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No. 132016, 132017
| Gary A. Brown and Harold C. Nelthrope, |
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Michael L. Stefani |
Plaintiffs-Appellees/Cross-Appellants, |
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(Appeal from Ct of Appeals) |
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(Wayne - Callahan, M.) |
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| Mayor of Detroit and City of Detroit, |
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Morley Witus |
| Defendants-Appellants/Cross-Appellees. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiffs-Appellees/Cross-Appellants' Brief in Opposition to Leave to Appeal>>
Plaintiffs-Appellees/Cross-Appellants' Application for Leave to Cross-Appeal>>
Plaintiffs-Appellees/Cross-Appellants' Reply Brief>>
Plaintiffs-Appellees/Cross-Appellants' Supplemental Brief>>
Defendants-Appellants/Cross-Appellees' Application for Leave to Appeal>>
Defendants-Appellants/Cross-Appellees' Reply Brief>>
Defendants-Appellants/Cross-Appellees' Brief in Opposition to Application for Leave to Cross-Appeal>>
Defendants-Appellants/Cross-Appellees' Supplemental Brief>>
Background
Harold Nelthrope was a detective in the Detroit Police Department’s Executive Protection Unit, which provides security for the Mayor of Detroit; Gary Brown was the EPU’s deputy chief. In March 2003, Nelthrope contacted the Detroit Police’s Professional Accountability Bureau with allegations about EPU officers Loronzo “Greg” Jones and Michael Martin, and about a rumored party in the Manoogian mansion attended by Mayor Kwame Kilpatrick that featured nude dancers. Nelthrope asserted that Mrs. Kilpatrick had unexpectedly arrived at the party and fought with one of the dancers, injuring her, and that police officials had destroyed activity logs documenting the party. Nelthrope also claimed that Jones and Martin falsified timesheets, drank while on duty, covered up accidents involving departmental vehicles, and left a departmental handgun unattended in a car. He asserted that Jones and Martin were old friends of Kilpatrick and that they facilitated the mayor’s alleged practice of cheating on his wife with other women, including Christine Beatty, Kilpatrick’s chief of staff. Brown, who directed some preliminary investigation into Nelthrope’s allegations, prepared a memo about the allegations; the memo was ultimately given to Beatty, who then gave it to Kilpatrick. Kilpatrick fired Brown; Nelthrope, who had been transferred out of EPU, went on sick leave and then disability leave.
Brown and Nelthrope sued the city of Detroit and Kilpatrick. Brown claimed he was fired because he was investigating Kilpatrick, his family, and his friends. Nelthrope contended that he was transferred out of EPU because of his allegations regarding the Mayor and his friends. Nelthrope also asserted that the related media coverage put him in fear for his and his family’s safety, and that he was so stressed that he ultimately could not return to work. Their complaints included claims for slander, intentional infliction of emotional distress, and violation of the Whistleblower Protection Act, MCL 15.361 et seq. The WPA provides in part that “An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee . . . reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body….” An employee is engaged in WPA-protected activity if the employee has reported, or is about to report, a suspected violation of law to a public body.
The trial judge dismissed both plaintiffs’ slander claims against the city based on governmental immunity, but allowed the plaintiffs’ slander claims against Kilpatrick to go forward. The judge also denied the defendants’ motions to dismiss the plaintiffs’ WPA claims. The judge ruled in favor of Nelthrope on his whistleblower claim, finding that the defendants violated the WPA and that the only issue remaining for the jury was how much to award Nelthrope in damages. The defendants sought leave to appeal to the Court of Appeals, arguing that the plaintiffs did not engage in WPA-protected activity. In a published opinion, the Court of Appeals rejected this argument as to Brown, but found a question of fact as to whether Nelthrope had engaged in protected activity because he had reported his allegations to his employer, rather than to an outside agency or higher authority. Accordingly, the Court of Appeals reversed the trial court’s grant of partial summary disposition to Nelthrope on his WPA claim. The Court of Appeals also dismissed the plaintiffs’ slander claims against the mayor, holding that Kilpatrick was acting within the scope of his governmental authority when he made statements to the media about Brown and Nelthrope. The appellate court affirmed the trial judge’s other rulings. Both the defendants and the plaintiffs appeal on the WPA issues.
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