2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 1 of 37 Pg ID 143

STEVE SHAYA'
Case No. 2tl4-CY -llll2-DML-DMG
Plaintiff, Hon. David Lawson
Magistrate Judge David R Grand
vs.

DAVID BELCASTRO, ADAM TARDIF'

lxuv rvrnnsKl, MAX GARBARINO'
iiirx iuntlrE, KYLE TERTZAG' and
irru crrv oF HAMTRAMCK'
Defendants.

ffi.sAMAAN'P'c' @RroN'P'c
CLARK E5II5!1.^-^,
JOHN C.
Srr,evr F. sAMAAI{ catl9?l^. ililiavrs nnmnt,lcK (P73oso)
il]mrCnanr, roRor (P44470)
Attorneys for Plaintiff .,oo,
iJi"#:i'JT.T::'iil'io*
150 Nofih Main Street TroY, MI 48084
Plvmouth, MI 48170-1236 (248) 457-7000

ffi.,
(734) 4s9-4040 ictarKDguqblaw'com

M' Michael Koroi' and complains

Steve Shaya' by his attomey'
Now comes the Plaintiff

as follows:
to this Honorable Court
State of Michigan'
the County of Wayne'
1. Plaintiff is a resident of
State of
is a resident of the County of Macomb'
z. Defendant David Belcastro
whose
agent and president of Bell lnvestigations' Inc"
Michigan; he is a resident
specialities
11367 Warren Blvd''
Warren' MI and whose
registered office is at

investigations"
include "undercover/covert
he is cunently
Tardif is a resident ofthe' State of Michigan;
Defendant Adam
Department'
of the Hamtramck Police
employed as a sergeant
 2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 2 of 37 Pg ID 144

4. Defendant Andy Mileski is a resident of the County of Wayne, State of Michigan;

he is currently employed as a sergeant of the Hamtramck Police Department'

5. Defendant Erik Tungate is a resident of the State of Michigan'

6. Max Garbarino is a resident of the County of Macomb, State of Michigan; he is

been
cunently employed as a Chief of Police of the City of Hamtramck and has

so at all relevant times herein.

the City of
7. Kyle Tertzag, all relevant times herein, was the city manager of

in July of 2013'
Hamtramck; his employment with the city was terminated

organized and existing under

The City of Hamtramck is a municipal corporation'

offrce located at 3401

the laws of the State of Michigan, with its principal

Evaline.

and the current Director ofthe

9. Plaintiff is a registered builder and civil engineer
('DPS")'
City of Hamtramck Department of Public Services

10. Plaintiff was hired as DPS Director on February 29'2012' signing an

Plaintiff prior to this had signed a 10-

"Employment Agreement" (see Exhibit A);
(Exhibit B) and became "Interim
week "Independent Contractor Agreement"

extended until execution of the

Director of Public Services", which had been

Employment Agreement.

was an "employee" up until February

11. Under the "economic reality test" Plaintiff

of the City Manager' paid bi-

28,2012his duties were under the supervision
are' had the power to control fire'
weekly as other City of Hamtramck employees
and Plaintiff performed duties as an
and/or discipline city subordinate employees
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 3 of 37 Pg ID 145

integral part of the DPS as well as the City of Hamtramck and otherwise within

the ambit of the meaning of "common objective."

12. The Hamtramck Code of Ordinances, Ethics Chapter (Chapter 39) sets forth:

(A) It is the policy of the city to uphold, promote and demand the highest
.t-d*dt of ethics from all of its employee and officials, whether elected,
appointed or hired. city officers and employees (public_servants) shall maintain
the highest standards of personal integrity, truthfulness, honesty and faimess in
out their public duties; avoid any improprieties in their roles as public
servLti including th" upp"u'*"" of impropriety; and never use their city position
"urryi-ng
or powers for improper personal gain.

(B) It is further the intent of this chapter that a publlc ser.vgt, regardless of
ihether specifically prohibited by this chapter, shall avoid any action' which
might result or create the appearance of:

(1) Using public office or employment for private gain personal or

monetary;

(2) Giving improper preferential treatment to any person or organization;

(3) Impeding govemment efficiency or economy;

(4) A lack of independence or impartiality of action;

(5) Making a govemment decision outside of offrcial channels; or

(6) Affecting adversely the confidence of the public in the integrity of the
citY
Section 39.002

13. Section3g'005specifiesproscribedconductofsaidEthicsChapterandsetsforth

in relevant part:

(A) General prohibition against conllict of.intere.st' In order to

avoid
improprilty, o, * upp-.*un.. of conflict of interest' no cunent public
seen as conflicting
servant should be involved in any activity that might be
withtheconductofofficialcitybusinessoradversetotheintefestsofthe
city. Even the appearance of the following prohibited conduct alone may
be sufficient to constitute a violation ofthis ethics chapter'
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 4 of 37 Pg ID 146

(D) Beneficial interest in business transaction or participation in a contract.

No public servant shall participate or benefit from (monetarily or
personally) in his or her capacity as a public servant in the making ofa
confiact in which he or she has financial interest, direct or indirect, or
perform in regard to a contract some function which requires the exercise
of discretion on behalf of the city. No public servant shall participate in
contracts...... involving a business in which he or she has a substantial
interest......

(E) Engaging in certdin privdte employment. No city employee or public

servant shall engage in or accept private employment or render services
for, any private interest when the employment or service is incompatible
with the property discharge of official duties or would tend to impair
independence or judgnent or action in the performance of official duties'

(G) Improper use of position. No public servant shall knowingly use his or her
offrce-or position to secure personal benefit, gain or profit, or use his or . -
herpositiontosecurespecialprivilegesorexceptionsforhimself,herself,
or for the benefit, gains or profits of any other persons"""

t4. The Ethics chapter at Section 39.006 establishes regulations and procedures

regarding matters regarding disclosure of actual and potential conflicts of interest

between the private self-interests and the public self-interest ofpublic servants,

including the following:

(A) Self-interest No public servant, either on his behalf or on behalf of any other
person, shall ha',re any interest in any business transaction-with any public body of
it city, unless the pirson shall first make full public disclosure of the nature of
the" interest.

(C) Dual emptoymenl. No public servant shall engage in employment with, or

iender services fof, any person or entity, which has business transactions with any
public body of the city, without first making full public disclosure of the nature
and extent ofthe employment or services.
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 5 of 37 Pg ID 147

(D) Dual representation. A public servant shall make full public disclosure of
business involving the city when attempting to use his or her offrcial position to
secure special privilege or exemptions for selfor others.

15. Section 39.007 regulates modes ofpublic disclosure and the contents thereof

under the Ethics Chapter of the City of Hamtramck and provides, in relevant part

as follows:

Whenever a public disclosure is required by this chapter, it may be made orally on

the record at a meeting of the public body involved, or in a writing filed with the
Clerk, in both of which cases it shall be made part of the record of a regular City
Council meeting, and, in either event shall include:

(A) the identity ofall persons involved in the interest; and

(B) the source and amount of income derived from the interest that may be
considered as resulting from employment, investment or gift. The person
required to file a disclosure statement in accordance with the provisions of
this chapter must verifu, in writing, under penalty of perjury.

