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Brock v. Dunning

Supreme Court of Nebraska

August 29, 2014

DAVID BROCK, APPELLANT,
v.
TIM DUNNING, SHERIFF, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, AND DOUGLAS COUNTY, A POLITICAL SUBDIVISION, APPELLEES

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Appeal from the District Court for Douglas County: W. MARK ASHFORD, Judge.

Bruce G. Mason, of Mason Law Office, for appellant.

Donald W. Kleine, Douglas County Attorney, and Bernard J. Monbouquette for appellees.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

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[288 Neb. 911] Miller-Lerman, J.

NATURE OF CASE

David Brock, the appellant, was employed as a deputy sheriff with the Douglas County sheriff's office (Sheriff's Office). In March 2007, Brock was injured while on duty, and he filed a workers' compensation claim. While receiving workers' compensation benefits, Brock periodically was

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placed under surveillance. Eventually, the Sheriff's Office determined that Brock had been untruthful regarding the extent of his injuries with medical personnel, workers' compensation personnel, and personnel within the Sheriff's Office. Accordingly, Brock's employment was terminated on June 10, 2009. By a letter dated August 23, 2010, the Douglas County Sheriff's Merit Commission (Merit Commission) stated that it affirmed the termination. The district court for Douglas County affirmed the Merit Commission's decision on December 30. This previous action is not the case before us.

On December 23, 2010, Brock filed his petition in the district court for Douglas County against Tim Dunning, individually and in his official capacity as Douglas County Sheriff, and Douglas County, the appellees, alleging two causes of action. This case gives rise to the instant appeal. The first cause of action was a claim of wrongful discharge in retaliation for having filed and pursued a workers' compensation claim. The second cause of action was brought under 42 U.S.C. § 1983 (2012), and alleged three theories. The appellees filed their answer on January 27, 2011, generally denying Brock's allegations. On August 31, 2012, the appellees filed a motion for summary judgment. After a hearing, the district court filed an order on July 5, 2013, in which it determined there were no issues of material fact and granted the appellees' motion for summary judgment. Brock appeals. We find no merit to Brock's assignments of error on appeal, and we therefore affirm the district court's order.

STATEMENT OF FACTS

Brock began his employment as a deputy sheriff with the Sheriff's Office in 1995. From 2001 to 2004, Brock was assigned to the K-9 unit involved in drug interdiction along [288 Neb. 912] Interstate 80. The Sheriff's Office received significant income from the property seizures by the K-9 unit's drug interdiction along the interstate. Brock believed that he had observed racial profiling of drivers by Edward Van Buren, the sergeant in charge of the K-9 unit. On two occasions between October 2001 and April 2004, Brock and three other deputies reported their concerns of racial profiling to Chief Deputy Marty Bilek and other command officers of the Sheriff's Office. In April 2004, Brock was reassigned to road patrol for disciplinary reasons; two of the other reporting deputies were asked to leave the K-9 unit due to " burn out."

On March 18, 2007, Brock sustained injuries to his neck and shoulder when struggling with a suspect while on duty. Brock filed a claim for workers' compensation benefits. Brock asserts that the Sheriff's Office consistently delayed or refused his needed medical care. Once authorized, MRI's revealed disk herniation and a rotator cuff tear. Brock eventually underwent five surgeries and attended physical therapy due to his injuries.

As early as May 2007, Janice Johnson, who was employed by Douglas County and was responsible for administering the workers' compensation claims of Douglas County employees, hired private investigators to periodically place Brock under surveillance and to report on Brock's physical abilities. Between May 2007 and June 2008, Brock was under surveillance on approximately 10 different days for approximately 73 hours.

By February 13, 2009, Brock was released by his doctor to return to light duty for 4 hours per day at the Sheriff's Office. From February 13 through 16, Brock was again placed under surveillance. Including the most recent surveillance, Brock was under surveillance for a total of approximately 100 hours from May 2007

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through February 2009. On February 13, an investigator videotaped Brock while he was operating his pickup truck with a snowplow attached to it for 5 hours. During that time, Brock was clearing snow from business parking lots for his father's lawn maintenance and snow removal business.

