Winder v. Erste, Khabo, McCullough, and DCPS
Complaint for Declaratory, Injunctive, and Monetary Relief
December 23, 2003

Directories
Schools

Organizations
DC Education Compact
Parents United
Proposition 100%

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALFRED M. WINDER, 5044 Call Place, S.E., Washington, DC 20075, Plaintiff,

LOUIS ERSTE, Individually, and as Chief Operating Officer of the Division of Transportation, DISTRICT OF COLUMBIA PUBLIC SCHOOLS, THE DISTRICT OF COLUMBIA PUBLIC SCHOOLS) 825 North Capitol Street, N.E., Washington, D.C. 20002

KENNEDY KHABO, Individually, and as Operating Officer of the Division of Transportation, DISTRICT OF COLUMBIA PUBLIC SCHOOLS, 825 North Capitol Street, N.E., Washington, D.C. 20002

JANIE MCCULLOUGH, Individually, and as Labor Partnership Manager, DISTRICT OF COLUMBIA PUBLIC SCHOOLS, 825 North Capitol Street, N.E., Washington, D.C. 20002

and

THE DISTRICT OF COLUMBIA PUBLIC SCHOOLS, 825 North Capitol Street, N.E.,) Washington, D.C. 20002, Defendants.

CASE NUMBER 1:03CV02623
JUDGE: Paul L. Friedman
DECK TYPE: General Civil
DATE STAMP: 12/23/2003

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MONETARY RELIEF ARISING FROM VIOLATIONS OF THE FIRST AMENDMENT OF THE CONSTITUTION, THE DISTRICT OF COLUMBIA WHISTLEBLOWER ACT, THE FEDERAL AND D.C. FAMILY AND MEDICAL LEAVE ACTS, AND FOR DEFAMATION; FOR HOSTILE WORK ENVIRONMENT IN VIOLATION OF 42 U.S.C.. §1983, INTERFERENCE WITH PROSPECTIVE ADVANTAGE AND CIVIL CONSPIRACY

I. INTRODUCTION

1. This is an individual action seeking declaratory and injunctive relief, back pay, front pay and compensatory and punitive damages for violations of the plaintiff's rights to equal employment opportunity under the First Amendment of the Constitution of the United States of America, the D.C. Government Comprehensive Merit Personnel Act of 1978, as amended by the Whistleblower Reinforcement Act of 1998 §§1-615.51 et seq.; the federal Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq., the District of Columbia Family and Medical Leave Act, §§32-503, et seq. ("D.C. FMLA"); and for defaming plaintiffs character and employment reputation and for tortious interference with prospective advantage by preventing him from obtaining other employment in his area of expertise. for hostile work environment and violation of civil rights under 42 U.S.C. §1983, for interference with prospective advantage and for civil conspiracy.

2. Plaintiff contends that defendants have systematically and continuously violated his constitutional, statutory and common law rights by retaliating against him for the exercise of his First Amendment rights, Whistleblower rights, and federal and D.C. FMLA rights; and by defaming his employment reputation while plaintiff was employed as General Manager of the Department of Transportation for the District of Columbia Public Schools ("DCPS"). Defendant Erste interfered with plaintiffs employment opportunities after he joined the DCPS and also prevented plaintiff from obtaining other employment in his area of expertise.

II. JURISDICTION AND VENUE

3. Plaintiff is authorized to invoke the jurisdiction of this Court at this time because the Court has federal question jurisdiction over plaintiff's claims arising under the First Amendment of the U.S. Constitution and 42 U.S.C. § 1983. This Court had pendent and supplemental jurisdiction over plaintiffs claims arising under the D. C. Whistleblower Act, and the D.C. Family and Medical Leave Act, as well as any claims for defamation of character and reputation.

4. Venue is properly in the District of Columbia under 28 U.S.C. § 1391 because the actions alleged in this complaint occurred in the District of Columbia. Mr. Winder was employed by the District of Columbia Public Schools, and his personnel records are maintained in the District of Columbia. Mr. Winder's claims arose in the District of Columbia.

III. THE PARTIES

5. Plaintiff is a male citizen of the District of Columbia who was employed by the District of Columbia from 1999 to 2003 in the Division of Transportation of the D.C. Public Schools.

6. Defendant Louis Erste is the Chief Operating Officer of the Division of Transportation of the D. C. Public Schools and has ultimate responsibility for the Division of Transportation's employment policies and practices, including the implementation of transportation policies as ordered by this Court in Petties, et al. v. D, C, et al., C.A. No. 95-0148 PLF (D.D.C.).

7. Defendant Kennedy Khabo is the Operating Officer of the Division of Transportation of the D. C. Public Schools and had responsibility for the Division of Transportation's employment policies and practices, including the implementation of transportation policies as ordered by this Court in Petties, et al. v. D. C., et al., C.A. No. 95-0148 PLF (D.D.C.).

8. Defendant Janie McCullough was Labor Partnership Manager, and has held numerous other supervisory titles with D.C. Public Schools, and as such has responsibility for the employment policies and practices of the D.C. Public Schools, including the implementation of transportation policies as ordered by this Court in Petties, et al. v. D.C., et at, C.A. No, 95-0148 PLF (D.D.C.)