16. The Ethics chapter also imposes duties of fair and equal treatment, including:

No public servant shall request, use or permit the use ofany consideration,
treatrnent, advantage, or favor beyond which it was the general practice to
grant or make available to the public at large. All public servants shall
treat all citizens of the city with courtesy, impartiality, faimess and
equality under the law......'
Section 39.004

17 . Plaintiff around December of 201 I began complaining to Bill Cooper, then

Hamtramck City Manager, and Cathy Gordon, then a member of Hamtramck City

Council, that Kevin Szuminski, Police Reserve Chief, Adam Tardif, then a police

sergeant in the Hamtramck Police Department, was were both violating local

ethical laws, cited above, by undertaking simultaneous employment with Campau

Botsford Service, Inc. ("CBSI") who at the time was repairing police vehicles,

and that Tardif was repairing, installing lights, sirens, decals and other
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 6 of 37 Pg ID 148

modifications ofpolice vehicles; CBSI has its registered office at 12045 Joseph

Campav, Hamtramck and its resident agent is Stephen W. Salata.

18. Plaintiff also complained to then-Councilperson Cathy Gordon and then-City

manager Bill Cooper that Tardif was advocating to the then-Police Chief Marek

Kolinowski to allow his employer Compav Botsford to tow police-seized vehicles

and also complained that Tardif was towing police-seized cars on behalf of CBSI

without City Council approval; this of conduct of Tardif also violated the relevant

Ethics Chapter sections cited above.

19. Defendant Tardif was using his influence in the Hamtramck Police Department to

direct business to CBSI and Tardif was personally benefitting from this

arrangement via his employment relationship with CBSI.

20. That because ofthese complaints, a city investigation was launched into this dual

employment issue, Tardif and Szuminski, were forced to direct letters that were

forwarded to Hamtramck City Council disclosing their aforesaid additional

employment; this disclosure is reflected in the Agenda ofthe January 24' 2012

City Council meeting and the ongoing minutes of that meeting.

21. That as a result of that investigation, Hamtramck City Manager Bill Cooper also

announced that the dual employment of these oflicers needed to stop'

22. After Plaintiff signed his February 29,2012 employment agreement referenced

above, he continued to disclose further con{lict of interest issues to cathy Gordon

and Bill Cooper including that Tardif was operating a towing business under an

unregistered assumed name "DEA Towing" or "Detroit Electric Automotive Co'"

in violation of the Ethics Chapter of the Hamramck City Code and that
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 7 of 37 Pg ID 149

specifically, DEA Towing was billing the City of Hamtramck Police Dept drug

forfeiture fund for towing services paid or to be paid with the knowledge and

acquiescence ofa friend of Tardif, Sgt. Wally Tripp, who was serving as an

evidence offrcer; CBSI may have also been used by Tardif in conducting such

unauthorized towing services billed to said forfeiture fund.

z). Said operation of "DEA Towing" also conflicted with the Hamtramck City Code

to the extent that B&T Towing was given the exclusive towing or contract by

Hamtramck City Council and DEA Towing or CBSI had absolutely no proper

authorization to conduct any towing activities on behalf of the City of

Hamtramck; this violated the spirit and the letter ofthe General Purchasing

Policies ordinance set forth at Section 37.032.

As a result of the complaints of Plaintiff regarding DEA Towing, the City of

Hamtramck took remedial measures to ensue that DEA Towing or Tardif would

not conduct any further unauthorized towing operations on behalf of the City of

Hamtramck.

25. That Tardif had been assigned to as one oftwo representatives ofthe Hamtramck

Police Department to work with the Drug Enforcement Administration.

26- During a major DEA investigation tlat resulted in raids against suspected drug

trafficking targets, Tardif used his connection with Sg1. Tripp to seize a large

number of vehicles of suspects and arrestees, Tardifs "DEA Towing" ended up

towing the vehicles and the Hamtramck Police Depaxtment's drug forfeiture firnd

was billed approximately $1,200.00; this amount was reportedly authorized to be

paid by Chief Marck Kolinowski; and was, in fact, grossly inllated over what the
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 8 of 37 Pg ID 150

City of Hamtramck would have ordinarily paid if B & T Towing, its properly-

authorized and contracted for towing service provider had been called to perform

such towing functions.

27. Plaintiff is a United States citizen of Iraqi national origin and an adherent ofthe

Chaldean-rite (Iraqi Catholic) religion; he speaks fluent Arabic and often

communicates with Hamtramck citizens in that language; at all relevant times

herein he has been the only non-white or minority departrnent head in the City of

Hamtramck.

28. Hamtramck City Manager Kyle T eftz g erlgaged in habitually demeaning and

verbally abusive behavior after replacing Acting City Manager Erik Tungate,

making derogatory references to his ethnic/religious persuasion, including

labeling him "Chaldean prince", and initiating fraudulent disciplinary proceedings

against Plaintiff.

29. Erik Tungate, Acting City Manager had likewise engaged in habitually

demeaning and verbally abusive behavior, making derogatory reference to his

ethnic/religious persuasion; Tungate placed a fraudulent and frivolous reprimand

in Plaintiff s persorurel file, which was removed after legal counsel for Plaintiff

protested (see Exhibit C); Tungate retaliated for Plaintiffs advocacy ofArab-

American residents he felt were receiving discriminatory treatment in the

rendition of municipal services.

30. As ofJuly l, 2013, Defendant City of Harntramck became under the control ofan

"emergency manager" pursuant to Public Act 436 ofthe 2012 Local Financial
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 9 of 37 Pg ID 151

Stability and Choice Act, after Govemor Snyder declared a "financial emergency"

in that municipality under MCL 141, 1546(1X6) of said enactment.

31 . Governor Snyder appointed Cathy Square as emergency manager under MCL

141.1549; she remains in power to date.

32. PublicActNo. 436of 2012, Sect.9 (MCL 141.1549)provides:

"Upon appointment, an emergency manager shall act for and in the place and
stead of the goveming body and the offrce of chief administrative offrce oflocal
government. The emergency manager shall have broad powers in receivership to
rectify the financial emergency and to assure the fiscal accountability of the local
govemment and the local govemment's capacity to provide or cause to be
provided necessary governmental services essential to the public health, safety,
and welfare. Following appointment of an emergency manager and during the
pendency ofreceivership, the goveming body and the chief administrative officer
of the local govemment shall not exercise any of the powers of those offices
except as may be specifically authorized in writing by the emergency manager or
as otherwise provided by this act and are subject to any conditions required by the
emergency manager,"

33. Shortly after Cathy Square assumed her gubematorial-appointed position as

emergency manager, she witnessed City Manager Tertzag berate Plaintiff and

after weeks thereafter terminated Tertzag's employment with the City of

Hamtramck.

