellate courts . . . unless we find persuasive evidence that the New York Court of Appeals, which has not ruled on this issue, would reach a different conclusion." Pahuta, 170 F.3d at 134. We, like the district court, find no persuasive evidence -- nothing in logic, the language of § 201-d, its legislative history, or New York state case law -- that leads us to conclude that the New York Court of Appeals would hold that romantic dating is a "recreational activity" under New York Labor Law § 201-d(1)(b) contrary to the holding of Wal-Mart. To the extent that Pasch and Aquilone suggest a contrary result, for the foregoing reasons, we disagree.

CONCLUSION