Dodge v. Evergreen School District #114

• Decision Date: 29 December 2022
• Docket Number: 21-35400
• Citation: 56 F.4th 767
• Parties: Eric DODGE, Plaintiff-Appellant, v. EVERGREEN SCHOOL DISTRICT #114, a public corporation; Caroline Garrett ; Janae Gomes, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

56 F.4th 767

Eric DODGE, Plaintiff-Appellant,

v.EVERGREEN SCHOOL DISTRICT #114, a public corporation; Caroline Garrett ; Janae Gomes, Defendants-Appellees.

No. 21-35400

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 15, 2022 Seattle, Washington

Filed December 29, 2022

Gary W. Manca (argued), Talmadge/Fitzpatrick, Seattle, Washington, for Plaintiff-Appellant.

Michael E. McFarland Jr. (argued), Rachel K. Platin, Evans Craven & Lackie P.S., Spokane, Washington; Amber L. Pearce (argued), Francis S. Floyd, and Brittany C. Ward, Floyd Pflueger & Ringer P.S., Seattle, Washington; for Defendant-Appellee.

Before: Michael Daly Hawkins and Danielle J. Forrest, Circuit Judges, and Jane A. Restani,^* Judge.

FORREST, Circuit Judge:

The question in this case is whether the First Amendment was violated when a principal told a teacher he could not bring his Make America Great Again (MAGA) hat with him to teacher-only trainings on threat of disciplinary action and when the school board affirmed the denial of the teacher's harassment complaint filed against the principal. Plaintiff Eric Dodge was a long-time teacher in the Evergreen School District #114 (District) in Vancouver, Washington. Before the 2019–2020 school year began, he attended two days of teacher training and brought with him a MAGA hat. His principal, Caroline Garrett, considered the hat inappropriate. After consulting with the District's Chief Human Resource Officer Jenae Gomes, Principal Garrett told Dodge at the end of the first day that he needed to exercise "better judgment." When Principal Garrett learned that Dodge brought his hat with him again the second day, she called him a racist and a homophobe, among other things, and said that he would need to have his union representative present if she had to talk to him about the hat again.

Dodge sued Principal Garrett, HR Officer Gomes, and the District under 42 U.S.C. § 1983 for retaliating against him for engaging in protected political speech in violation of the First Amendment. The district court held that the individual defendants were entitled to qualified immunity and granted summary judgment in their favor. The district court also granted summary judgment for the District, concluding that Dodge failed to show a genuine issue of material fact that the District was liable. Dodge appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court's grant of summary judgment for HR Officer Gomes and the District, but we reverse and remand as to Principal Garrett.

I. BACKGROUND

Because this case was resolved on defendants' motions for summary judgment, we view the facts in the light most favorable to Dodge, the nonmovant. Rice v. Morehouse , 989 F.3d 1112, 1120 (9th Cir. 2021).

A. Dodge's Interactions with Principal Garrett

Dodge worked as a teacher for the District for over 17 years. For the 2019–2020 school year, he was assigned to teach at Wy'east Middle School (Wy'east) for the first time, and his class was sixth grade science. The week before school started, Dodge attended a cultural sensitivity and racial bias training held at Wy'east presented by a professor from Washington State University. There were approximately 60 attendees at the training. Dodge wore his MAGA hat up to the front doors of the school and then took it off when he entered the building. During the training, Dodge sat near the back of the room and placed his hat either on the table in front of him or on top of his backpack; he did not wear his hat during the training.

The professor leading the training saw Dodge's hat and complained to Principal Garrett after the training that she felt intimidated and traumatized. Principal Garrett also learned that Dodge's hat upset a few teachers who attended the training. One teacher had cried, and another found the hat "threatening." There is no allegation that Dodge did anything with his hat during the training other than place it near him with his other things, nor is there any allegation that he did anything to interfere with or disrupt the training.

Principal Garrett called HR Officer Gomes to discuss what could be done "without infringing or disrespecting anyone"; they agreed that the "best option was to talk to [Dodge] directly," explain the "reaction" that the hat had elicited, and "give him a heads-up that he was most likely inadvertently causing distress and give him an opportunity to respond to that."