34. On October 26,2013, Plaintiff was backing up his city issued sport utility vehicle

at his residence on Pulaski Street in Hamtramck when he noticed he had driven

over broken fragments of one of the tail lights of the champagne-colored 2008

Chevrolet Blazer vehicle provided him by the City of Hamtramck.

35. Said Chevrolet Blazer displays license plate 092X447 and has done so at all

relevant times herein.

2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 10 of 37 Pg ID 152

36. Hamtramck Mayor Karen Majewski, a neighbor on Pulaski St., witnessed

Plaintiff s broken tail light and requested it be investigated by the Hamtramck

Police Dept.

)t. Plaintiff promptly reported the broken tail light to the emergency manager Kathy

Square and paid approximately $22.00 to replace it with a new tail light.

38. That Sergeant Tardif, without prior waming, barged into Plaintiff s city

department premises and rudely and loudly accused him of damaging city

property without reporting it (implying a duty to do so); this confrontation was

done by Tardif in front of members of the public as well as staff employees

Plaintiff supervised.

39. That the Michigan Motor Vehicle Code at MCL 257.622 only imposes a

duty upon a driver involved in an accident to make a police report when (A) a

person is killed or injured; or (B) when property damage is apparently $1,000.00

or more; Tardif was, or should have been, well aware of this being an experienced

criminal investigator.

40. Said conduct by Tardif at Paragraph Thirty-Eight was grossly unprofessional'

discourteous, exhibited unacceptable bias, suggested discriminatory treatment and

was blatantly unfair, resulting not only in Tardifviolating Sections 39.002 and

39.004 of the Ethics Chapter of the Hamtramck City Code, but also Article I,

Section XVII of the Constitution of the State of Michigan of 1963, other cited

constitutional provisions, and common-law proscriptions against invasion of

privacy and slander cognizable in this state.

2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 11 of 37 Pg ID 153

41. That Plaintiff notified Emergency Manager Cathy Square ofthis recent behavior

of Tardif and she assured him she would address it; Square proceeded to notiff

Chiefof Police Garbarino to cause this investigation to cease.

42. On November 15,2013, Plaintiff left city offices shortly after noon to have lunch

at his home on Pulaski Street and, after completing his lunch, retumed to

municipal oftices after 1:00 p.m.; his departure and retum trip in a city vehicle

were uneventful.

43. Plaintiff operated the city-issued 2008 Chevrolet Blazer to drive home for lunch

and retum; said Blazer was issued to Plaintiff with existing front bumper damage

which had been documented prior to Plaintiff being assigned the vehicle'

44. At approximately l2:36 p.m., David Belcastro, a retired former narcotics unit

Detroit police officer, and current owner-operator of Bell Investigations, Inc.

private detective agency, telephoned the 91 1 emergency line regarding all

purported hirand-run accident alleged implicating the 2008 Chewolet Blazer; this

dialogue ensued between Belcastro and Andrew Robinson, a civilian dispatcher

employee of the Hamtramck Police Department:

Dispatch: Hamhamck 91 1... what's your emergency?

Victim: My name is Dave Belcastro and I am a retired police officer from Detroit, I was
rear ended on Conant, south of Caniff, and the vehicle took offon me, and I think I got
the vehicle and following it westbound on Caniff... just west of Campu currently'

Dispatch: Did this just happen?

Victim: Yeah just happened a short time ago and I pulled offon side street and the guy
continued on, so I
came up on the Avenue.
Dispatch: Ok
Victim: I think, I think this is the vehicle... aah wow
Dispatch: Yes, No, Maybe.
Victim: I think its 092 X Ray 447, I might be wrong on the vehicle'.. because I lost its,
Trail Blazer, municipal vehicle... that might not be the one. I would only know if I saw
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 12 of 37 Pg ID 154

the front end. Like I said I got rear ended... I pulled over on Caniff/Sobieski..., I'm not
sure, no it wasn't Sobieski, it was south of Caniff... an1'rvay and I am currently on
Brombactr,/Evaline going South on Brombach... that might not be the vehicle? Like I said,
I had to check back up to it... but I got rear ended on my personal vehicle.

Dispatch: Where are you at now so I can have officers meet you there.
Victim: Ahh, I'm just passing Norwalk coming up on Poland & Brombach.

Dispatch: Ok, do you want them to meet you out there or you want to come to the station.
Victim: Yeah whatever is easier for you guys?
Dispatch: Probably easier il you come in sir.
Victim: OK.
Dispatch: Will let the boss know...
Victim: Ahh, I'm, like I said I couldn't give you an idea of the face... it appeared to be a
black male, and I don't know ifthis is the vehicle.. I can't see front end?
Dispatch: So this is not the Trail Blazer?
Victim: That's not probably not the vehicle.
Victim: Its probably not, like I said I had to tum around and catch up to it, the guy was
squirting ahead on me... anyways you guys are on Evaline aren't you?
Dispatch: 3401 Evaline, just past Gallagher.
victim: oK, I will head into the station then... Thank you, sir. we'll see you in a minute'

45. That at the time the 911 call from Belcastro was being received by Mr. Robinson,

Defendant Tardif was serving as the Hamtramck P'D' watch commander; Tardif

franticallyattemptedtogaincontroloftheincomingcallfromBelcastro.

46. Defendant Tardif, later on Novemb er 15,2013, proceeded to enter onto Plaintiffs

workpremisesastheCityofHamtramckandbegan,infullviewandearshotof

both members of the public and Plaintiffs staff subordinates, began discourteous

and hostile interrogation regarding PlaintifFs possible involvement in a

purported

hit-and-run accident; Plaintiff denied any such involvement to Tardif'

47. Said conduct by Tardif at Paragraph Forty-Six was grossly unprofessional,

discourteous, exhibited unacceptable bias, suggested discriminatory treatment and

was blatantly unfair, resulting not only in Tardif violating Section 39.007 and

39.004 of the Ethics Chapter of the Hamtramck City Code, but also Article I,
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 13 of 37 Pg ID 155

Section XVII of the Constitution of the State of Michigan of 1963 and common-

law proscriptions against invasion of privacy and slander cognizable in this state.

48. Plaintiffmet the emergency manager Cathy Square late in the day on November

15,2013 at the end of the work day and both observed the alleged city vehicle

purportedly involved in the alleged hit-and-run and Square labeled the hit-and-run

allegations a "lie"; Plaintiff complained to Square about the conduct of Tardif

referenced at Paragraph Forty-Six above.

49. Plaintiff contacted Chief of Police Max Garbarino on November 15, 2013 by e-

mail to deny involvement in any hit-and-run accident; Garbarino was told by

Plaintiff that this is a "witch hunt".

50. On November I 6, 201 3 the emergency manager confronted Garbarino regarding

the hif and-run allegations.

ft. On November 18, 2013 Plaintiffmet with Chief Garbarino to tell him he was

being framed; Garbarino responded that he did not know what the "big deal" was

about since the incident was only a misdemeanor offense and no charge had been

filed as of yet.

On November I 8, 201 3, Tardif was removed from the hit-and-run investigation

putatively over concems expressed by the emergency manager over danger of

lack of impartiality.

