FILED 2nd JUDICIAL DISTRICT COURT Bernalillo County SECOND JUDICIAL DISCTRICT 11/1/2019 3:33 PM COUNTY OF BERNALILLO James A. Noel STATE OF NEW MEXICO CLERK OF THE COURT Catherine Chavez JOHN KOLESSAR Plaintiff, vs. No. CITY OF ALBUQUERQUE d/b/a DEPARTMENT OF MUNICIPAL DEVELOPMENT, MELISSA LOZOYA in her official capacity, and KEITH REED in his official capacity. Defendants. COMPLAINT FOR VIOLATIONS OF THE WHISTLEBLOWER PROTECTION ACT COMES NOW Plaintiff, John Kolessar (Mr. Kolessar” or “Plaintiff”), by and through his counsel of record, Freedman Boyd Hollander Goldberg Urias & Ward, P.A. (Vincent J. Ward, Esq.), and hereby brings forth this Complaint for damages pursuant to the New Mexico Whistleblower Protection Act, As grounds for this Complaint, Plaintiff alleges: Summary of case. 1. This case arises from the wrongful termination of Mr. Kolessar as traffic engineer for the City of Albuquerque in retaliation for repeatedly complaining about the City’s failure to adhere to traffic safety rules and ordinances. Mr. Kolessar served as traffic engineer for nearly ten years. He raised safety or fraud, waste, abuse concems about a myriad of traffic projects, including but not limited to: * The Albuquerque Rapid Transit (ART) project. Mr. Kolessar, as head of the City’s Traffic division, submitted an extensive list of concems regarding the ART project including the dangerous traffic conditions created by improper High-Intensity Activated Crosswalk (HAWK) signal placement, the placement of unwarranted 1traffic signals, dangerous and inconvenient U-turn configurations, elimination of safe and adequate parking, and the detrimental effects on local businesses resulting from the congested and dangerous traffic conditions caused by the ART project, © Unprotected crosswalks, which have contributed to at least two pedestrian deaths, one of which was recently settled by the City; * The City’s maintenance of 137 State owned signalized intersections (the City pays over a million dollars a year to maintain these intersections with no contribution from the State); © The installation of signalized intersections without engineering studies in violation of federal, state, and local laws; © The City’s disregard of a consultant’s recommendation to replace approximately 16 signalized intersections downtown with four way stop signs, and © The City’s failure to abide by federal safety requirements for traffic signs (which has subjected the City to liability for any traffic accidents that were caused by inadequate signage) 2. The City has adopted the Manual on Uniform Traffic Control Devices (“MUTCD”). The MUTCD establishes national standards for traffic control devices, including signage and lighting, to promote road safety 3 As the chief traffic engineer for the City it was Mr. Kolessar’s job to ensure compliance with the MUTCD. On numerous occasions, including in the context of ART, Mr. Kolessar’s supervisors directed him to disregard MUTCD safety requirements, especially related to the placement and use of traffic signals and signs. 4, The City often bypassed the MUTCD for political or budgetary reasons. Politically appointed and influential employees, including Mike Riordan, would make traffic decisionswithout conducting engineering studies or analyzing traffic data, He and others did this to appease City Council members, the Mayor, and other important and influential people, Mr. Kolessar pushed back when Riordan and others disregarded the MUTCD, but over time, Mr. Kolessar was labeled a “problem employee” and a concerted effort was made to remove him. 5. These issues came to a head in January 2017, when the ART project was in its final stage. During this time Mr, Kolessar’s direct supervisor, Ms. Melissa Lozoya, asked division managers for input regarding their concerns. Mr. Kolessar responded by identifying numerous problems in the traffic engineering division, including traffic safety concerns, pay equity for female and minority employees, and wasteful spending on unnecessary and unsafe traffic programs, Ms, Lozoya response to Mr. Kolessar was scathing. She accused him of not being a team player, constantly complaining, and using safety concerns for self-serving reasons 6 Between February 2017 and November 2018 Ms, Lozoya engaged in a series of retaliatory acts ranging from schedule changes to placing a GPS tracker on Mr. Kolessar’s vehicle to drum up minor personnel infractions against him 7. Mr. Kolessar was understandably traumatized by Lozoya and other's retaliatory acts. He therefore sought the help of the City’s alternative dispute resolution program to help resolve his dispute with Ms. Lozoya and others. The process failed, and thereafter the retaliation escalated. 8. In November 2017 Ms. Lozoya terminated Mr. Kolessar for using his work vehicle for personal errands and other minor personnel infractions. The discipline was disproportionate, untimely, and pretextual. Ms. Lozoya should have been recused from the termination decision because of the obvious animosity she had for Mr. Kolessor. 