Labor & Employment Law Daily Wrap Up, TORT CLAIMS—S.D.N.Y.: Convicted sexual offender who allegedly secured job by lying about his birth year will face employer’s fraud claim, (Jul 10, 2025)

By Marjorie Johnson, J.D.

He allegedly was capable of stating his birth year accurately on the third-party background screening provider’s forms as he did so on his I-9 form—which he completed in what appeared to be a separate process.

A former usher at MSG Arena who sued the employer after being fired ostensibly over his inappropriate behavior with female staff members, and who the employer claimed had been hired after intentionally misstating his birth year to its third-party background check provider which resulted in his criminal history and status as a registered Sexually Violent Offender not being detected, failed to convince a federal district court in New York to dismiss the employer’s counterclaim of fraudulent inducement. However, while the employer plausibly alleged that he had both the motive and the opportunity to commit fraud upon which the employer reasonably relied and which resulted in damages, its other counterclaim for unjust enrichment failed to pass muster (Robinson v. MSG Entertainment Group, LLC, No. 1:23-cv-09366-LJL (S.D.N.Y. July 8, 2025)).

Convicted sexual offender. Previously convicted of first-degree sodomy, two counts of first-degree sexual abuse, and one count of endangering a child, the employee was sentenced to a prison term of 25 years and was eventually released early in April 2021. He remained under parole supervision until April 2026 and was registered as a Sexually Violent Offender with a “Level 3” risk level—the highest available designation.

Conditional offer. In November 2021, a few months after his release, he applied for a position as an usher at Madison Square Garden (MSG Arena). Applicants for the position were required to undergo a criminal background check, and the employer used a third-party provider to conduct the employment background screening services. Therefore, after he received a conditional offer of employment, the third-party provider advised him of the steps he needed to take to undergo a background check. He eventually created an online account with the provider, filled in the requested information, and provided an electronic signature verifying that the information he submitted was truthful.

Hired after misstates birthdate. Significantly, although he was born in 1963, the employee’s submission to the third-party provider stated that he was born in 1966. The New York State Sex Offender Registry recorded his birth year as 1963, and he himself stated on his I-9 Employment Eligibility Verification form that he was born in 1963. Because he misrepresented his birthdate, the third-party provider’s background search did not yield any results indicating that he had a criminal record, and its screening report reflected that he “Meets Requirements.” As a result, the employer hired him and he began working as an usher at the arena in December 2021.

Fired over sexual harassment. During his employment, the employee frequently visited the staff services office for non-work-related reasons, including to sexually harass a specific female coworker, and on at least one occasion touched her in an unwelcome manner. Other female staff reported feeling uncomfortable around him, and the employee relations (ER) manager repeatedly instructed him to refrain from visiting the office for personal, non-work-related reasons. Though he also received coaching, he continued to visit the office for non-work-related reasons. On August 8, the ER manager advised him that he was being terminated because of “his inability to follow directions regarding inappropriate visits to the office,”

Counterclaims. After the employee initiated this lawsuit, the employer filed two counterclaims. First, it alleged that the employee knew that he misrepresented his birth year and did so in order to conceal his criminal history and his registration as a sex offender, which amounted to fraudulent inducement. The employer also claimed that this fraud resulted in his unjust enrichment at its expense.

Fraudulent statements. Rejecting the employee’s bid to dismiss the fraudulent inducement claim, the court found the employer sufficiently detailed his allegedly fraudulent statements. In particular, the employer claimed that he materially misrepresented the fact of his birth year to the third-party provider, resulting in his criminal history not being detected. He also allegedly knew his birth year and was capable of stating it accurately on his job application forms as he did so on his I-9 form—which he completed after the background check in what appeared to be a separate process.

Motive and opportunity. The employer also sufficiently alleged that he had both the motive and the opportunity to commit fraud. On his I-9 form, he correctly stated the year in which he was born, but on the form that would potentially lead to uncovering his criminal history, he incorrectly stated the year in which he was born. “Plaintiff would have had ample motive to do so intentionally—namely, to prevent his background check from revealing his prior conviction and jeopardizing his job application,” explained the court. Moreover, the nature of the arena’s hiring practices created an opportunity to commit fraud. Since the employer outsourced its background check process to a third party, job applicants were able to provide inconsistent information to both entities without either of them discovering the inconsistencies.

Reliance and damages. The employer also plausibly alleged it reasonably relied on the accuracy of the background screening report since the employee had, with his electronic signature, verified the accuracy of the materials he submitted to the third-party provider. And while New York law would likely prohibit the employer from recovering the entirety of his salary since it benefited from his work as an usher, it nevertheless adequately pled the damages element of the fraud claim at the pleading stage by pointing to the cost of training and replacing the employee.

No unjust enrichment. However, the court dismissed the employer’s unjust enrichment counterclaim. Significantly, while the employee retained “the bundle of benefits” he earned during his months of employment at the arena, the employer provided these “benefits” in exchange for his labor and did not claim his work was substantively affected by his criminal history or was worth any less than that of other ushers. “[O]n the pleadings there is no imbalance meriting recovery or restitution,” concluded the court.

The case is No. 1:23-cv-09366-LJL.

Judge: Liman, L.

Attorneys: Alexandria Jean-Pierre (Phillips & Associates, Attorneys at Law) for Stevie Robinson. Kenneth Joseph Turnbull (Morgan, Lewis & Bockius) for MSG Entertainment Group, LLC.

Companies: MSG Entertainment Group, LLC

Cases: TortClaims StateLawClaims RemediesDamages NewYorkNews