File photos
Clockwise from top left: Fire Chief John Alston, Assistant Chief Orlando Marcano, Assistant Chief Mark Vendetto, and Fire Union President Frank Ricci.
A state judge has ruled against a former assistant fire chief in his years-old lawsuit accusing the department’s head and several ex-coworkers of hostile treatment — after Fire Chief John Alston’s argument that a leaked butt-dial caused the employee no real harm other than “hurt feelings and a bruised ego” won judicial support.
That’s one of the key takeaways from a summary judgment decision handed down on Aug. 2 by state Superior Court Judge Robin Wilson regarding a now-closed (pending a planned appeal) civil lawsuit filed back in 2019 by Orlando Marcano, a fire department retiree who previously worked as the assistant chief of administration.
The catalyst for the lawsuit was “Butt-Dial-Gate,” a 2018 incident in which a recording of Marcano complaining about his job over the phone went mini-viral and wound up under investigation by federal agents. That happened after a recording of Marcano clearly not intended for now-retired fire department administrative assistant Cherlyn Poindexter found its way into her voicemail, likely because Marcano was talking to someone else on another device while simultaneously still on the line with Poindexter on his work phone. Poindexter then emailed that recording of Marcano expressing soft frustration about how the department was run into the inboxes of 50 city employees. Read in detail about that incident here.
In Marcano’s original 2019 lawsuit, the retired assistant fire chief sought compensatory and punitive damages from Poindexter and two other fire department higher-ups, now-retired Assistant Chief Mark Vendetto and now-retired fire union President Frank Ricci, who he claimed were conspiring in a broader, ongoing plan to undercut and embarrass him. He also sued then-and-now Fire Chief John Alston with one count of “negligent supervision” for allegedly failing to rein in those employees’ behavior. Read more about Marcano’s allegations in detail in a previous article here.
Over the past four years that the lawsuit has made its way through state court, all four defendants — Vendetto, Ricci, Poindexter, and Alston — filed motions for summary judgment, seeking a judgment in their favor before the case even went to trial. Judge Wilson granted the defendants’ summary judgment requests in her Aug. 2 decision, and thereby dismissed each claim made by Marcano. Read the summary judgment here.
The judge’s ruling relieves Alston, Ricci, and Vendetto of alleged fault by establishing that their actions did not result in any real losses to Marcano.
In order to consider Ricci and Vendetto guilty of tortious interference, Marcano would have had to provide proof that their interference with his employment actually hurt his job security or status, according to the 39-page decision. Similarly, to support his claims that Alston was negligent in his supervisory capacities, Marcano would have had to provide proof that he was at risk of “imminent harm” at work due to Alston’s behavior, since municipal officials are immunized from liability for negligence stemming from discretionary decision making.
In her judgment, Wilson recalled how Alston’s lawyers argued in his defense that Marcano never faced any such imminent harm, but rather “merely suffered hurt feelings and a bruised ego” due to Butt-Dial-Gate.
Wilson’s own opinion on the matter ultimately sided with Alston. The judge asserted that Marcano’s allegations that Ricci and Vendetto undermined and interfered with his own ability to do his job, ultimately hurting his employment relationship with the city, “fail to clarify the nature of the specific harm the plaintiff suffered as a result of Alston’s action and inaction.”
Wilson wrote that it is unclear how Alston’s employment security was ever threatened. Marcano testified himself that he voluntarily retired from the force “based on an accumulation of factors and a realization that the city would not support him in a potential investigation over an alleged mishandling of a sexual harassment claim,” according to the judgment.
Marcano, in turn, tried to argue that he suffered a loss due to Vendetto’s and Ricci’s actions because he was earning $130,000 while part of the department and now earns $109,000 from his pension. Marcano said he had hoped to continue working until age 65 and had a reasonable expectation to eventually become chief.
Those arguments are ultimately irrelevant, Wilson weighed in, given that Marcano decided himself to retire from the department.
Meanwhile, the charge against Poindexter was easily dismissed. Poindexter testified during her deposition that she did not record the conversation, but that Marcano called her work phone from his work phone, left a voice message, failed to hang up his phone, and then proceeded to engage in a separate phone conversation that was captured in the same voicemail message.
Though not a clear cut “butt-dial,” as it was originally declared by Alston and those involved at the time, Wilson asserted that Marcano failed to provide sufficient evidence that Poindexter could have conceivably gone out of her way to record the conversation rather than simply have received the recording herself via voicemail.
Marcano’s lawyer, Patricia Confrancesco, told the Independent on Monday that she and Marcano plan to appeal the findings of the summary judgment. They have a 20-day time period in which to do so.
