Gerald Sensabaugh v. Kimber Halliburton ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0216p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GERALD SENSABAUGH, ┐
Plaintiff-Appellant, │
│
> No. 18-6329
v. │
│
│
KIMBER HALLIBURTON, Individually and in her official │
capacity as Director of Schools; WASHINGTON │
COUNTY BOARD OF EDUCATION, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 2:18-cv-00011—Pamela Lynn Reeves, Chief District Judge.
Decided and Filed: August 27, 2019
Before: ROGERS, BUSH, and LARSEN, Circuit Judges.
_________________
COUNSEL
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.
_________________
OPINION
_________________
LARSEN, Circuit Judge. Gerald Sensabaugh, the former head football coach at David
Crockett High School in Washington County, Tennessee, made two Facebook posts expressing
his concerns about the conditions and practices of schools within the Washington County School
No. 18-6329 Sensabaugh v. Halliburton, et al. Page 2
District. He claims that he was fired as a result. He sued School Director Kimber Halliburton,
raising a First Amendment retaliation claim, and the Washington County Board of Education
(the Board), raising a municipal liability claim. The district court granted summary judgment to
Halliburton because Sensabaugh had failed to show that Halliburton had violated his
constitutional rights. And because Sensabaugh had failed to establish an underlying
constitutional violation, his municipal liability claim against the Board also failed. For the
reasons stated, we AFFIRM.
I.
Sensabaugh became head football coach at David Crockett High School in 2017. The
school is within the Washington County School District and is overseen by the Board.
Halliburton is the Director of Schools for the Washington County School District. Sensabaugh’s
immediate supervisor was Athletic Director Josh Kite, and his ultimate supervisor was Principal
Peggy Wright.
On September 22, 2017, Sensabaugh visited an elementary school within the district.
The visit was unrelated to his job. After the visit, Sensabaugh posted on Facebook, decrying the
conditions of the elementary school. His post included photos of the classroom, and one photo
showed the faces of several students. Upon seeing the post, the elementary school principal
contacted the district’s Director of Human Resources, Susan Kiernan; the principal relayed his
concern that the posts might violate the law or school policy because the school might not have
obtained parental consent to show the students’ faces. Kiernan relayed these concerns to Wright
and Halliburton.
Halliburton, believing “that the public posting of a photo showing a child’s face could be
violative of both the [Board’s] policy and the Family Educational Rights and Privacy Act,”
contacted the Board’s attorney, Thomas Seeley. Wright and Halliburton tried to call Sensabaugh
to “instruct him to immediately remove any photo showing a child’s face—but not any posts or
other content.” But Sensabaugh did not answer the calls. Halliburton did briefly communicate
with Sensabaugh by text message that evening. So did Wright, whose text told Sensabaugh to
remove the photos from Facebook. Sensabaugh did not comply.
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Two days later, Sensabaugh again posted on Facebook; this post discussed his concerns
with prisoners working at the high school. Halliburton texted Sensabaugh after reading the post,
telling him: “I see you’ve posted something else before knowing all the facts. Uncertain why
you are not taking my calls. I really would like to speak to you.” Later that day, Wright and
Halliburton spoke with Sensabaugh on the phone. According to Halliburton:
Wright and I spoke to Sensabaugh by phone, and attempted to address the safety
concerns that Sensabaugh raised and again requested that he remove any photo(s)
of the Jonesborough Elementary School children from Facebook; we advised
Sensabaugh that he did not need to take down the post, just the photo(s) of the
students . . . . During this phone conversation, Sensabaugh yelled at us and told
us that he was not taking the photo down. Then, he hung up on us.
Wright recounted the telephone call similarly, noting that Sensabaugh “repeatedly interrupted us
and he yelled at us” and that “Halliburton and I could not believe that Sensabaugh would speak
to his supervisors in this manner.” Halliburton also explained, “During my more than fifteen
years as a supervisor[] in the education field, I have never had an employee speak to me the way
that Sensabaugh spoke to Wright and me in that September 24, 2017 phone call.” Sensabaugh
explained the conversation as follows:
It was a very heated phone conversation and Director Halliburton and Principal
Wright threatened me with my job as head football coach. Director Halliburton
and Principal Wright both told me that they “could make it where I would never
coach football again anywhere.”
After the conversation, Sensabaugh sent a text message to Halliburton that read: “Just let me
know the next step. Fire me or deal with it.”
Based on Sensabaugh’s conduct during the phone call, Halliburton consulted attorney
Seeley on how to proceed with “some level of corrective action.” Although Halliburton wanted
to fire Sensabaugh, Seeley recommended “a letter to address the issues with him and give him a
chance to correct his behavior.” Wright and Halliburton drafted a Letter of Guidance, which
addressed not only Sensabaugh’s failure to remove the photos from Facebook and his conduct
during the phone call, but other alleged misconduct, including his use of profane language with
students and his requiring a student to practice while injured. The letter again directed
Sensabaugh to remove the photos from Facebook but stated, “At no time did we ask you to
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delete any of your comments or opinions on social media. You have the right to comment on
matters of public interest on social media.” The letter concluded, “Failure to follow my
directives may lead to discipline up to and including termination as our football coach.” After
receiving the letter, Sensabaugh removed the photos from Facebook.
