By John J. Miller, Ph.D.
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 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 (Sensabaugh v. Halliburton, 2018).
According to the complaint, on Sept. 22, 2017, Sensabaugh visited an elementary school during which he was allowed to take photographs of the classrooms, which included the faces of students (Sensabaugh v. Halliburton, 2018). A short while later, Sensabaugh posted a comment on Facebook that reflected on issues regarding the design of the elementary school as well as the poor learning conditions for the students. Halliburton, as the Washington County Director of Schools, asked Sensabaugh to remove only pictures of the students but none of the written content in the posts. However, Sensabaugh refused to take down the pictures of the children as requested and in fact continued to comment on Facebook about issues within the school district on Sept. 24. Four hours later, on Sept. 24, Halliburton texted Sensabaugh asking to meet with him and explain the circumstances. Sensabaugh responded “I don’t need to know all the facts. Just my observation. Just let me know the next step. Fire me or deal with it” (Sensabaugh v. Halliburton, 2018, p. 4).
On Oct. 5, 2017, Sensabaugh received a Letter of Guidance from the principal at David Crockett High School, Peggy Wright. The letter asserted that Sensabaugh used profanity when speaking to students; failed to respect doctors’ instructions concerning high school football players who have not been cleared to practice or play; acted unprofessionally when interacting with other school district employees; and a lack of compliance by not removing photographs showing the faces of elementary students, not any comments or opinions, from his Facebook page, despite numerous calls to do so by the school district’s administration. The end of the letter revealed that if Ms. Wright’s directives were not adhered to, discipline, including termination as head high school football coach, could be enacted.
On Oct. 9, 2017, four days after sending the Letter of Guidance, Wright sent a Letter of Reprimand to Sensabaugh contending that he continued to act unprofessionally. Specifically, the letter asserted that Sensabaugh arrived late to meetings; often interrupted and yelled at other staff members; generated stories that the athletic director was addicted to and tried to dispense Oxycodone (a powerful painkiller and one of the most commonly abused prescription drugs in the country); pressured the athletic trainer in front of students and parents; and persisted in using profanity toward players. Finally, Wright indicated that some students and other district employees were afraid of Sensabaugh’s actions. For example, Sensabaugh allegedly stated that he was “coming after” the athletic trainer and challenged an injured student in front the team during a pre-game meal (Vance, 2018b). As a result, Wright recommended that Sensabaugh be placed on administrative leave. The recommendation came to fruition the next day, Oct. 10, 2017, as Sensabaugh was placed on paid administrative leave, pending an investigation by an outside legal firm into the previously outlined assertions of improper conduct by Sensabaugh.
While the investigation was taking place in January 2018, Sensabaugh filed suit against the Washington County Board of Education and Halliburton asserting that they were retaliating against him for exercising his free-speech rights on Facebook (Sensabaugh v. Halliburton, 2018). 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 as head football coach at Crockett High School (Vance, 2018a).
On Nov. 19, 2018, the United States District Court for the Eastern District of Tennessee dismissed Sensabaugh’s $5 million lawsuit stating that “no reasonable jury could find that Sensabaugh’s Facebook posts were a substantial motivating factor for Halliburton’s decisions to issue the Letters of Guidance/Reprimand/Suspension or to terminate Sensabaugh (Sensabaugh v. Halliburton, 2018, p. 23).” Additionally, the court dismissed the case with prejudice, meaning that the lawsuit cannot be brought to court again.
The First Amendment of the Constitution provides many protections to United States citizens as it states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the people to peaceably assemble and to petition the Government for a redress of grievances” (United States Constitution, Amendment I). It should be noted that the First Amendment is limited to only governmental entities in that it prohibits the federal government from making laws that infringe on the rights of speech and press, among others. Of the protections provided by the First Amendment, freedom of speech is the most commonly challenged (Miller & Schoepfer, 2018). Under the First Amendment, Sensabaugh, as a head football coach at a public high school, would be considered a state government employee and would be protected by the freedom of speech clause by the First Amendment.
Freedom of Speech
The First Amendment grants the freedom of expression to advance knowledge of society and discover truth (Emerson, 1963). The general rule is that the government should not restrict speech if it is related to suppression of free expression (Defeo, 2017). However, according to a federal court ruling, significant state interest should offer society with a reasonable expectation of privacy and unwanted intrusions (Hoepker v. Kruger, 2002). In the Sensabaugh case, it was evident that the content of his Facebook postings were not an issue. What was at issue was his lack of cooperation in removing student photographs. While photographs of children may be posted on social media outlets, such as Facebook, there are a number of consequences for doing so. First, as a protected class, any public posting of children must have the approval from the parents. Second, children can be bullied online as well as physically due to a posted picture. Third, and more disturbing, the photographs posted on social media can be picked up, edited, and distributed on child pornography websites. Finally, any information that associates the photograph of the child to their names may make them vulnerable to identity theft and digital kidnapping. Because Halliburton requested Sensabaugh to remove only pictures of the students (which Sensabaugh did not do) but none of the content of the posts, the court found that Sensabaugh’s freedom of speech rights were not violated.
