Employment Law Daily High school football coach was fired for misconduct, not Facebook posts critical of schools
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Thursday, August 29, 2019

High school football coach was fired for misconduct, not Facebook posts critical of schools

By Marjorie Johnson, J.D.

The coach refused to remove a photo from one of his critical posts that showed students’ faces, and his insubordination spiraled into a course of misconduct—including publicly accusing the athletic director of drug abuse—that eventually led independent investigators to recommend his termination.

A high school football coach could not revive his First Amendment retaliation lawsuit asserting that he was fired because he made two Facebook posts that expressed his concerns about the conditions and practices of schools within the district. Affirming dismissal of his claims against a top official and the school district on summary judgment, the Sixth Circuit found that he failed to demonstrate that his social media posts were a motivating factor in his termination. Rather, the official repeatedly affirmed his rights to post on social media and instead relied upon the results of an independent investigation conducted by an outside law firm, which found that the coach failed to follow instructions to immediately remove photos from his Facebook post containing students’ faces and, when counseled about this and other misconduct, engaged in “belligerent and confrontational” treatment of supervisors and coworkers (Sensabaugh v. Halliburton, August 27, 2019, Larsen, J.).

FB posts include photos with students. After the coach visited one of the school district’s elementary schools, he criticized its conditions in a Facebook post and included a photo which showed the faces of several students. Upon learning about the post, the district’s director of schools became concerned since she believed that posting the photos may have violated board policy and the Family Educational Rights and Privacy Act. School officials were unable to reach him by telephone, so they warned him via text to remove the photos from his FB post.

He did not comply and two days later he made another FB post discussing his concerns with prisoners working at the high school. Later that day, the school officials spoke with him over the phone and again requested that he remove any photos of elementary school children from Facebook. He purportedly yelled at them, refused to take the photo down, and hung up. He followed up with a text that read: “Just let me know the next step. Fire me or deal with it.”

Letter of guidance. At the board attorney’s recommendation, the director provided the coach with a “letter of guidance” addressing his failure to remove the photos and his conduct during their phone call. The letter also raised other misconduct, including his use of profane language with students and his requiring a student to practice while injured. Though he was directed to remove the photos from Facebook, the letter 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 coach became increasingly agitated and confrontational during the meeting and purportedly accused the athletic director of coming to work “high” on Oxycodone and claimed knowledge that a student brought a gun to school (which he later acknowledged was an unsubstantiated rumor). He then went to the cafeteria and confronted an athletic trainer and the injured student he allegedly forced to practice. Later that night, he directed profanity toward his football players during a game and went around proclaiming loudly that the athletic director had a drug problem.

Letter of reprimand. Fearing that the coach posed a safety threat based on his recent conduct, the director again sought assistance from the board’s attorney, who recommended that he be issue a “letter of reprimand” and placed on paid leave pending a full investigation by an independent law firm. She did so, and claimed that he was “extremely rude and insubordinate” when she read him the letter.

Independent investigation. The law firm investigated, interviewing 17 witnesses, reviewing numerous documents and text messages, and interviewing the coach at length. It found, among other things, that he failed to follow instructions to remove the photos from Facebook until after the letter of guidance meeting, was unprofessional and insubordinate, and used profanity. The final report recommended termination. The director sent the coach a letter summarizing the investigation’s findings and notifying him that his termination had been recommended. She also offered him the opportunity to respond with any written statements or other evidence in his defense, but he never responded. He was subsequently terminated.

Lower court proceedings. The district court concluded that the coach failed to show a violation of his First Amendment rights and dismissed his claims against the director and the school district on summary judgment. While there was no dispute that his Facebook posts constituted protected speech, the court found that the two letters did not constitute adverse actions and that he could not show any causal connection between the Facebook posts and his termination.

Letters not adverse actions. The Sixth Circuit agreed that the letters were not adverse actions since neither had a detrimental effect on his job. Instead, they imposed directives that he had to follow to avoid discipline. Indeed, they expressly permitted him to maintain his First Amendment activities by keeping the posts on Facebook and notified him that he could post comments on social media in the future.

No causation shown. The coach also failed to demonstrate that the Facebook posts were a motivating factor in the decision to terminate him. He relied heavily on temporal proximity, but while the letters came shortly after his Facebook posts, his termination came almost six months later.

Moreover, there was no other indicia of retaliatory conduct. He was never instructed to remove the Facebook posts and both of the letters explicitly acknowledged his right to comment on public concerns through social media. Moreover, a thorough independent investigation preceded his termination, which concluded that the misconduct allegations were substantiated in full or in part, and that the misconduct supported termination. He didn’t challenge the impartiality of the investigation and the record showed that the director relied on it when firing him, as well as the advice of the board’s attorney. She also gave him the opportunity to respond before she made any final decision, but he never responded.

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