9. Defendant District of Columbia Public Schools is responsible for the education of the children of the District of Columbia, including the implementation of transportation policies as ordered by this Court in Petties, et al. v. D. C, et at, C.A. No. 95-0148 PLF (D.D.C.).

IV. BACKGROUND FACTS

10. Mr. Winder has developed along and distinguished career supervising and managing complicated transportation systems both publicly and privately. Mr. Winder began his career in the transportation field when he served as Manager of Administration Personnel for the Saudi Public Transportation Company in Saudi Arabia from 1981 to 1982. In that role, he had direct responsibility for personnel selected to provide vehicle maintenance and bus service to the annual world-wide Hajj Pilgrimage to the holy city of Mecca, Saudi Arabia.

11. Mr. Winder also developed a career specialty in working with children who have "special needs," or who are disabled. Prior to joining the D. C. Public Schools, Mr. Winder served as Director of Recreation for the City and County of San Francisco, California. From 1991-1996 he was Associate Superintendent of Transportation of the Kansas City, Missouri School District. From 1981-85 he was Vice President/General Manager of A.T,B./Ryder Management Service Company in Cincinnati.

12. In Kansas City, Mr. Winder directed a school transportation system that shuttled 35,000 special needs children to class daily, and was credited with resurrecting a failed system that was both seriously inefficient prior to his arrival, arid the subject of court orders in federal racial desegregation litigation.

13. As a direct result of Mr. Winder's achievements, the Kansas City School District received local, state and national recognition for innovative, safe transportation services, as did Mr. Winder. On numerous occasions, Kansas City received requests for Mr. Winder's consulting services based on his reputation repairing Kansas City's broken transportation system. Mr. Winder implemented a strategic plan to bring efficiency, punctuality and service improvements for 35,000 students who previously could not get to school on a regular basis.

14. Mr. Winder has a B. A. degree from Rockhurst College, Kansas City, Missouri, where he had a record of academic excellence.

15. In 1999, after a nationwide search, Mr. Winder was unanimously selected by a 15-member panel as General Manager of the D.C. Public Schools' Department of Transportation. He was the eighth appointee since 1994. Mr. Winder's responsibilities included the management, administration and operation of-transportation services for special education students in the District of Columbia, Maryland and Virginia.

16. Mr. Winder was hired in the wake of this Court's Orders in Petties, et al. v. D. C., et al., C.A. No. 95-0148, designed to repair the defendants' transportation system for its failure to safely and adequately transport D.C. "special needs" children to their classes and school activities on time. At the time he managed the transportation department, it was in court ordered receivership.

17. During his four-year tenure, Mr. Winder's achievements for the D. C. Public Schools included development of a Pilot Driver Training Academy; implementation of an Automated Bus Routing System to enhance the routing of special needs students in the tri-state area; and implementation of strategies and policies that saved the D.C. Public Schools nearly $3 million annually.

18. Mr. Winder also successfully developed polices and programs to increase bus driver attendance rates; increase safety and punctuality for service delivery; develop a Transportation Guide for Parents of Special Education Students; create the First Annual Drivers and Attendants Institute; and upgrade school bus emergency evacuation procedures.

19. When Mr. Winder came to DCPS, Laidlaw, a private bus company, was transporting three-quarters of all special education students. Mr. Winder took over all bus routes from Laidlaw beginning shortly after his arrival in 2000, and immediately improved service to special education children.

20. During Mr. Winder's tenure, he substantially improved the punctuality rate of delivery of the children to school on time, Under Mr. Winder's direction, the safety rates for D.C. students met national standards. Mr. Winder saved the defendant more than $2 million dollars in overtime payments to drivers in 2002. He introduced new recruiting and training programs to improve driver performance and reliability.

21. Mr. Winder's accomplishments are all the more amazing when read in the context of the deliberate roadblocks set up for him by the defendants in defiance of this Court's November 14, 1997 Court Order, as described below. The fact that Mr. Winder managed to generate so much improvement in the defendants' broken transportation system despite so many impediments is due in large part to his commitment to the children he served. Mr. Winder regularly worked from 4:30 a.m to 8 p.m., six days a week, from 1999 to just before his termination in 2003.

22. Mr. Winder was well-qualified to manage a transportation system in receivership. Prior to bringing his expertise to the District of Columbia, Mr. Winder developed and initiated the nation's largest desegregated transportation system under the direction of a court-appointed monitoring committee -in Kansas City.

23. During his many years of distinguished service to the public schools community and to disabled children, Mr. Winder received numerous awards, commendations and recognition. Mr. Winder was a two-time recipient of the Kansas City Globe Newspapers' "One Hundred Most Influential African Americans in the Metropolitan Kansas City Area" in the mid-1990s. He was also awarded the Key to the City by the Kansas City Mayor in 1996.

24. Mr. Winder received the D.C. Public Schools' Superintendent's Award of Excellence in 2000.

25. In 1997, Judge Paul L. Friedman of this Court issued an order naming Special Master Elise T. Baach to oversee implementation of a plan to drastically improve transportation services for special education children attending public school classes and activities in the D.C. Public Schools.

26. The November, 1997, Court Order was a direct result of a class action lawsuit filed by parents of D.C. school children in 1996 alleging, inter alia, that the defendant failed to provide safe and punctual transportation for school children with physical and learning disabilities to their classes and activities at the D.C. Public Schools. Petties, et al. v. D.C., et at, C.A. No. 95-0148 PLF (D. D.C.).