Later that afternoon, Principal Garrett spoke to Dodge in his classroom. She asked Dodge why he wore the hat, and he stated that he wore it to protect sunspots on his head. He also explained that he "like[s] the message" behind the hat because it "speaks to everybody" by saying "let's all do it the best that we can and be the best that we can be at whatever it is that we do." Principal Garrett responded that "some people take [the hat] as a symbol of hate and bigotry" and that while she could not ask him to stop wearing it, he should use "better judgment" in the future. Dodge tried to explain that he wore the hat to show that "[m]aybe they're not all bad," but by the end of the conversation he understood that Principal Garrett was effectively asking him not to wear his MAGA hat at Wy'east. For her part, Principal Garrett said that Dodge denied trying to "engender some kind of response with the hat" by bringing it to a racial equity training. She also stated that Dodge attempted to talk politics during their conversation but that she "shut it down."

The next day, Dodge attended another teacher training that was held at Evergreen High School. He again wore his MAGA hat before entering the building and then took it off while he was inside. A teacher who was present at the first day's training saw the hat and texted Principal Garrett. Principal Garrett again called HR Officer Gomes. This time they agreed that Principal Garrett needed to "set a clear directive with [Dodge]" to "not hav[e] the hat in the training where it was causing the disruption to staff."

When the training at Evergreen High School was over, Dodge drove back to Wy'east for a third training that was later that same day. This time, he left his MAGA hat in his truck and did not bring it into the Wy'east building. When the training was over, Dodge stayed behind to talk to Principal Garrett about teaching classes other than science. The parties disagree about what happened during this conversation. Dodge alleges that when he approached Principal Garrett she stated: "What is the fucking deal with your hat?" She also called Dodge a "homophobe and a racist and a bigot and hateful." And when he denied wearing his hat at Wy'east the second day, she called him a "liar" and specified that she did not want him wearing the hat "period." Finally, Principal Garrett said: "[N]ext time I see you with that hat, you need to have your union rep. Bring your rep because I'll have mine." Principal Garrett disputes that she mistreated Dodge, including by using profanity or raising her voice, but she admits that she was frustrated and viewed Dodge continuing to have his hat with him as "insubordination."

Later that night, Dodge emailed Principal Garrett stating that he was "taken back by our conversation today when you told me if I wear that hat again, that I better have a representative with me." He stated that her "unprovoked attack" made him "sick to [his] stomach" and nervous, but that he was "sorry for offending [her]." Principal Garrett responded two days later recounting that he admitted to wearing "the hat to purposefully provoke a reaction or response from [his] colleagues." She explained that her reference to union representation only meant that "if we needed to discuss [the MAGA hat] again, I would have another administrator with me to take notes and you would be invited to bring a representative." Principal Garrett forwarded Dodge's email and her response to HR Officer Gomes, who praised it as an "[e]xcellent response!"

B. The District's Investigations of Principal Garrett

Dodge asked his union representative for advice after his second encounter with Principal Garrett, and the representative contacted the District. The representative was informed that the District was not going to take any action against Principal Garrett, and Dodge filed a harassment, intimidation, and bullying (HIB) complaint against Principal Garrett through the District's online reporting system. Dodge also requested a transfer to a different school. Dodge's HIB complaint was sent to HR Officer Gomes, who initiated an investigation as required by District policy. HR Officer Gomes contracted third-party liability investigator Clear Risk Solutions (CRS) to perform the investigation and determine whether Principal Garrett violated District policies in her treatment of Dodge.

At some point during the investigation, HR Officer Gomes received a public records request from a local news agency related to Dodge's HIB complaint. She told Dodge that responding to the request may require her to disclose information from his personnel file but that she would not have to disclose the information if he withdrew his HIB complaint. She also advised him that the investigation into his allegations would proceed even if he withdrew his HIB complaint. Dodge declined to withdraw his complaint.

CRS completed its investigation and prepared a preliminary investigative report. The preliminary report concluded that "Dodge was singled out because he wore a ‘Make America Great Again’ hat" and was "subjected to negative treatment and denied his freedom of expression ... because of perceived stereotypes or political differences of opinion." The preliminary report also found that Dodge had not violated any school policy by having his MAGA hat, that Principal Garrett had allowed other types of political messaging around the school, and that her reference to union representation was "reasonably perceived by Mr. Dodge as a threat of discipline." Nonetheless, CRS's...