53. On November 22,2013, Plaintiff was walking out of the emergency manager's

office and, perchance, saw Andrew Robinson, the police dispatcher who received

the 91 1 call of a hit-and-run accident.

2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 14 of 37 Pg ID 156

54. Robinson substantively asked "what the hell is going on with the hit-and-run?";

Robinson proceeded to relate that the 911 caller appeared to be "mixed-up" and

that Tardif demanded the phone be tumed over to him and instructed the 911

caller to come to the station.

55. Plaintiff earlier on November 22, 2013 again met with Police Chief Garbarino and

indicated Sgt. Mileski would be handling the hifand-run investigation now and

that he, Plaintiff, should retain legal counsel.

Garbarino at said November 22,2013 meeting also told Plaintiff he did not know

who had alerted the press about the hit-and-run investigation; Kimberly Russell of

Channel 7, a reporter from Channel 4, and Charles Sercombe, editor ofthe

Hamtramck Review had all contacted current or former city offrcials regarding

the police investigation, including Robert Zwolak and Cathy Gordon'

57. On December 9, 2013, Plaintiff, in the presence of his attomey, was interrogated

at the police station by Sg1. Mileski in which Plaintiffdenied being in any

accident, denied any new unreported damage occurred to the Blazer since the city

assigned to him and disclosed that bumper damage was already documented prior

to his receipt of the vehicle.

58. Mileski said that front-end auto accident damage in the Blazer could have been

repaired in between the time that Belcastro reported the purported hit-and-run

accident and the time a surveillance camera saw him retuming to city offices at

1:39 p.m.; in reality, police photos disclose that it would be impossible for the

comparatively low front end of the Blazer to have caused the high rear damaged

claimed by Belcastro.
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 15 of 37 Pg ID 157

59. Mileski also stated in the taped intenogation of Plaintiff that Belcastro disclosed

the license plate number of Shaya's city issued Blazer on the 91 1 call recording;

Mileski made references to prior conllicts Shaya with the Hamtramck Police

Department and attempted to assure Shaya he was being fair in his investigation

of this incident, however after Plaintiffand his counsel left the intenogation

room, Mileski proceeded to broadly grin as he peered at them exiting the room, as

captured on the interrogation video tape.

60. On December 10, 2013, Defendant Tardif completed his report on the hit-and-run

incident. The following discrepancies exist between the Tardif report and the 91 I

recording and transcript and other sources:

(A) On 11/15/13, Belcastro on 911 tape reports that the hit-and-run rear-
end collision occurred on Conant south of Caniff whereas
Tardif report indicates incident occurred on Conant and Commor;

(B) The 911 tape indicates the driver appeared to be a black male in a
gold/champagne-colored Chevy Blazer and that he does not think it's the
vehicle, "probably" not the vehicle whereas the black male description is
not disclosed in the Tardif report, neither is Belcastro's lack of certainty of
the Blazer as the accident vehicle he professed in the 911 call;

(C) The Tardif report suggests new front bumper damage' no damage had
occurred;

(D) Tardif misquotes Shaya as initially saying "he had not left the building
all day-" in reality Plaintiff always immediately disclosed his lunch trip'

61. Sgt. Mileski,s report contains the following inconsistencies contrasted with the

91 I tape and other sources:

(A) the "damage Tardif observed was not there prior to Shaya being issued
the vehicle"- in reality no new damage existed on the front bumper area
after Plaintiffwas assigned the Blazer;

(B) Belcastro reported by phone to Mileski on72/11113 that he was on

southbound Conant near Commor when he was struck whereas 911 tape
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 16 of 37 Pg ID 158

version accident occurs on Conant south of Caniff-areas in the citv manv

blocks apart;

(C) Belcastro identifies the driver as appearing to be a black male where

no such statement appears in l2lll/13 report oftelephone interview;

(D) 12111/13 interview report shows Belcastro sure of license plate

identification and identifies same vehicle that struck him from behind on
Conant and Commor whereas on 911 version he expresses doubts and says
the Blazer was "probably" not the vehicle that had struck him earlier.

(E) on 91 I version Belcastro indicates Conant south of Caniff was

location of hit-and-run and in 12/ll ll3 telephone report Carriff is area
where he later sights the vehicle after purportedly leaving accident scene;

G) Conant and Commor intersection is nowhere mentioned in the 9l I

version of Belcastro, nor is Commor Avenue mentioned at all- the
12/11113 telephone version recorded by Mileski cites Caniffas the area
where Belcastro caught up to the vehicle after attempting to locate it.

62. On December 11,2013 Mileski signed a misdemeanor citation charging Plaintiff

with leaving the scene ofan accident; as complaint he certified that "I declare

under penalties of perjury that the statements above are true to the best of my

information, knowledge and belief;" the existence ofthe 911 call from Belcastro

is documented in the Mileski report as well as Mileski's statement that he issued

the hit-and-run "[a]fter reviewing all ofthe evidence".

63. At about 2:08 p.m. on 12/1lll3, Sgt. Mileski's served a misdemeanor appearance

ticket upon Plaintiffat DPS offices.

64. At about 3:07 p.m. on l2ll1l13 Plaintiff served a Freedom of Information Act

request any and all written documents and voice recording related to 911 call of

Belcastro.

65. At approximately 5:07 p.m on 12111173 Plaintiff received a phone call from

Mileski to 'tear-up" the appearance ticket - the matter will not be pursued.
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 17 of 37 Pg ID 159

66. That said misdemeanor ticket had been filed in t}le 31't Judicial District Court in

Hamtramck.

67. Defendant Mileski initiated an ex pA!!g communication to Judge Paul J. Paruk to

dismiss the criminal case against Plaintiff- he refused.

68. Plaintiff received a Notice to Appear for District Court arraignment on the charge

on December 26 ,2013 at 8:30 a.m.

69. Per the Register of Actions of the case, the City Attomey requested dismissal of

the action and the action was dismissed without prejudice by Judge Paruk; neither

Plaintiffnor his attomey were given prior notice of this dismissal hearing on

December 17 , 2013 , nor was the "hearing" recorded by any court reporter.

70. Following case dismissal, Plaintiff continued to receive hostile action from the

Hamtramck Police Department:

(A) Chief Max Garbarino making ongoing derisive comments about

Plaintiffs Chaldean identity;

(B) on February 2,2014 Lt. Smisek arbitrarily confiscating (due to color)

Plaintiffs photo identification badge needed to interact with public;

(C) Tardif failing to ptlss along information of water main breaks to

Plaintiff for five hours resulting in unreasonably delayed response time as
well as other numerous failures to relax important information in a timely
manner;

(D) on January 17,2014 at 11:35 a'm., Christine Atkins, a parking

enforcement officer, told Plaintiff"you are too busy with your sand
meetings"- this was said in the presence of other city employers and the
director ofthe Human Resource Dept. was placed on notice ofthis slur;

(E)upon belief non-forcible entry into his Chevy Blazer parked in front of
City Hall and leaving door open on Decembet 28,2013, resulting in police
report issuance (Tardif is only other person with keys to the Blazer);
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 18 of 37 Pg ID 160

(F) on February 19,2014, Atkins disparaged Plaintiff for "parking like an

Arab" and she received a "verbal waming" for violating fair and equal
treatment provisions of the Hamtramck Code of Ordinances;

(G) on February, 2014, Mayor Pro Tempore Andrea Karpinski, a City

Council member came to PlaintifPs home to take photos of his city-issued
Blazer's front end and rear license plate.