According to Scarbrough v. Morgan County Board of Education (2006) the First Amendment does not permit “retaliation by a public employer against an employee on the basis of certain instances of protected speech by the employee” (p. 7). In order to establish a First Amendment retaliation claim, three elements must be established: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two–that is, the adverse action was motivated at least in part by the plaintiff’s protected conduct (Harris v. Detroit Public Schools (2007); Keenan v. Tejeda, 2002). Adverse actions often relate to “discharge, demotions, refusal to hire, nonrenewal of contracts and failure to promote” (Fritz v. Charter Township of Comstock, 2010, p. 12).
Sensabaugh argued that three adverse actions: (1) the Letter of Guidance; (2) the Letter of Reprimand/Suspension; and (3) terminating him from his position as head football coach were issued against him in retaliation for his Facebook posts. However, the court noted that the Letter of Guidance did not compel any discipline or alter Sensabaugh’s employment conditions in any way. Rather the Letter of Guidance directed Sensabaugh to conform his behavior to professionally acceptable standards of conduct that were unrelated to his right to comment on his Facebook account. Further, when the Letter of Reprimand was given to Sensabaugh in a tape-recorded meeting with Wright, he became rude and insubordinate by attacking Wright’s credibility and competency as principal of Crockett High School. Finally, in regards to Sensabaugh’s termination Halliburton employed the following mechanisms: “ (1) the investigative report, (2) statements made by Sensabaugh, (3) recording of the Letter of Guidance meeting, (4) recording of the Letter of Reprimand/Suspension meeting, (5) videos showing Sensabaugh cursing at the students, and (6) the recommendation of the outside investigators” (Sensabaugh v. Halliburton, 2018, p. 23). Ultimately, the court stated that “no reasonable jury could find that Sensabaugh’s Facebook posts criticizing Halliburton and the school system were a substantial motivating factor for Halliburton’s decision to issue the Letters of Guidance/Reprimand/Suspension or to terminate Sensabaugh” (Sensabaugh v. Halliburton, 2018, p. 25). As such, the court found that neither the Letter of Guidance nor Letter of Reprimand/Suspension represented an adverse action against Sensabaugh (Sensabaugh v. Halliburton, 2018).
In Malley v. Briggs (1986), the United States Supreme Court described qualified immunity as a strong doctrine that shields “all but the plainly incompetent or those who knowingly violate the law” (p. 2). Qualified immunity is a personal defense that applies only to government officials in their individual capacities (Everson v. Leis, 2009). Qualified immunity protects government officials from liability for civil damages as long as their conduct does not breach plainly recognized statutory or constitutional rights of which a reasonable person would have known (Pearson v. Callahan, 2009). To establish qualified immunity, Sensabaugh would have had to show how Halliburton (1) violated his constitutional right, and (2) that the right at issue was plainly recognized at the time of Sensabaugh’s alleged misconduct. In regards to the first issue, as indicated earlier, the court found that Sensabaugh’s constitutional right of freedom of speech was not violated. Concerning the second issue, Halliburton recognized Sensabaugh’s right to his freedom of speech by allowing him to post the contents on Facebook and did not prevent him from doing so. In fact, the court related that, “Sensabaugh’s actions of insubordination, use of profanity toward students, and retaliatory conduct toward students and co-workers were an independent justification for Halliburton’s actions” (Sensabaugh v. Halliburton, 2018, p. 24). Thus, the court indicated that because Halliburton had established enough evidence that she would have terminated Sensabaugh’s employment absent his protected speech, she was entitled to qualified immunity.
Dr. Miller is a visiting professor in Sport Management in the College of Business & Economic Development at The University of Southern Mississippi.
DeFeo, A. (2017). Humans of New York, shut your blinds. Touro Law Review, 33, 957-993.
Emerson, T. (1963). Toward a general theory of the First Amendment. Yale Law Journal, 72, 877-956.
Everson v. Leis, 2009 U.S. App. LEXIS 3288.
Fritz v. Charter Township of Comstock, 2010 U.S. App. LEXIS 1877.
Harris v. Detroit Pub. Sch., 2007 U.S. App. LEXIS 17389.
Hoepker v. Kruger, 2002 U.S. Dist. LEXIS 7966.
Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).
Malley v. Briggs, 1986 U.S. LEXIS 29.
Miller, J.J. & Schoepfer, K.L. (2018). Intercollegiate and interscholastic athletic issues. In J.J. Miller & K.L. (Eds.), Legal Aspects of Sport (2nd ed.) (pp. 215-236). Burlington, MA: Bartlett & Jones Publishers.
Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Scarbrough v. Morgan County Board of Education, 2006 U.S. App. LEXIS 28941.
Sensabaugh v. Halliburton, 2018 U.S. Dist. LEXIS 196830.
United States Constitution, Amendment I. Retrieved from https://www.usconstitution.net/xconst_Am1.html
Vance, Z. (2018a, April 30). Sensabaugh amends lawsuit against Washington County Schools; Halliburton attorneys request summary judgement. Retrieved from https://www.johnsoncitypress.com/Courts/2018/04/30/Sensabaugh-files-amended- complaint-in-Washington-County-Schools-lawsuit
Vance, Z. (2018b, November 19). Federal judge dismisses Sensabaugh lawsuit against Washington County Schools and Halliburton. Retrieved from https://www.johnsoncitypress.com/Courts/2018/11/19/Federal-judge-dismisses- Sensabaugh-lawsuit-against-Washington-County-Schools-Halliburton