White v. Busboom
297 Neb. 717
| Neb. | 2017Background
- William White, a corrections officer with a CBA, was placed on unpaid investigatory suspension in April 2010 after a misdemeanor arrest; Scott Busboom signed the suspension letter but testified he was told to notify White and did not decide the suspension.
- The CBA permitted unpaid suspension in certain circumstances and provided a multi-step grievance/arbitration process; White’s initial grievance was deemed untimely but an administrative decision later set aside the second suspension and ordered back pay through discharge.
- White alleged a protected property interest in continued employment and sued the Department and Busboom under 42 U.S.C. § 1983 for deprivation of procedural due process (no pre- or adequate post-deprivation hearing), seeking damages and attorney fees.
- The district court dismissed the Department on sovereign immunity grounds, found Busboom individually liable for denying predeprivation process for the unpaid suspension, and awarded White damages and attorney fees.
- The Nebraska Supreme Court reversed: it held (1) qualified immunity protected Busboom because law did not clearly establish a right to predeprivation notice/hearing for unpaid suspensions in that context, and (2) White failed to show a postdeprivation due process violation because he did not invoke the available grievance procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether unpaid investigatory suspension deprived White of constitutionally required predeprivation process | White: unpaid suspension (and alleged sham investigation/long delay) required Loudermill-type predeprivation notice and opportunity to respond; constructive discharge theory | Busboom: law did not clearly require predeprivation hearing for unpaid suspensions; Scott precedent and federal circuit split support postdeprivation cure or no clear right | Court: No — law was not clearly established that predeprivation notice/hearing was required for unpaid suspensions or constructive discharge in these circumstances; Busboom entitled to qualified immunity |
| Whether White waived postdeprivation process by failing to use grievance procedures | White: CBA procedures were inadequate (no specified prompt hearing timing), so exhaustion/waiver should not bar his § 1983 claim | Busboom: available grievance/arbitration procedures were constitutionally adequate and White’s failure to invoke them bars his postdeprivation claim | Court: No postdeprivation violation shown — CBA remedies were adequate and White failed to use them, so claim fails |
| Whether Scott v. County of Richardson required denial of Busboom’s immunity defense because postprocess could cure predeprivation defects | White: Scott is distinguishable or insufficient to bar his claim | Busboom: Scott supports that posttermination grievance can cure pretermination due-process defects | Court: Scott (and federal precedent at time) supported reasonable belief that postprocedures could supply due process; this undercut clearly established right needed to overcome qualified immunity |
| Entitlement to attorney fees under 42 U.S.C. § 1988 | White: prevailed below; seeks fees | Busboom: if judgment reversed, no 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 (1985) (pretermination notice and opportunity to respond required before discharge for employees with property interest)
- Gilbert v. Homar, 520 U.S. 924 (1997) (Mathews balancing applied; predeprivation hearing not required for unpaid suspension in some circumstances if prompt postdeprivation process is provided)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (three-factor balancing test for what process is due)
- Zinermon v. Burch, 494 U.S. 113 (1990) (constitutional violation depends on adequacy of process state provides; process must be constitutionally adequate)
- Scott v. County of Richardson, 280 Neb. 694 (2010) (Nebraska precedent holding posttermination grievance procedures can cure pretermination due-process defects)
- Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (qualified immunity requires law to be clearly established such that officer would know conduct was unlawful)