The opinion
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/22/2017 08:11 PM CST
- 717 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
William White, appellee and cross-appellant,
v. Scott Busboom, appellant
and cross-appellee.
___ N.W.2d ___
Filed September 15, 2017. No. S-16-377.
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 employ-
ment contract with a public employer can give rise to an objectively
reasonable expectation of continued employment.
- 718 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
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 objec-
tive 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 ques-
tions. 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 com-
ponents: (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 require-
ments 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.
- 719 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
Douglas J. Peterson, Attorney General, James D. Smith, and
Jessica M. Forch for appellant.
Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O.,
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, 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 with-
out 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 con-
cluded that Busboom had signed the letter suspending White
while acting under the color of state law and that any reason-
able 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
- 720 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
with instructions for the court to enter summary judgment for
Busboom and dismiss White’s complaint.
II. BACKGROUND
1. Underlying Events
White began working for the Department at the Tecumseh
facility in 2008. A collective bargaining agreement (CBA) gov-
erned 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 documenta-
tion 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 investiga-
tory suspension without pay, pending an investigation by
1
See Neb. Rev. Stat. § 28-311.08 (Reissue 2008).
- 721 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
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 rea-
sonably be expected to result in a significant disrup-
tion 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 let-
ter, 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 disci-
plinary 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 sup-
porting 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
- 722 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
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 work-
place 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 inves-
tigatory suspension, the Employer shall have thirty work
days from the date of discovery of an infraction to ini-
tiate 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 par-
ticular 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 provi-
sion 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 work-
place which could reasonably be expected to result in a
significant disruption of the workplace, the . . . Director,
in consultation with the [Department’s] Human Resources
- 723 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
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 regard-
ing 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 sus-
pension 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 inves-
tigate 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 investiga-
tion 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 let-
ter, the 2011 suspension letter cited § 10.3 of the CBA as
- 724 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
a uthority for the suspension but did not set out any allegations
of misconduct.
Busboom testified that White was placed on a new inves-
tigatory 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 dis-
ciplinary 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, execu-
tive 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 with-
out 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 ter-
minated 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 suspen-
sion 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.
- 725 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
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 termi-
nating 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; emo-
tional 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 immu-
nity. 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 oppor-
tunity 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
- 726 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
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 suspen-
sion; (2) the Department and Busboom learned on April 13,
2010, that White had been charged with misdemeanor inva-
sion of privacy; (3) White was not charged with a felony; (4)
Busboom admitted that no disciplinary actions were consid-
ered 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 admit-
ted 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 griev-
ance 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 pretermina-
tion 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 fail-
ure 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 dam-
ages. White’s attorney then applied for $25,901.27 in attorney
fees and costs. The court reduced that request by half and
- 727 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
ordered Busboom to pay $12,731.25 in attorney fees and
$438.77 in costs.
III. ASSIGNMENTS OF ERROR
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 indi-
vidual capacity, and concluding that Busboom was not entitled
to qualified immunity.
In White’s cross-appeal, he assigns that the court erred in
reducing the award of attorney fees.
VI. STANDARD OF REVIEW
[1,2] We will affirm a lower court’s grant of summary judg-
ment 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, we view 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
[3,4] We independently review questions of law decided by
a lower court,4 and the determination of constitutional require-
ments presents a question of law.5
[5] We review de novo whether a party is entitled to dis-
missal of a claim based on federal or state immunity, drawing
all reasonable inferences for the nonmoving party.6
2
Barnes v. American Standard Ins. Co. of Wis., ante p. 331, ___ N.W.2d
___ (2017).
3
Id.
4
Doe v. McCoy, ante p. 321, ___ N.W.2d ___ (2017).
5
State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017).
6
Holloway v. State, 293 Neb. 12, 875 N.W.2d 435 (2016).
- 728 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
[6] The award or denial of authorized attorney fees and the
amount of a fee award are rulings that we review for abuse
of discretion.7
V. ANALYSIS
[7,8] The Due Process Clause of the 14th Amendment pro-
vides that “[n]o State shall . . . deprive any person of life, lib-
erty, or property, without due process of law . . . .”8 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.9 An employment contract with a public employer can
give rise to an objectively reasonable expectation of contin-
ued employment.10
In the instant case, Busboom does not dispute that White
had a protected property interest in his continued employment.
Nonetheless, Busboom contends that under our holding in
Scott v. County of Richardson,11 White waived his procedural
due process claim by failing to timely file a grievance after the
2010 suspension. Additionally, Busboom contends that under
the U.S. Eighth Circuit Court of Appeals’ precedent, White’s
failure to file a grievance under the CBA operates as a proce-
dural bar to White’s due process claim.
