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Sixth Circuit Finds No First Amendment Retaliation for Fired Coach
The Sixth Circuit Court of Appeals, the decisions of which are binding in Michigan, recently found that a Tennessee school district did not violate a former coach’s First Amendment rights when school officials issued him a letter of guidance directing him to remove an unauthorized photo of students from his social media account. Sensabaugh v Halliburton, Case No. 18-6329 (CA 6, 2019). The Sixth Circuit also determined that the district’s decision to terminate the coach due to several incidents of insubordination and unprofessional conduct, subsequent to his social media post, was unrelated to any protected First Amendment activity.
Gerald Sensabaugh served as the high school football coach. Outside of his coaching duties, Sensabaugh went to one of the district’s elementary schools and took photos of the allegedly poor conditions in a kindergarten classroom. Sensabaugh posted on his Facebook page several photos and comments that were critical of the district. One photo showed the faces of kindergarten students. Upon seeing the posts, the superintendent directed Sensabaugh to remove only the photo of kindergarten students. Sensabaugh did not comply.
During a telephone conversation with Sensabaugh two days later, school administrators again directed Sensabaugh to remove the photo of kindergarten students and explained that the district was not demanding that he remove his other posts, which were critical of the district. Sensabaugh refused and yelled at the school administrators before hanging up the phone.
Sensabaugh received a letter of guidance recounting the phone conversation and again directing him to remove the unauthorized photo of kindergarten students based on the district’s concern that his post violated the Family Educational Rights and Privacy Act.
In a subsequent meeting with school administrators, Sensabaugh became belligerent and confrontational, and accused the district’s athletic director of illegal drug use. Sensabaugh then went to the school cafeteria where he confronted an athletic trainer and an injured student athlete. During that night’s football game, Sensabaugh directed profanity at his players, in violation of administrative directives. Sensabaugh also loudly proclaimed that the athletic director had a drug problem, which was heard by those in attendance.
The district issued Sensabaugh a letter of reprimand and placed him on paid administrative leave while district officials investigated his conduct. The investigation substantiated that Sensabaugh engaged in misconduct, insubordination, and threatening, retaliatory behavior towards his supervisors, district staff, and students. The investigation also noted that Sensabaugh refused to remove the photo of kindergarten students from his Facebook page in violation of the district’s directives. After giving Sensabaugh an opportunity to respond, which he refused, the district, through its board of education, terminated his employment.
Sensabaugh filed a First Amendment retaliation claim against the superintendent and the district. First Amendment retaliation claims require the employee to prove that the employee engaged in protected conduct; the public employer took an adverse employment action against the employee; and there is a causal connection between the protected conduct and the adverse employment action. Here, the Sixth Circuit started with the assumption that Sensabaugh’s Facebook posts were protected by the First Amendment, except for the student photos. Because the posts about allegedly poor school conditions arguably addressed a matter of public concern, the Sixth Circuit concluded that the posts were protected First Amendment speech.
The Sixth Circuit determined that neither the district’s letter of guidance nor its letter of reprimand were adverse employment actions because the letters were not discipline and did not penalize Sensabaugh. The letter of reprimand only placed Sensabaugh on paid administrative leave while the district investigated his conduct. Placement on paid administrative leave during an investigation is generally not an adverse employment action.
Although the decision to terminate Sensabaugh was an adverse employment actions, the Sixth Circuit determined that there was no connection between the September 2017 Facebook posts and the March 2018 termination. The Sixth Circuit noted that the district never asked Sensabaugh to remove his social media posts, except for the photo of kindergarten students, and the district conducted a thorough investigation into Sensabaugh’s subsequent misconduct. The district relied on the investigation, which showed significant misconduct warranting Sensabaugh’s termination, as the basis for its termination decision.
Remember that social media posts may be protected speech under the First Amendment, depending on whether the post is related to a matter of public concern (as opposed to an internal workplace grievance) and whether the post’s content is related to the school employee’s duties. First Amendment cases are very fact specific, and school officials can easily run afoul of the First Amendment when they summarily discipline employees for social media posts without first determining whether the post is protected by the First Amendment.