27. Mr. Winder stepped into the middle of this controversy in 1999 when he was appointed General Manager of the school system's Department of Transportation. Mr. Winder's duties not only included supervising the delivery of transportation services to the special education children of the D.C. Public Schools, but it also required him to help implement the Court Orders and report regularly to the Special Master appointed by U.S. District Judge Paul L. Friedman.

28. From the. first, Mr. Winder found little cooperation from the defendants. In Mr. Winder's view, the DCPS' Department of Human Resources and the Department of Finance failed and refused to take the Pettier Court Orders seriously. From 2000-2003, Mr. Winder regularly reported problems facing his department to Special Master Baach, and her assistants Tony Records, Kevin Walsh and Carolyn Edwards. Mr. Winder also repeatedly spoke out on matters of public interest and concern within the department, including his managers' resistance to complying with the Petties Orders, and relayed these concerns to Jonathan F. Potter, deputy counsel to defendants' lead counsel Daniel A. Reznick; and to D.C. City Council members Kevin Chavous and Adrian Fenty.

29. From the outset, the human resources department routinely provided Mr. Winder with unqualified bus driver candidates. On more than one occasion, Mr. Winder had to reject all applicants outright. When Mr. Winder complained repeatedly to Human Resources Director Patricia Lattimore that human resources was not recruiting trained drivers, she responded that, "Transportation is only a pimple on a bull's ass. We don't care about hiring bus drivers. We're trying to hire teachers."

30. Another example of the defendants' attitude toward the Court's Orders involved budgeting_ Transportation funds were regularly diverted to other school departments, leaving Mr. Winder unable to supply his offices with basic supplies such as paper, and his bus terminals with essentials such as toilet paper and drinking water.

31. Mr. Winder regularly reported these problems to Ms. Baach, her staff, the Court appointed administrator David Healey, and Defendants Erste and Veleter Mazyck, General Counsel for the D. C. Public Schools, who have responsibility for the employment policies and practices of the D.C. Public Schools, including the implementation of transportation policies as ordered by this Court in Pettier, et al. v. D.C., et at, C.A. No. 95-0148 PLF (D.D.C.). Special Master Baach used her own personal funds on several occasions to provide Mr. Winder's department with supplies.

32. In October 2000, Mr. Winder was required by the Court to directly report to the new Transportation Administrator, David Henley, whom the Court had appointed after defendants failed and refused to follow Court orders in the Petties case. Prior to meeting with Mr. Healey, DCPS General Counsel Veleter Mazyck called Mr. Winder into a Saturday morning meeting and told him, "You now report to Mr. Healey, but you also report to us. If Mr. Healey messes up, you will be held responsible." When Mr. Winder asked how he could be responsible for his superior, Ms. Mazyck replied, "You figure it out."

33. In early 2001, Defendant Louis Erste was appointed Chief Operating Office of the Department of Transportation by defendants. Shortly thereafter, Ms. Mazyck met with Mr. Healey and Mr. Winder and informed Mr. Winder that he was to report to Defendant Erste. Ms. Mazyck further told Mr. Winder that he would be held responsible for every claimed mistake that Mr. Healey made. In spite of the Court's Orders to improve the transportation system, Ms. Mazyck indicated to Mr. Winder that DCPS would not provide the funds necessary to do so.

34. In fact, Ms. Mazyck told Mr. Winder in an employee meeting that Special Master Baach "is not going to run this school system and don't report to her." Ms. Mazyck also repeatedly told Mr. Winder in meetings that the `white heifer" (Ms. Baach) was "being paid too much" and she and the school system did not intend to cooperate with Ms. Baach's requests, Mr. Winder replied that he was required to comply with the Court Orders and report to Ms. Baach, and that he was doing what was in the best interest of the children. Ms. Mazyck made it clear that Ms. Baach's requests were not a priority. Defendant McCullough, Labor Partnership Manager, was in attendance at many such meetings, and regularly supported Ms. Mazyck's statements and policies -- including those that referred to Special Master Baach as a "white heifer."

35. In subsequent meetings over the next two years with Ms. Mazyck, defendants McCullough and Erste would tell Mr. Winder in a derogatory manner to "go run and tell your girlfriend," i.e., Special Master Baach, when he complained that he was not being allowed to comply with court orders.

36. Meanwhile, Mr. Winder continued to report to Ms. Baach, her staff, defendant Erste and Mr. Healey the problems in managing the transportation department, and defendants' resulting failure to comply with the Federal Court Orders.

37. At the same time, friction developed between defendant Erste and Mr. Healey, the Court-appointed Administrator. Both men expected Mr. Winder to report only to him. Defendants' counsel, Ms. Mazyck, continued to make it clear that Mr. Winder was to take the heat for Mr. Healey.

38. Mr. Winder, meanwhile, continued to complain to the Special Master and her Chief Investigator, Kevin Walsh, and Carolyn Edwards, a Special Assistant, about defendant Erste's refusal to meet staffing needs, to develop consequences for absent drivers, to supply offices and bus terminals, to promote adequate driver training, and most importantly, to protect the transportation budget. Rather, defendant Erste and Tim Fitzsimmons, the Director of Budgets in the Finance Department who reported to defendant Erste, routinely ordered the budget department to shift large portions of the transportation budget to other school departments.

