White v. Busboom
297 Neb. 717
| Neb. | 2017Background
- William White, a corrections officer with a CBA, was placed on unpaid investigatory suspension after a 2010 misdemeanor arrest; Scott Busboom signed the suspension letter as the acting highest-ranking official that day.
- The CBA allowed investigatory suspension with or without pay in certain circumstances and provided grievance/arbitral procedures and timelines for postdeprivation review.
- White remained unpaid through March 28, 2011 (when charges were dismissed), then was placed on a new unpaid investigatory suspension and later terminated for failing to appear for 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.
- White sued the Department and Busboom under 42 U.S.C. § 1983, alleging deprivation of property (continued employment) and due process; the district court dismissed the Department (sovereign immunity) and found Busboom liable, awarding damages and attorney fees.
- Nebraska Supreme Court reversed: it held Busboom entitled to qualified immunity (predeprivation due process rights for unpaid suspension not clearly established) and that White failed to show a postdeprivation due process violation because he did not invoke available grievance procedures; remanded with instructions to enter summary judgment for Busboom and dismiss the complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether predeprivation due process (notice + hearing) was required before unpaid investigatory suspension | White: Loudermill requires notice and opportunity to respond; unpaid suspension deprived property interest so presuspension process required | Busboom: Federal law not clearly established that unpaid suspension (or constructive discharge) requires presuspension hearing; postdeprivation grievance cures defects | Held: Not clearly established for unpaid suspension/constructive discharge at the time; Busboom entitled to qualified immunity |
| Whether postdeprivation remedies cured the constitutional violation | White: CBA grievance procedures were inadequate or untimely; postdeprivation process could not cure presuspension absence | Busboom: Adequate postdeprivation procedures existed in CBA; White’s failure to invoke them bars § 1983 claim | Held: Available postdeprivation grievance procedures were constitutionally adequate; White failed to invoke them, so no postdeprivation due process violation |
| Whether White waived due process claim by not timely grieving the 2010 suspension | White: Waiver inapplicable because predeprivation rights cannot be waived where procedures are inadequate | Busboom: Failure to timely grieve constitutes waiver or procedural bar to relief | Held: Court reversed earlier rejection of waiver; White’s failure to use available procedures defeats his postdeprivation claim |
| Entitlement to attorney fees under 42 U.S.C. § 1988 | White: Prevailing party entitled to fees for successful § 1983 claim | Busboom: White is not prevailing because claim fails on immunity/exhaustion grounds | 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 (1985) (public employee with property interest is entitled to notice and opportunity to respond pre-termination)
- Gilbert v. Homar, 520 U.S. 924 (1997) (Mathews balancing may permit unpaid suspension without presuspension hearing where prompt postdeprivation process is provided)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (three-factor balancing test for required procedural safeguards)
- Barry v. Barchi, 443 U.S. 55 (1979) (statute permitting interim suspension without prompt hearing can violate due process)
- FDIC v. Mallen, 486 U.S. 230 (1988) (upholding administrative postdeprivation procedures as constitutionally adequate when prompt timelines exist)
- Zinermon v. Burch, 494 U.S. 113 (1990) (to determine a procedural due process violation, court asks what process the State provided and whether it was adequate)
- Scott v. County of Richardson, 280 Neb. 694 (2010) (Nebraska precedent holding posttermination grievance procedures can cure pretermination due process defects in some circumstances)