Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—6th Cir.: Police commissioner denied qualified immunity for retaliating against employee, discrimination suit plaintiff, (Nov 6, 2025)

By Ronald Miller, J.D.

The Sixth Circuit has repeatedly held that a public employee’s right to engage in protected speech without retaliation is clearly established for purposes of qualified immunity.

The Sixth Circuit affirmed a district court’s denial of qualified immunity against a suit brought by a female police dispatcher who was subjected to an Internal Affairs investigation just days after she filed suit against her employer for gender discrimination. The employee initiated a second lawsuit against the city and police commissioner alleging they had unlawfully retaliated against her. Even though internal investigations aren’t usually adverse actions by themselves, the employee was terminated, then reinstated with a host of disciplinary sanctions—a demotion and resulting pay cut, and an unpaid suspension. Moreover, the district court found that factual issues remained about causation and pretext, making summary judgment inappropriate. On interlocutory appeal, the appeals court affirmed the district court’s denial of qualified immunity (DeVooght v. City of Warren, Michigan, No. 24-2028 (6th Cir. Nov. 5, 2025)).

Female arrestee searches. The employee began working as a police dispatcher for the City of Warren, Michigan Police Department in 1999. As a formal part of the job, the police department required dispatchers to search arrestees “as necessary.” For female dispatchers, that meant conducting pat-down and strip searches of female arrestees taken into custody when no female officers were available. In practice, female dispatchers performed searches often, even when female officers were on duty. These searches exposed dispatchers to “contagious diseases, bodily fluids, fleas, lice,” and “extremely aggressive behavior and abuse from arrestees.” The department had no similar policy for male dispatchers.

Female dispatchers had long complained about the department’s search policy. In 2020, they became especially concerned about contracting COVID-19 when searching arrestees. The employee and five other female dispatchers sued the City of Warren for sex discrimination.

Internal Affairs investigation. Eleven days after the employee filed suit, the department opened an Internal Affairs investigation into her, which ended in her termination. The investigation began after a male dispatcher complained to a police captain that he had overheard the employee asking another female dispatcher whether she planned to join the lawsuit. The next day, the employee reported another dispatcher for publicly calling her a profanity after the employee had reprimanded her for chronic tardiness. The coworker believed that the employee had reprimanded her only because she refused to join the lawsuit.

Normally, the department resolved such personnel disputes through the chain of command. But in this instance, a formal Internal Affairs investigation was opened. According to the employee, the department’s real motivations were to punish her for suing and to dissuade other dispatchers from joining as plaintiffs.

Ultimately, Internal Affairs concluded that the employee had not retaliated against anyone for refusing to join the lawsuit. But the investigation uncovered that the employee used the department’s case-management system for personal reasons in violation of Department policies, so the Department disciplined her for that infraction. She was first placed on paid administrative leave, then terminated altogether. She settled with the department, which reinstated her with a demotion from dispatch supervisor to dispatcher (and a corresponding pay cut), an unpaid suspension, and two years of ineligibility for promotion.

Second lawsuit. In response, the employee initiated a second lawsuit, alleging claims under 42 U.S.C. § 1983 and state law. This time, she alleged a First Amendment violation, that the police commissioner and the city retaliated against her for engaging in protected speech by filing her gender-discrimination lawsuit. Similarly, she alleged claims of intimidation and threats for exercising rights protected by the Michigan’s Elliott-Larsen Civil Rights Act (ELCRA).

The commissioner and the city moved for summary judgment. The district court granted their motion in part, ruling that the employee couldn’t pursue her First Amendment claims against the commissioner because he lacked authority to make policy on the city’s behalf. On reconsideration, the district court granted summary judgment to the city on the employee’s retaliation claim because she failed to establish municipal liability. But it denied summary judgment on the individual-capacity claim against the commissioner.

Qualified immunity. As a threshold matter, the commissioner argued that the employee abandoned or forfeited her individual-capacity claim against him by failing to move for reconsideration of the first summary-judgment order. But the Sixth Circuit ruled that she was not obligated to move for reconsideration.

On appeal, the commissioner contended that he did not violate the employee’s clearly established First Amendment rights, so he should receive qualified immunity. Qualified immunity protects government officials unless they “(1) violated a constitutional right that was (2) clearly established.”

Starting with the first prong of the qualified-immunity test, the Sixth Circuit observed that the employee’s First Amendment retaliation claim required her to show that “(1) she engaged in constitutionally protected speech, (2) she suffered an adverse action likely to chill a person of ordinary firmness from continuing to engage in protected speech, and (3) the protected speech was a substantial or motivating factor for the adverse action.” Because the first element was not disputed, the appeal court began its review with the second element.

Adverse action. The commissioner argued that record evidence blatantly contradicted the district court’s determination that a genuine issue of material fact existed about causation. Even though internal investigations aren’t usually adverse actions by themselves, the employee identified much more than just the opening of an investigation. She was terminated, then reinstated with a host of disciplinary sanctions—a demotion and resulting pay cut, an unpaid suspension, and two years’ ineligibility for promotion. These are all adverse actions. As a consequence, all of the commissioner’s legal arguments failed.

Decision-making authority. The commissioner also argued that he lacked final decision-making authority over the employee’s discipline. The appeals court found this argument was either irrelevant or unreviewable. The court found that this was merely a repackaged attempt to analyze the individual-capacity claim under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). The question of whether the commissioner’s purported unlawful acts were so representative of the city’s policy or custom as to fairly subject the city to liability, was irrelevant to the employee’s individual-capacity claim.

Alternatively, the commissioner argued that his lack of final decision-making authority meant he did not take any actions that would subject him to liability. According to the commissioner, his involvement in the disciplinary process was no more than “initiating an internal investigation.” However, the employee pointed to evidence of much greater involvement, including the commissioner’s own testimony that he was “the sole decisionmaker” in her termination. Thus, the employee alleged legally cognizable adverse actions, and the appeals court lacked jurisdiction to decide any of the associated factual disputes.

Causation. The commissioner also disputed the third element of a First Amendment violation: causation. He insisted the department disciplined the employee for “an intervening, legitimate reason” rather than in retaliation for her lawsuit. Here, the district court viewed the evidence in the light most favorable to the employee and found that factual issues remained about causation and pretext, making summary judgment inappropriate. The record did not utterly discredit that finding.

The commissioner argued that a reasonable jury could not find in the employee’s favor on causation. And that was fatal to the appeals court’s jurisdiction because it was the exact kind of “evidence sufficiency” argument that the Supreme Court’s decision in Johnsonv. City of Shelby, 574 U.S. 10 (2014) prohibited. Accordingly, the appeals court dismissed the commissioner’s appeal of the denial of qualified immunity to the extent it turned on causation.

Clearly established right. Moreover, the employee carried her burden to identify a clearly established right. The Sixth Circuit has repeatedly held that a public employee’s right to engage in protected speech without retaliation is clearly established for purposes of qualified immunity.

In this case, the employee’s other misconduct did not help the commissioner. Rather, Sixth Circuit precedent holds that an adverse action motivated in part by protected speech violates the First Amendment—even when an employee has other misconduct on the record.

Accordingly, the appeals court affirmed the district court’s denial of qualified immunity.

The case is No. 24-2028.

Judge: Thapar, A.

Attorneys: Raechel M. Badalamenti (Kirk, Huth, Lange & Badalamenti) for City of Warren, Michigan. Kevin M. Carlson (Pitt, McGehee, Palmer, Bonanni & Rivers) for Linda DeVooght.

Companies: City of Warren, Michigan

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