White v. Busboom, 297 Neb. 717

Background

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; Major Scott Busboom signed the suspension letter at the facility.
The CBA contained provisions permitting unpaid suspension in certain circumstances and set grievance timelines and multi-step postdeprivation procedures, including appeals and arbitration.
White’s criminal charge was dismissed in March 2011, but the Department maintained him on unpaid suspension, later initiating disciplinary proceedings and ultimately terminating him for failure to comply with an investigative interview directive.
An administrator later set aside the second suspension and awarded White back pay from March 28, 2011, to his discharge date; the Department did not appeal that decision.
White sued under 42 U.S.C. § 1983 alleging deprivation of a protected property interest without due process; the district court dismissed the State (sovereign immunity), found Busboom liable (denying qualified immunity), and awarded damages and attorney fees.
The Nebraska Supreme Court reversed: it held Busboom entitled to qualified immunity on the predeprivation claim and ruled White failed to show a postdeprivation due process violation because he did not invoke the available grievance remedies.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether White was entitled to predeprivation notice and hearing before unpaid suspension	White: unpaid suspension deprived property interest and required predeprivation Loudermill protections	Busboom: law was not clearly established that unpaid suspension required presuspension hearing; postprocedures could cure	Held: Not clearly established; Busboom entitled to qualified immunity on predeprivation claim
Whether White’s failure to timely file grievances waived or barred his due process claims	White: CBA remedies did not supply minimal process (e.g., no prompt postsuspension hearing), so failing to grieve shouldn’t bar claim	Busboom/Dept.: available postdeprivation procedures were constitutionally adequate and White’s failure to invoke them defeats the claim	Held: Postdeprivation procedures were adequate; White failed to invoke them, so no postdeprivation due process violation
Whether constructive discharge doctrine required different due process analysis	White: prolonged unpaid suspension and sham investigation amounted to constructive discharge requiring Loudermill protections	Busboom: law unclear whether constructive discharge imposes presuspension duties on employer	Held: Law not clearly established for constructive-discharge predeprivation rights; qualified immunity applies
Entitlement to attorney fees under 42 U.S.C. § 1988	White: prevailed below and sought fees	Busboom: reversal eliminates prevailing-party status	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 (1985) (public employee with property interest entitled to notice, explanation of evidence, and opportunity to respond before discharge)
Gilbert v. Homar, 520 U.S. 924 (1997) (applies Mathews balancing to temporary unpaid suspensions and recognizes circumstances where predeprivation hearing is not required)
Mathews v. Eldridge, 424 U.S. 319 (1976) (three-factor balancing test for required process)
Zinermon v. Burch, 494 U.S. 113 (1990) (due process violation depends on adequacy of state-provided procedures and whether they were invoked)
FDIC v. Mallen, 486 U.S. 230 (1988) (upheld administrative postdeprivation procedure as constitutionally adequate when prompt process available)
Barry v. Barchi, 443 U.S. 55 (1979) (suspension statute invalid where no prompt postdeprivation hearing was provided)
Scott v. County of Richardson, 280 Neb. 694 (2010) (Nebraska decision allowing posttermination grievance procedures to cure pretermination due process deficiencies)