39. Mr. Winder also repeatedly informed Special Master Baach that defendant Erste (lid not support Mr. Winder's efforts at reform, as required by the Court's Orders.

40. In February 2001, defendant Erste began to complain about the transportation department's budget being too "high" and sought to blame Mr. Winder for alleged mismanagement. Defendant Erste, at the same time, would not agree with Mr. Healey's proposed budget, which was inadequate for the mission and for compliance with the Court's Orders.

41. Defendant Erste, meanwhile, audited employee leave balances inaccurately, and refused to share any budget data with the transportation department. As a result, on several occasions large numbers of drivers took leave at the same time, leaving special needs children stranded without transportation.

42. A prior agreement with the Teamsters to promote 38 drivers to full-time status fell through because defendant Erste claimed there was no money left to do so for the 2001-2002 school year. Such action severely thwarted Mr. Winder's attempt to implement the Orders' requirement that drivers be recruited to ensure timely and safe transportation for children to and from school.

43. In March 2001, Mr. Winder filed an official complaint against DCPS and defendant Erste, alleging interference with his job duties and his ability to comply with the Court Orders.

44. Throughout March 2001, Mr. Winder spoke directly to the Special Master and others about defendant Erste's, Ms. Mazyck's and defendant McCullough's lack of support in timely running the bus schedule, and balancing the budget and auditing employee leave balances. Mr. Winder also reported defendant Erste and Ms. Mazyck's inaccurate record keeping, unnecessary staff vacancies, unsafe bus terminals, unskilled employees, and lack of a recruitment plan from the human resources office.

45. Mr. Winder also reported to the Special Master and her team in May 2001 that: defendant Erste refused assistance in obtaining routing data for the summer school transportation program; and defendant Erste never bothered to learn which schools would be open that summer, thereby making it impossible to plan bus routes because of lack of relevant data.

46. Meanwhile, the lack of effectiveness of the human resources department led to cost overruns for transportation personnel. Throughout the remainder of 2001, problems caused by defendants Erste and McCullough, and Ms. Mazyck continued to exacerbate problems within the transportation division. Mr. Winder regularly complained to the Special Master about these issues, Mr. Winder's complaints included defendant Erste's lack of understanding about the complexities of transportation scheduling and the need to inform parents of scheduling changes; his lack of adequately trained staff his failure to provide a working budget; his lack of appropriate Medicaid reimbursement to parents; and his undermining of the driver discipline process. Mr. Winder also expressed his concerns to Special Master Baach that he was being set up as the "fall guy" by defendant Erste and Ms. Mazyck for defendant Erste's failings. Mr. Winder repeatedly told Ms. Baach that Ms. Mazyck wanted him to report to both defendant Erste and Mr. Healey. Mr. Winder also repeatedly told Ms. Baach that Ms. Mazyck stated she did not think the D.C Public Schools would or could comply with the Court's Orders.

47. Mr. Winder further complained to Special Master Baach in 2001 that defendant Erste did not understand the driver licensing and renewal process which resulted in drivers being unavailable for work; that defendant Erste failed to plan for drivers for the fall 2001 semester; that transportation facilities were not repaired; and that trash piled up in bus terminal restrooms, while drinking water supplies remained inadequate.

48. In fact, Mr. Healey informed defendant Erste and other of defendants' managers in a February 11, 2001 e-mail that: "Mr. Winder does not have the staff to work on the Current Court Order, Petties Objectives, pay current bills or get a purchase order. Many mornings he is faced with moving his limited staff from terminal to terminal to cover the vacancies and absences," This e-mail noted: "The void in these positions has impa[i]red the ability of the Executive Director to effectively monitor and control operations and finances ... we must get Mr. Winder the staff that is necessary to operate the Transportation Division." The e-mail concluded by stating: "We can not exit the Pettier Case without support staff."

49. Because defendants were over budget, Mr. Winder complained to the Special Master that driver vacancies and other key staff positions were not going to be filled, leaving the department shorthanded when school opened in 2001.

50. Meanwhile, daily arguments between Mr. Healey and defendant Erste escalated over control of the transportation department, including budgeting, driver scheduling and staffing requirements. The two also fought over whether Mr. Winder would report to defendant Erste. Mr. Healey informed defendant Erste that Mr. Winder reported to him, but defendant Erste became angry with Mr. Winder when Mr. Winder reported to Mr. Healey.

51. In January 2002, Mr. Winder again told the Special Master that he was being set up to fail. Mr. Winder reported that when he took orders from Mr. Healey, defendant Erste retaliated against him.

52. Mr. Winder repeatedly requested human resources to provide names of drivers with absentee records, while being precluded from hiring and/or retaining his own staff. Elliott Jones, Mr. Winder's Deputy Director of Transportation was terminated in November 2002, after less than 90 days on the job. Mr. Jones was fired without cause and without Mr. Winder's consent. Financial Director of Transportation Mohamed J. Rahim was also terminated after refusing to black ball Mr. Winder. Neither Mr. Jones nor Mr. Rahim was ever replaced, leaving Mr. Winder without adequate management staff.