Wright gave Sensabaugh the Letter of Guidance at a meeting on October 6, 2017, during
which Wright claims that Sensabaugh “became agitated and began pacing back and forth. As the
meeting progressed, he became belligerent and confrontational.” According to Wright,
“Sensabaugh interrupted my attempt to read him the letter, but ultimately let me finish reading
it.” “At the meeting, Sensabaugh “accused his immediate supervisor, [Athletic Director] Kite, of
coming to work ‘high’ on the prescription medication, Oxycodone.” Wright stated, “Sensabaugh
threatened to expose Kite to the media if we took any further action related to Sensabaugh’s
conduct.” At this same meeting, Sensabaugh also claimed knowledge of a student’s having
brought a gun to school. In a subsequent interview, Sensabaugh stated that the claim was
hypothetical and meant to illustrate that allegations of wrongdoing are easy to make but difficult
to prove. However, Sensabaugh acknowledged having heard an unsubstantiated rumor that a
student brought either a shotgun or BB gun to school. Wright later explained: “I was very
concerned that Sensabaugh waited until his own conduct was being addressed to bring up
something that should have been reported immediately.”
After the Letter of Guidance meeting, Sensabaugh went straight to the cafeteria where he
confronted an athletic trainer and the injured student whom Sensabaugh had allegedly forced to
practice. Later that night, Sensabaugh allegedly directed profanity toward his football players
during a game, in direct violation of the Letter of Guidance. And Sensabaugh allegedly went
around proclaiming “loudly so that everyone around, including students, could hear: ‘Josh Kite
has a drug problem and has offered me Oxycodone. He carries it around the school and I don’t
care who hears me.’” During a later independent investigation, Sensabaugh denied having
directed profanity at the students that night and making such statements about Kite.
Sensabaugh’s conduct following the Letter of Guidance meeting prompted Wright to
contact attorney Seeley to report her concern “that Sensabaugh posed a threat to the safety of the
students and staff.” Although Wright initially wished to fire Sensabaugh, she and Halliburton
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ultimately agreed with Seeley’s recommendation to instead issue a Letter of Reprimand. The
Letter of Reprimand recounted the incidents leading up to its issuance, placed Sensabaugh on
administrative leave pending a full investigation by an independent law firm, and warned
Sensabaugh that termination of his employment was possible. Wright testified that “Sensabaugh
was extremely rude and insubordinate” when she read him the Letter of Reprimand and
explained that “[i]f Sensabaugh w[ere] not already being suspended and investigated, [she]
would have immediately recommended his termination based upon his conduct.”
An independent law firm painstakingly investigated the alleged misconduct, interviewing
“seventeen different witnesses who were identified as potentially having relevant knowledge or
information” and reviewing scores of documents and text messages. This included a lengthy
interview with Sensabaugh. The investigators concluded that Sensabaugh had used profanity
and had failed to follow instructions to remove the photos from Facebook until after the Letter of
Guidance meeting. They determined that Sensabaugh had been unprofessional and insubordinate
during the Letter of Guidance and Letter of Reprimand meetings as well as, afterward, in his
retaliation against the athletic trainer and student-athlete in the cafeteria. And they found the
allegations of Sensabaugh’s failure to report safety concerns and to follow orders regarding
practicing injured players partially substantiated. The investigators’ report concluded:
[W]e find that Sensabaugh engaged in unprofessional, insubordinate, threatening
and retaliatory behavior towards supervisors, staff, and students. Further, we find
that Sensabaugh’s actions and statements intimidated, demeaned, and undermined
both his co-workers and his supervisors. We find that, in light of this conduct,
Principal Wright was justified in placing Sensabaugh on administrative leave on
October 10, 2017.
Moreover, it is inconceivable to these investigators that anyone could repeatedly
speak to his or her supervisors and co-workers in such a belligerent and
confrontational manner and still expect to maintain an employment relationship.
Furthermore, we believe that Sensabaugh’s lack of civility and failure to treat
others with dignity and respect forecloses any possibility of reinstatement. In the
investigators’ opinions, Sensabaugh’s behavior warrants his permanent removal
from the position of Head Football Coach at DCHS, and we recommend that
Sensabaugh’s employment with DCHS be terminated.
While the investigation was ongoing, Sensabaugh filed suit against Halliburton and the
Board. Just over a month later, Halliburton notified Sensabaugh that the independent
No. 18-6329 Sensabaugh v. Halliburton, et al. Page 6
investigators had completed their investigation and had recommended his termination.
Halliburton summarized the investigators’ findings and recommendation in a letter, but offered
the following:
Before I make a final decision regarding your continued employment, I wish to
give you every opportunity to respond to Attorney Baker’s investigation. . . . I am
asking you to provide me with any written statements or other evidence you wish
me to consider in your defense, whether in rebuttal to Attorney Baker’s findings
or in support of a less severe punishment. Alternatively, you may request a
meeting with me to present your defense and to explain why I should not
terminate you.
