CAMPBELL v. Deputy Warden of Corrections Sherrie Remburt, et al.,  Defendants. (2024)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered April 14, 2023, which granted defendant City of New York's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established that the denial of plaintiff's request to be awarded a post that freed her from weekend work in order to observe her Sabbath did not constitute a refusal to make a reasonable accommodation for plaintiff's religious belief (see Administrative Code of City of N.Y. § 8–107).  The record amply supports that defendant afforded plaintiff liberal opportunities to switch shifts with other employees so that plaintiff could avoid working on the Sabbath.  Defendant not only made efforts to locate positions that would meet plaintiff needs, but offered her available temporary assignment for other employees who were out (see Chavis v. Wal–Mart Stores, Inc. 265 F.Supp.3d 391, 400 [S.D.N.Y.2017]).  At the time of her request, there was no position available that plaintiff desired and which did not conflict with defendant's seniority rules.  In any event, an employer is not obligated to provide an employee with an accommodation that the employee requests or prefers (see Silver v. City of N.Y. Dept. of Homeless Servs., 115 A.D.3d 485, 485–486, 981 N.Y.S.2d 533 [1st Dept. 2014]).

Moreover, under the circumstances presented, plaintiff has failed to meet her prima facie burden of discrimination based on her religion under the McDonnell Douglas test and the somewhat more flexible “mixed-motive” framework (see Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 113, 946 N.Y.S.2d 27 [1st Dept. 2012];  Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 41, 936 N.Y.S.2d 112 [1st Dept. 2011], lv denied 18 N.Y.3d 811, 2012 WL 1432090 [2012]).  Plaintiff was offered numerous opportunities to manage time off for the Sabbath, and the only adverse actions occurred when plaintiff failed to obtain coverage or employ other methods of excused absences and received AWOL designations as a result.

Plaintiff's failure to oppose the parts of defendant's motion seeking dismissal of the retaliation, aiding and abetting, and employer liability claims “constituted an abandonment of the claim[s]” (Ng v. NYU Langone Med. Ctr., 157 A.D.3d 549, 550, 69 N.Y.S.3d 36 [1st Dept. 2018]).

We have considered plaintiff's remaining arguments and find them unavailing.