White v. Busboom
901 N.W.2d 294
| Neb. | 2017Background
- William White, a corrections officer covered by a collective bargaining agreement (CBA), was placed on unpaid investigatory suspension in April 2010 after a misdemeanor arrest; a suspension letter signed by Scott Busboom (a facility officer) cited the CBA.
- White remained on unpaid suspension after misdemeanor dismissal in March 2011; the Department issued a second unpaid investigatory suspension and ultimately terminated White for failure to meet with an investigator.
- An administrator later set aside the second suspension and ordered back pay from March 28, 2011, to discharge; the Department did not appeal.
- White sued under 42 U.S.C. § 1983 alleging deprivation of a property interest in his employment without due process against the Department and Busboom; the district court dismissed the Department (sovereign immunity) but found Busboom liable and awarded damages and attorney fees.
- On appeal, the Nebraska Supreme Court considered (1) whether Busboom was entitled to qualified immunity for suspending White without pay and (2) whether White failed to show a postdeprivation due process violation by not invoking available grievance procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Busboom violated clearly established due process by placing White on unpaid investigatory suspension without predeprivation notice/hearing | White: unpaid suspension (and constructive discharge) required predeprivation notice and opportunity to respond under Loudermill; failure to provide same violated clearly established rights | Busboom: law was not clearly established that unpaid suspension required predeprivation hearing; postdeprivation grievance could cure defects; qualified immunity applies | Held: Qualified immunity — law did not clearly establish that unpaid suspension required predeprivation hearing in this context; Busboom entitled to immunity |
| Whether postdeprivation procedures were adequate and White’s failure to use them bars § 1983 relief | White: grievance procedures were inadequate (no set timing for postsuspension hearing), so failure to grieve did not forfeit due process claim | Busboom: CBA grievance and administrative review provided constitutionally adequate postdeprivation process; White’s failure to invoke remedies defeats claim | Held: Postdeprivation procedures were constitutionally adequate; White’s failure to exhaust/invoke them means no postdeprivation due process violation |
| Whether a constructive discharge theory establishes a clearly established right to predeprivation process | White: prolonged sham investigation and unpaid suspension amounted to constructive discharge triggering predeprivation protections | Busboom: Constructive-discharge law is unsettled; courts treat constructive discharge differently and rights were not clearly established | Held: Law was not clearly established that constructive-discharge allegations required predeprivation process; cannot overcome qualified immunity |
| Entitlement to attorney fees under 42 U.S.C. § 1988 | White: prevailed below and should receive fees | Busboom: if no prevailing party on federal claim, no fees | Held: White is not a prevailing party after reversal; no attorney fees awarded |
Key Cases Cited
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (pretermination notice and opportunity to respond are minimum due-process requirements for protected public employment)
- Gilbert v. Homar, 520 U.S. 924 (Mathews balancing permits unpaid suspension without predeprivation hearing in some circumstances; prompt postsuspension procedures relevant)
- Mathews v. Eldridge, 424 U.S. 319 (three-factor balancing test for required procedural safeguards)
- Zinermon v. Burch, 494 U.S. 113 (constitutional violation depends on whether state provided constitutionally adequate process; availability of state remedies is relevant)
- FDIC v. Mallen, 486 U.S. 230 (upholding specified timelines for postdeprivation administrative hearing as constitutionally adequate)
- Barry v. Barchi, 443 U.S. 55 (statute lacking a prompt postsuspension hearing violated due process where suspension irreparably harmed livelihood)
- Ashcroft v. al-Kidd, 563 U.S. 731 (qualified immunity requires that the unlawfulness be clearly established)
- Scott v. County of Richardson, 280 Neb. 694 (Nebraska precedent that posttermination grievance procedures may cure pretermination process deficiencies)