William White, appellee and cross-appellant.
Scott Busboom, appellant AND CROSS-APPELLEE.
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
___. 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
Judgments: Appeal and Error. An appellate
court independently reviews questions of law decided by a
Constitutional Law. The determination of
constitutional requirements presents a question of law.
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
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
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
Public Officers and Employees: Employment
Contracts. An employment contract with a public
employer can give rise to an objectively reasonable
expectation of continued employment.
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.
___: ___. 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).
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.
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
___: ___. 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.
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.
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
___: ___.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.
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
from the District Court for Johnson County: Daniel E. Bryan,
Jr., Judge. Reversed and remanded with instructions.
Neb. 719] Douglas J. Peterson, Attorney General, James D.
Smith, and Jessica M. Forch for appellant.
Osborn, of Shiffermiller Law Office, PC, L.L.O., for
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
NATURE OF CASE
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.
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
began working for the Department at the Tecumseh facility in
2008. A collective bargaining agreement (CBA) governed the
terms of his employment.
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. 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.
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
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
same day, Busboom signed a letter placing White on unpaid
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.]
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.
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.
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
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
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.
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.
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.
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.
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
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.
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.
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
Neb. 725] 2. Procedural History
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.
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.
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.
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.
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.
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.
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.
ASSIGNMENTS OF ERROR
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 ...