Washougal man wins ‘MAGA hat’ appeal

The United States Court of Appeals for the Ninth District has ruled that a Washougal resident’s decision to bring a “Make America Great Again” (MAGA) hat to a training session on diversity and equity was protected speech under the U.S. Constitution’s First Amendment.

Eric Dodge, a former teacher for the Evergreen Public Schools (EPS) in Vancouver, filed a federal lawsuit against the district, Wy’East Middle School Principal Caroline Garrett and Wy’East’s human resources director, Janae Gomes, in early 2020, claiming “alleged retaliation in violation of the First Amendment,” according to court documents.

After the lawsuit was dismissed by the United States District Court for the Western District of Washington in 2021, Dodge took his case to the appeals court, which ruled on Dec. 29, 2022, to overturn the lower court’s decision to dismiss the lawsuit against Garrett but upheld the lower court’s ruling to dismiss the case against the school district and Gomes.

The appeals court stated that the school district failed to show evidence of a “tangible disruption” to school operations that would outweigh Dodge’s First Amendment rights.

“In sum, while some of the training attendees may have been outraged or offended by Dodge’s political expression, no evidence of actual or tangible disruption to school operations has been presented,” circuit judge Danielle Forrest wrote. “Political speech is the quintessential example of protected speech, and it is inherently controversial. That some may not like the political message being conveyed is par for the course and cannot itself be a basis for finding disruption of a kind that outweighs the speaker’s First Amendment rights.

“Therefore, Principal Garrett’s asserted administrative interest in preventing disruption among staff does not outweigh Dodge’s right to free speech. For all these reasons, Dodge has presented sufficient evidence to create a triable issue regarding whether Principal Garrett violated his constitutional rights.”

Dodge launched a GoFundMe fundraiser in May 2021, to collect donations for his legal bills, with a goal of $55,000. As of Monday, Jan. 9, the fundraiser had collected $809.

Dodge accused the district, Garrett and Gomes and the school board of “corruption” and stated that they attempted to “make (him) quiet” and “run (him) off.”

“That wasn’t all, though,” he wrote on his GoFundMe site. “You see, equity only applies when you think the same way the intolerant left does. Somebody needs to take a stand … and so I did.”

Dodge declined a request for comment from The Post-Record.

“I would love to (comment), but I can’t,” he said. “I still have to finish up the legal process first.”

Michael McFarland, an attorney for Evans, Craven & Lackie law firm representing EPS and Gomes, said that his clients “are both very pleased with the Court’s ruling.”

“Ms. Gomes and EPS have from the outset of this litigation denied having taken any adverse action against Mr. Dodge,” McFarland told the Post-Record. “In fact, Ms. Gomes worked tirelessly to assist Mr. Dodge navigate his complicated employment and health benefit situation. Both Ms. Gomes and EPS at all times acted in Mr. Dodge’s best interests. The court correctly found what Ms. Gomes and EPS have said all along — they did not retaliate in any way against Mr. Dodge. Ms. Gomes and EPS are happy to have this matter behind them.”

A difference of opinion

Dodge was assigned to teach science at Wy’east for the 2019-20 school year following a leave of absence after he had a stroke in 2017. On Aug. 22, 2019, Dodge attended a cultural sensitivity and racial bias training session presented by Shameem Rahka, a Washington State University-Vancouver education professor, at Wy’east. Dodge wore his MAGA hat until he approached the front doors of the school, then took it off when he entered the building.

“I don’t typically wear a hat,” Dodge wrote on his GoFundMe page, “but just weeks earlier I developed some cancer spots on my head from the sun and was strongly advised to wear a hat while outdoors. So aside from my support for President Trump, I also medically needed to cover my head to avoid a worsening condition.”

During the training session, 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,” court records state.

Rahka saw Dodge’s hat and told Garrett after the session that she felt “intimidated” and “traumatized.” Several teachers who attended the training also complained to Garrett about the hat. One teacher “had cried, and another found the hat ‘threatening,'” according to court documents.

“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,” the records state.

Garrett called 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 an opportunity to respond.

Later that afternoon, Garrett asked Dodge why he brought the hat to the training session, and he stated that he wore it to protect sunspots on his head and that he “like(d) the (hat’s) message” 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.”

“Judging by her tone,” Dodge wrote on GoFundMe, “it was fairly obvious that she was not a supporter of (P)resident Trump.”

Dodge’s attorneys argued Garrett was “highly motivated” by her politics.

“Her written plan for the school year stated the goal of making students ‘activists,’ the brief states. “She previously displayed a Bernie Sanders campaign bumper sticker on her car in the Wy’East parking lot. She put up a poster for the ‘Black Lives Matter’ movement in the library but did not view it as political speech. Other Wy’East teachers have reported to EPS feeling ‘shut down by Ms. Garrett for having different views’ and that ‘there is a double standard in the school for staff that are of different political views than Ms. Garrett.'”

Garrett told Dodge that “some people (interpret 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 “(maybe) they’re not all bad,” but by the end of the conversation, he understood Garrett was effectively asking him not to wear his MAGA hat at Wy’east,” court records state.

Dodge denied trying to “engender some kind of response with the hat” by bringing it to a racial equity training session and “attempted to ‘talk politics'” during their conversation, but Garrett “shut it down,'” according to court records.

