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,

v.

KIMBER HALLIBURTON, Individually and in her official 

capacity as Director of Schools; WASHINGTON 

COUNTY BOARD OF EDUCATION,

Defendants-Appellees.

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No. 18-6329

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.
No. 18-6329 Sensabaugh v. Halliburton, et al. Page 3

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 
No. 18-6329 Sensabaugh v. Halliburton, et al. Page 4

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,1the 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.
No. 18-6329 Sensabaugh v. Halliburton, et al. Page 8

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.

 

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. 
No. 18-6329 Sensabaugh v. Halliburton, et al. Page 10

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.