53. Between April 2002 and January 2003, Mr. Winder made no less than 48 telephone calls to Special Master Baach and her staff about the numerous transportation department problems described herein, and the resulting difficulties in complying with the Court's Orders. For instance, Mr. Winder complained of the following: lack of drivers and other staff to meet compliance requirements; an inadequate transportation department budget; lack of supplies, water and restroom maintenance at bus terminals; lack of trash pickup at terminals; errors in employee leave balances and inaccurate employee pay checks; lack of support from defendants' human resources department; safety and security deficits; procurement problems; facility maintenance; and transfer of department funds to other school departments, including regular education students assigned to schools out of their neighborhood due to inadequate facilities.

54. Mr. Winder also reported to the Special Master at this time that monies received from a lease with Dream Nightclub for parking at the New York Avenue bus terminal were spent by Defendant Erste on other school programs while transportation funding ran short.

55. In late 2002, defendant Kennedy Khabo was appointed Operating Officer of the Division of Transportation.

56. As a direct result of Mr.. Winder's reporting compliance problems to the Special Master, Defendants Erste, Khabo and McCullough began to retaliate against Mr. Winder. Specifically, they accused Mr. Winder of being a poor performer and pressured him to resign, and, upon information and belief, defendants encouraged school board employees and school district parents to raise complaints about Mr. Winder.

57. For instance, defendant Erste repeatedly told Mr. Winder in late 2002 that it was in Mr. Winder's "best interest" to step down, and that defendants' superintendent, Dr. Paul Vance, told defendant Erste he wanted Mr. Winder to resign. Meanwhile, Mr. Winder continued to perform in an outstanding manner. As late as December 10, 2002, Associate Superintendent Vera M. White presented Mr. Winder a letter of appreciation about his commitment to the District's children, noting that, "In situations where excuses and obstacles abound, you deliver on short notice, without angst and with courtesy, respect and professionalism."

58. Meanwhile, the October 1 & 4, 2002 Status Reports to the Court on Measures Taken to Remedy Driver Shortage, prepared by defendants' counsel, wrote about Mr. Winder, "the Herculean activities of the General Manager of Transportation to provide transportation services to special education students have been so conscientious and intense that he recently collapsed and was hospitalized with stress-induced hypertension, for which he is presently receiving medication." Defendants' counsel credited Mr. Winder with `working day and night" to comply with the Court Orders.

59. Nevertheless, during the two days Mr. Winder was ill, Defendant Khabo quickly convened Mr. Winder's staff-in Mr. Winder's office to tell them Mr. Winder was planning to quit. This representation was false and was intended to undermine Mr. Winder's relationship with his staff. At the same time, defendant Erste told Mr. Winder's staff that Mr. Winder would be replaced by Fitzgerald Wade, a deputy general manager. Defendant Khabo took this opportunity to threaten several key transportation employees with dismissal if they did not follow defendant Khabo's leadership.

60. When Mr. Winder came back to work, he challenged defendant Khabo about threatening his staff with dismissal, and reporting to them the falsehood that he was about to resign. Defendant Khabo replied, "Lou (Erste) put me in charge. We will never work with you. You are an outstanding transportation manager, but Lou wants you out."

61. On December 3, 2002, Mr. Winder forwarded defendant Erste an e-mail questioning the removal of $1.2 million dollars from the transportation budget. As of the time of Mr. Winder's termination, these monies had never been returned to the budget, but were spent on regular education students aid bus service with charter service companies. Mr. Winder reported this information to Special Master Baach.

62. On January 29, 2003, Mr. Winder filed a written response to Plaintiff's Motion to Appoint a Receiver. Mr. Winder stated that he "wished to set the public record straight." He pointed out that the administrator David Healey, did NOT write the Strategic Plan for transportation improvements, but that he did. For example, Mr. Winder stated that he and his staff advised Mr. Healey that the cost of $1 million for an on-going driver and attendant training course was much too high, and that the same goals could be accomplished for $300,000.

63. Mr. Winder also stated in his report that a study on how to consolidate functions at the bus terminals was not undertaken by Mr. Healey, but had been started in 1999 when Mr. Winder began discussions with supervisors on a plan to renovate the 5th Street Bus Terminal. Mr. Winder also noted that Mr. Healey was an "extremely divisive individual, who possessed very little patience for operational realities" confronted daily.

64. Further, Mr. Winder pointed out that Mr. Healey did not initiate various reform efforts regarding staffing, training and budget planning, as stated in Court documents. Rather, Mr. Winder stated that he and his management team initiated these projects.

65. Mr. Winder also reported to the Court that Mr. Healey overstated the actual number of buses, routes and drivers needed to implement staggered bells within ride time. "Our internal review as well as those of an independent transportation expert revealed inconsistent figures for the number of routes and drivers required under the Administrator's revised plan," Mr. Winder wrote.

66. The next day, Financial Director of Transportation Mohamed J. Rahim was fired when he refused to tell defendant Erste that Mr. Winder was at fault for the department's failure to comply with Court orders. Mr. Rahim was terminated without Mr. Winder's knowledge or approval and without any legitimate business reason. Meanwhile, defendants Erste and McCullough falsely told Mr. Rahim that Mr. Winder fired him.

67. That same day, January 30, 2003, defendant McCullough told Mr. Rahim that he should "rat" on Mr. Winder to "save your job."

