Interlocutory appeal; Qualified immunity; Mitchell v Forsyth; Limits on interlocutory fact review; Scott v Harris; Johnson ex rel XM v Mount Pleasant Pub Schs; Appellate jurisdiction; First Amendment retaliation elements; Kirkland v City of Maryville; Clearly established right

[This appeal was from the ED-MI]. Holding that the district court properly denied qualified immunity to defendant-police commissioner on the purely legal questions presented and dismissing the balance of the interlocutory appeal for lack of jurisdiction over fact-bound issues, the court affirmed in part and dismissed in part. After plaintiff-dispatcher filed a sex-discrimination suit, Internal Affairs opened an investigation 11 days later that culminated in her termination. She was later reinstated with a demotion, unpaid suspension, and promotion bar. She brought a First Amendment retaliation claim against defendant-city and the commissioner in his individual capacity. The district court denied the commissioner qualified immunity, concluding “timing, scope, and the commissioner’s admitted role created a triable issue.” On appeal, the court confirmed jurisdiction to resolve legal questions and “separate an appellant’s reviewable challenges from its unreviewable” ones, explaining that it could not revisit fact disputes and would set aside fact determinations only if “blatantly contradicted by the record[.]” As to the First Amendment retaliation element of adverse action, the court rejected the argument that plaintiff alleged only an investigation, noting she alleged termination and undisputed discipline, which are adverse actions because they “would deter most ‘individuals of ordinary firmness’ from continuing to engage in protected speech.” As to causation, the commissioner’s argument that a reasonable jury could not find in plaintiff’s favor on the issue was fatal to the court’s “jurisdiction because it’s the exact kind of ‘evidence sufficiency’ argument Johnson prohibits” and the record showed plaintiff “presented enough specific evidence to create a colorable factual dispute.” As to clearly established law, the court held that public employees have a clearly established right to be free from retaliation for protected speech and that adverse action “with the motivation, even in part,” of retaliation violates the First Amendment. Thus, the commissioner was not entitled to qualified immunity. The court declined pendent appellate jurisdiction over state civil rights claims because resolving qualified immunity would not “necessarily resolve” those issues.