“Hobson’s Choice” Is Still Adverse Action: Sixth Circuit Clarifies Scott/Johnson Interplay in First Amendment Retaliation Appeals

Introduction

In Linda DeVooght v. City of Warren, Michigan; William Dwyer, No. 24-2028 (6th Cir. Nov. 5, 2025), the Sixth Circuit, in an opinion by Judge Thapar, affirms the denial of qualified immunity to a municipal police commissioner on a First Amendment retaliation claim and dismisses the balance of the appeal for lack of interlocutory jurisdiction. The ruling is significant for two reasons:

It expressly recognizes that discipline accepted through a settlement to avoid termination remains an “adverse action” for First Amendment retaliation purposes—what the court dubs a “Hobson’s choice” that would deter an ordinary employee.
It provides a careful roadmap for what aspects of a qualified-immunity denial are reviewable at the interlocutory stage, reconciling Scott v. Harris’s “blatant contradiction” exception with Johnson v. Jones’s jurisdictional bar on reviewing evidence sufficiency—while clarifying that Scott review is not limited to video evidence.

The case arises from a lawsuit by longtime police dispatcher Linda DeVooght, who sued the City of Warren for sex discrimination after the department required female dispatchers to conduct searches of female arrestees, exposing them to heightened health and safety risks. Eleven days after that filing, Internal Affairs opened an investigation into DeVooght based on rumors she was soliciting coworkers to join the suit and following a workplace dispute she reported. The investigation found no retaliation by DeVooght but uncovered her personal use of the CLEMIS case-management system; she was placed on paid leave, terminated, and later reinstated under a union settlement with a demotion, unpaid suspension, and two years of promotion ineligibility.

DeVooght then filed this second suit alleging First Amendment retaliation under 42 U.S.C. § 1983 against Police Commissioner William Dwyer (individual capacity) and the City, plus a parallel intimidation/retaliation claim under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA). The district court granted summary judgment to the City on the federal claim (for failure to establish Monell municipal liability) but denied summary judgment to Dwyer on the individual-capacity claim and rejected his qualified-immunity defense, finding triable issues of causation and pretext. Dwyer took an interlocutory appeal limited to qualified immunity; the City sought pendent appellate review of the ELCRA claims.

Summary of the Opinion

The Sixth Circuit affirms the district court’s denial of qualified immunity to Commissioner Dwyer on the First Amendment retaliation claim to the extent the appeal presents purely legal questions. The court:

Holds that DeVooght alleged and supported “adverse action” as a matter of law, not only through the initiation of an internal investigation but by termination followed by disciplinary sanctions (demotion, pay cut, unpaid suspension, promotion bar) accepted in a settlement—sanctions that “would deter individuals of ordinary firmness.”
Confirms that an official’s lack of “final policymaking” authority (a Monell concept) is irrelevant to individual-capacity liability; whether Dwyer was the “sole decisionmaker” in DeVooght’s termination is a factual dispute reserved for the jury.
Dismisses as jurisdictionally barred the causation challenges—which ask whether a reasonable jury could find a retaliatory motive—because those are “pure fact” and “evidence sufficiency” disputes under Johnson v. Jones. The record does not “blatantly contradict” the district court’s view of the facts under Scott v. Harris.
Concludes that DeVooght’s right was clearly established: public employees may not be subjected to adverse action motivated in part by protected speech, even where other legitimate grounds for discipline exist (reaffirming Hoover v. Radabaugh).
Declines pendent appellate jurisdiction over state-law ELCRA claims because their resolution is not inextricably intertwined with the qualified-immunity ruling.