9. In short, the termination was pretextual and taken in retaliation for Mr. Kolessar’s complaints about the City’s disregard for traffic safety and other matters of public concern,Jurisdiction and Venue 10. Jurisdiction and venue are proper pursuant to NMSA 1978, § 38-3-1(A). 11. Allof the event ing rise to this complaint occurred in the State of New Mexico 12. Venue i proper in this district because the Defendant employer is a political subdivision of the State of New Mexico that does business throughout Bernalillo County, New Mexico. Parties 13. Plaintiff John Kolessar is a resident of Sandoval County, New Mexico. 14, Defendant City of Albuquerque d/b/a Department of Municipal Development (°City” or “DMD”) is a political subdivision and a “public employer” within the meaning of the New Mexico Whistleblower Protection Act (WPA), NMSA 1978, § 10-16C-2(C), 15, Defendant Melissa Lozoya is employed by the City of Albuquerque. At all relevant times for this complaint, Lozoya was the acting director of DMD and is now a deputy director of DMD. 16. Defendant Keith is employed by the City of Albuquerque. At all relevant times for this complaint, Reed was an acting deputy director of DMD and is now an engineering project manager with the City Factual Allegations 17, The Manual on Uniform Traffic Control Devices (“MUTCD”) establishes national standards for traffic control devices, including signage and lighting. The MUTCD’s standards represent the best practices for developing safe and efficient traffic control systems. The MUTCD is incorporated into the Code of Federal Regulations at 23 C.F.R. § 655.601 and into New Mexico law at NMSA 1978, § 66-7-10118. The MUTCD requires that non-compliant traffic control devices “shall be brought ion of the National MUTC into compliance with the current e pursuant to the Highway Safety Program, 23 U.S.C. § 402(a).” MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES FOR STREETS AND HIGHWAYS, 2009 EDITION, at I-3 (2009). 19. State and local governments are expected to comply with the MUTCD and other federal standards, even when they have not formally adopted these standards, in order to be eligible to accept federal funds for transportation projects. 20. The City has adopted the MUTCD’s standards for traffic control devices. See Albuquerque, N.M., Code of Ordinances § 8-1-2-5 (2016) 21. For the duration of Mr. Kolessar’s employment, the City failed to abide by the MUTCD’s requirements. 22, The City has continued to fail to meet the MUTCD’s compliance standards since its formal adoption. 23. John Kolessar is a licensed professional engineer with over forty (40) years of experience working in municipal and private engineering settings, 24. Mr. Kolessar has a professional ethical obligation to design and implement safe and functional traffic control systems; further, Mr. Kolessar has a professional responsibility to notify other engineers and officials when he encounters dangerous or potentially harmful or illegal engineering circumstances. 25. Mr. Kolessar has maintained exceptional work performance in a variety of challenging managerial p itions. Until the circumstances giving rise to this complaint, Mr. Kolessar had never had a complaint or negative performance evaluation, 26. In July 2008, the City hired Mr. Kolessar as the division manager of construction services of DMD. Until his termination he held a variety of management level positions related totraffic operations, including in 2009 serving for eleven (11) months as the Acting Deputy Director of DMD before returning to his position as head traffic control engineer. 27. Atall times relevant to this complaint, Mr. Kolessar reported to Melissa Lozoya and Keith Reed. 28. As the City’s traffic engineer, Mr. Kolessar was responsible for managing a busy division tasked with maintaining traffic control devices throughout Albuquerque. Mr. Kolessar also made hiring decisions within his division and made recommendations for compensation and recruitment strategies. 29. ‘Throughout his tenure with the City, Mr. Kolessar made concerted efforts to bring the City’s traffic control devices into compliance with the MUTCD and other federal standards in order to ensure safer road conditions. 30. Mr. Kolessar brought the City’s noncompliance with the MUTCD to the attention of his superiors, including Lozoya and Reed, on numerous occasions. 31. Mr. Kolessar repeatedly received pushback from the City regarding his efforts to implement the MUTCD standards. 32. In 2014, the City installed a High-Intensity Activated Crosswalk (“HAWK”) on Lomas Boulevard. Mr. Kolessar notified Lozoya, Reed, and other City officials that the HAWK signal was not properly installed per MUTCD guidelines and had not been properly explained to the public. Mr. Kolessar repeatedly informed his superiors and others that the HAWK signal created dangerous traffic conditions and was likely to lead to accidents or injuries 33. In 2016, Mr. Kolessar’s relationship with his superiors began to deteriorate as he continually attempted to inform Lozoya, Reed, and other City officials that noncompliance with the MUTCD was creating unsafe conditions.34, That same year, the City began construction on the ART project, a massive transit project along Central Avenue that would require significant numbers of traffic control devices, including HAWK signals. 