68. Mr. Rahim also informed Mr. Winder that defendant Khabo told Mr. Rahim that he was being used as a "scapegoat to get rid of Al Winder." Defendants told Mr. Rahim that they wanted to terminate Mr. Winder because he was "too close to the Special Master."

69. Defendant Khabo also requested that Mr. Rahim place blame on Mr. Winder for transportation's internal organization problems and the failure to comply with the Court's Orders. Mr. Rahim reported this information to Mr. Winder as soon as he was terminated. Mr. Winder, in turn, reported to Special Master Baach that Mr. Rahim was terminated because he refused to cooperate in helping defendants terminate Mr. Winder.

70. Defendant Khabo met with Mr. Winder on February 8, 2003 to tell him that defendant Erste wanted Mr. Winder to resign. Defendant Erste met that same evening with Mr. Winder, indicating that Mr. Winder would have to resign. At the same time, defendant Erste expressed his concern to Mr. Winder about how he would respond in an affidavit to be submitted to this Court in connection with Plaintiff's Motion to Appoint a Receiver. Defendant Erste told Mr. Winder that he could not attest to anything in response to the plaintiff's request for receivership because Defendant Erste he had never read, nor understood, the numerous Court orders.

71. At about the same time, defendant Erste called a meeting where he swore at Mr. Winder's staff, blaming them and Mr. Winder for not getting "f***ing" drivers to work. Mr. Winder filed a written report to his managers to complain about defendant Erste's vulgar language and abusive behavior.

72. On February 24, 2003, Mr. Winder filed a formal complaint against defendants Erste and Khabo with the Inspector General, for, among other things, filing false affidavits in responses to the Ferries August 7, 2001 Consent Order, and to Plaintiff's January 2003 Motion to Appoint a Receiver. Mr. Winder requested a formal inquiry, stating that he was certain he was being retaliated against for telling the truth to defendants and Special Master Baach about departmental problems in meeting the Court Order. Noting that he and his staff had endured a "charade of deceit, intimidation and harassment" by defendant Erste and his staff, Mr. Winder raised concerns that his free speech rights under the Whistleblower Act and the First Amendment were violated by defendants.

73. In his February 24, 2003 administrative complaint, Mr. Winder outlined in great detail the staffing and budgetary problems created by Defendant Erste's refusal to cooperate with him, the administrator, or the Court's Orders in Petties. For example, Mr. Winder stated that, "Despite the recommendations of the Court appointed Administrator, Mr. Erste engaged in a chicanery, and a personal one-upmanship with the Administrator, and the General Manager and staff became a pawn for their growing hostility towards each other."

74. Mr. Winder pointed out that it was next to impossible to implement a strategic plan when stumbling blocks such as the budget, field trips, Petties objectives, planning, after school transportation, routing, scheduling and staff assignments were blocked by defendant Erste, who was "a major impediment and an obstructionist" with respect to the department's operating strategy.

75. Mr. Winder further complained that there was a staff shortage at key organizational levels, and that lack of support from defendant Erste directly precluded the department from fulfilling its mission. As one example, Mr. Winder noted the recent "non-decision" by defendant Erste to address leave fulfillment. In this instance, drivers all went on leave at the same time and seriously disrupted transportation services in January 2003. Defendant's Erste's inaction contributed to the public perception that DCPS transportation management was poor and needed to be replaced.

76. Mr. Winder further stated that defendant Erste withheld approval of employee transportation experts recommended by Mr. Winder. These experts would have assisted the District in "resolving pervasive under staffing and poor service as pointed out repeatedly by the Plaintiffs and the Federal Court." Mr. Winder informed the Special Master about the February 24, 2003 administrative Whistleblower complaint to the Inspector General.

77. In March 2003, Mr. Winder was forced to take 30 days sick leave to undergo extensive oral surgery that he had been neglecting for months due to his strong work ethic and his unflinching commitment filling the needs of the children of the District of Columbia. Mr. Winder went out on sick leave on March 20, 2003- He was terminated by letter dated April 3, 2003 that was delivered to his lawyer. Mr. Winder was never compensated for his sick leave, and never given the opportunity to discuss his termination with management. He was never given a poor performance evaluation by his supervisors and never provided with reasons for his termination.

78. Rather, the defendants created a fiction during Mr. Winder's absence that he was a probationary employee at the time of his dismissal. At no time prior to the April 3, 2003 letter of dismissal was the term ."probationary" used in connection with Mr. Winder's employment with DCPS. In fact, Mr. Winder's 2002 reappointment letter specifically stated that Mr. Winder would "continue" in his current position, which was not "probationary."

79. Further, defendants brazenly terminated Mr. Winder without once providing him a performance evaluation in four years. By written agreement, Mr. Winder's first performance evaluation was to have been done within 90 days of his August 1999 hiring.

80. During his tenure as General Manager of Transportation, Mr. Winder's contributions to following the Petties Court Order, as well as protecting D.C.'s special needs children, were significant. For example, on September 11, 2001, Mr. Winder mobilized staff and drivers through the Mayor's Command Center when the DCPS communications system failed. All students were safely transported to school or back home after more than a dozen buses were initially stranded in the mass exodus from the city that day.

81. In addition, during the February 2003 blizzard, Mr. Winder manned key radio functions beginning at 230 a.m. each morning to coordinate emergency driving procedures with local police, fire and emergency management crews to ensure all students were safely transported between School and home.