Sensabaugh never responded to Halliburton’s letter, and Halliburton terminated Sensabaugh’s
employment on March 15, 2018.
Sensabaugh then amended his complaint to include claims based on his termination.
Halliburton moved for summary judgment based on qualified immunity, and the Board moved to
dismiss for failure to state a claim. The district court granted the motions, holding that
Sensabaugh had not shown a violation of his First Amendment rights, and without an underlying
constitutional violation, Sensabaugh’s claim against the Board also failed. Sensabaugh appealed.
II.
Sensabaugh argues that Halliburton retaliated against him for exercising his First
Amendment right to speak in the form of two Facebook posts. To prevail on his First
Amendment retaliation claim, Sensabaugh must show:
(1) [he] engaged in protected conduct; (2) an adverse action was taken against
[him] 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 [his] protected
conduct.
Bell v. Johnson, 308 F.3d 594, 602 (6th Cir. 2002) (quoting Thaddeus-X v. Blatter, 175 F.3d 378,
394 (6th Cir. 1999) (en banc)). If he makes this showing, “the burden then shifts to the employer
to demonstrate ‘by a preponderance of the evidence that the employment decision would have
been the same absent the protected conduct.’” Dye v. Office of the Racing Comm’n, 702 F.3d
286, 294 (6th Cir. 2012) (quoting Eckerman v. Tenn. Dep’t of Safety, 636 F.3d 202, 208 (6th Cir.
No. 18-6329 Sensabaugh v. Halliburton, et al. Page 7
2010)). If the employer makes such a showing, “summary judgment is warranted if, in light of
the evidence viewed in the light most favorable to the plaintiff, no reasonable juror could fail to
return a verdict for the defendant.” Id. at 294–95 (quoting Eckerman, 636 F.3d at 208).
Halliburton disputes Sensabaugh’s First Amendment retaliation claim and also asserts qualified
immunity. When a state official raises a qualified immunity defense, the plaintiff must show the
violation of a clearly established constitutional right. Harris v. Klare, 902 F.3d 630, 637 (6th
Cir. 2018).
The district court concluded that Sensabaugh could not show that the Letter of Guidance,
the Letter of Reprimand, or his termination violated the First Amendment. While there is no
dispute that Sensabaugh’s Facebook posts constituted protected speech,1 the district court
determined that the Letters did not constitute adverse actions, and that Sensabaugh could not
show any causal connection between the Facebook posts and his termination. We address these
conclusions in turn.
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. 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 (alteration omitted)
(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
1
Sensabaugh does not contend that the photos he posted to Facebook were protected by the First
Amendment or that Halliburton’s request to have the photos removed violated his First Amendment rights.
No. 18-6329 Sensabaugh v. Halliburton, et al. Page 8
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
2
Sensabaugh also argues that Halliburton and Wright’s threat to ensure that he “would never coach football
again anywhere” constitutes an adverse action, either separately or when considered in conjunction with the Letter
of Guidance. The district court did not consider the threat, perhaps because Sensabaugh’s complaint identified only
the Letter of Guidance, the Letter of Reprimand, and his termination as adverse actions. In any event, threats alone
are generally not adverse actions for retaliation purposes. See Hornbeak-Denton v. Myers, 361 F. App’x 684, 689
(6th Cir. 2010) (citing Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004)). Does the threat in
conjunction with the Letter of Guidance make the Letter an adverse action? It does not. Despite any statements
made during a “heated” phone conversation, the Letter of Guidance, issued a few days later, would have had no
detrimental effect on Sensabaugh’s job, provided that he complied with reasonable requests related to his
professionalism and unrelated to the Facebook posts. Accordingly, even considering the Letter of Guidance in light
of the alleged threat, the Letter does not constitute an adverse action. See Thaddeus-X, 175 F.3d at 396.
No. 18-6329 Sensabaugh v. Halliburton, et al. Page 9
Cir. 2003)). “A ‘motivating factor’ is essentially but-for cause . . . .” Leonard v. Robinson,
477 F.3d 347, 355 (6th Cir. 2007).3
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
3
In challenging the district court’s causation determination, Sensabaugh argues that, pursuant to the
balancing test set forth in Pickering v. Board of Education, 391 U.S. 563, 568 (1968), the defendants have failed to
“demonstrate[] that they have an overriding interest in maintaining the efficiency of the WCSD schools that
outweigh Coach Sensabaugh’s protected speech.” But the Pickering balancing test goes to the first element of a
First Amendment retaliation claim—whether a public employee such as Sensabaugh engaged in constitutionally
protected speech. See Westmoreland v. Sutherland, 662 F.3d 714, 718–19 (6th Cir. 2011). The defendants have
conceded that the Facebook posts were constitutionally protected speech; accordingly, we need not employ
Pickering.
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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.
III.
Sensabaugh also sued the Board, alleging municipal liability pursuant to Monell v.
Department of Social Services of New York, 436 U.S. 658 (1978). But because Halliburton did
not violate Sensabaugh’s First Amendment rights, the municipal liability claim also fails.
Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014) (“There can be no liability under Monell
without an underlying constitutional violation.”).
***
We AFFIRM the judgment of the district court in favor of the defendants.