White v. Busboom
297 Neb. 717
| Neb. | 2017Background
- William White, a Nebraska Department of Correctional Services officer, was placed on unpaid investigatory suspension in April 2010 after a misdemeanor arrest; Scott Busboom (major) signed the suspension letter but asserted he acted under direction and did not decide suspension.
- The collective bargaining agreement (CBA) allowed investigatory suspension with or without pay in certain circumstances and provided grievance/arbitration procedures; White filed a grievance late for the 2010 suspension and timely for the 2011 suspension.
- The criminal charge was dismissed in March 2011; the Department kept White on unpaid suspension, later charged him for failing to meet an investigator, held a predisciplinary hearing in his absence, and terminated him in July 2011.
- An administrator later set aside the second suspension and ordered back pay from March 28, 2011, to discharge; the Department did not appeal that determination.
- White sued under 42 U.S.C. § 1983 alleging deprivation of a protected property interest (continued employment) without due process, naming the Department and Busboom; the district court dismissed the Department (sovereign immunity) but found Busboom individually liable and awarded damages and attorney fees.
- The Nebraska Supreme Court reversed, holding Busboom entitled to qualified immunity and that White failed to show a postdeprivation due process violation because he did not invoke available grievance remedies.
Issues
| Issue | Plaintiff's Argument (White) | Defendant's Argument (Busboom/State) | Held |
|---|---|---|---|
| Whether unpaid investigatory suspension without predeprivation notice/hearing violated due process | White: unpaid suspension deprived property interest; Loudermill requires notice and opportunity to respond before deprivation | Busboom: law did not clearly require predeprivation hearing for unpaid suspension; postdeprivation grievance can cure defects; qualified immunity applies | Court: Not clearly established that unpaid suspension required predeprivation notice/hearing; Busboom entitled to qualified immunity |
| Whether constructive discharge theory entitles White to predeprivation process | White: long unpaid suspension and sham investigation amounted to constructive discharge requiring Loudermill protections | Busboom: constructive-discharge standards were unclear; employer may not know to provide predeprivation process | Court: Law unclear on constructive-discharge entitlement to predeprivation process; rights not clearly established |
| Whether failure to pursue grievance forfeited postdeprivation due process claim | White: grievance procedures were inadequate (no specified prompt hearing time) so exhaustion/waiver does not bar claim | Busboom: CBA provides adequate postdeprivation remedies; failure to invoke them defeats postdeprivation due process claim | Court: CBA grievance/arbitration procedures were constitutionally adequate; White’s failure to invoke them means no postdeprivation violation shown |
| Entitlement to attorney fees under § 1988 | White: prevailed below and awarded fees | Busboom: reversal means White not prevailing party | Court: White is not a prevailing party on appeal; no fees awarded |
Key Cases Cited
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (sets minimum pretermination due-process requirements: notice, explanation of evidence, opportunity to respond)
- Gilbert v. Homar, 520 U.S. 924 (Mathews balancing can permit unpaid suspension without predeprivation hearing where prompt postsuspension process is available)
- Mathews v. Eldridge, 424 U.S. 319 (three-factor balancing test for what process is due)
- Zinermon v. Burch, 494 U.S. 113 (whether constitutional violation occurred turns on adequacy of state-provided process)
- FDIC v. Mallen, 486 U.S. 230 (upheld postdeprivation procedures where prompt administrative review was available)
- Barry v. Barchi, 443 U.S. 55 (statute unconstitutional where interim suspension lacked provision for a prompt postdeprivation hearing)
- Ashcroft v. al-Kidd, 563 U.S. 731 (qualified immunity requires right to be clearly established)
- Scott v. County of Richardson, 280 Neb. 694 (Nebraska precedent holding posttermination grievance procedures can cure pretermination due-process defects)