82. To date, Mr. Winder has not been provided with mandatory sick leave pay, has been unable to afford completion of his oral surgery, has been denied vacation, contract and overtime pay, and was denied the return of money he placed in his employee pension plan.

83. The actions of the District of Columbia government and its employees have ruined Mr. Winder's stellar transportation management reputation, and he has been unable to find similar work since his April 2003 termination. In at least one instance, Mr. Winder was informed that he was rejected for another position with the D.C. government because of false and defamatory comments by Defendant Erste.

84. Further, the District of Columbia has denied Mr. Winder unemployment benefits because defendants have falsely claimed that Mr. Winder was a probationary employee at the time of his termination. .

COUNT I: VIOLATION OF THE FIRST AMENDMENT OF THE U.S. CONSTITUTION

85. Plaintiff repeats and incorporates by reference the allegations contained in Paragraphs 1 through 84, above.

86. When Mr. Winder spoke out in favor of complying with the Petties Court Order to defendants, and spoke repeatedly to Special Master Baach and others about the transportation department's failures and inadequacies, Mr. Winder was speaking on matters of public concern. When Mr. Winder spoke to defendants Erste, Khabo and McCullough and Ms. Mazyck about complying with the Federal Court Order, Mr. Winder was speaking on a matter of public concern. Mr. Winder's interest as a citizen in speaking out on such matters of public concern outweigh the interest, if any, of stifling public speech under the, pretense that doing so allegedly promotes the efficiency of the public service. In this case, Mr. Winder spoke out in favor of following a Court Order that was specifically designed to improve the efficiency of transportation services provided to those children with special needs. Mr. Winder's exercise of his First Amendment rights was a substantial or motivating factor in the adverse actions taken against him by the D.C. Public Schools and defendants Erste, Khabo and McCullough. The defendants would not have taken these adverse actions if Mr. Winder had not engaged in activity protected under the First Amendment of the Constitution.

87. As a direct and proximate cause of the defendants' actions, Mr. Winder lost wages and benefits and suffered emotional distress, embarrassment, anxiety, fatigue, mental distress, humiliation, illness and damage to his employment and personal reputation.

88. Individual defendants Erste, Khabo and McCullough acted maliciously, willfully, wantonly and reckless disregard of Mr. Winder's Constitutional rights.

COUNT II: VIOLATION OF THE D.C. WHISTLEBLOWER ACT

89. Plaintiff repeats and incorporates by reference the allegations contained in Paragraphs I through 88, above.

90. When Mr. Winder spoke out in favor of complying with the Petties Court Orders to defendants, and spoke repeatedly to Special Master Baach and others about the transportation department's failures and inadequacies, Mr. Winder was speaking on matters of public interest. When Mr. Winder spoke to defendants Erste, Khabo and McCullough about complying with the Petties Federal Court Order, Mr. Winder was speaking on a matter of public interest. Mr. Winder's interest as a citizen in speaking out on such matters of public concern served the public interest by reporting waste, fraud, abuse of authority, violations of law, threats to public health and threats to public health and safety where special education school children were concerned. The D.C. Whistleblower Reinforcement Act guarantees that a D.C. employee is free to disclose information that is illegal or unethical or that threatens public funds and public health and safety without fear of retaliation. Mr. Winder's exercise of his whistleblower rights was a substantial or motivating factor in the adverse actions taken against him by the D.C. Public Schools and Defendants Erste, Khabo and McCullough. The defendants would not have taken these adverse actions if Mr. Winder had not engaged in activity protected under the D.C. Whistleblower Reinforcement Act.

91. As a direct and proximate cause of the defendants' actions, Mr. Winder lost wages and benefits and suffered emotional distress, embarrassment, anxiety, fatigue, mental distress, humiliation, illness and damage to his employment and personal reputation.

92. Individual defendants Erste, Khabo and McCullough acted maliciously, willfully, wantonly and reckless disregard of Mr. Winder's statutory rights.

COUNT III: VIOLATION OF THE D.C. FAMILY MEDICAL LEAVE ACT

93. Plaintiff repeats and incorporates by reference the allegations contained in Paragraphs l through 92, above.

94. The D.C. Family and Medical Leave Act of 1990, D.C. Code Division V, §§32-503, et seq. allows sixteen weeks of paid sick leave for government employees annually. In April 2003, when Mr. Winder had taken less than two weeks of sick leave to attend to serious dental and medical problems, he was terminated without consultation- When Mr. Winder was terminated while on sick leave, it was due to retaliation by defendants for his actions in complying with the Petties Court Order. The defendants would not have taken these adverse actions if Mr. Winder had not engaged in activity protected under the First Amendment of the U.S. Constitution, and the D.C. Whistleblower Reinforcement Act.

95. As a direct and proximate cause of the defendants' actions, Mr. Winder suffered emotional distress, embarrassment, anxiety, fatigue, mental distress, humiliation, illness, damage to his employment and personal reputation, lost wages, and lost work-related benefits.