71. Plaintiffon December 30,2013, served a Freedom of Information Act request for

LEIN records relative to himself, Adam Tardif and the aforesaid Blazer; this was

denied (see Exhibit D, denial letter).

72. Article I, Section II of the Constitution of the State of Michigan of 1963 sets

forth:

'No persons shall be denied the equal protection of the laws, nor shall any person
be denied the enjoyment ofhis civil or political rights or be discriminated against
in the exercise thereof because of religion, race, color, or national origin."

73. Article I, Section III of the Constitution of the State of Michigan of 1963

establishes:

"The people have the right peaceably to assemble, to consult for the common
good, to instruct their representatives and to petition the govemment for redress of
grievances."

74. Article I, Section V of the Constitution ofthe State of Michigan of 1963:

" Every person may freely speak, write, express and publish his views on all
subj ects. . ."

75. Article I, Section XVII of the Constitution of the State of Michigan of 1963

declares:

"...[t]he right ofall individuals...... to fair andjust treatrnent is the course of...'

executive investigations and hearings shall not be infringed."

COUNT I- VIOLATION OF

WHISTLE BLOWER'S PROTECTION ACT

2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 19 of 37 Pg ID 161

76. Paragraph One through Seventy-Five are incorporated herein by reference.

77. Plaintiff at all relevant times herein has been an "employee" as defined under

MCL 15.361; prior to February 28,2012 Plaintiff was an "employee" pursuant to

the "economic reality test".

78. The City of Hamtramck is an employer within the meaning set forth at 15. 361(a)

and other Defendants are "agents" of the employer as also defined by that

subsection.

79. The Hamtramck City Council, the Hamtramck Police Depaxtment, the Human

Resources Departrnent, the offrce of "emergency manager", and the City of

Hamtramck itself each constitute a "public body" under MCL 15.361 (d)(l)-(vi).

80. Plaintiff reported violations ofor suspected violations oflaw, regulation or rule to

public bodies, as pled supr4 as to misconduct either committed or suspected to

have been committed by Adam Tardif with respect to his employment at CBSI

Botsford and his operation ofDEA Towing as well as his conduct in investigating

the broken taillight and the purported hit-and-run accident.

81. Plaintiff suffered adverse employment action as a result of initiating said reports

to public bodies including, but not limited to, on-the-job retaliation:

(A) initiating groturdless, discourteous and biased investigations

calculated to intimidate, harass and publicly embarrass Plaintiff;

(B) initiating a groundless and malicious criminal action;

(C) making repeated derogatory and offensive remarks regarding

PlaintifPs Iraqi Chaldean national origin and religion;

(D) interfering with his ability to frrnction at his employment by, among
other things, failing to report water main breakage for hours' conltscating
his photo identification, breaking into his city-issued vehicle.
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 20 of 37 Pg ID 162

82. That Plaintiffhas made reasonably prompt notice of these acts ofretaliation to

various public body supervisory personnel as pled, supr4 but no reasonable

remedial action has taken, resulting in Plaintiffbeing exposed to a chronic hostile

work and citizen environment; the failure to initiate reasonable and prompt

remedial action to address such retaliation conduct is an adverse employment

action.

83. There exists a causal connection between Plaintiffs engaging in protected activity

and the adverse action pled, suora, directly and proximately resulting in damage

and injury to Plaintiff.

84. Such damage and injury included emotional distress, pain and suffering, work

loss, attomey fees in defending a frivolous police investigation, embarrassment

and humiliation and mental anguish.

COUNT II- MALICIOUS

CRIMINAL PROSECUTION

85. Paragraphs One through Eighty-Four are incorporated herein by reference.

86. Defendant Belcastro, Tardif, and Mileski and City of Hamtramck did institute or

cause to be instituted and continued a criminal hit-and-run charge punishable by

up to ninety (90) days injail against the Plaintiff.

87. Said proceeding was terminated in PlaintifPs favor on December 17, 2013 when

Judge Paruk dismissed the case upon motion of the City Attorney'

That there was an absence of probable cause for the proceeding, especially given

the denials of Plaintiff and, the recorded statements received during the 911 call

bv disoatcher Robinson.
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 21 of 37 Pg ID 163

89. That each of the three Defendants was motivated by malice or a primary purpose

other than bringing an offender to justice.

90. That as a direct and proximate result ofsaid institution of criminal proceedings,

Plaintiff sustained damage and injury.

91. Such damage and injury includes attomey fees, mental anguish, embarrassment,

work loss, and emotional distress.

COUNT III- ABUSE Otr'PROCESS

92. Paragraph One through Ninety-One are incorporated herein by reference.

93. Defendant Belastro, Tardif, Mileski and city of Hamtramck had ulterior purposes

in instituting or causing to institute a misdemeanor hit-and-run charge against

Plaintiff to discredit and humiliate Plaintiff due to his repeated reporting of

unethical practices in City of Hamtramck govemment.

94. That Defendants Belcastro and Tardif knowingly caused false police report

documents to issue to incriminate Plaintiffwith the intent to frame him as to an

incident which was manufactured and fraudulent.

95. Defendant Mileski falsely certified under penalty of perjury that the charge was

accurate despite the fact he knew that dispatcher Robinson and a 911 recording of

the report was exculpatory and fully exonerating of Plaintiff and proved

conclusively that the hit-and-run report was a malicious sham'

96. Defendant Mileski only attempted to seek dismissal of the charge when Plaintiff

was about to receive the exculpatory proof trnder a FOIA request.

97 . Milewski improperly attempted to seek dismissal and the City Attomey also

improperly sought dismissal pursuant to ex pA!!g communications'

2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 22 of 37 Pg ID 164

98. As a direct and proximate result of said abuse of process, Plaintiffhas sustained

all damage and injury pled, supra.

COUNT IV. VIOLATION OF

FREEDOM OF INFORMATION ACT

99. Paragraphs One Through Ninety-Eight are incorporated herein reference'

100. The City of Hamtramck failed to issue a timely response to PlaintifPs December

30, 2013 request for LEIN records (see Exhibit D) in violation of MCL 15.235(2).

101. Defendant City of Hamtramck violated FOIA in its January 15, 2014 for not

citing any specific legal section or "explanation of the basis" ofthe purported

exemption from disclosure in derogation of MCL 15.235(4\a).

lo2. Plaintiff is entitled to damages for the city's non-compliance with MCL 15.235(2)

including an award ofcosts, disbursements, and attomey fees, and also an award

of punitive damages.