35. As part of the ART project, various agencies were asked for comments regarding the implementation of bus lanes and stations, signaled intersections, road design, and the use of HAWK signals. 36. Mr. Kolessar, as head of the City’s Traffic division, submitted an extensive list of concerns regarding the ART project including the dangerous traffic conditions created by improper HAWK signal placement, the placement of unwarranted traffic signals, dangerous and inconvenient U-turn configurations, elimination of safe and adequate parking, and the detrimental effects on local businesses resulting from the congested and dangerous traffic conditions caused by the ART project 37. Mr. Kolessar documented his concerns in official comments and memos to the City’s planning department. 38. Mr Kolessar continued to raise concerns about the safety conditions created by the HAWK signals and other i properly planned traffic systems along the Central Avenue as ART construction progressed. Despite his best efforts, the City failed to address Mr. Kolessar’s concems, 39. Mr. Kolessar also raised concerns about hiring and personnel retention practices in the DMD and for “hard to recruit” positions, such as engineers, Specifically, Mr. Kolessar raised concems that Amanda Herrera (“Ms. Herrera”), a traffic engineer, was not receiving adequate or equitable compensation with other similarly situated City employees. Mr. Kolessar brought this to Lozoya and Reed’ attention, noting that the City had a policy requiring diversity in its hiring and retention practices, and that Ms. Herrera’s unequal pay appeared to be discriminatory40. Lozoya and Reed failed to resolve Ms. Herrera’s pay equity issues prior to Mr. Kolessar’s termination. 41. In September 2016, Mr. Kolessar attended a meeting with Reed in which Reed provided false information regarding traffic sign replacement to high-ranking City officials, including the City’s Chief Administrative Officer. Mr. Kolessar told Reed after the meeting that he had lied to his superiors. 42. Lozoya and Reed began to retaliate against Mr. Kolessar for voicing his complaints in October 2016, — On October 4, 2016, Mr. Kolessar received a Letter of Instruction—a written reprimand—stating that he had failed to properly address his concems regarding Reed’s false statements despite Mr. Kolessar’s efforts to inform Reed that he had lied to his superiors 44. On January 6, 2017, Lozoya sent an email to Mr. Kolessar requesting information on areas of concem within the traffic department. Lozoya asked Mr. Kolessar to provide “information in the following areas that are of concern to you when it comes to your division’s operations: Hiring and Vacancies, Personnel or HR related issues, Purchasing, Projects (budgets, schedule, need), Media related issues, programs.” 45. On January 18, 2017, Mr. Kolessar replied with a detailed email laying out the staffing, purchasing, media, project, and employment issues his department faced. 46. Regarding staffing issues, Mr. Kolessar informed Lozoya that the traffic division ‘was “running three crews short” and that “[the traffic signals teams] need more level 3 technicians to do preventative maintenance required by manufacturers and industry best practices.” (emphasis added) 47. Mr Kolessar explained to Lozoya that, “Contract expirations need to be anticipated earlier... often they are late and we have gaps without coverage.”48. Mr. Kolessar also voiced his concerns that Herrera and several other minority employees in hard-to-recruit positions would leave City employment if Lozoya and Reed did not resolve their lack of pay equity 49. Most importantly, Mr. Kolessar informed Lozoya of possibly unsafe and noncompliant program directives, stating, should not be operating and maintaining NMDOT signals and streetlights regardless of funding, if only due to liability.” (emphasis added). Mr. Kolessar also informed Lozoya that unwarranted signalized and multi-way stop intersections should be eliminated and that the Mandatory Sign Replacement Program and striping and marking program should be given higher priority so as to “save the COA dollars on costs related to IPRA and liability costs... [and] also reduce accidents, personal injury, and property damage... [and] help put us in compliance with our ordinances [and] federal regulations.” (emphasis added), 50. On February 9, 2017, Lozoya abruptly changed Mr. Kolessar’s work schedule from 7-00 am to 3:30 pm daily to 8:00 am to 5:00 pm daily, with no reason given for the change. 