## Facts

- Eric Dodge, a longtime teacher in a Washington public school district, attended two days of teacher-only training on cultural sensitivity and racial bias.
- Dodge brought and displayed a red “Make America Great Again” (MAGA) hat at the trainings; he wore it into the building and then removed it and kept it near him during the sessions.
- Other staff and the presenter complained to the school principal, Caroline Garrett, stating the hat made them feel intimidated or threatened; Garrett told Dodge the hat was viewed by some as a symbol of hate and bigotry and that he should use better judgment.
- On the second day, Dodge again brought the hat; he later left it in his car after lunch.
- Dodge alleged Garrett confronted him with profanity, called him a “racist, homophobe, and bigot,” and told him not to bring the hat again; Dodge further alleged Garrett implied future discipline by stating he should bring a union representative if he wore it again.
- Dodge filed a harassment complaint against Garrett with the district; the district investigated, asked Garrett to resign or face discipline, and the school board ultimately upheld the denial of Dodge’s harassment complaint.
- Dodge sued under 42 U.S.C. § 1983, alleging First Amendment retaliation against Garrett, the district HR officer (Janae Gomes), and the school district.
- The district court granted summary judgment to all defendants; Dodge appealed.

## Issues

1. Whether displaying a MAGA hat at teacher-only trainings was protected speech by a public employee speaking as a private citizen on a matter of public concern.
2. Whether Garrett’s alleged directive and threat of discipline constituted an adverse employment action supporting a First Amendment retaliation claim.
3. Whether Gomes took an adverse employment action sufficient for § 1983 liability.
4. Whether the school district could be liable under § 1983 based on a policy, custom, or ratification.
5. Whether Garrett was entitled to qualified immunity.

## Decision

- The Ninth Circuit held Dodge’s display of the MAGA hat was protected First Amendment speech on a matter of public concern, made as a private citizen rather than pursuant to official duties.
- The court reversed summary judgment for Garrett and remanded, holding there were triable fact issues on adverse action and retaliatory motive and that Garrett was not entitled to qualified immunity at the summary judgment stage.
- The court affirmed summary judgment for Gomes because the record did not show she took an adverse employment action against Dodge.
- The court affirmed summary judgment for the school district because Dodge failed to create a genuine dispute supporting municipal liability under § 1983.
- Disposition: affirmed in part, reversed in part, and remanded.

## Legal Principles

- A public employee’s political expression is protected when the employee speaks as a private citizen on a matter of public concern and not pursuant to official job duties.
- A First Amendment retaliation claim requires proof of protected speech, an adverse employment action that would deter a person of ordinary firmness, and retaliatory motive.
- Under Pickering balancing, a public employer must show actual disruption or a materially supportable risk of disruption; colleague offense or anticipated negative reactions to controversial speech, standing alone, is insufficient.
- Qualified immunity is unavailable when clearly established law would put a reasonable official on notice that threatening discipline based solely on disfavored political expression violates the First Amendment.
- Individual § 1983 liability requires personal involvement in the adverse employment action; municipal liability requires a policy, custom, or action by a final policymaker that caused the constitutional violation.

## Conclusion

The Ninth Circuit ruled that a teacher’s MAGA hat at staff-only trainings was protected political speech and that a principal’s alleged threat of discipline could constitute actionable retaliation, while affirming judgment for the HR officer and the district due to the absence of an adverse action by the officer and insufficient proof of municipal liability.


Dodge v. Evergreen Sch. Dist. #114, 56 F.4th 767 (9th Cir. 2022)