COUNT V- VIOLATION OF FEDERAL CIVIL RIGHTS

ACT OF 1871 (42 USC r9$)

103. Paragraphs One through One Hundred-Three are incorporated herein by

reference.

104. That Defendants, acting under color of state law, or in the case ofDavid

Belcastro, conspiring with one or more state actors, intentionally deprived

Plaintiff of:

(A) his rights guaranteed under the Equal Protection Clause of the
l4s Amendment by committing the acts of discrimination on account
of national origin and religion by virtue of conduct pled, supra;

JB) of his rights guaranteed under the Due Process Clause of the
l4th Amendment by failing to initiate appropriate remedial measures,
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 23 of 37 Pg ID 165

but acting with deliberate indifference after learning ofongoing acts

of police harassment against Plaintiff including retaliation;

(C) of Plaintiff s Fourth Amendment rights against unreasonable search

and seizures;

(D) of Plaintiff s substantive due process rights against filing of malicious

and groundless criminal proceedings;

(E) ofhis liberty interest under tlle Due Process Clause to be free of
harassing and retaliatory conduct due to his exercise ofhis constitutional
rights and his national origin or religion;

105. As a direct and proximate result of such violations, Plaintiffhas sustained all

injury and damage pled supra herein.

COUNT IV- VIOLATION

ELLIOT-LARSEN CIVIL RIGHTS ACT

106. Paragraphs One through One Hundred-Five are incorporated herein by reference.

L07 . Plaintiff as an Iraqi Chalean, is a protected individual under MCR 37 .2 1 02 of the

Elliott-Larsen Civil Rights Act due to his national origin and religion; he is also

protected in his association with other protected groups including Muslims Arabs

and Bengalis.

108. That Defendant City of Hamtramck did, as an employer und er MCL 37 .2202 and

violate Plaintiffs rights thereunder by discriminating against Plaintiff with

respect to employment, or a term, condition of employment because of religion,

race, color, national origin and as a provider of public services because of

religion, race, color and/or national origin and as a provider ofpublic services,

denied Plaintiff the full and equal enjoyment ofpublic services because of
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 24 of 37 Pg ID 166

religion, race, color and/or national origin and association with such protected

groups in the following ways:

(A) unwelcome harassment via Defendant Garbarino, who

due to unlawful bias made ethnic slurs and failed to
adequately investigate PlaintifP s claims of police harassment;

(B) unwelcome harassment via Defendant Tungate who made

adverse references to Plaintiffs Chaldean identity when issuing
him a reprimand and treated him in a demeaning and abusive
manner during his tenure as city manager;

(C) unwelcome harassment via Defendant Tungate

by directing him aad/or his staff to discriminate or
harass minority Muslim, Arab, or Bengali citizens
and civic leaderl

(D) unwelcome harassment via Defendant Tertzag

by making demeaning references to Plaintifls
Chaldean identity treated him in a demeaning and
abusive manner during his tenure as a city manager,
including generating a fraudulent reprimand and
directing Plaintiffs subordinates to sign a false
statement suggesting Plaintiff committed misconduct.

(E) unwelcome harassment via parking enforcement

officer Christine Atkins, who made repeat adverse
references to his Middle Eastem origin'

109. (A) Prompt notice ofsuch violations of ELCRA was giving to supervisory

personnel, as set forth else where in this pleading with adequate remedial action

being taken.

(B) as a direct and proximate result of said violations, Plahtiff has sustained

adverse employment action, emotional distress, work loss, attomey fees,

embanassment and humiliation and mental anguish.

COUNT VII. INTENTIONAL INFLICTION

2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 25 of 37 Pg ID 167

OF EMOTIONAL DISTRESS
1 10. Paragraphs One through One Hundred and Nine are incorporated herein by

reference.

111 . By virtue ofthe acts pled above, each Defendant has committed intentional and

outrageous acts targeted to deny Plaintiffhis constitutional rights and were

calculated to induce severe emotional mental and physical trauma to Plaintiff,

proximately causing all injury and damage pled supra.

COTJNT IX- DEFAMATION PER SE

112. Paragraph One through One Hundred and Eleven are incorporated by reference

herein.

113. Defendant Belcastro and Tardif issued false and defamatory comments regarding

Plaintiff that impute the comrnission of the criminal offense of a hit-and-run

accident.

114. Unprivileged publications of such statement were disseminated by Belcastro to

HPD dispatcher Andrew Robi-nson and Defendant Mileski, as set forth in the

police reports and the 91 I call.

115. Unprivileged publications ofsuch statements by Tardif regarding Plaintiff were

embodied in his police reports.

116. The aforesaid publications were eventually disseminated in such a manner that

news of this reached local media outlets, including Kimberly Russell of Channel

7. and Charles Sercombe, editor of the Hamtramck Review, who were contracting

local citizens for further information on the hit-and-run accident which was, in

realitv. non-existent.
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 26 of 37 Pg ID 168

117. Republication has occurred and is expected to recur as a natural and probable

result ofsaid initial publications on the 9l I call, the Tardifpolice report, and

communications made by both to Mileski.

118. As a direct and proximate result of said publication and republication of

defamatory communications by Defendants Belcastro and Tardif, Plaintiff has all

damages and injury pled, supra.

COUNT X - INVASION OF PRIVACY GALSE LIGHT)

I 19. Paragraphs One through One Hundred and Eighteen are incorporated herein by

reference.

120. Tardif s rude and discourteous conduct in proceeding unto Plaintiffs city

department area and making a public spectacle with respect to purported investigation of

the broken tail light and alleged hit-and-run accident was intended and did generate

adverse publicity to plaintiff.

121. Said conduct of Tardif placed plaintiff in a false light in this public eye.

122. As a direct and proximate result ofsuch invasion ofprivacy, Plaintiff suffered all

injury and damage pled suora.

COUNT IX - VIOLATION OF ELLIOTT-LARSEN CIVIL RIGHTS ACT

(MCL 37.270I) BY DEFENDANT TTJNGATE

123. Paragraphs One through One Hundred Twenty-Two are incorporated herein by

reference.

124. Plaintiff has been a spokesperson for Islamic, Arab and Bengali communities in

Hamtramck; he meets, listens and speaks with them regarding matters of personal or

public interest and advocates on their behalfto city govemment.

2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 27 of 37 Pg ID 169

125. Abraham El-Jahaim of Hamtramck Arabic Outreach has described Plaintiff as the

"red line for our Muslim community".

126. In May 3, 2012, Plaintiff sends an e-mail to Tungate regarding the closing of the

purchase of realty by the Bangladeshi, Islamic Center; Tungate responds "Crap" in a

derisive manner.

127. Plaintiffperceived that Hamtramck residents, including Fouad Nusair, and other

Muslim, Arab or Bengali residents were receiving discriminatory ueatment in the

rendition ofpublic services such as tree-trimming, de-rooting, and sidewalk repair that

was not authorized by the City of Hamtramck via Tungate, as these minority groups were

routinely denied such authorization, whereas such authorization was almost always

granted white non-Arab and non-Bengali citizens in a prompt manner.

