In Rhino v. FedEx Ground Package Sys., Inc., No. 24-CV-3704 (RPK) (RML), 2025 WL 2773065 (E.D.N.Y. Sept. 29, 2025), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s claim under New York Labor Law § 201-d.
In sum, plaintiff sought and was granted leave under the Family and Medical Leave Act (FMLA). As summarized by the court, three days before plaintiff’s leave was set to expire, FedEx supervisors became aware of an Instagram video showing plaintiff riding an electric scooter. Plaintiff’s employer questioned her regarding her return to work status and, following a back-and-forth regarding plaintiff’s use of her scooter, terminated plaintiff’s employment.
Plaintiff sued, alleging that FedEx violated her rights under the FMLA, subjected her to disability discrimination under the New York City Human Rights Law (NYCHRL), and unlawfully terminated her under NYLL § 201-d by firing her for engaging in a “recreational activity.”
As to the latter claim, the court explained:
Rhino claims that FedEx terminated her in violation of NYLL Section 201-d(2)(c), which makes it unlawful for an employer to “discharge from employment or otherwise discriminate against an individual … because of … an individual’s legal recreational activities.” According to Rhino, the complaint shows that she was fired because of a protected recreational activity—namely, participating in a “sightseeing tour of Washington, DC using a motorized scooter.”
This claim fails because Rhino has not plausibly alleged that FedEx fired her for engaging in recreational activity. Under New York law, an employer does not violate Section 201-d(2)(c) when it fires an employee “not for the [recreational] activity” itself but for other information revealed by the recreational activity. For example, when an employer fires an employee for posting offensive content to a blog or other website, multiple courts have held that even if blogging is a protected recreational activity, the termination is lawful because the employee was fired not for the activity of blogging, but for the content of the blog post. [As one court observed,] even assuming posting to Instagram is a recreational activity under the NYLL, the complaint alleges that the plaintiff was discharged, not for the activity of posting to Instagram, but for the content of the post. Similarly, [another court] held that an employer lawfully terminated an employee for taking personal leave because the termination was not for the act of taking leave itself, but for taking leave without approval.
That reasoning applies here. As already explained, Rhino has failed to plausibly allege that FedEx terminated her for any reason other than the one set forth in the documents attached to her complaint—namely, that FedEx concluded an Instagram scooter video showed that Rhino misrepresented her inability to work.
(Cleaned up.)
The court concluded that “[b]ecause Rhino has not plausibly alleged that she was fired because she engaged in a recreational activity—as opposed to a fact that was revealed by her engaging in a recreational activity—her claim under Section 201-d(2)(c) is accordingly dismissed.”
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In addition to being instructive as to the interpretation of the New York Labor Law, this decision reinforces the risks to a party inherent in posting to social media while litigation is ongoing.