Sensabaugh v. Halliburton

• Decision Date: 27 August 2019
• Docket Number: No. 18-6329,18-6329
• Citation: 937 F.3d 621
• Parties: Gerald SENSABAUGH, Plaintiff-Appellant, v. Kimber HALLIBURTON, Individually and in her official capacity as Director of Schools; Washington County Board of Education, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

937 F.3d 621

Gerald SENSABAUGH, Plaintiff-Appellant,

v.Kimber HALLIBURTON, Individually and in her official capacity as Director of Schools; Washington County Board of Education, Defendants-Appellees.

No. 18-6329

United States Court of Appeals, Sixth Circuit.

Decided and Filed: August 27, 2019

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.

Before: ROGERS, BUSH, and LARSEN, Circuit Judges.

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 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.

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 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 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

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