51. On February 14, 2017, five days after changing Mr. Kolessar’s work schedule, Lozoya responded to Mr. Kolessar’s January 18 email, as follows: “It is quizzical that you do not seem to understand your role in the organization as the Division Manager for Traffic Engineering,” Her tone grew more hostile throughout the response. She dismissed Mr. Kolessar’s concerns about minority employees’ lack of pay equity as “time consuming” and “constrained by the budget.” Lozoya scomed Mr. Kolessar’s valid safety and compliance concems, stating, “You have a habit of citing reduction in accidents, personal injury, property damage liability or increases in traffic flow to support your self-serving generalizations.” She accused Mr. Kolesar of merely complaining about legitimate safety and compliance issues while simultaneously acknowledging that Mr. Kolessar’s division lacked sufficient staff and resources, Finally, Lozoya stated, “Please work to provide a management plan for your division to address these issues you have raisedregarding limited staff and limited resources, instead of endlessly complaining about your limitations.” 52. Lozoya’s disparaging comments undermined Mr. Kolessar’s ability to safely implement traffic control solutions while also demonstrating that Lozoya was aware of the significant challenges faced by Mr. Kolessar and his subordinates. 53. Mr. Kolessar attempted to mitigate the hostility developing with his superiors by repeatedly requesting third-party mediation, a workplace conflict took advertised and promoted by the City, with Lozoya and Reed in order to resolve ongoing misunderstandings, 54. Mr. Kolessar’s mitigation attempts yielded two mediation sessions in April and May 2017, 55. Two mediators presided over the April mediation session. They took notes and documented the session as it progressed, They did not allow Mr. Kolessar to take notes 56. Several of Mr. Kolessar’s staff members accompanied him to the April mediation in order to support him and substantiate his statements. 57. Inresponse, Lozoya and Reed were accompanied by Greg Smith, an attorney who worked as a high-ranking City official. Throughout the April mediation, Mr. Kolessar attempted to resolve his disagreements with Lozoya and Reed. Lozoya refused to answer his concems, instead remaining silent for the majority of the mediation session. Reed was defensive, combative, and unwilling to resolve his unfounded personal issues with Mr. Kolessar. 58. _ The April mediation yielded no substantive results, causing Mr. Kolessar to request, another mediation session 59, The second mediation session occurred in May. Mr. Kolessar’s staff members did not accompany him to the May mediation because they feared retaliation from Ms. Lozoya and Mr. Reed. 1060. The May mediation proceeded similarly to the April session. Mr. Kolessar again attempted to reconcile with Lozoya and Reed. He was met with silence from Lozoya and outright hostility from Reed 61. The May mediation resulted in an agreement that Mr. Kolessar, Lozoya, and Reed would send any written communications with each other to a mediator for review. This would allow an impartial third-party to ensure that communications returned to a professional, courteous tone. 62. Mr. Kolessar adhered to this agreement, sending his emails to Lozoya and Reed to the mediator for review. Lozoya and Reed refused to honor the agreement and withdrew from the mediation proceedings, 63. Mr. Kolessar tried on multiple occasions to utilize mediation to repair his relationship with Lozoya, Reed, and other superiors, even though he was not the source of the professional hostility. Despite Mr. Kolessar’s best efforts and adherence to mediation procedures, Lozoya and Reed were unwilling to resolve the hostilities that they were largely responsible for creating. Those hostilities ultimately developed into retaliatory conduct. 64. On a day soon after the mediation session, Lozoya called Mr. Kolessar and instructed him, with no notice, to immediately take his City vehicle to maintenance to get painted and logos and numbers installed. Mr, Kolessar was given no warning and was forced to interrupt struction. his workday to comply with Lozoya’. 65. On May 18, 2017, one of Mr. Kolessar’s subordinates wrecked a city vehicle after drinking alcohol. Mr. Kolessar sought guidance for handling the situation from Lozoya and Reed; they did not respond to Mr. Kolessar’s requests. Mr. Kolessar used his discretionary authority to manage the initial stages of the incident, removing the employee from active duty. The employee involved in the crash resigned a short time later, prior to formal disciplinary proceedings u66. Lozoya and Reed escalated their retaliation against Mr. Kolessar. On June 6, 2017, a private investigation firm hired by the City placed a Global Positioning System (“GPS”) tracking device on Mr, Kolessar’s official vehicle. 67. GPS tracking investigations are extreme investigative measures that form a concerted invasion of an employee's privacy. Such investigations are almost always reserved in cases of suspected felony-level criminal conduct involving City vehicles. 