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White v. Busboom

Supreme Court of Nebraska

September 15, 2017

William White, appellee and cross-appellant.
Scott Busboom, appellant AND CROSS-APPELLEE.

         1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

         2. ___: ___. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and give that party the benefit of all reasonable inferences deducible from the evidence.

         3. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

         4. Constitutional Law. The determination of constitutional requirements presents a question of law.

         5. Motions to Dismiss: Immunity: Appeal and Error. An appellate court reviews de novo whether a party is entitled to dismissal of a claim based on federal or state immunity, drawing all reasonable inferences for the nonmoving party.

         6. Attorney Fees: Appeal and Error. The award or denial of authorized attorney fees and the amount of a fee award are rulings that an appellate court reviews for abuse of discretion.

         7. Due Process. Procedural due process claims require a two-step analysis: (1) whether the plaintiff has asserted a life, liberty, or property interest that is protected by the Due Process Clause and (2) whether the plaintiff was deprived of that interest without sufficient process.

         8. Public Officers and Employees: Employment Contracts. An employment contract with a public employer can give rise to an objectively reasonable expectation of continued employment.

         [297 Neb. 718] 9. Civil Rights: States. The elements of, and defenses to, an action brought under 42 U.S.C. § 1983 (2012) are defined by federal law.

         10. ___: ___. State courts are bound by definitive U.S. Supreme Court decisions or a consensus of federal court holdings on the substantive requirements of a claim or defense asserted under 42 U.S.C. § 1983 (2012).

         11. Public Officers and Employees: Immunity: Liability. The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct, in the context of the specific facts at the time, does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

         12. Public Officers and Employees: Immunity. Whether an official may prevail in his or her qualified immunity defense depends upon the objective reasonableness of his or her conduct as measured by reference to clearly established law.

         13. ___: ___. Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects all but the plainly incompetent or those who knowingly violate the law.

         14. Judgments: Immunity. A qualified immunity inquiry has two components: (1) whether a plaintiff has alleged a deprivation of a federal statutory or constitutional right and (2) whether that right was clearly established at the time of the alleged violation. A court has discretion to determine which component to address first.

         15. Public Officers and Employees: Due Process. Due process requirements for depriving public employees of a protected property interest in employment must be determined under the balancing factors set out in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

         16. ___: ___.A plaintiff fails to state a viable procedural due process claim when adequate postdeprivation state procedures were available but the plaintiff failed to invoke them.

         17. Federal Acts: Attorney Fees. In order to be eligible for attorney fees under 42 U.S.C. § 1988(b) (2012), a plaintiff must be a prevailing party, which means that the plaintiff must have obtained a judgment on the merits, a consent decree, or some other judicially enforceable settlement, which materially alters the legal relationship of the parties in a way that benefits the plaintiff.

         Appeal from the District Court for Johnson County: Daniel E. Bryan, Jr., Judge. Reversed and remanded with instructions.

         [297 Neb. 719] Douglas J. Peterson, Attorney General, James D. Smith, and Jessica M. Forch for appellant.

          Abby Osborn, of Shiffermiller Law Office, PC, L.L.O., for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          FUNKE, J.

         I. NATURE OF CASE

         The appellant, Scott Busboom, is an officer at the Tecumseh State Correctional Institution. The appellee, William White, is a former officer at the facility. White brought a civil rights action against the Department of Correctional Services (Department) and Busboom. He alleged that he was denied due process when he was placed on unpaid investigatory suspension without any opportunity to be heard. The district court granted the Department summary judgment, concluding that it was immune from suit under the doctrine of sovereign immunity. But it determined that Busboom was not entitled to qualified immunity in his individual capacity and that White was entitled to a judgment of liability against Busboom. The court concluded that Busboom had signed the letter suspending White while acting under the color of state law and that any reasonable officer in his position would have understood that White was entitled to a hearing before being deprived of a protected property interest.

         We conclude that when White was suspended without pay, the law did not clearly establish that a public employer must first provide notice and an opportunity to respond to allegations of misconduct to an employee with a protected property interest in continued employment. As a result, we conclude that Busboom was entitled to qualified immunity. Additionally, we conclude that White has failed to show that he was deprived of due process because he did not receive a posttermination hearing. Accordingly, we reverse, and remand [297 Neb. 720] with instructions for the court to enter summary judgment for Busboom and dismiss White's complaint.


         1. Underlying Events

         White began working for the Department at the Tecumseh facility in 2008. A collective bargaining agreement (CBA) governed the terms of his employment.

         In April 2010, White was arrested and accused of unlawful intrusion. On April 26, White was charged with a Class III misdemeanor for unlawful intrusion because the alleged victim was over age 18.[1] The day after his arrest, White posted bail and called Busboom about the arrest. Busboom was a major at the facility, and his duties included reviewing documentation for disciplinary actions against the uniformed officers and making recommendations to the deputy warden.