Analysis

Precedents Cited and Their Role

Monell v. Department of Social Services; Pembaur v. City of Cincinnati. These decisions set the framework for municipal liability, limiting it to actions that represent official policy by final policymakers. The Sixth Circuit clarifies that Monell is inapplicable to DeVooght’s individual-capacity claim against Commissioner Dwyer; a defendant’s lack of final policymaking authority may defeat municipal liability but has nothing to do with whether that individual acted under color of law and is personally liable under § 1983.
Mitchell v. Forsyth; Johnson v. Jones. Mitchell allows interlocutory appeals from denials of qualified immunity to the extent they turn on “purely legal” issues. Johnson limits such appeals by prohibiting appellate review of fact disputes or evidence sufficiency. The panel hews closely to this limit, addressing only legal questions (adverse action as a matter of law; clearly established law) and dismissing causation challenges as non-reviewable.
Scott v. Harris; Plumhoff v. Rickard; DiLuzio v. Village of Yorkville; Bell v. City of Southfield; Ramsey v. Rivard; Chappell v. City of Cleveland; Austin v. Redford Twp. Police Dep’t; Coble v. City of White House; Booher ex rel. T.W. v. Montavon. This line of cases articulates an important exception: an appellate court may disregard the non-movant’s version of disputed facts if “blatantly contradicted by the record” such that “no reasonable jury could believe it.” The Sixth Circuit emphasizes that Scott’s standard applies to the record “as a whole,” not only to video; audio, medical records, depositions, and documentary evidence can suffice. Still, the court finds no such blatant contradiction here—there is a colorable dispute on retaliatory causation.
Anderson v. Liberty Lobby; Celotex Corp. v. Catrett; Ashcroft v. Iqbal; Wright & Miller. These familiar civil procedure authorities delineate summary judgment’s demand for evidentiary support beyond pleadings. The panel uses them to explain why Scott’s “blatant contradiction” doctrine is compatible with, and an outgrowth of, Rule 56—yet not a tool to reweigh conflicting evidence on interlocutory review where a reasonable jury could credit the non-movant’s account.
Kirkland v. City of Maryville. Provides the elements of a public-employee First Amendment retaliation claim—protected speech, adverse action, and causation.
Buddenberg v. Weisdack; Chappel v. Montgomery County Fire Protection Dist. No. 1. Establish that public officials are charged with knowledge that retaliating against protected speech violates clearly established law.
Hoover v. Radabaugh. Critical clearly-established-law precedent: adverse action taken “with the motivation, even in part,” to retaliate for protected speech violates the First Amendment even when the employee engaged in misconduct that might otherwise justify discipline.
VanPelt v. City of Detroit; Pearson v. Callahan. Frame the two-pronged qualified immunity test (constitutional violation and clearly established right) and the court’s discretion to decide either prong first.
Berryman v. Rieger. Confirms that once a material factual dispute is identified, appellate jurisdiction over the qualified-immunity denial drops out.
Hanover American Ins. Co. v. Tattooed Millionaire Ent., LLC; Williams v. Maurer; El-Khalil v. Oakwood Healthcare, Inc. Address pendent appellate jurisdiction and highlight that overlap is not enough; the issues must be “inextricably intertwined” such that deciding one necessarily resolves the other. The ELCRA claims were not.

Legal Reasoning

1) Interlocutory Jurisdiction: Separating Reviewable Law from Unreviewable Facts

The court begins by policing the bounds of its interlocutory jurisdiction. It may reach legal questions in a qualified-immunity appeal (Mitchell), but not reweigh evidence or decide sufficiency of the proof (Johnson). It acknowledges Scott’s “blatant contradiction” safety valve—permitting rejection of the non-movant’s version where the record makes it impossible—but underscores that Scott is not a license to resolve ordinary factual disputes. Here, the record (including testimony about who ordered the investigation and who decided termination) yields a “colorable” fact dispute on causation; therefore, Johnson controls and forecloses review of that element.

2) Prong One—Constitutional Violation

Protected speech. Filing a discrimination lawsuit is protected speech. The parties did not dispute this element.
Adverse action. The Commissioner’s legal challenge fails because the case involves much more than an “internal investigation.” While investigations alone often do not qualify, termination followed by reinstatement on punitive terms—demotion with pay cut, unpaid suspension, two-year promotion bar—are classic adverse actions that would chill a person of ordinary firmness. The panel squarely holds that discipline accepted through a settlement does not cease to be adverse; choosing the lesser of two evils to avoid termination is still coercive and materially adverse. This “Hobson’s choice” framing is likely to be cited in future retaliation cases.
Causation. Whether the adverse action was motivated by protected speech is a factual question. The district court found triable issues based on timing, escalation to Internal Affairs contrary to typical practice, staff statements about lack of pressure, and most notably the Commissioner’s own testimony that he initiated the investigation due to rumors of recruiting plaintiffs and decided to fire DeVooght. Because the record does not “utterly discredit” this evidence, the Sixth Circuit dismisses causation challenges for lack of interlocutory jurisdiction.
Monell versus individual liability. The Commissioner’s argument about lacking final decisionmaking authority conflates municipal liability with individual-capacity liability. Whether he possessed “final policymaking” authority may matter to the City’s liability under Monell and Pembaur, but not to his personal liability under § 1983. For the individual capacity claim, what matters is his own conduct under color of law. To the extent he disputes his responsibility, the record reflects a factual dispute (including his alleged admission he was the “sole decisionmaker”) that a jury must resolve.

3) Prong Two—Clearly Established Law

The court reaffirms that the prohibition against retaliating for protected speech is clearly established for public employees in the Sixth Circuit. Importantly, relying on Hoover, the court emphasizes that the presence of other legitimate grounds for discipline does not cure a constitutional violation if retaliatory animus was a substantial or motivating factor “even in part.” Every reasonable official is on notice of this principle; qualified immunity therefore does not protect the Commissioner at this stage.

4) Pendent Appellate Jurisdiction

The ELCRA claims are not “inextricably intertwined” with the qualified-immunity question. The court declines to exercise pendent appellate jurisdiction because resolving Dwyer’s entitlement to qualified immunity on the federal claim would not necessarily resolve the state-law claims against the City or Dwyer, which involve their own merits inquiries.

