White v. Busboom, 297 Neb. 717

Background

White, a prison officer with a CBA-based property interest in continued employment, was placed on unpaid investigatory suspension in April 2010 after a misdemeanor arrest; Scott Busboom signed the suspension letter but says he followed orders.
The CBA allowed unpaid suspension in certain circumstances and provided a multi-step grievance/arbitration procedure for disputes; White filed a grievance months later (found untimely) and a second suspension in 2011 led to termination for failing to attend an investigatory interview.
An administrator later set aside the second suspension and ordered back pay for the period from March 28, 2011, to discharge; the Department did not appeal that ruling.
White sued under 42 U.S.C. § 1983 alleging deprivation of property and liberty 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.
On appeal, Nebraska Supreme Court considered whether (a) Busboom was entitled to qualified immunity for suspending White without pay, and (b) whether White failed to show a postdeprivation due process violation by not timely using the CBA grievance process.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Busboom violated clearly established predeprivation due process by placing White on unpaid suspension without notice/hearing	White: unpaid suspension deprived property interest and required predeprivation notice/hearing (Loudermill)	Busboom: law did not clearly require predeprivation hearing for unpaid suspension; postdeprivation CBA remedies suffice	Held: Not clearly established; Busboom entitled to qualified immunity on predeprivation claim
Whether postdeprivation procedures were constitutionally adequate and White waived claim by not using them	White: CBA remedies inadequate (no specified prompt hearing), so failure to grieve doesn’t bar claim	Busboom: CBA grievance/arbitration provided adequate postdeprivation process; White’s failure to invoke it bars claim	Held: CBA procedures were constitutionally adequate; White failed to invoke them and thus no postdeprivation due process violation
Whether a prolonged unpaid suspension can constitute a constructive discharge triggering Loudermill protections	White: extended/simulated investigation functioned as constructive discharge requiring predeprivation process	Busboom: constructive-discharge doctrine unclear; law did not clearly extend Loudermill to such suspensions	Held: Law was not clearly established that Loudermill predeprivation rights applied to constructive-discharge/unpaid suspension context
Entitlement to attorney fees under 42 U.S.C. § 1988	White: prevailed below and awarded fees	Busboom: appeal wins, White did not prevail on § 1983 merits	Held: White is not a prevailing party under § 1988 and is not entitled to fees

Key Cases Cited

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (public-employee pretermination notice and opportunity to respond required before discharge)
Gilbert v. Homar, 520 U.S. 924 (1997) (application of Mathews balancing to temporary unpaid suspensions; prompt postsuspension hearing may suffice)
Mathews v. Eldridge, 424 U.S. 319 (1976) (three-factor test for what process is due)
Zinermon v. Burch, 494 U.S. 113 (1990) (constitutional violation depends on adequacy of state-provided process and plaintiff’s use of it)
FDIC v. Mallen, 486 U.S. 230 (1988) (postdeprivation administrative timeline can be constitutionally adequate)
Barry v. Barchi, 443 U.S. 55 (1979) (statute allowing interim suspension without prompt hearing can violate due process where suspension causes irreparable livelihood harm)
Scott v. County of Richardson, 280 Neb. 694 (2010) (Nebraska holding that adequate posttermination grievance procedures may cure pretermination due process deficiencies)
Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (qualified immunity requires law to be clearly established)
Pearson v. Callahan, 555 U.S. 223 (2009) (courts may address qualified immunity prongs in either order)