         Christopher Connelly, a captain at the facility, was assigned as the investigating officer for White's matter. On April 13, 2010, Connelly sent an email about White to Fred Britten, the warden at the Tecumseh facility, and Brian Gage, the deputy warden. Connelly informed them that White was charged with a misdemeanor offense of "Invasion of Privacy" but that the matter was still under investigation and that the Nebraska State Patrol had seized his computer. Connelly recommended White be suspended pending the outcome of the investigation.

         Two hours later, Britten sent an email to the Department's director and other persons, including Busboom. Britten stated that he had discussed the matter with the deputy director and that a decision had been made to suspend White without pay pending an investigation into the circumstances of his arrest.

         The same day, Busboom signed a letter placing White on unpaid investigatory suspension:

The Department ... is placing you on investigatory suspension without pay, pending an investigation by [297 Neb. 721] outside law enforcement. The Investigatory Suspension is in accordance with the current [CBA] section 10.3b.
While you are on the Investigatory Suspension, you are expected to be available in order for the agency to contact you. . . .
[Note: Article M.15.1, if applicable, permits the agency to place the employee on an unpaid suspension when employees are charged with a criminal offense that is directly related to the workplace and could reasonably be expected to result in a significant disruption of the workplace. For more details, see AR 112.06, Section III.B.3.b.3.]

         Busboom later stated in an affidavit that he was told to inform White of his unpaid suspension, that he used a form letter, and that he did not make the decision to suspend White. In a deposition, Busboom also said that he signed the suspension letter only because he was the highest ranking official at the facility that day.

         Section 10.3.b of the CBA, which was the cited authority in White's 2010 suspension letter, provides the following:

Investigatory Suspension or Reassignment: When the Employer determines that an employee must be removed from a current work assignment pending the completion of an investigation by the Employer to determine if disciplinary action is warranted, the Employer may:
a. reassign the employee ... at their current rate of pay until the investigation is completed.
b. suspend the employee from work without pay for alleged violations involving a report or statement supporting the allegation of gross misconduct/negligence, or for actions which have brought the agency into non-compliance with governing state or federal laws/ regulations, until the investigation is completed or until six work days have elapsed, whichever occurs first. In all other instances, except those outlined above and those described in 10.3.c, the suspension shall be with pay. The [297 Neb. 722] investigation may continue after the suspended employee returns to a paid status. If the employee is found not to have committed the violations alleged, the employee will be granted pay, benefits, leave, and service credit for the period of suspension.
c. in cases where the employee has been charged in court with a felony, which is directly related to the workplace or which has the potential for significant impact on, or disruption of, the workplace, the Employer may suspend the employee from work with or without pay until the charges are resolved.
When the Employer has placed an employee on investigatory suspension, the Employer shall have thirty work days from the date of discovery of an infraction to initiate disciplinary action by serving a written notice of allegations on the employee except when the Employer is awaiting the results of an outside investigation. If no action is taken, disciplinary action is barred for that particular incident.

         (Emphasis supplied.)

         Section 10.9 of the CBA provides that "[i]n no case will an employee be charged with a disciplinary violation when the employee behavior it is based upon occurred more than one year prior to the initiation of the disciplinary process and has been known by the direct supervisor for more than one year."

         White's 2010 suspension letter incorrectly referred to "Article M.15.1" of the CBA, which is irrelevant to this dispute. In its order, the court stated that the correct provision is article M.14.1, which, in relevant part, provides the following:

When a Department . . . employee has been charged with a criminal offense that is directly related to the workplace which could reasonably be expected to result in a significant disruption of the workplace, the . . . Director, in consultation with the [Department's] Human Resources [297 Neb. 723] Administrator, may suspend the employee without pay until there is a trial court disposition of the criminal charges. A final disposition of the pending charges is not necessary prior to discipline, but may be considered by an arbitrator or hearing officer if a grievance is filed. The employee reserves the right to file a grievance on the Agency Director's decision to suspend.

         (Emphasis supplied.)

         On December 15, 2010, White filed a grievance regarding his unpaid suspension, but an arbitrator determined that it was not timely filed. On December 22, an officer reported to Connelly, Gage, Britten, and Busboom that White had called the facility to report that he had been charged with a third degree misdemeanor and was scheduled to go to court in January 2011. After a human resources assistant received this email, he asked Gage whether to continue White's suspension without pay or change it to suspension with pay. Gage responded that White's status with the Department had not changed.

         Busboom testified that he never received any information that White had been charged with a felony offense. Busboom did not know of any actions that the Department took to investigate the charge against White or whether the charge was related to the workplace. The Department's only action was to have Connelly act as a liaison to the county attorney.

         On March 28, 2011, the county attorney dismissed the charge against White without prejudice. But the Department did not reinstate him to his position. On March 30, Gage, the deputy warden, signed a new letter informing White that he was being placed on an unpaid investigatory suspension. Gage advised White that the Department was placing him on an "investigatory suspension without pay, pending an investigation for possible actions off the job which adversely affects the employee's performance and/or the employing agency's performance or function." Like the 2010 suspension letter, the 2011 suspension letter cited § 10.3 of the CBA as [297 Neb. 724] authority for the suspension but did not set out any allegations of misconduct.

