The 6th U.S. Circuit Court of Appeals has affirmed the ruling of a lower court, siding with a high school administrator in Tennessee in a case in which a former high school coach claimed he was fired by the administrator because of two social media posts in violation of his Constitutional right to Free Speech.
In so ruling, the panel of judges ruled that the administrator was entitled to qualified immunity because, when deciding to terminate the coach’s employment, he relied on, among other things, the independent investigation, which went unrebutted by the coach, and the advice of the board of education’s attorney. There was no indication that the coach’s social media posts played any part in the final decision, and the administrator repeatedly affirmed the coach’s right to post them.
Gerald Sensabaugh, a former player in the National Football League, was the head football coach at David Crockett High School in Greeneville, Tennessee. On Nov. 19, 2018, Sensabaugh filed an employment discrimination lawsuit in the United States District Court for the Eastern District of Tennessee against Kimber Halliburton and the Washington County Board of Education accusing the schools and its athletic director of violating his constitutional rights. Specifically, Sensabaugh claimed that he engaged in protected speech in the form of Facebook posts on Sept. 22 and Sept. 24, 2017. Sensabaugh further contended that due to these two posts, he was subjected to three unfavorable charges including: a Letter of Guidance, a Letter of Reprimand, and termination as head football coach that violated his First Amendment rights, according to the complaint.
The school contended that the incremental steps that led to his firing were in response to his unprofessional behavior, which it cited in detail. Realizing that the coach was attributing his downward spiral to the social media posts, the school enlisted a legal firm to conduct an internal investigation.
While the investigation was taking place, Sensabaugh sued the Washington County Board of Education and Halliburton, asserting that they were retaliating against him for exercising his free-speech rights. In February 2018, an independent counsel hired by the school system to investigate the allegations recommended Sensabaugh be fired. Halliburton then provided Sensabaugh an opportunity to contradict the report or provide rationale for his actions. However, Sensabaugh did not respond to Halliburton’s offer. Sensabaugh was terminated from his position as head football coach on March 15, 2018. After the termination, Sensabaugh later amended his lawsuit seeking $5 million and reinstatement.
On Nov. 19, 2018, the United States District Court for the Eastern District of Tennessee dismissed Sensabaugh’s million lawsuit, leading to the appeal.
Beginning its analysis, the 6th Circuit summarized the district court’s ruling: “Sensabaugh could not show that the Letter of Guidance, the Letter of Reprimand, or his termination violated the First Amendment … (because they) did not constitute adverse actions.” Furthermore, “Sensabaugh could not show any causal connection between the Facebook posts and his termination.”
The panel of judges considered each of his arguments
Letter of Guidance and Letter of Reprimand
“Sensabaugh first challenges the district court’s determination that the Letters of Guidance and Reprimand did not constitute adverse actions,” it wrote. “To establish an adverse action for First Amendment retaliation purposes, ‘a plaintiff must show that the action ‘would chill or silence a person of ordinary firmness from future First Amendment activities.’ Benison v. Ross, 765 F.3d 649, 659 (6th Cir. 2014) (quoting Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 822 (6th Cir. 2007)). But ‘[i]t is not necessarily true . . . that every action, no matter how small, is constitutionally cognizable’ as an ‘adverse action.’ Thaddeus-X, 175 F.3d at 396. In the employment context, ‘[t]he term ‘adverse action’ has traditionally referred to actions such as discharge, demotions, refusal to hire, nonrenewal of contracts, and failure to promote.’ Dye, 702 F.3d at 303 (quoting Handy-Clay v. City of Memphis, 695 F.3d 531, 545 (6th Cir. 2012)).