White responds that because the CBA’s procedures did not
comply with minimal due process requirements for an unpaid
7
See, ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818,
896 N.W.2d 156 (2017); Vlach v. Vlach, 286 Neb. 141, 835 N.W.2d 72
(2013).
8
U.S. Const. amend. XIV, § 1.
9
See Zawaideh v. Nebraska Dept. of Health & Human Servs., 280 Neb.
997, 792 N.W.2d 484 (2011), disapproved on other grounds, State v.
Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
10
See, Scott v. County of Richardson, 280 Neb. 694, 789 N.W.2d 44 (2010);
63C Am. Jur. 2d Public Officers and Employees § 136 (2009).
11
Scott, supra note 10.
- 729 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
suspension, his failure to grieve his suspension cannot operate
as a waiver of his due process rights. He argues that under the
U.S. Supreme Court’s precedent, postdeprivation procedures
cannot cure the Department’s failure to provide required pre
deprivation procedures or a prompt postsuspension hearing.
And he argues that Scott is factually distinguishable.
In determining whether the availability of postdeprivation
procedures satisfies due process requirements, courts have
focused on two U.S. Supreme Court decisions regarding due
process requirements for depriving a state employee of a pro-
tected property interest in his or her employment. We first
explain those decisions.
In Cleveland Board of Education v. Loudermill,12 the U.S.
Supreme Court considered what pretermination process must
be given to a tenured public employee who can be discharged
only for cause. The Court concluded that Ohio’s statutes,
which provided that civil servants could not be discharged
except for specified conduct, created a property interest in
continued employment. It rejected the argument that the statu-
tory procedures for discharging an employee defined the prop-
erty interest. It held that a state “‘may not constitutionally
authorize the deprivation of such an interest, once conferred,
without appropriate procedural safeguards.’”13 The Court held
that due process required “‘some kind of a hearing’ prior to the
discharge of an employee who has a constitutionally protected
property interest in his employment”14 and set out the follow-
ing requirements for that hearing:
The essential requirements of due process . . . are
notice and an opportunity to respond. The opportunity
to present reasons, either in person or in writing, why
proposed action should not be taken is a fundamental due
12
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct.
1487, 84 L. Ed. 2d 494 (1985).
13
Id., 470 U.S. at 541 (citations omitted).
14
Id., 470 U.S. at 542.
- 730 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
process requirement. . . . The tenured public employee is
entitled to oral or written notice of the charges against
him, an explanation of the employer’s evidence, and an
opportunity to present his side of the story.15
The Court emphasized that even if the underlying facts are
clear, an employee’s only meaningful opportunity to persuade
an employer that a discharge is unnecessary or inappropriate is
likely to be before the discharge.16
Finally, the court explained that its holding rested in part on
Ohio’s statutes that provided for a full posttermination hear-
ing. It concluded that “all the process that is due is provided
by a pretermination opportunity to respond, coupled with
posttermination administrative procedures as provided by the
Ohio statute.”17 Accordingly, the “pretermination hearing need
not definitely resolve the propriety of the discharge. It should
be an initial check against mistaken decisions—essentially,
a determination of whether there are reasonable grounds to
believe that the charges against the employee are true and
support the proposed action.”18 As stated, the pretermina-
tion process need only include oral or written notice of the
charges, an explanation of the employer’s evidence, and an
opportunity for the employee to tell his side of the story.19 The
Court further stated that if the employer perceives a hazard in
keeping an employee on the job, it can suspend the employee
with pay.20
Several years later, in Gilbert v. Homar,21 the Court held
that due process did not require a predeprivation hearing
15
Id., 470 U.S. at 546.
16
See Loudermill, supra note 12.
17
Id., 470 U.S. at 547-48 (emphasis supplied).
18
Id., 470 U.S. at 545-46.
19
Loudermill, supra note 12.
20
Id.
21
Gilbert v. Homar, 520 U.S. 924, 117 S. Ct. 1807, 138 L. Ed. 2d 120
(1997).
- 731 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
before an employee charged with serious criminal offenses can
be temporarily suspended without pay.
