Wins Reinstatement: FDNY Electrician A Victim of Retaliation

Wins Reinstatement
FDNY Electrician A Victim of Retaliation

By RICHARD STEIER

A Fire Department Electrician was improperly suspended on three different occasions and wrongfully terminated, according to an arbitrator who found that supervisors retaliated against him for standing up for his rights.

BRIAN COLELLA: Targeted by his superiors. The arbitrator, Mattye M. Gandel, ordered that Brian Colella be reinstated with full back pay, minus any outside earnings he had during the roughly four years that he was off the FDNY payroll, and receive full seniority and benefits for that time.

'Piled on Violations'

She concluded that Mr. Colella's supervisors, led by the current FDNY Assistant Commissioner for Facilities, Joseph Mastropietro, in some cases placed disciplinary charges in Mr. Colella's file without notifying him. This meant that, rather than giving him an opportunity to correct behavior that they deemed improper, they "simply wrote the Grievant off and piled violations on top of violations looking for any possible reason to issue discipline in order to reach the level of termination."

The failure to use progressive discipline figured heavily into her decision, as did the unwillingness of Mr. Colella's immediate supervisor, Anthony Bianchino, to testify at the arbitration hearing.

Mr. Colella has been reinstated by the FDNY and returned to his old assignment March 5, according to his attorney, Lawrence Solotoff.

"We were able to establish that [the charges] had no merit and this was part and parcel of their actions against him because he had filed grievances," he said.

$2M Suit Pending

Among those is a class-action suit Mr. Colella filed on behalf of himself and 27 other past and present trades workers in the FDNY Buildings Maintenance Division seeking $2 million they claim they were improperly denied when they were required to start their work shifts earlier with no additional compensation for the extra time they put in.

His problems with Mr. Mastropietro pre-dated that dispute by several months and originally stemmed from an incident in February 2000 during which Mr. Colella received the wrong street location for a work assignment.

He was summoned to a buildings division site on Meserole Ave. in northeast Brooklyn from his normal assignment in Staten Island. Mr. Colella claimed that the directions he was given led him to go to Meserole St., where all he found was a playground. During a heated phone conversation with Mr. Mastropietro about the mistake, at one point Mr. Colella stated, "Why don't you be a man about it and come here and tell me face to face?"

Improper But No Threat

That remark was the basis for the first charge against him and part of the basis for Mr. Colella's initial 30-day suspension. Ms. Gandel found, however, that while it was "an inappropriate comment," Mr. Mastropietro wrongly characterized it as a "direct threat."

His return from the suspension that resulted led to a new set of charges being brought against him, including one that he used a phony doctor's note to justify reporting for work a week later than originally scheduled and that he went to the wrong work location.

Ms. Gandel dismissed the claim that the doctor's note had been falsified, stating in her decision, "The best that can be said is that Mr. Mastropietro 'figured it was a phony,''' with no evidence to support his belief. The charge that Mr. Colella reported at the wrong time and to the wrong location was dismissed because he testified that his supervisor, Anthony Bianchino, had given him permission to report an hour later than scheduled to his old work location before heading over to his new one, and Mr. Bianchino did not appear at the hearing to contradict that claim.

Other Charges Tossed

The arbitrator also dismissed as unsupported Mr. Mastropietro's allegation that Mr. Colella improperly removed door locks from his vehicle and that he failed to report an accident, finding that a minor collision caused by another motorist had done no damage to his vehicle. She also tossed the charge that at the time he was driving without a license, noting that his Pennsylvania driver's license was valid in New York and that no evidence was offered by Mr. Mastropietro that a New York State license was required of FDNY Electricians.

Of the 16 charges that provided the basis for his three suspensions and eventual termination, Ms. Gandel deemed only three of them - all involving minor transgressions - to be valid, and said they should have been the subject of supervisory conferences rather than grounds for suspension or firing.

Kept in Dark

She also noted that Mr. Colella's testimony went unrefuted that "prior to his suspensions, all of which were without pay, he was not given notice of the Charges [against him], he was not given a detailed explanation of the reasons for the Charges and he was not given an opportunity to present his reasons not to impose the suspensions."

The charges that prompted his 30-day suspension in March 2000, she noted, were not presented to him until June of that year, and did not contain any of the specific reasons that they were brought.

She had harsh words for Mr. Mastropietro and another supervisor, Dominick Moretti, characterizing their testimony as "unconvincing, contradictory and evasive."

A Fire Department spokesman said that no disciplinary action was being contemplated against any of Mr. Colella's supervisors.

Mr. Solotoff said the previously outspoken Mr. Colella did not want to comment on the ruling because "we are deeply concerned that they will find ways to retaliate against him."