“We agree with the district court that the Letter of Guidance was not an adverse action. The Letter had no detrimental effect on Sensabaugh’s job as head football coach. As the district court noted, ‘[t]he issuance of the Letter of Guidance did not itself impose any discipline or alter Sensabaugh’s employment conditions in any way.’ Instead, it imposed directives that Sensabaugh had to follow to avoid discipline. The Letter expressly permitted Sensabaugh to maintain his First Amendment activities, by keeping the posts on Facebook, and notified Sensabaugh that he could post comments on social media in the future. As such, we cannot conclude that the Letter of Guidance ‘would chill or silence a person of ordinary firmness from future First Amendment activities.’ Benison, 765 F.3d at 659.2
“The same goes for the Letter of Reprimand. The Letter of Reprimand amounted to a suspension with pay pending investigation by outside counsel. Several panels of this court have determined that a suspension with pay does not constitute an adverse action. See, e.g., Ehrlich v. Kovack, 710 F. App’x 646, 650 (6th Cir. 2017) (First Amendment retaliation claim); Harris v. Detroit Pub. Schs., 245 F. App’x 437, 443 (6th Cir. 2007) (same); Peltier v. United States, 388 F.3d 984, 988-89 (6th Cir. 2004) (Title VII discrimination claim). Sensabaugh makes no attempt to grapple with this caselaw on appeal; yet it is his burden to show the violation of a constitutional right in order to overcome Halliburton’s assertion of qualified immunity. Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015). Sensabaugh has not shown that the Letter of Reprimand constitutes an adverse action.”
Termination
“There is no dispute that Sensabaugh’s firing was an adverse action. But the district court found no causal connection between Sensabaugh’s Facebook posts and his termination. We agree.
“To show causation, Sensabaugh ‘must demonstrate ‘that the speech at issue represented a substantial or motivating factor in the adverse employment action.’ Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 400 (6th Cir. 2010) (quoting Rodgers v. Banks, 344 F.3d 587, 602 (6th Cir. 2003)). ‘A motivating factor is essentially but-for cause . . . .’ Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007).
“Sensabaugh’s causation argument rests largely on temporal proximity. Without a doubt, the Letter of Guidance and the Letter of Reprimand came shortly after the Facebook posts. The termination, however, came almost six months later. And even if we agreed that temporal proximity could provide a suggestion of causation here, temporal proximity alone is rarely, if ever, sufficient to establish causation. See Vereecke, 609 F.3d at 400. There generally must be other indicia of retaliatory conduct. Id.
“We see none here. At no time leading up to the termination did Halliburton ask or require Sensabaugh to remove the Facebook posts. In fact, both the Letter of Guidance and Letter of Reprimand explicitly acknowledged Sensabaugh’s right to comment on public concerns through social media. Moreover, a thorough independent investigation preceded Sensabaugh’s termination; that investigation concluded that the misconduct allegations were substantiated in full or in part, and that the misconduct supported termination. Sensabaugh casts no doubt on the impartiality of the investigation. And the evidence shows that Halliburton relied on the investigation when firing Sensabaugh.
“Halliburton offered Sensabaugh an opportunity to respond to the investigation before she made any final decision. Sensabaugh was offered similar opportunities in the Letter of Guidance and the Letter of Reprimand. But he never responded or gave Halliburton reason to disbelieve the results of the independent investigation. And finally, Halliburton ‘relied upon the advice of the [Board’s] attorney who agreed that termination was the proper course’ in the circumstances.
“In sum, when deciding to terminate Sensabaugh’s employment, Halliburton relied on, among other things, the independent investigation, which went unrebutted by Sensabaugh, and the advice of the Board’s attorney. There is no indication that Sensabaugh’s Facebook posts played any part in the final decision; indeed, Halliburton repeatedly affirmed Sensabaugh’s right to post them. Sensabaugh has not met his burden of showing that the Facebook posts were a substantial or motivating factor in his termination. Leonard, 477 F.3d at 355. Accordingly, he has not shown that Halliburton violated his constitutional rights. Halliburton is entitled to qualified immunity.”
John J. Miller, Ph.D., a professor in Sport Management in the College of Business & Economic Development at The University of Southern Mississippi, contributed to this article.
Sensabaugh v. Halliburton et al.; 6th Cir.; 2019 U.S. App. LEXIS 25755; 8/27/19
Attorneys of Record: ON BRIEF: M.E. Buck Dougherty, DUNCAN, HATCHER, HOLLAND & FLEENOR, P.C., Chattanooga, Tennessee, for Appellant. Jeffrey M. Ward, MILLIGAN & COLEMAN PLLP, Greeneville, Tennessee, for Kimber Halliburton in her individual capacity. Samuel K. McPeak, HERRIN, MCPEAK & ASSOCIATES, Johnson City, Tennessee, for Appellees Washington County Board of Education and Kimber Halliburton in her official capacity.