Richard Homar was a university police officer who was
arrested in a drug raid while at a friend’s house and charged
with felony drug offenses. On the same day, the university
suspended him without pay pending an investigation into the
charges. The charges were dismissed a week later, but Homar
remained on suspension. Almost 3 weeks after his arrest, two
officials met with him so he could tell his side of the story, but
they did not tell him that they had received a report that he
made confessions on the day of his arrest. About a month after
his arrest, the university informed him by letter that because he
had confessed to associating with drug dealers and obtaining
marijuana from one of them for his own use, it had demoted
him to a groundskeeper position. The next day, Homar met
with the university president. After allowing Homar to read the
report and respond, the president sustained the demotion.
The Third Circuit concluded that Homar’s unpaid suspen-
sion without notice and a presuspension hearing violated his
due process rights. It relied on the Supreme Court’s statement
in Loudermill that the employer could suspend an employee
with pay pending a pretermination hearing.
The Supreme Court assumed without deciding that due
process protections extended to a disciplinary action “short of
termination” against a tenured public employee.22 But it stated
that a paid suspension was not the only way to avoid a per-
ceived hazard in leaving an employee on the job. The Court
also recognized that on multiple occasions, it had “‘rejected
the proposition that [due process] always requires the State to
provide a hearing prior to the initial deprivation of property.’”23
22
See id., 520 U.S. at 929.
23
Id., 520 U.S. at 930, citing Parratt v. Taylor, 451 U.S. 527, 101 S. Ct.
1908, 68 L. Ed. 2d 420 (1981), overruled in part on other grounds,
Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662
(1986).
- 732 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
In determining what process was constitutionally due
Homar, the Court balanced the three distinct factors set out in
Mathews v. Eldridge24: “First, the private interest that will be
affected by the official action; second, the risk of an errone-
ous deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute pro-
cedural safeguards; and finally, the Government’s interest . .
. .” In applying these balancing factors, the Court stated that
although Homar had a significant interest in his paycheck, the
length and finality of a deprivation must be considered and
that Homar had faced only a temporary suspension without
pay: “So long as the suspended employee receives a suffi-
ciently prompt postsuspension hearing, the lost income is rela-
tively insubstantial (compared with termination), and fringe
benefits such as health and life insurance are often not affected
at all . . . .”25
The Court concluded that the university had a significant
interest in Homar’s immediate suspension to maintain public
confidence in its police force, because he had been charged
with serious crimes and occupied a position of high pub-
lic trust and visibility. In that circumstance, the state is not
required to pay an employee whose services are no longer
useful because he has been charged with a felony. Finally, the
charges supported the university’s conclusion that reasonable
grounds existed to suspend Homar without providing a presus-
pension hearing.
But the Supreme Court agreed that once the charges were
dropped, the risk of an erroneous deprivation increased sub-
stantially. Because the lower courts had not addressed whether
the university violated Homar’s due process rights by failing
to provide a sufficiently prompt postsuspension hearing, the
Court remanded for consideration of that issue.
24
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976).
25
Gilbert, supra note 21, 520 U.S. at 932.
- 733 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
In Scott,26 we held that deficiencies in due process during
pretermination proceedings may be cured if the employee is
provided adequate posttermination due process and that such
measures can be provided by grievance procedures that have
been agreed upon by the employer and the employee.
The plaintiff, James Scott, was a deputy sheriff who was
placed on paid suspension for misconduct during an internal
investigation. A week later, the chief deputy gave Scott a
detailed report of the reasons for the suspension. A few days
after that, Scott submitted to a polygraph test. The next day,
the chief deputy discharged Scott after he refused to resign. At
some point, Scott filed a grievance with the sheriff and appealed
the sheriff’s denial to the county board of commissioners. The
board found just cause to terminate Scott’s employment.
The district court overturned Scott’s termination because the
defendants had violated his predeprivation due process rights.
It relied on Martin v. Nebraska Dept. of Public Institutions,27 a
Nebraska Court of Appeals decision holding that posttermina-
tion proceedings cannot cure a violation of a plaintiff’s preter-
mination due process rights.
On appeal, we acknowledged that three federal courts of
appeals had held that posttermination hearings will not nor-
mally cure a violation of pretermination due process rights.28
But we agreed with the Eighth Circuit’s decisions on this
issue and held that “deficiencies in due process during pre-
termination proceedings may be cured if the employee is pro-
vided adequate posttermination due process.”29 We concluded
that the grievance procedures under the labor agreement
26
Scott, supra note 10.
27
See Martin v. Nebraska Dept. of Public Institutions, 7 Neb. App. 585, 584
N.W.2d 485 (1998), overruled, Scott, supra note 10.
