White v. Busboom
297 Neb. 717
| Neb. | 2017Background
- William White, a state corrections officer covered by a collective bargaining agreement (CBA), was placed on unpaid investigatory suspension in April 2010 after a misdemeanor arrest; Scott Busboom (a facility officer) signed the suspension letter but says he acted at superiors’ direction.
- The CBA allowed investigatory suspension with or without pay in certain circumstances and provided multi-step grievance and arbitration procedures with specific timeframes.
- White remained off pay after the county attorney dismissed the charge; the Department issued a second unpaid investigatory suspension in March 2011, later finding he failed to appear for investigation and terminating him in July 2011.
- An administrative decision later set aside the second suspension and ordered back pay from March 28, 2011, to discharge; the Department did not appeal that administrative ruling.
- White sued under 42 U.S.C. § 1983 claiming deprivation of a protected property interest (continued employment) without due process against the Department and Busboom; the district court dismissed the Department (sovereign immunity) but found Busboom individually liable and awarded damages and attorney fees.
- The Nebraska Supreme Court granted review and reversed, holding Busboom entitled to qualified immunity and that White failed to show a postdeprivation due process violation because he did not invoke available grievance procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Busboom is liable individually for suspending White without predeprivation process | White: unpaid suspension deprived property interest without notice/hearing (constructive discharge theory) | Busboom: qualified immunity; law did not clearly require pre-suspension hearing for unpaid suspensions; available grievance procedures cure defects | Held: Busboom entitled to qualified immunity; law not clearly established that predeprivation hearing was required for unpaid suspension |
| Whether postdeprivation remedies were adequate and White’s failure to use them bars §1983 claim | White: grievance process was inadequate (no specified prompt hearing), so failure to grieve did not waive due process | Busboom/State: CBA grievance/arbitral scheme provided adequate postdeprivation process; White’s failure to invoke it defeats claim | Held: Postdeprivation procedures were constitutionally adequate; White’s failure to invoke them means no postdeprivation due process violation |
| Whether a constructive discharge theory supplies Loudermill protections | White: extensive unpaid suspension and sham investigation amounted to constructive discharge, triggering predeprivation Loudermill rights | Busboom: law unclear whether Loudermill applies to constructive discharge/unpaid suspension | Held: Court declined to decide constructive-discharge rule but held that rights were not clearly established in that context; qualified immunity applies |
| Entitlement to attorney fees under 42 U.S.C. § 1988 | White: prevailed below and awarded fees | Busboom: prevailing party reversal negates fee award | Held: White is not a prevailing party on appeal; no attorney fees entitlement |
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; predeprivation hearing not always required for unpaid suspension where prompt posthearing may suffice)
- Mathews v. Eldridge, 424 U.S. 319 (framework for balancing due process protections)
- Barry v. Barchi, 443 U.S. 55 (statute lacking prompt postdeprivation hearing violates due process)
- FDIC v. Mallen, 486 U.S. 230 (upholding administrative postdeprivation procedures where timely hearing provided)
- Zinermon v. Burch, 494 U.S. 113 (focus on what process the state provided and whether it was adequate)
- Ashcroft v. al-Kidd, 563 U.S. 731 (qualified immunity requires clearly established law)
- Messerschmidt v. Millender, 565 U.S. 535 (qualified immunity scope and context)
- Pearson v. Callahan, 555 U.S. 223 (qualified immunity two-step and court discretion)
- Scott v. County of Richardson, 280 Neb. 694 (Nebraska precedent recognizing that posttermination grievance procedures may cure pretermination due process defects)