128. Also politically influential Arab or Bengali residents, such as Dr. Al-Gazali and

councilman Hassan were having their properties being targeted for building code

enforcement and other investigations being initiated without suspicion or complaint at the

direction of Tungate.

129. Defendants City of Hamtramck and Tungate denied Mr. Nusair; Councilman

Hassan, and Dr. Al-Gazali and other Muslim Arab or Bengali persons the full and equal

enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of

a public service on account ofreligion race, color and./or national origin in violation of

MCL 37.2302(a).

130. Plaintiff opposed Tungate on this issue and later contacted council persons Zwolak,

Gordon, Hassan, and Miah regarding his perception of unfair discrimination in the

rendition of city services as pled, supra and notifred them of this problem.
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 28 of 37 Pg ID 170

131 . Members of City Council confronted Tungate to investigate this allegation of

Plaintiffs and impose prompt remedial action.

132. Shortly thereafter on July 2,2012, Tungate approached Shaya after a regular staff

meeting, raised the issue of these complaints to City Council members, and was rudely

and angrily addressing him "I know how you Chaldeans operate", accused him of

improper behavior and issued a factually and legal frivolous reprimand imposing a 90-

day probationary period and requiring Plaintiff to produce his builder's and water

licenses, engineering degree diploma, and college transcripts; this reprimand was vacated

in late August after Plaintiff retained counsel to address it.

133. Plaintiff complained to the aforesaid City Council members about Tungate's

behavior at the aforesaid July 2nd meeting; Tungate resigned in lieu of bring fired about

10 days later, due in part to Plaintiffs reports.

134. Tungate, on behalf ofthe Defendant City of Hamtramck did retaliate and

discriminate against Plaintiffbecause Plaintiffopposed violations of the Elliott-Larsen

Civil Rights Act including, but not limited to, the MICL 37 .2302(a) violations pled supra

at Para. One Twenty-Nine herein; such retaliation and discrimination was a significant

factor in and includes the adverse employment action referenced at Para. One-Hundred

and Thirty-Two herein, thus violating MCL 37.2701(a).

135. That as a direct proximate result of said Defendants' violation of MCL 37.270(a),

Plaintiff sustained an adverse employment action, emotional distress, work loss, attomey

fees in defending a frivolous reprimand action, embarrassment and humiliation, and

mental anzuish.
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 29 of 37 Pg ID 171

COUNT X - VIOLATION OF FEDERAL CIVIL RIGHTS

ACT OF 1871 (42 USC 1983) BY DEF'EI{DANT TTJNGATE

136. Paragraphs One through One Hundred and Thirty-Five are incorporated herein by

referenced.

137. Defendant Tungate, acting under color or state law, did deprive Plaintiff

intentionally of Plaintiff s First Amendment rights to speak out on matters of public

interest, associate with others in pursuit of social or political ends, and to petition the

goverffnent for a redress of grievances.

138. Plaintiff engaged in protected conduct in objecting to Tungate in the discriminating

rendition oftree trimming, de-rooting, and sidewalk repair and reporting such

discrimination to City Council members as such conduct implicated a matter of public

concem as it informed the community that the City of Hamtramck, via Trurgate, has

failed to discharge governmental activities and,/or has engaged in actual or potential

wrongdoing or breach ofpublic trust.

139. Plaintiffs interest in taking up the matter of public concem is substantial and

compelling.

140. Plaintiff suffered an adverse action which would deter a person of ordinary firmness

from continuing to engage in the protected conduct when he was issued a reprimand and

90 day probationary period and required to produce educational and licensing verification

documents.

1 4 1 . The adverse action sustained by Plaintiff referenced above as motivated at least,

impart, by the protected activity of Plaintiff referenced above.

 2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 30 of 37 Pg ID 172

142. As a direct and proximate result of such violations of the First Amendment,

Plaintiffs offered all loss and injury pled at Paragraph One Hundred Thirty-Five pled

supra.

COUNT XI - VIOLATION OF THE STATE OF MICHIGA}i CONSTITUTION

I 43 . Paragraphs One through One Hundred and Forty-Three are incorporated herein by

reference.

I 44 . That the aforesaid actions of Tungate pled supra violate the State of Michigan

Constitution of 1963 at the following sections.

(A) Article I, Section II;

(B) Article I, Section III;

(C) Article I, Section V;

(D) Article I, Section XVII.

I 45 . That as a direct and proximate result of said abridgments of the state constitution,

Plaintiffhas sustained all injury and damage pled at Paragraph One Hundred and Thirty-

Five, supra.

COUNT XII - VIOLATION OF ELLIOTT.LARSEN CIVIL RIGHTS ACT

(MCL 37.2701) BY DEPENDANT TERTZAG

146. Paragraphs One through One Forty-Five are incorporated herein by reference.

147. Plaintiff in late 2012 to about early 2013, noticed harassment of minorities,

including Arab and Bengali Muslims by Tertzag having building code

enforcement officers target their businesses for alleged sign violations, even

though the work had already previously been approved by the city and investment

made by the business owner in the signage; such business entities include:

(A) Sana Market;

2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 31 of 37 Pg ID 173

(B) Royal Kabobs;

(C) Al-Harriam Market;

(D) Naim Choudhoury.

148. All businesses had the building department approve their signage and Plaintiff as

well as others is his staff were pressured to issue violations wrongfully for certain

Arab or Bengali-owner, business whereas other Hamtramck business owners who

were under white or non-minority ownership were not targeted for sign violations.

149. Plaintiffcomplained to Councilman Anah Miah of this apparent signing out of

Muslim Arab and Bengali business owner for unfair targeting under the

ordinance, who proceed to confront Tertzag about Plaintiffls allegations; Tertzag

immediately ceases directions this practice.

150. Several months later, two laborers under Plaintiffs supervision, without

Plaintiff s knowledge or permission, dump building debris into a field, which was

improper.

151. Defendant Tertzag prepared a statement for the two workers to sign indicating

that Plaintiff had directed this improper dumping and directed the workers to sign

it, even though the statement was in fact, false and Tertzag did not contact

Plaintiff before meeting with these two workers, Eddie Chicolas and Tom Garza.

152. Tertzag proceeded to call Plaintiff into his office and showed him an executed

reprimand and arising out of the incident and confronting him with the

"statement" ofChicolas and Garza the Tertzag had caused to be drafted.

153. That to this day the false and fraudulent "statement" of Garza and Chicolas exists

in the personnel file of Plaintiff

2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 32 of 37 Pg ID 174

154. Tertzag, on behalf of the City of Hamtramck, did retaliate and discriminate

against Plaintiffbecause Plaintiffopposed violations of the Elliott-Larsen Civil

Rights Act; such retaliation and discrimination was a significant factor in and

includes the adverse employment action referred to at Paragraph One Hundred

and Fifty-Two herein, thus violating MCR 37.2701(o).