28
See Cotnoir v. University of Maine Systems, 35 F.3d 6 (1st Cir. 1994);
Abraham v. Pekarski, 728 F.2d 167 (3d Cir. 1984); and Schultz v. Baumgart,
738 F.2d 231 (7th Cir. 1984).
29
Scott, supra note 10, 280 Neb. at 703-04, 789 N.W.2d at 52.
- 734 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
“process provides employees with due process required under
Loudermill.”30
We emphasized that the chief deputy had given Scott the
factual allegations that supported the suspension and had given
him an opportunity to respond to them. We did not dispute
that the pretermination procedures violated Scott’s due process
rights but concluded that “the violation . . . was cured by the
extensive posttermination hearing.”31
However, since our holding in Scott, the Eighth Circuit
has moved away from its earlier position that posttermination
grievance procedures can cure violations of pretermination due
process requirements.
The U.S. Supreme Court has consistently held that exhaus-
tion of administrative remedies is not a prerequisite to filing
an action under 42 U.S.C. § 1983 (2012),32 absent a federal
statute requiring such exhaustion.33 However, in Keating v.
Nebraska Public Power Dist.,34 a 2009 case involving a water
dispute, the Eighth Circuit stated that it had recognized an
exception to the general rule that exhaustion of state remedies
prior to bringing a § 1983 claim is not required. The court
stated that “‘[u]nder federal law, a litigant asserting a depriva-
tion of procedural due process must exhaust state remedies
before such an allegation states a claim under § 1983.’”35
The court held, however, that it is not necessary for a litigant
to have exhausted available postdeprivation remedies when
the litigant contends that he was entitled to predeprivation
30
Id. at 705, 789 N.W.2d at 53.
31
See id. at 706, 789 N.W.2d at 53.
32
See, Felder v. Casey, 487 U.S. 131, 108 S. Ct. 2302, 101 L. Ed. 2d 123
(1988); Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S. Ct. 2557,
73 L. Ed. 2d 172 (1982).
33
See, e.g., 42 U.S.C. § 1997e (Supp. III 2015).
34
Keating v. Nebraska Public Power Dist., 562 F.3d 923 (8th Cir. 2009).
35
Id. at 929 (emphasis in original), quoting Wax ’n Works v. City of St. Paul,
213 F.3d 1016 (8th Cir. 2000).
- 735 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
process. It cited a U.S. Supreme Court holding that “‘where
the State feasibly can provide a predeprivation hearing before
taking property, it generally must do so regardless of the ade-
quacy of a postdeprivation tort remedy to compensate for the
taking.’”36 The court further noted that it had previously held
the “‘availability of post-deprivation remedies is not a defense
to the denial of procedural due process where predeprivation
process is practicable.’”37 Accordingly, the court ruled that the
appellants’ failure to exhaust postdeprivation remedies did not
affect their entitlement to predeprivation process and that the
district court should not have considered this failure in dis-
missing the claim.
In 2012, the Eighth Circuit extended this reasoning in a case
involving an Iowa teacher’s discharge:
[W]e have held that a government employee who chooses
not to pursue available post-termination remedies cannot
later claim, via a § 1983 suit in federal court, that he was
denied post-termination due process. . . . That said, we
have also held that “it is not necessary for a litigant to
have exhausted available postdeprivation remedies when
the litigant contends that he was entitled to predepri-
vation process.” . . . Thus, the effect of a government
employee’s failure to pursue available post-termination
remedies depends on whether the employee alleges the
deprivation of pre-termination process or post-termination
process.38
The appellate court concluded that based on the plaintiff’s
failure to pursue posttermination process, the federal district
court had properly dismissed his claims of deficient posttermi-
nation proceedings. However, the appellate court determined
36
Id., quoting Zinermon v. Burch, 494 U.S. 113, 110 S. Ct. 975, 108 L. Ed.
2d 100 (1990).
37
Id., quoting Westborough Mall, Inc. v. City of Cape Girardeau, 794 F.2d
330 (8th Cir. 1986).
38
Christiansen v. West Branch Community School Dist., 674 F.3d 927, 935-
36 (8th Cir. 2012) (emphasis in original).
- 736 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
that his failure to exercise posttermination process had no
effect on his claim that he was denied pretermination due
process rights. As a result, the Eighth Circuit has implicitly
acknowledged that where the Constitution demands predep
rivation due process,39 postdeprivation proceedings will not
cure a state’s failure to provide the minimum predepriva-
tion process.
