Opinion
2013-02-28
Barbara WITCHARD, Plaintiff–Appellant, v. MONTEFIORE MEDICAL CENTER, Defendant–Respondent.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant. Littler Mendelson PC, New York (Jean L. Schmidt of counsel), for respondent.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant. Littler Mendelson PC, New York (Jean L. Schmidt of counsel), for respondent.
TOM, J.P., SWEENY, RENWICK, ABDUS–SALAAM, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 4, 2011, which, in an action alleging employment discrimination, denied plaintiff's motion for partial summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The record demonstrates that defendant engaged in good faith interactive efforts to reasonably accommodate plaintiff ( see Phillips v. City of New York, 66 A.D.3d 170, 175–176, 884 N.Y.S.2d 369 [1st Dept. 2009] ). These good faith efforts ceased only when plaintiff asserted that she had been constructively discharged and refused to participate. Plaintiff thereby abandoned her employment with defendant ( see Romanello v. Intesa Sanpaolo S.p.A., 97 A.D.3d 449, 451, 949 N.Y.S.2d 345 [1st Dept. 2012];Matter of Vinikoff v. New York State Div. of Human Rights, 83 A.D.3d 1159, 1163, 920 N.Y.S.2d 458 [3d Dept. 2011] ). Contrary to plaintiff's contention that she was terminated on April 26, 2004, the record shows that she was not actively working after that date and was effectively on unpaid leave while engaging in an interactive process with defendant ( see Jacobsen v. New York City Health & Hosps. Corp., 97 A.D.3d 428, 431–432, 948 N.Y.S.2d 586 [1st Dept. 2012] ).
Plaintiff's claim that defendant subjected her to adverse employment action in retaliation for her requests for reasonable accommodation is unavailing. Under both New York State and New York City Human Rights Laws, a request for reasonable accommodation is not a protected activity for purposes of a retaliation claim ( see McKenzie v. Meridian Capital Group, LLC, 35 A.D.3d 676, 677–678, 829 N.Y.S.2d 129 [2d Dept. 2006] ).
Defendant's statements that it would fire her were not so pervasive as to establish a hostile work environment ( see Ferrer v. New York State Div. of Human Rights, 82 A.D.3d 431, 918 N.Y.S.2d 405 [1st Dept. 2011] ). Nor does plaintiff's contention that she was transferred to an assignment, which she perceived to be less desirable, establish a claim of hostile work environment ( see Bazile v. City of New York, 215 F.Supp.2d 354, 361 [S.D.N.Y.2002],affd.64 Fed.Appx. 805 [2d Cir.2003] ).
We have considered plaintiff's remaining arguments and find them unavailing.