[288 Neb. 913] On March 17, 2009, Brock met with Dr. Kirk S. Hutton, one of his treating physicians. Prior to that appointment, Dr. Hutton had viewed the surveillance film from February 13. Dr. Hutton characterized the film as showing Brock's rotating the steering wheel and twisting his neck to see behind him. During the examination on March 17, Dr. Hutton asked Brock about the range of activities that Brock could perform and specifically asked Brock whether he could operate a snow-plow. Brock responded that there was " no way" he could drive a truck or operate a snowplow. Dr. Hutton's notes from the March 17 examination state:

I should also mention that I reviewed a surveillance video taken of [Brock] in February operating a snow plow and a pick-up truck. He was driving using his left hand extensively rotating the wheel, turning around watching behind him, twisting his neck with no apparent problems using his left arm. I did question him about activities that he has been able to do. We got on the topic of scooping snow and running a snow plow. When I asked him if he could do this he said there was no way that he could even drive a truck or work a snow plow.

On March 26, 2009, Brock completed a functional capacity evaluation (FCE). The physical therapist who conducted the FCE sent a letter to Johnson regarding the results. The physical therapist indicated that Brock had " self-limited several of the lifting tasks." The physical therapist defined self-limiting behavior as " stopp[ing] the activity prior to objective signs consistent with maximal effort being demonstrated." The physical therapist stated that he could not complete an accurate assessment of Brock's physical abilities due to this self-limiting behavior.

After these reports, in April 2009, an internal investigation regarding Brock's activities commenced. A lieutenant from the Sheriff's Office conducted the internal investigation, which included an interview with Brock. During the interview, Brock at first denied any involvement with his father's business, but once he was shown documentation of his involvement and work for the business, he admitted that he owned stock and [288 Neb. 914] participated in the business. Brock thereafter admitted to the lieutenant that he had operated the pickup truck with the snow-plow attached to it on February 13.

After the internal investigation, on May 29, 2009, Brock was provided notice of a predisciplinary hearing. The notice for the predisciplinary hearing contained three instances where the Sheriff's Office believed that Brock had been untruthful and referenced various General Orders of the Sheriff's Office that the Sheriff's Office believed Brock had violated. The predisciplinary hearing was held on June 8, and Brock appeared with his union representative.

Following the hearing, Brock's employment was terminated on June 10, 2009. He was provided written notice of the termination, which indicated that the termination was due to his being " untruthful and deceptive when interacting with doctors, Workers Comp [sic] personnel and a Sheriff's Internal Affairs investigator."

After Brock's employment was terminated, he exercised his statutory right to appeal the termination to the Merit Commission. A hearing was held before the Merit Commission, and by a letter dated August 23, 2010,

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 the Merit Commission stated that it had unanimously voted, 5 to 0, to affirm Brock's termination of employment.

Brock then appealed the decision of the Merit Commission to the district court for Douglas County in case No. CI 10-9391145. The district court filed an order on December 30, 2010, affirming the decision of the Merit Commission. The district court determined, inter alia, that the record of the Merit Commission's proceeding included sufficient evidence to support the termination and that there was no evidence to support Brock's allegation that his due process rights were violated. Brock did not appeal the December 30 order of the district court in the prior action.

On December 23, 2010, Brock filed his petition in this case, in which he alleged two causes of action. Dunning was sued as a defendant in his official and individual capacities. Douglas County was also sued as a defendant. These defendants are the appellees. With respect to his first cause of action, Brock alleged that the appellees wrongfully terminated [288 Neb. 915] his employment in retaliation for having filed and pursued a workers' compensation claim. Brock's second cause of action, based on § 1983, alleged three theories of liability. First, Brock alleged that the appellees had a policy or custom of obstructing, delaying, and denying receipt of workers' compensation benefits in violation of his protected property interests. Second, Brock alleged that the appellees retaliated against him by terminating his employment for exercising his right of free speech under the First Amendment when he reported racial profiling. Third, Brock alleged that the appellees violated his right to privacy when he was placed under surveillance.

