State v. Wal-Mart Stores, Inc.

207 A.D.2d 150, 621 N.Y.S.2d 158, 10 I.E.R. Cas. (BNA) 255, 1995 N.Y. App. Div. LEXIS 17, 66 Empl. Prac. Dec. (CCH) 43,435

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 5, 1995
• Status: Published

Opinions

OPINION OF THE COURT

Mercure, J.

In February 1993, defendant discharged two of its employees for violating its "fraternization” policy, which is codified in defendant’s 1989 Associates Handbook and prohibits a "dating relationship” between a married employee and another employee, other than his or her own spouse. In this action, plaintiff seeks reinstatement of the two employees with back pay upon the ground that their discharge violated Labor Law § 201-d (2) (c), which forbids employer discrimination against employees because of their participation in "legal recreational activities” pursued outside of work hours. Defendant moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint. Supreme Court denied the motion with regard to the first cause of action, concluding that "dating” while one is married "may well be 'recreational activities’ within the meaning of [Labor Law § 201-d (2) (c)]”, but granted the motion with regard to the second cause of action, predicated upon Executive Law § 63 (12), which prohibits repeated or persistent illegality in the transaction of business.

* The parties cross-appeal.

We are not at all persuaded by Supreme Court’s effort to force "a dating relationship” within the definition of "recreational activities” (Labor Law § 201-d [1] [b]) and accordingly reverse so much of its order as denied the motion to dismiss the first cause of action. Labor Law § 201-d (1) (b) defines "recreational activities” as meaning: "any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material”. In our view, there is no justification for proceeding beyond the fundamental rule of construction that "[wjhere words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation” (McKinney’s Cons Laws of NY, Book 1, Statutes § 76, at 168; see, Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662, 665; Clemens v Nealon, 202 AD2d 747, 749). To us, "dating” is entirely distinct from and, in fact, bears little resemblance to "recreational activity”. Whether characterized as a relationship or an activity, an indispensable element of "dating”, in fact its raison d’étre, is romance, either pursued or realized. For that reason, although a dating couple may go bowling and under the circumstances call that activity a "date”, when two individuals lacking amorous interest in one another go bowling or engage in any other kind of "legal recreational activity”, they are not "dating”.

Moreover, even if Labor Law § 201-d (1) (b) was found to contain some ambiguity, application of the rules of statutory construction does not support Supreme Court’s interpretation. We agree with defendant that, to the extent relevant, the voluminous legislative history to the enactment, including memoranda issued in connection with the veto of two earlier more expansive bills (see, Ulster Elec. Supply Co. v Maryland Cas. Co., 35 AD2d 309, 311, affd 30 NY2d 712), evinces an obvious intent to limit the statutory protection to certain clearly defined categories of leisure-time activities. Further, in view of the specific inclusion of "sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material” within the statutory definition of "recreational activities” (Labor Law § 201-d [1] [b]), application of the doctrine of noscitur a sociis compels the conclusion that personal relationships fall outside the scope of legislative intent (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 239).

Nor is there any realistic danger that this construction will permit employers to infringe upon the right of employees to engage in protected off-hours pursuits by wrongly characterizing dispassionate recreational activity as dating. To the contrary, recognition of the distinction between "dating” and "recreational activity” imposes upon the employer the enhanced burden of establishing not only joint activity of a recreational nature, but the employees’ mutual romantic interest as well. Similarly, this construction in no way diminishes the statutory protection afforded social relationships between unmarried employees or married employees having no romantic interest or involvement with one another. We need not address the cross appeal, as it is predicated upon the viability of plaintiffs first cause of action.

The third and fourth causes of action are not at issue on this appeal.