By Thomas Tracy
New York Daily News
NEW YORK — The demands of a retiring city EMT to be reinstated as an FDNY firefighter, thanks to an arbitrator’s open-ended demand that he be “made whole,” is a hot potato no one in the city government or municipal employee unions wants to pick up — and has now led to a new lawsuit.
After determining that the FDNY had wrongly suspended and disciplined Emergency Medical Technician Arnaldo Rodriguez more than a decade ago while the EMT was at the FDNY Academy training to become a firefighter, city arbitrator Lisa Charles ordered in October 2021 that the department “remove the discipline from his record, rescind the 60-day suspension, pay him for the missed time with interest and make him whole.”
While the FDNY has updated Rodriguez’s record and compensated the EMT for any money he lost during his suspension, he hasn’t been made a firefighter, so his attorney Peter Gleason is suing to get his client his long-awaited career move.
“In refusing to enforce the arbitrator’s binding decision they are utterly failing their obligations to Rodriguez,” said Gleason.
Rodriguez, who took in $400,000 while on administrative leave amid the ongoing dispute, is entitled to $1.5 million in back pay for wages he missed out on due to not being a firefighter, Gleason said.
[EARLIER: FDNY EMT paid $400K for staying home for 4 years in bias suit wants promotion to firefighter]
But the arbitrator’s decision does not specifically say Rodriguez should be made a firefighter, one FDNY source with knowledge of the case said. The phrase “make him whole” is at best open for interpretation, and Gleason and Rodriguez are playing with it to get the best outcome, the source said.
Yet Gleason contends that the only way Rodriguez would be made whole was to have the department make him a firefighter, which he was on the day he was falsely accused and suspended.
“An order to make someone whole is to award damages to put that person in the same position they would have been if the obligation was not broken,” Gleason said. “The notion that Commissioner [Laura] Kavanagh is refusing to make Rodriguez, a class member of the Vulcan litigation, whole puts in question her leadership abilities.”
The unions District Council 37 and Local 2507, which represent EMTs, also called for Rodriguez to be made a firefighter early on but have since backed off their initial demands after the arbitrator’s decision, Gleason said.
“Their refusal to enforce what should have been a celebrated victory for one of their members is now embroiled in state litigation that could ultimately end up in federal court should the city continue to ignore [this],” he said.
Rodriguez, now 47, first applied to be an FDNY firefighter in 1999 but was denied. Still wanting a career as a first responder, he became an EMT the next year and spent more than a decade responding to emergency medical calls in Brooklyn, according to court papers.
While he was working as an EMT, Rodriguez became a plaintiff in the Vulcan Society lawsuit in which Black and minority firefighter candidates claim they were discriminated against because of their race.
Rodriguez wasn’t involved in the case when it first began in 2007 — but by claiming to have an interest in its outcome he was allowed later to join the case on the Vulcans’ side.
In 2013, after the city reached a settlement in the case, Rodriguez got a letter from the Justice Department saying he could reapply to become a firefighter, court papers say. He was later admitted to the Fire Academy.
But after four days in the training program Rodriguez was brought before FDNY Chief Michael Gala. The EMT was accused of lying on medical records by failing to reveal an off-duty injury and ordered to stay home and not return until contacted.
Gala said via his lawyer last month that in ordering Rodriguez to stay home, he was relaying instructions from officials in the department’s Bureau of Investigations and Trials.
According to court documents, Rodriguez spent the next four years — from August 2013 to September 2017 — at his home in Woodside, Queens, waiting for the call to return to work.
During all that time he was on administrative leave and received an estimated $400,000 in salary and benefits, his attorney said. For the first year of his exile Rodriguez was paid as a firefighter. For the last three, he was paid at a lower rate as an EMT.
Rodriguez was ultimately reinstated as an EMT and currently works for EMS’ Office of Medical Affairs and teaches new employees how to drive ambulances.
EMS union Local 2507 and DC 37, which oversees the EMS union, filed a grievance on Rodriguez’s behalf in 2017, saying his yearslong leave violated its contract with the city and demanded Rodriguez be reinstated to the FDNY as a firefighter since he was in the Fire Academy when he was sent home, court papers claim.
DC 37 later said it never entered the grievance procedure to have Rodriguez reinstated to firefighter, even though Gleason has paperwork that says the exact opposite, according to the lawsuit in Manhattan Supreme Court.
“[Their inaction] is continuing the wrongful and racially motivated retaliation against [Rodriguez] by the FDNY and will continue to have destructive emotional and financial impact on Arnaldo Rodriguez,” the lawsuit reads.
There is a large pay gap between firefighters and EMTs, even though both respond to emergency medical calls, a disparity the federal government wants the city to resolve.
Entry-level EMTs are paid a base salary of $39,386. Within five years, their pay increases to $59,534. City firefighters start their career with a salary of $43,904 that goes up to $85,292 after five years.
While the FDNY and the city may have a financial reason to ignore the order, Gleason said DC37′s refusal to step up is tantamount to “horse trading.”
“My office has represented other members of municipal labor unions that through the grievance process, won at arbitration, only to be told that the award would not be enforced but instead used it as a bargaining chip the union could cash in at a later date,” Gleason said.
Both the FDNY and the city Law Department declined to comment as the case continues through arbitration. DC37 also declined to comment, citing the pending litigation.
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