         Busboom testified that White was placed on a new investigatory suspension so that the Department could perform an internal investigation. White testified that Busboom was the assigned investigator. White filed a timely grievance to the second suspension.

         White was asked to come to the Tecumseh facility on May 5, 2011, to speak to the assigned investigator regarding his suspension. White did not attend. On June 2, the Department sent White a letter informing him that it was considering disciplinary action against him because he had failed to come in for questioning. The letter stated that he had violated three CBA provisions, which prohibited the following conduct: (1) violating or failing to comply with the CBA, state laws, executive orders, regulations, policies, or procedures; (2) failing or refusing to comply with a lawful order or proper assignment; and (3) acts or conduct that adversely affect the employee's or employer's performance. The only factual allegation was that White had failed to comply with the directive to meet with the assigned investigator. The letter stated that the Department's charges would be heard on June 14.

         On June 14, 2011, a predisciplinary hearing was held without White's presence. White stated in an affidavit that he did not appear because he believed his efforts would be futile based on the Department's previous actions against him. On July 21, Britten wrote White that his employment was terminated as of that date because he failed to comply with the directive to meet with the investigator at the facility.

         On August 26, 2011, an administrator with the state's employee relations division set aside White's second suspension because the Department had violated § 10.3 of the CBA in ordering it. It determined that the first suspension ended on March 28, 2011, and ordered the Department to pay White his wages and benefits from March 28, 2011, to his discharge date. The Department did not appeal that decision.

         [297 Neb. 725] 2. Procedural History

         In his amended complaint, White named the State "through the NEBRASKA DEPARTMENT OF CORRECTIONS, and SCOTT BUSBOOM, Individually and in his official capacity." White alleged that he had a liberty interest in his good name and a property interest in his employment, which was taken from him without due process. He alleged that the Department and Busboom had violated his due process rights by terminating his employment and depriving him of an opportunity to work "based on the ruse of an investigation which never occurred." He alleged that in violation of his due process rights, he was denied any opportunity to be heard for over 1 year, causing him to suffer lost wages, past and future; emotional distress and humiliation; and damage to his personal and professional reputation. He sought damages, injunctive relief, and attorney fees.

         The Department and Busboom moved to dismiss White's complaint for failing to state a cause of action. They alleged that Busboom was immune from suit under the doctrine of qualified immunity. The court sustained the motion to dismiss as to White's claim of reputational damage but overruled it as to his claim of a property interest in his employment. The Department and Busboom then filed an answer in which they alleged affirmative defenses, including immunity from suit. All parties then moved for summary judgment.

         In its February 2015 order, the court dismissed the Department as a party under the doctrine of sovereign immunity. It also found that neither the Department nor Busboom had violated White's due process rights in terminating his employment in June 2011, because he had notice and an opportunity to be heard. But the court concluded that White had a protected property interest in his employment and that his first unpaid suspension from 2010 to 2011 violated both the CBA and state personnel rules. It determined that Busboom had signed the suspension order while acting under the color of state law and that any reasonable officer in his position would [297 Neb. 726] have understood White was entitled to a hearing before being deprived of a protected property interest.

         Factually, the court made the following determinations: (1) Busboom was involved in the disciplinary process and had been told to place White on an investigatory suspension; (2) the Department and Busboom learned on April 13. 2010, that White had been charged with misdemeanor invasion of privacy; (3) White was not charged with a felony; (4) Busboom admitted that no disciplinary actions were considered as a result of the April 2010 letter; (5) Busboom admitted that White was not suspended because of a criminal offense directly related to the workplace; and (6) Busboom admitted that after 6 days, § 10.3.b of the CBA required a paid suspension.

         The Department and Busboom then moved the court to reconsider. They argued that White's claim against Busboom was barred because he failed to timely avail himself of the grievance procedures in article 4 of the CBA and that "[o]n this basis, Defendant Busboom is entitled to qualified immunity'' The court denied the motion.

         The court acknowledged that White had not filed a grievance until 8 months after his 2010 suspension took effect, which was determined to be untimely. It characterized the waiver cases relied upon by Busboom as decisions holding that a plaintiff had waived his due process right to a hearing by failing to request it. The court distinguished these cases because the employee had received some type of pretermination hearing. It concluded that those cases fell within the rule that a posttermination proceeding can correct any deficiencies in a pretermination proceeding. The court concluded that there was no postsuspension hearing that could have cured the failure to provide a presuspension hearing.

         After a hearing, the court ordered Busboom to pay White $20, 000 in lost wages and $15, 000 in compensatory damages. White's attorney then applied for $25, 901.27 in attorney fees and costs. The court reduced that request by half and [297 Neb. 727] ordered Busboom to pay $12, 731.25 in attorney fees and $438.77 in costs.


         Busboom assigns that the court erred in failing to conclude that White had waived his due process claim, granting White summary judgment on his claim against Busboom in his individual capacity, and ...

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