COUNT IV: DEFAMATION AND TORTIOUS INTERFERENCE WITH PROSPECTIVE ADVANTAGE

96 Plaintiff repeats and incorporates by reference the allegations contained in Paragraphs 1 through 95, above.

97. Defendant Erste repeatedly and with actual malice made false statements to Mr. Winder's subordinates, co-workers, acquaintances and potential employers that Mr. Winder was at fault for the transportation department's failure and refusal to comply with the Patties Court Orders. Acting with malice, defendant Erste intended and sought to ruin Mr. Winder's reputation among his co-workers and potential employers in order to prevent him from complying with the Patties Orders, and to use him as a scapegoat for defendants' deliberate and reckless mismanagement within the transportation system.

98. Defendant Erste told District of Columbia Deputy Mayor for Operations Herb Tillery that he should not consider Mr. Winder for the position of Director of Parking Operations fur the District of Columbia.

99. As a direct result of defendants' actions, Mr. Winder has been unable to find employment within the government transportation community, and remains under-employed to this day.

100. As a direct and proximate cause of the defendants' actions, Mr. Winder suffered emotional distress, embarrassment, anxiety, fatigue, mental distress, humiliation, illness, damage to his employment and personal reputation, lost wages, and lost work-related benefits.

101. Individual defendant. Erste acted maliciously, willfully, wantonly and reckless disregard of Mr. Winder's rights.

COUNT V: HOSTILE WORK ENVIRONMENT AND VIOLATION OF CIVIL RIGHTS UNDER 42 U.S.C. §1983

102. Plaintiff repeats and incorporates by reference the allegations contained m Paragraphs 1 through 101, above.

103. As a result of defendants' actions, defendants violated Mr. Winder's civil rights, including free speech and created a hostile work environment entitling Mr. Winder to equitable and legal relief, including compensatory and punitive damages.

COUNT VI: TORTIOUS INTERFERENCE WITH PROSPECTIVE ADVANTAGE

104. Plaintiff repeats and incorporates by reference the allegations contained in Paragraphs 1 through 103, above.

105. Because of Defendants' negative comments about Mr. Winder, false claims that Mr. Winder was a probationary employee and damage to Mr. Winder's reputation, prospective employers have failed to offer employment or hire Mr. Winder.

106. These actions by the Defendants have been intentional and willful, calculated to cause damage to Mr. Winder in his career, and committed with the unlawful or improper purpose to cause such damage, without justification resulting in actual damage to Mr- Winder, namely the loss of prospective employment.

COUNT VII: CIVIL CONSPIRACY TO VIOLATE COURT ORDERS AND TO INTERFERE WITH MR. WINDER'S EMPLOYMENT RELATIONS

107. Plaintiff repeats and incorporates by reference the allegations contained in Paragraphs 1 through 106 above.

108. Defendants, by their actions entered into an agreement or understanding to attempt to force Mr. Winder to resign or quit employment with the District of Columbia Public Schools, or to fire him and/or to damage his professional reputation, including by attempting to manufacture false information against Winder or to spread false or malicious information regarding Winder.

109. This actions were done by unlawful or tortious means namely by defaming Mr. Winder and/or by interfering with his prospective employment opportunities and/or any of the previous civil counts above.

110. These actions have resulted in actual loss to Mr. Winder, including his loss of employment with the D.C. Government, lost wages, and his loss of prospective employment

RELIEF REQUESTED

A. Declare the Defendants' policies and practices and actions as described above violate the First Amendment of the Constitution of the United States; the D.C. Whistleblower Reinforcement Act; the federal Family and Medical Leave Act, and the D.C. Family and Medical Leave Act of 1990.

B. Enjoin the. DCPS from engaging in employment practices and procedures that operate to violate Mr. Winder's rights under the First Amendment; the D.C. Whistleblower Reinforcement Act; the federal Family and Medical Leave Act and The D.C. Family and Medical Leave Act of 1990.

C. Order the DCPS to reinstate Mr. Winder to the position of General Manager of the DCPS Department of Transportation;

D. Award Mr. Winder compensatory damages in the amount of $3 million for emotional distress, embarrassment, humiliation, anxiety, mental anguish, and loss of reputation within his work community, for hostile work environment and violation of civil rights under 42 U.S.C. §1983, for interference with prospective advantage and for civil conspiracy;.

F. Award Mr. Winder punitive damages in the amount of $1 Million against the individual defendants for violations of the First Amendment of the Constitution of the United States; the D.C. Whistleblower Reinforcement Act; and for defamation of his character and reputation and tortious interference with his prospective advantage and for civil conspiracy;

G. Award Mr. Winder back pay, lost wages, work-related benefits, medical expenses, and front pay,

H. Award Mr. Winder his costs, expenses, and reasonable attorney's fees; and

1. Grant Mr. Winder such other and further relief as the Court may consider just and proper.

Respectfully submitted,
John F. Karl, Jr. Bar No. 2924
Nancy J. Malir Bar No. 470064
McDonald & Karl
9001 7th Street, N.W. Suite 1250
Washington, D.C. 20006
(202) 293-3200
Counsel for Plaintiff

Brian C. Plitt Bar No. 408746
1239 C Street, S.E. Suite 4
Washington, D.C. 20003
Counsel for Plaintiff

JURY DEMAND

Plaintiff respectfully requests a trial by jury on all issues.

John F. Karl, Jr.

Winder v. Erste, Khabo, McCullough, and DCPS Complaint for Declaratory, Injunctive, and Monetary Relief December 23, 2003