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Aponte v. City of Buffalo Office of Telecommunications

July 5, 2009

RAY APONTE, PLAINTIFF,
v.
CITY OF BUFFALO OFFICE OF TELECOMMUNICATIONS AND THE WELLNESS INSTITUTE OF GREATER BUFFALO & WNY, DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Plaintiff Ray Aponte alleges that Defendant City of Buffalo Office of Telecommunications ("OTC") and Defendant Wellness Institute of Greater Buffalo & WNY ("Institute"), violated his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000, et seq. ("Title VII"), and the New York Human Rights Law ("New York HRL"), Article 15 of the Executive Law §§ 290 et seq. Plaintiff alleges that Defendants discriminated and retaliated against him due to his race, including, but not limited to, denying him equal terms and conditions of employment, treating him differently with respect to wages, harassing him on account of his race, and constructively discharging him.

Currently before this Court is OTC's Motion to Dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, or, alternatively, for summary judgment pursuant to Rule 56.*fn1 For the reasons discussed below, OTC's motion is denied.

II. BACKGROUND

A. Facts

The following facts, alleged in the Complaint, are assumed true for purposes of the instant motion. Plaintiff, a Hispanic male, is a citizen of the United States and of the State of New York (Complaint, Docket No. 1, at ¶ 5). Plaintiff worked for Defendants as a Videographer and Facility Manager. (Complaint, ¶ 8). Specifically, Plaintiff alleges that he was "jointly employed" by OTC and the Institute, and although he "was moved from one payroll to the other, this did not otherwise alter his employment."*fn2 (Complaint, ¶¶ 8-9). Plaintiff was responsible for facility management and production at the Apollo Media Center, which provides services for users who create public and community-access programming. (Complaint, ¶¶ 9-10).

In September 2006, Defendants instituted a compensation system distinguishing between Videographer 1 ("V1") and Videographer 2 ("V2"). (Complaint, ¶ 11). Defendants paid V1 employees $14 to $16 per hour, and paid V2 employees approximately $37.50 per hour. (Complaint, ¶¶ 12, 14). V1 employees earned less because the position purportedly entailed fewer job duties and lesser responsibilities than other general positions. (Complaint, ¶ 12).

OTC and the Institute classified Plaintiff as a V1, however, the only Caucasian videographer (Jerry Buchnowski) was classified as a V2. (Complaint, ¶¶ 14, 16).

According to the Complaint, Plaintiff performed the same duties as Buchnowski, together with a number of duties Buchnowski did not have the skills to perform. (Complaint, ¶ 16). Plaintiff also maintained the title of "Facility Manager," which Buchnowski apparently did not. (Complaint, ¶ 17). Despite this, Defendants paid Plaintiff $21.50 per hour less than the only Caucasian employee. (Complaint, ¶¶ 18, 21).

On October 16, 2006, Plaintiff sent an email to Tom Tarapacki, Program Director, requesting a pay increase of $4 per hour to "fairly compensate" him for his services. (Complaint, ¶ 19.) Tarapacki denied this request. (Complaint, ¶ 20). After Plaintiff sent this email, Defendants did not give him work assignments "for a long duration." (Complaint, ¶ 22). When Defendants finally gave Plaintiff a work assignment, they gave him only one hour's notice. (Complaint, ¶ 23). Plaintiff was unable to accept the assignment because he had already committed his services elsewhere. (Complaint, ¶ 24). After this, Plaintiff received no requests for his services from the Defendants, was not provided a work schedule, and received a letter demanding a return of Apollo Center property. (Complaint,

¶¶ 25-28). Plaintiff maintains that he was thus constructively discharged. (Complaint, ¶ 28).

Plaintiff also alleges that he was subjected to racially harassing comments and treatment at work. (Complaint, ¶ 29). Specifically, Plaintiff alleges that Tarapacki made inappropriate references to his Hispanic heritage (Complaint, ¶¶ 30-34), and that he suffered disparately severe penalties for a ...


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