68. The City commissioned the GPS tracking investigation of Mr. Kolessar based on allegations that Mr. Kolessar was not conforming to his involuntaril assigned work hours and may have been using his City vehicle for minor personal errands, 69. Investigators removed the GPS tracker on July 5, 2017; the investigation revealed a small number of minor detours taken by Mr. Kolessar’s vehicle during business hours but no serious misconduct 70. The City did not inform Mr. Kolessar he had been tracked until July 18, 2017. TL ‘On June 15, 2017, Lozoya informed Mr. Kolessar that on June 28, 2017 he would be required to participate in a Pre-Determination Hearing—a formal disciplinary proceeding. regarding his management of the May 18 employee-involved crash. 72. Mr. Kolessar attended the Pre-Determination Hearing on June 28. The City took no action until October 24, 2017, when Lozoya issued a Letter of Reprimand to Mr. Kolessar. Mr. Kolessar appealed the Letter and prevailed. The City formally withdrew the reprimand. 73. Lozoya and Reed continued to escalate their retaliation against Mr. Kolessar’s consistent reporting of dangerous and discriminatory practices. On October 6, 2017, Mr. Kolessar received a notice of a Pre-Determination Hearing, The City had again retained a private investigator at great expense to examine the veracity Mr. Kolessar’s statements at the June 28 hearing74, Mr. Kolessar’s second Pre-Determination Hearing occurred on October 13, 2017 The City spuriously accused Mr. Kolessar of making false statements during his June 28 hearing Mr, Kolessar vigorously contested these allegations and presented evidence that cast substantial doubt on the City’s theory 75. Despite the exonerating evidence Mr. Kolessar provided, Lozoya issued a Notice of Final Action on November 9, 2017 subjecting Mr. Kolessar to a five (5) day working suspension for supposedly violating City personnel rules in June 2018. 76, The City, Lozoya, and Reed began their final act of retaliation on October 23, 2017. They sent Mr. Kolessar another Notice of Pre-Determination Hearing, this time regarding the improper and invasive GPS tracking investigation. 77. ‘The third and final Pre-Determination Hearing occurred on November 8, 2017. Mr. Kolessar vigorously contested the results of the GPS investigation and the allegations that he had misused his City vehicle and failed to follow his involuntary working hours. Mr. Kolessar also provided a detailed written response refuting the allegations. 78. On November 16, 2017, Lozoya issued a Notice of Final Action terminating Mr. Kolessar’s employment with the City of Albuquerque after nine (9) years of exemplary and conscientious service. 79. Mr. Kolessar had drawn the ire of his superiors by consistently forming them in writing of the City’s noncompliance with federal safety guidelines, dangerous traffic control systems, and discriminatory employment practices. In the face of retaliation Mr, Kolessar sought the protection of the City’s Alternative Dispute Resolution program, but Lozoya and Reed did not participate in good faith. Instead, Lozoya and Reed responded by improperly stacking disciplinary proceedings over a single year in order to terminate Mr. Kolessar’s employment with the City, 13which has caused substantial financial harm to him and irreparably damaged his career as a professional engineer. COUNT, VIOLATION OF THE NEW MEXICO WHISTLEBLOWER PROTECTION ACT (Defendant City and In efendants in their Offi 80. Plaintiff incorporates by reference the preceding paragraphs as though fully stated herein. 81. Defendant City, Defendant Lozoya, and Defendant Reed all qualify as “public employers” under NMSA 1978, § 10-16C-2(C). Plaintiff qualifies as a “public employee” under NMSA 1978, § 10-16C-2(B) 83. Plaintiff believed in good faith that the acts committed by the Defendants as described above were improper and unlawful 84. Plaintiff"s consistent reporting of these unlawful and improper acts was protected by the Whistleblower Protection Act, NMSA 1978, § 10-16C-3(A). 85. Defendants unlawfully retaliated against Plaintiff for reporting these unlawful and improper acts in violation of § 10-16C-3(A) by engaging in a systematic, improper, and malicious escalation of progressive discipline resulting in the termination of the Plaintiff's employment wit the City of Albuquerque. 86. Defendants’ retaliatory acts were motivated by Plaintiff's _ protected, whistleblowing activity. 87, Plaintiff is entitled to relief from the Defendants’ conduct under NMSA 1978, § 10- 16C-4. 4Prayer for Relief WHEREFORE, Plaintiff requests judgment on all counts against defendants as follows: A B H. For compensatory damages; For double back pay including benefits Plaintiff would have received; Reinstatement with the same seniority status as Plaintiff would have had; Retirement, For attorney's fees, costs, and actual damages, Pre- and post-judgment interest; Punitive damages; and Any and all other relief the Court deems just and proper. Respectfully Submitted, FREEDMAN BOYD HOLLANDER GOLDBERG URIAS & WARD, P.A. s/ Vincent J. Ward Vincent J. Ward? H. Jesse Jacobus 20 First Plaza, Suite 700 Albuquerque, NM 87102 P:(505) 842-9960/F:(505) 842-0761 hii@[Link]