White v. Busboom
297 Neb. 717
| Neb. | 2017Background
- William White, a corrections officer with a CBA-protected property interest in employment, was placed on unpaid investigatory suspension in April 2010 after a misdemeanor arrest; Scott Busboom signed the suspension letter but said he was following orders.
- The CBA allowed investigatory suspension with or without pay in certain circumstances and provided grievance/arbitral procedures and timelines for challenging discipline.
- White remained suspended after charges were dismissed; a second unpaid suspension followed, he was later terminated for failing to meet with investigators, and an administrator ultimately set aside the second suspension and ordered back pay for the earlier unpaid period.
- White sued the Department and Busboom under 42 U.S.C. § 1983 alleging deprivation of procedural due process (predeprivation and postdeprivation), seeking damages and attorney fees; the district court dismissed the State, found Busboom liable, and awarded damages and some attorney fees.
- The Nebraska Supreme Court reviewed summary judgment and immunity issues, focusing on whether (1) Busboom was entitled to qualified immunity for suspending White without predeprivation notice/hearing and (2) White’s failure to invoke the CBA grievance process precluded a postdeprivation due process claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Busboom violated clearly established predeprivation due process rights by signing unpaid suspension | White: unpaid suspension deprived property right without required notice/opportunity to respond (constructive discharge theory) | Busboom: law did not clearly require predeprivation notice/hearing for unpaid suspension; qualified immunity applies | Held: Not clearly established; qualified immunity applies to Busboom on predeprivation claim |
| Whether postdeprivation grievance procedures cured any predeprivation defect | White: CBA procedures were insufficient or untimely; postdeprivation remedies cannot cure lack of prompt presuspension process | Busboom/State: CBA grievance/arbitral procedures were constitutionally adequate; failure to invoke them defeats claim | Held: Postdeprivation procedures were adequate; White failed to invoke them, so no postdeprivation due process violation |
| Whether White waived his due process claim by not timely grieving the 2010 suspension | White: grievance timing requirement cannot waive constitutional rights because CBA procedures may not meet due process | Busboom: failure to timely grieve bars claim; Scott precedent supports curing predeprivation defects by postprocess | Held: Plaintiff’s failure to use available postdeprivation remedies prevents a viable § 1983 postdeprivation claim; waiver/forfeiture defeats relief |
| Whether White is entitled to attorney fees under 42 U.S.C. § 1988 | White: prevailed below and should recover fees | Busboom: White is not a prevailing party after reversal | Held: White is not a prevailing party and is not entitled to attorney fees |
Key Cases Cited
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (pretermination notice and opportunity to respond required for public employees with property interest)
- Gilbert v. Homar, 520 U.S. 924 (Mathews balancing applied; unpaid suspension without predeprivation hearing permissible in some circumstances; prompt postsuspension hearing important)
- Mathews v. Eldridge, 424 U.S. 319 (three-factor balancing test for procedural due process)
- Zinermon v. Burch, 494 U.S. 113 (assessment of due process requires examining state-provided procedures and remedies)
- FDIC v. Mallen, 486 U.S. 230 (postdeprivation administrative timetable can be constitutionally adequate)
- Scott v. County of Richardson, 280 Neb. 694 (Nebraska precedent treating adequate posttermination grievance procedures as curing predeprivation defects)