The next day, Dodge attended another teacher training session at Evergreen High School. He again wore his MAGA hat before entering the building, then took it off once he was inside. Wy’east teacher Amy Matsumoto, who was present at the previous day’s training session, saw the hat and texted Garrett, who called Gomes. They agreed Garrett needed to “set a clear directive with (Dodge)” to “not have the hat in the training where it was causing the disruption to staff.”

Dodge later drove back to Wy’east for another training session. He left his hat in his truck and did not bring it into the building.

“When the training was over, Dodge stayed behind to talk to Garrett about teaching classes other than science,” according to court documents. “The parties disagree about what happened during this conversation.”

Dodge alleged that Garrett called him a “homophobe and a racist and a bigot and hateful.” He alleged that when he denied wearing his hat at Wy’east for the third session, she called him a “liar,” specified that she did not want him wearing the hat “period,” and told him: “Next time I see you with that hat, you need to have your union rep because I’ll have mine.”

“I was shocked,” Dodge stated. “I didn’t really even understand what she was asking me. I really was taken back by everything, and I didn’t understand what was happening, or why and where it was all coming from.”

Garrett disputed using profanity or raising her voice, but admitted she was frustrated and viewed Dodge’s behavior as “insubordination.”

Dodge’s attorneys wrote in a court disposition that the encounter “devastated” the longtime educator, who had suffered a stroke two years earlier.

“Notably, as a result of his prior stroke injuries, Dodge was more susceptible to severe — and even physical — reactions from anxiety and stress as compared to an ordinarily healthy person,” the lawyers wrote. “Just after the encounter, another teacher, Alicia Parkison, observed Dodge ‘shaking and stuttering’ and having ‘an anxiety attack.’ Dodge left Wy’East to see his wife, who found him stuttering and not talking clearly. Dodge recalls losing his physical coordination and having a difficult time completing sentences due to his worsened stutter.”

Later that night, Dodge emailed Garrett to tell her that he was “taken back” by their conversation earlier that day. He stated that her “unprovoked attack” made him “sick to (his) stomach” and nervous, but that he was “sorry for offending (her).”

When Dodge returned to work at Wy’East on Aug. 26, he was “still so distressed about the situation he had a hard time talking or walking” and felt “sick and nervous,” according to court documents. “By (Aug. 28), Dodge could work only half a day because he felt trapped. He analogized it to panic attacks: he could not walk straight, focus or think.”

On Aug. 29, Dodge called in sick and went on extended leave, which eventually turned into medical leave.

“Dodge’s physician found that the incident “affected him quite a bit.’ His symptoms after the incident included increased stuttering and an inability to speak clearly, and his physician attributed the cause of those symptoms to the altercation with Garrett.”

The reply brief states that the incident caused Dodge to experience anxiety which “prevented him from working because he has ‘a lower threshold to have this type of response to this verbal altercation.'”

Dodge reached out to a Evergreen School District teacher’s union representative, who contacted district leaders on his behalf. After the district leaders told the representative that they weren’t planning to take any action against Garrett, Dodge filed a harassment, intimidation and bullying complaint against Garrett through the district’s online reporting system and requested a transfer to a different school.

Dodge’s complaint was sent to Gomes, who initiated an investigation as required by district policy. Gomes contracted third-party liability investigator Clear Risk Solutions (CRS) to perform the investigation and determine whether Garrett violated district policies in her treatment of Dodge.

CRS completed its investigation and prepared a preliminary investigative report, which 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 report also found that Dodge had not violated any school policy by having his MAGA hat, that 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.”

The report also determined that Garrett had not technically violated any school policy because the district’s anti-discrimination policy did not ban discrimination based on political beliefs, and the encounters between Dodge and Garrett did not rise to the level of harassment, intimidation, or bullying.

Gomes determined that no policy violation had occurred and wrote a letter to Dodge explaining that no further action would be taken on his complaint, the district would transfer Dodge to a different school, and that the district would educate all employees about engaging in political discourse without violating constitutional rights. She further assured Dodge that he would not be retaliated against for filing his complaint.

Dodge appealed Gomes’ denial of his complaint to the Evergreen School Board, which affirmed the denial.

“However, aware of other complaints about Garrett lodged by school parents, the school board ordered further investigation into whether Garrett had acted professionally in her interactions with Dodge,” the court records state.

During the second investigation, the school board members informed Garrett that they had a “strong belief” that her conversations with Dodge were not as she had represented in addition to concerns about her “professionalism” which brought her “credibility into question.”

Ultimately, the school board gave Garrett the choice of resigning as principal and accepting a demotion or facing disciplinary proceedings. She resigned at the end of the school year.

Dodge then filed a lawsuit claiming that Garrett and Gomes retaliated against him for having his MAGA hat in violation of his First Amendment right to free speech. He also sued the Evergreen School District, claiming that the school board ratified the unconstitutional actions of the individual defendants by affirming the denial of his complaint.

The case was tried in 2021 by the United States District Court for the Western District of Washington, which concluded that Garrett and Gomes were protected by qualified immunity because Dodge failed to establish that their actions violated the Constitution.

The court also concluded that Dodge failed to present evidence that the school board ratified any unconstitutional actions by Garrett or Gomes, and even if he had, there was not a sufficient “causal connection” between the school board’s decision to affirm the denial of Dodge’s complaint and Dodge’s injury. Dodge immediately appealed the decision, taking it to the higher court.