White v. Busboom, 297 Neb. 717

Background

William White, a corrections officer with a CBA-based property interest in continued employment, was placed on unpaid investigatory suspension in April 2010 after a misdemeanor arrest; a suspension letter signed by Major Scott Busboom cited CBA §10.3.b.
White remained unpaid through March 2011, filed a grievance (untimely for the first suspension), and a subsequent investigatory process led to a second unpaid suspension and his eventual termination 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.
White sued under 42 U.S.C. § 1983 alleging deprivation of property (employment) and due process violations 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 because the right to pre‑suspension process for unpaid suspensions was not "clearly established," and (2) whether White failed to show a postdeprivation due process violation by not invoking CBA grievance remedies.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Were predeprivation due‑process rights clearly established for unpaid investigatory suspensions?	White: unpaid suspension deprived a protected property interest and required predeprivation notice/hearing under Loudermill.	Busboom: law was not clearly established; postdeprivation grievance procedures could supply due process; qualified immunity applies.	Held: No. Federal authority was mixed and did not clearly establish a right to predeprivation notice/hearing for unpaid suspensions; Busboom entitled to qualified immunity.
2. Did White waive postdeprivation due process by failing to invoke CBA grievance remedies?	White: grievance timing/procedures were inadequate; exhaustion should not bar his §1983 claim.	Busboom: adequate postdeprivation procedures existed under the CBA; failure to use them defeats a postdeprivation claim.	Held: White failed to show a postdeprivation due process violation because adequate procedures existed and he did not invoke them.
3. Could White’s facts amount to a constructive discharge requiring predeprivation process?	White: sustained, extensive unpaid suspension and sham investigation effectively forced discharge, so Loudermill protections applied.	Busboom: constructive‑discharge law is unsettled; courts differ; not clearly established here.	Held: Court did not decide whether constructive discharge occurred but held that any such due‑process right was not clearly established at the time.
4. Is White entitled to attorney fees under 42 U.S.C. § 1988?	White: prevailed below and should receive fees.	Busboom: on appeal, prevailing party status is lost if qualified immunity/merits ruling favors defendant.	Held: No. White is not a prevailing party because the judgment was reversed; thus no §1988 fees.

Key Cases Cited

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (pretermination notice and opportunity to respond required for employees with protected property interests)
Gilbert v. Homar, 520 U.S. 924 (Mathews balancing applied; unpaid suspension may not always require presuspension hearing)
Mathews v. Eldridge, 424 U.S. 319 (three‑factor balancing test for procedural due process)
Ashcroft v. al‑Kidd, 563 U.S. 731 (qualified immunity requires clearly established law)
Pearson v. Callahan, 555 U.S. 223 (qualified immunity inquiry framework)
FDIC v. Mallen, 486 U.S. 230 (postdeprivation administrative remedies may be constitutionally adequate)
Barry v. Barchi, 443 U.S. 55 (interim suspensions require prompt postdeprivation hearing; statute invalid where no prompt hearing provided)
Zinermon v. Burch, 494 U.S. 113 (determine what process the State provided and whether it was adequate)
Scott v. County of Richardson, 280 Neb. 694 (Nebraska precedent recognizing that adequate posttermination grievance procedures can cure pretermination due‑process deficiencies)