155. That as a direct and proximate result of Defendant Tertzag's violation ofMCL

37.2701(a), Plaintiff sustained an adverse employment action, emotional distress,

work loss, embarrassment and humiliation and mental anguish.

COUNT XIII VIOLATION OF FEDERAL CIVIL RIGHTS ACT

CIVIL RIGHTS ACT OF T871 (42 USC 1983) BY
DEFENDANT TERTZAG

156. Paragraphs One through One Hundred and Fifty-Five are incorporated herein by

reference.

157. Defendant Tertzag, acting under color of state law, did deprive intentionally

Plaintilf s First Amendment rights to speak out on matters of public interest,

associate with others in pursuit of social or political ends, and to petition the

government for a redress ofgrievances.

158. Plaintiffengaged in protected conduct in the following ways:

(A) advocating to Councilman Miah on behalf of

minority businesses regarding unfair attempted enforcement
ofthe sign ordinance by Terlzag, as set forth supra.
(B) presenting to City Council members 200-page reply to the
SSR report prepared by an accounting firm.

(C) complained to City Council members Gordon,

Miah and Hassan about Tertzag's violation of the General
Purchasing Policies ordinances when a $34,000.00 change
order was approved only by Teftzag for de-rooting work to
be performed by Audia Construction.
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 33 of 37 Pg ID 175

(D) complained to City Council members and others that

Audia Construction and Tertzag were trying to illegally
seek funding for a cricket field that was to be a gift to
the City from Audia Construction but, in reality, Tertzag
was trying to get Audia Construction reimbursed from the
Michigan Transportation Fund established by Public
Act 51 of 1951 .

159. Such conduct of Tertzag referenced in the preceding paragraph implicated a

matter of public concem as it informed the community that the City of

Hamtramck, via Tertzag, had failed to discharge govemmental activities

appropriately and/or has engaged in actual or potential wrongdoing or breach of

public trust.

160. Plaintiffs interest in taking up the matter of public concem is substantial and

compelling.

161. Plaintiff suffered an adverse action which would deter a person of ordinary

firmness from continuing to engage in such protected activity when Tertzag

executed a reprimand, caused a false witness statement to be placed in his

personnel file, and subjected him to continuous demeaning, harassing and

discriminatory conduct.

162. The adverse action sustained by Plaintiff referenced above was motivated at lease

in part by the protected activity of Plaintiff referenced above.

163. As a direct and proximate result of such violations of the First Amendment,

Plaintiff sustained adverse employment action, emotional distress, work loss,

embanassment and humiliation and mental anguish.

COUNT XIV - VIOLATION OF THE STATE

OF' MICHIGAN CONSTITUTION
2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 34 of 37 Pg ID 176

164. Paragraphs One through One Hundred and Sixty-Three are incorporated herein as

follows:

165. That the aforesaid actions of Tertzag violate the State of Michgan Constituti8on

of 1963 at the following sections:

(A) Article I, Section II;

(B) Article I, Section III;

(C) Article I, Section V;

(D) Article I, Section XVII.

166. That as a direct and proximate result of said abridgements of the state

constitution, Plaintiffhas sustained all injury and damage enumerated of the

preceding count.

COTJNT XV - VIOLATION OF FEDERAL CIVI

RIGHTS ACT OF 1871 (42 USC 1983) VIA FIRST
AMENDMENT ABRIDGMENT BY POLICE OFFICIALS

167. Paragraphs One through One Hundred and Sixty-Six are incorporated herein by

reference.

168. Defendants Tardif, Mileski, and Garbarino acting under color of state law, did

deprive Plaintiff of his civil rights under color of state law by initiating the

harassing, deliberately indifferent, and illicit conduct pled, supr4 in response to

PlaintifPs exercise ofhis First Amendment rights in reporting police violations of

the Ethics Chapter of City of Hamtramck ordinances.

169. Such First Amendment conduct of Plaintiff implicated a matter of public concem

as informed the community that Tardif had failed to discharge govemmental

 2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 35 of 37 Pg ID 177

activities appropriately and/or has engaged in actual or potential wrongdoing or

breach of the public trust.

170. Plaintiff suffered an adverse action - filing ofa false criminal charge - which

would deter a person of ordinary firmness from continuing to engage in the

protected conduct,

171. The adverse action sustained by Plaintiff referenced above was motivated at least

in part by the protected activity of Plaintiff reference above.

172. As a direct and proximate result of such violation of the First Amendment,

Plaintiff suffered all injury and loss pled at Counts I.

WHEREFORE, Plaintiff Steve Shaya respectfully prays that this Honorable Court award him

the following reliefi

(A) FOIA enforcement, including actual and punitive damages, costs and attorney

fees;

(B) costs, interest and attomey fees under civil rights law pled;

(C) T.R.O. and preliminary injunctive relief against Defendants to protect Plaintiff in

his rights to non-discriminatory employment;

(D) all general and special damages available under law, including punitive damages,

all damages in the aggregate amount of $10,000,000.00;

(E) declaratory reliefas to the enforceability ofany arbitration enforcement claims;

 2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 36 of 37 Pg ID 178

(F) any other relief deemed j ust and equitable.

Respectfu lly submitted,

/s/ M. Michael Koroi

/s/ M. MICHAEL KOROI (P44470)
Attorney for Plaintiff

shaya.fac
 2:14-cv-11112-DML-DRG Doc # 9 Filed 04/14/14 Pg 37 of 37 Pg ID 179

UNTIED STATES DISTRICT COURT

EASTERN DISTRICT OT' MICHIGAN
SOUTHERN DIVISION
STEVE SHAYA.
Case No. 2 zl 4-CY -ll I I2-DML-DMG
Plaintiff, Hon. David Lawson
Magistrate Judge David R Grand
vs.

DAI'ID BELCASTRO, ADAM TARDIF,

ANDY MILESKI, MAX GARBARINO,
ERIK TUNGATE, KYLE TERTZAG, and
THE CITY OF HAMTRAMCK.

Defendants.

LAW OFFICf,S OF SALEM F. SAMAAN, P.C. GIARMARCO, MULLINS & HORTON. P.C
SALEM F. SAMAAN (P31189) JOHN C. CLARr( G5r356)
M. MTCHAEL KOROI (P44470) J. TRA\arS MTHf,LICK (P73050)
Attorneys for Plaintiff Attorneys for Defendants
150 North Main Street 101 W. Big Beaver Rd., 10ih Floor
Plymouth, Ml 4817 0-1236 Troy, MI 48084
(734) 459-4040 (248\ 4s7-7000
sfsarnaan@gmail.com iclark@qmhlaw.com
mmkoroi@sbcglobal.net tnihelick@smhlaw.com

CERTIFICATE OF' SERVICE

The undersigned certifies that on April 14,2014,he served copies of the First Amended

Complaint upon attomeys for Defendant John C. Clark, Esq. and J. Travis Mihelick, Esq. by

using the e-filing system established by the Court.

Respectfully submitted,

/s/ Salem F. Sarrraan

SALEM F. SAMAAN (P31189)

Dataed: April 14,2014

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