Gerald Sensabaugh v. Kimber Halliburton

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

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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

No. 18-6329 Sensabaugh v. Halliburton, et al. Page 5

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

1Sensabaugh 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.

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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.

2Sensabaugh 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

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).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.

3In 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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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.

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.