Campbell v City of New York, 2024 NY Slip Op 02772 [227 AD3d 538]

May 21, 2024

Appellate Division, First Department

[*1]

Krystal Campbell, Appellant,

v

City of New York, Respondent, et al., Defendants.

The Law Office of Fred Lichtmacher, P.C., New York (Fred Lichtmacher of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Hannah J. Sarokin of counsel), for respondent.

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 NY § 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 [SD NY 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 AD3d 485 , 485-486 [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 AD3d 107 , 113 [1st Dept 2012]; Bennett v Health Mgt. Sys., Inc. , 92 AD3d 29 , 41 [1st Dept 2011], lv denied 18 NY3d 811 [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 AD3d 549 , 550 [1st Dept 2018]).

We have considered plaintiff’s remaining arguments and find them unavailing. Concur—Kern, J.P., Oing, Kapnick, Higgitt, Michael, JJ..