Impact and Implications

Adverse action after settlement. The court’s explicit adoption of the “Hobson’s choice” rationale fills a practical gap: employers cannot shield themselves from First Amendment liability by forcing an employee to select a disciplinary package to avoid termination and then claiming the employee “voluntarily” accepted the discipline. Expect this to feature prominently where employees accept reinstatement with conditions or demotions under pressure.
Interlocutory review boundaries. The opinion refines the Scott/Johnson interplay. It confirms that Scott’s “blatant contradiction” test is record-wide (not video-only) and compatible with Rule 56, but it also underscores that arguments framed as “no reasonable jury could find causation” will generally be jurisdictionally barred on interlocutory appeal. Appellants should isolate strictly legal issues (e.g., adverse action as a matter of law, clearly established law) or point to truly dispositive contradictions in the record.
Monell versus individual capacity. Defendants frequently argue lack of policymaking authority to avoid liability; the court warns that this is a non-sequitur in individual-capacity litigation. For public employers, this means training and oversight should address not just policy-level risks but also supervisory actions that can create personal exposure.
Internal Affairs use and timing. The opinion signals heightened skepticism where formal Internal Affairs processes are deployed immediately after protected activity, especially if outside normal practice. Agencies should document neutral triggers and consistent procedures for opening IA investigations to mitigate the appearance of retaliatory escalation.
Partial-motive suffices. Relying on Hoover, the court reiterates that even serious intervening misconduct does not extinguish a First Amendment claim if retaliation is a motivating factor. Employers should rigorously segregate decisionmakers and maintain clear, contemporaneous records of non-retaliatory grounds to navigate Mt. Healthy burden-shifting at trial.
Litigation posture. Plaintiffs need not move for reconsideration to preserve appeal; district courts may correct their own errors. Defense counsel should avoid weaving Monell into individual-capacity analyses and instead focus on personal involvement, causation, and clearly established law.

Complex Concepts Simplified

Qualified immunity. A defense for government officials: even if they violated the Constitution, they are immune unless (1) their actions violated a constitutional right and (2) that right was clearly established at the time so that every reasonable official would have known it.
Interlocutory appeal. An appeal before final judgment. In qualified-immunity cases, appellate courts can hear purely legal issues immediately. They may not reweigh evidence or decide factual disputes at this stage.
Scott v. Harris “blatant contradiction.” An exception allowing appellate courts to disregard a party’s version of events at summary judgment if the record so clearly contradicts it that no reasonable jury could believe it. This applies to the “record as a whole,” not just videos.
Johnson v. Jones bar. Appellate courts lack jurisdiction in interlocutory qualified-immunity appeals to assess whether the plaintiff presented “enough” evidence; causation disputes are usually off-limits.
Monell liability vs. individual-capacity liability. Monell governs when a municipality can be liable for its employees’ acts (only for policy/custom or acts by final policymakers). Individual-capacity liability concerns the official’s own actions under color of law; it does not turn on policymaking authority.
Adverse action. In retaliation law, an employer action that would deter a “person of ordinary firmness” from exercising First Amendment rights—e.g., firing, demotion, pay cuts, suspensions, denial of promotions. A coerced settlement accepting punishment to avoid termination is still an adverse action.
Clearly established law. The right must be defined with enough specificity that a reasonable official is on notice. In the public employment context, retaliating against protected speech—even in part—is clearly established as unconstitutional in the Sixth Circuit.
Pendent appellate jurisdiction. A discretionary doctrine allowing review of otherwise unappealable issues only if they are inextricably intertwined with the appealable issue such that deciding one necessarily decides the other.
Hobson’s choice. A situation where someone nominally has a choice, but it is illusory—accept a severe penalty or face termination. The Sixth Circuit treats this as coercive and materially adverse.

Conclusion

DeVooght delivers two durable takeaways for constitutional employment litigation in the Sixth Circuit. First, discipline accepted under pressure to avoid termination remains adverse action for First Amendment retaliation; employers cannot convert coercive choices into “voluntary” outcomes to evade liability. Second, the opinion crisply reconciles Scott and Johnson, permitting appellate courts to correct district court reliance on “visible fiction” in the record while refusing to entertain ordinary evidence-sufficiency arguments at the interlocutory stage—especially on causation.

Equally important is the court’s reminder that Monell’s policymaker rubric is irrelevant to individual-capacity claims. Supervisors who initiate investigations and influence discipline after protected speech risk personal liability even when their acts do not bind the municipality. For practitioners, the opinion charts a careful litigation pathway: isolate true legal questions for interlocutory review, preserve factual disputes for trial, and, for employers, ensure that investigative triggers and disciplinary decisions are well-documented and demonstrably divorced from protected activity.