56 F.4th 767
9th Cir.2022Background
- Longtime Evergreen School District teacher Eric Dodge attended two teacher-only racial equity trainings in 2019 and brought a Make America Great Again (MAGA) hat; he kept it off his head inside and placed it on a table or backpack.
- Wy’east principal Caroline Garrett learned some staff (including the outside presenter) felt intimidated; Garrett told Dodge to use “better judgment,” later called him racist/homophobe, and said "next time... bring your union rep" (which Dodge perceived as a threat of discipline).
- Dodge filed an HIB (harassment/intimidation/bullying) complaint; HR Officer Jenae Gomes contracted Clear Risk Solutions (CRS) to investigate; CRS’s preliminary report found Dodge was singled out and his expression implicated free‑speech concerns but concluded no policy violation; Gomes edited language and issued a final report finding no policy violation.
- The school board affirmed Gomes’s denial of the HIB complaint but later investigated Garrett over credibility/professionalism concerns; Garrett resigned/accepted demotion rather than face discipline.
- Dodge sued Principal Garrett, HR Officer Gomes (in their individual capacities), and the District under 42 U.S.C. § 1983 for First Amendment retaliation; the district court granted summary judgment for all defendants on qualified immunity and municipal liability grounds.
- The Ninth Circuit affirmed summary judgment for Gomes and the District but reversed and remanded as to Principal Garrett, holding a triable First Amendment retaliation claim existed and Garrett was not entitled to qualified immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Garrett violated Dodge’s First Amendment rights by threatening discipline over his MAGA hat | Garrett’s statements and conduct (calling him racist, directing he bring a union rep) were retaliation for protected political expression | Garrett acted to prevent workplace disruption and merely advised procedure (union rep) and to preserve inclusivity/safety | Reversed as to Garrett — a jury could find retaliation; triable adverse‑action issue (threat of discipline) exists |
| Whether HR Officer Gomes took an adverse employment action by counseling Garrett and handling the investigation | Gomes’ advice and final investigative decisions were part of retaliatory conduct that chilled speech | Gomes followed policy, oversaw an investigation that found no policy violation, and did not cause a threatening meeting or discipline | Affirmed for Gomes — record lacks evidence her actions were reasonably likely to deter protected speech |
| Whether the District is liable via ratification for Garrett’s conduct by affirming denial of the HIB complaint | The school board’s affirmation ratified and approved Garrett’s unconstitutional actions | Affirming no policy violation is not the same as adopting/approving misconduct; board later investigated and forced Garrett to resign/accept demotion | Affirmed for the District — no ratification; further board action defeats municipal liability claim |
| Whether Garrett is entitled to qualified immunity for alleged First Amendment retaliation | Dodge: established First Amendment violation and law was clearly established under Pickering/Tinker and related precedent | Garrett: Pickering balancing is fact‑specific and uncertainty shields her via qualified immunity | Qualified immunity denied as to Garrett — Pickering balance clearly favored Dodge under established law; reversed summary judgment and remanded |
Key Cases Cited
- Pickering v. Bd. of Educ., 391 U.S. 563 (1968) (Balancing public‑employee speech interests against employer’s administrative interests)
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (School may not restrict expression solely to avoid discomfort with an unpopular viewpoint)
- Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) (Municipal liability under § 1983 requires a policy, custom, or ratification causing the constitutional violation)
- City of Canton v. Harris, 489 U.S. 378 (1989) (Standards for municipal liability and causation in § 1983 claims)
- Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009) (Threats of discipline can constitute adverse action that chills speech)
- Dahlia v. Rodriguez, 735 F.3d 1060 (9th Cir. 2013) (en banc) (Clarifies adverse‑action and chilling tests for First Amendment retaliation)
- Settlegoode v. Portland Pub. Schs., 371 F.3d 503 (9th Cir. 2004) (Employer must show actual injury to legitimate interests beyond upset feelings)
- Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971 (9th Cir. 1998) (Qualified‑immunity limits in public‑employee speech claims; Pickering balancing rarely clearly established)
- United States v. Lanier, 520 U.S. 259 (1997) (Clarifies when settled law gives fair warning for qualified‑immunity purposes)