On January 27, 2011, the appellees filed their answer generally denying Brock's allegations. The appellees raised as a defense that Brock " has failed to state a claim against the [appellees] upon which relief can be granted for his First and Second Causes of Action." No affirmative defense of immunity was pled.

On August 31, 2012, the appellees filed a motion for summary judgment. A hearing was held on the motion on January 22, 2013. At the hearing, the appellees offered and the court received 15 exhibits, including documents and the transcript of the proceedings before the Merit Commission, the district court's order affirming the decision of the Merit Commission in the previous case, the depositions of Brock and Johnson, the affidavits of Dunning and Johnson, medical reports, investigation reports, internal communications, the notice and transcript of the predisciplinary hearing, and the notification of Brock's termination of employment. Brock offered and the court received three exhibits, including the depositions of Brock, Dunning, and a former deputy, Matthew L. Murphy, the latter of whom testified about having reported witnessing racial profiling by Van Buren, the sergeant in charge of the K-9 unit, to Bilek.

On July 5, 2013, the district court filed its order granting the appellees' motion for summary judgment and dismissing Brock's petition. With respect to the first cause of action regarding retaliatory discharge due to Brock's having filed a claim for workers' compensation, the district court determined, [288 Neb. 916] inter alia, that Brock's wrongful termination action, a tort, was barred for failure to make a claim. The court noted that both the appellees, Dunning and Douglas County, are political subdivisions of the State of Nebraska, or an elected official of the same, and that they are therefore subject to the provisions of Nebraska's Political Subdivisions Tort Claims Act. Because Brock's termination of employment occurred on June 10, 2009, the

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court stated that Brock was required to file a notice of claim of an action arising in a tort by June 10, 2010. The court determined that Brock had failed to plead and prove that he had complied with the 1-year notice of claim requirement under Neb. Rev. Stat. § 13-919(1) (Reissue 2012) of the Political Subdivisions Tort Claims Act. Therefore, the district court granted summary judgment in favor of the appellees on the first cause of action.

With respect to Brock's second cause of action, the district court stated that it " is based in . . . § 1983, and has three separate and distinct theories of liability." Brock's first theory was that the appellees " had an official custom, practice and officially adopted policy to delay, hinder, obstruct, and deny [Brock] his federally protected property entitlement in obstructing, delaying, denying and finally terminating [Brock's employment] for exercising his right to receive the Nebraska statutory program of workers' compensation benefits." The district court stated that a plaintiff must prove the following in order for there to be liability under § 1983: " 1. a constitutional violation, or a federal law violation, 2. which was committed by a person acting under the color of state law, and 3. with proximate causation between the actor and the constitutional/legal deprivation." The district court determined that there was " no official policy, and no continuing widespread, persistent custom or practice by the [appellees] to terminate the employment of injured employees including [Brock] who claim and/or receive workers' compensation benefits," and that therefore, Brock failed to prove a constitutional or law violation.

Brock's second theory under § 1983 alleged that the appellees retaliated against him for exercising his First Amendment [288 Neb. 917] right to freedom of speech when he reported racial profiling by the K-9 unit staff. The court determined that Brock's speech was not protected because he had spoken in his official capacity as an employee about official practices, not as a private citizen. Additionally, the court determined that Brock's 2009 termination of employment was not in retaliation for speech made in 2004 or 2005 because the alleged retaliatory action was too remote in time as a matter of law.

Brock's third theory under § 1983 alleged that the appellees violated his right to privacy based on the surveillance by investigators authorized by Johnson. The court analyzed this issue under the 4th Amendment, not the 14th Amendment, and determined that the use of private investigators was routine " in the industry" and that Brock had no expectation of privacy in the business parking lots where he was recorded plowing snow.

Based on the foregoing reasons, the district court determined that there were no genuine issues as to any material facts presented by the parties and that the appellees were entitled to judgment as a matter of law. The court granted the ...


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