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Potter v. Board of Regents of University of Nebraska

Supreme Court of Nebraska

March 21, 2014

PAUL D. POTTER, APPELLANT,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF NEBRASKA ET AL., APPELLEES

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Appeal from the District Court for Lancaster County: STEPHANIE F. STACY, Judge.

Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O., for appellant.

John C. Wiltse, of University of Nebraska, and David R. Buntain, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellees.

HEAVICAN, C.J., CONNOLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. WRIGHT and STEPHAN, JJ., not participating.

OPINION

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[287 Neb. 734] McCormack, J.

NATURE OF CASE

A former temporary employee brought action under 42 U.S.C. § 1983 (2006) against the Board of Regents of the University of Nebraska (Board of Regents) and two of its managers after an e-mail circulated the day of the employee's termination of employment, warning coworkers to alert campus police and lock their doors if they saw him. The employee makes a " stigma plus" claim that he was deprived of a liberty interest in his good name without due process of law in violation of the 14th Amendment to the U.S. Constitution. The Board of Regents asserts that it is shielded by sovereign immunity and is not a " person" under § 1983 or Neb. Rev. Stat. § 20-148 (Reissue 2012) and that the managers are protected by qualified sovereign immunity because the alleged violation was not clearly established. The district court granted summary judgment in favor of the defendants, and the employee appeals the judgment. We affirm.

BACKGROUND

Paul D. Potter was a student at the University of Nebraska-Lincoln (University) studying electrical engineering. From 2006 to 2009, Potter was a part-time student employee working for the Communications and Information Technology Department (CIT) as a help desk technician at the call center located in Miller Hall on the University's east campus. Potter often provided technical support at nearby Agricultural Hall, where the office of the vice chancellor was located. The assistant vice

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chancellor was the unit director for CIT.

[287 Neb. 735] Potter began working full time in 2009, while still a student. The full-time employment offer stated that the " temporary appointment" was to begin October 28, 2009, and " may last until" August 14, 2010, but could " be ended for any reason and without notice."

A background check conducted in relation to the full-time position revealed that in 2004, Potter had been charged with burglary, battery, and stalking, and had pled guilty to the misdemeanor offenses of trespass on an unenclosed curtilage, harassing a witness to hinder a report, and battery. He had been fined and sentenced to 12 months of probation. The chancellor's office discussed these matters with Potter, and there is a notation on a copy of his criminal record to " disregard" the 2004 charges. The University also became aware at this time that Potter was on probation for a recent conviction of driving under the influence.

Around the same time that Potter was given the new temporary appointment, Potter's manager at the call center was promoted to a position outside of CIT and a new manager, Terry Bockstadter, transferred in. Robert Losee was the information technology coordinator and Bockstadter's supervisor.

CIT was also moving at that time to a fee-for-service charging model. As a result, CIT technicians were expected to keep time-tracking records with appropriate codes for services provided. Potter and other technicians struggled with the transition. Notes and e-mails reflect that beginning February 15, 2010, and continuing up to July 12, Potter was repeatedly counseled that he needed to do better with his timesheets.

In June 2010, Potter was asked to sign a statement reflecting issues that needed to be rectified " in order for [him] to continue to be an effective part of the CIT Help Desk." These issues included the accurate and timely submission of time-tracking reports and Potter's failure to communicate daily availability status. Potter refused to sign the statement.

Sometime before July 20, 2010, Losee contacted human resources about the possibility of terminating Potter's employment. Pursuant to standard University procedure, human resources completed a " threat assessment" in relation to the possible termination. The threat assessment for Potter noted [287 Neb. 736] manager concerns based on Potter's " previous reaction of getting upset over discussion on work performance," a decrease in sociability in the last year, and his criminal record. The threat assessment was forwarded to campus police to determine whether there was any cause for concern. The record does not directly reflect what campus police communications took place regarding the threat assessment.

On the morning of July 20, 2010, two police officers arrived at Potter's place of work and escorted him away. Apparently unbeknownst to Potter or anyone else, a bench warrant for Potter's arrest had been issued after he missed a court date in relation to his probation for the conviction of driving under the influence. Potter testified ...


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