Importantly, the Eighth Circuit’s 2012 decision is consist
ent with other federal court decisions addressing this issue
in cases involving the discharge of a public employee with a
protected property interest in employment.40 Together, these
decisions represent the consensus of lower federal appellate
courts. Moreover, in Loudermill itself, the U.S. Supreme Court
held that Ohio state employees were entitled to pretermination
process despite the availability of extensive posttermination
grievance procedures.41 Loudermill’s minimum pretermination
procedures are required even when posttermination grievance
procedures are available.
[9,10] The elements of, and defenses to, a § 1983 action are
defined by federal law.42 State courts are bound by definitive
U.S. Supreme Court decisions or a consensus of federal court
holdings on the substantive requirements of a § 1983 claim or
defense.43 And the consensus of federal court holdings on this
39
See Zinermon, supra note 36.
40
See, Jones v. City of Boston, 752 F.3d 38 (1st Cir. 2014); Carmody
v. Board of Trustees of Uni. of Illinois, 747 F.3d 470 (7th Cir. 2014);
Walls v. Central Contra Costa Transit Authority, 653 F.3d 963 (9th Cir.
2011); Montgomery v. City of Ardmore, 365 F.3d 926 (10th Cir. 2004);
Ciambriello v. County of Nassau, 292 F.3d 307 (2d Cir. 2002).
41
See Loudermill, supra note 12.
42
Howlett v. Rose, 496 U.S. 356, 110 S. Ct. 2430, 110 L. Ed. 2d 332 (1990).
43
See, Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 179 L. Ed. 2d
1149 (2011); Wilson v. Layne, 526 U.S. 603, 119 S. Ct. 1692, 143 L. Ed.
2d 818 (1999); Howlett, supra note 42; Felder, supra note 32; Booker v.
South Carolina Dept. of Corrections, 855 F.3d 533 (4th Cir. 2017); De
La Rosa v. White, 852 F.3d 740 (8th Cir. 2017); Mammaro v. N.J. Div. of
Child Prot. and Permanency, 814 F.3d 164 (3d Cir. 2016).
- 737 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
issue is consistent with Loudermill. Upon the record before us,
the Department did not provide White the minimum predepri-
vation due process required for a discharge under Loudermill,
so we next consider whether that process clearly applied to
White’s claim that he was constructively discharged.
1. Court Erred in Determining That White’s
Predeprivation Due Process R ights
Were Clearly Established
(a) Qualified Immunity Principles
[11,12] The doctrine of qualified immunity protects govern-
ment 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.44 Whether an
official may prevail in his or her qualified immunity defense
depends upon the objective reasonableness of his or her con-
duct as measured by reference to clearly established law.45
[13] The U.S. Supreme Court has stated that it does “not
require a case directly on point, but existing precedent must
have placed the statutory or constitutional question beyond
debate.”46 “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 vio-
late the law.’”47
44
See, Messerschmidt v. Millender, 565 U.S. 535, 132 S. Ct. 1235, 182 L.
Ed. 2d 47 (2012); Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150
L. Ed. 2d 272 (2001), overruled in part on other grounds, Pearson v.
Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009); Carney
v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014) (quoting Ashcroft, supra
note 43).
45
Carney, supra note 44.
46
Ashcroft, supra note 43, 563 U.S. at 741.
47
Id., 563 U.S. at 743. Accord, Messerschmidt, supra note 44; Potter
v. Board of Regents, 287 Neb. 732, 844 N.W.2d 741 (2014) (citing
Messerschmidt, supra note 44).
- 738 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
[14] 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.48
A court has discretion to determine which component to
address first.49
(b) Law Has Not Clearly Established
Employee’s Due Process Rights
for Constructive Discharge
Although White was not actually discharged until after the
second suspension, he argues that Busboom’s actions amounted
to a constructive discharge. He contends that a procedural due
process violation can rest on a constructive discharge. In sup-
port of this contention, White relies on an unpublished federal
district court’s judgment.50
In Hammond v. Chester Upland School Dist.,51 the defendant
school superintendent did not give the plaintiff school principal
a reason for suspending her without pay until he was contacted
by her attorney. The next month, the superintendent indicated
that she would not be reinstated as principal and advertised
her position as open. She refused the school board’s offer of
a teaching position, and the defendants did not offer her a
hearing on her continued unpaid suspension until more than 5
months after its effective date and did not affirm the suspension
until nearly 2 years later. The federal district court concluded
that the suspension was a de facto termination and that she was
entitled to pretermination due process under Loudermill, which
had not occurred.
The Seventh Circuit has also recognized that sham investi-
gative procedures, which deprive a tenured public employee
48
Ashcroft, supra note 43.
49
See, id.; Pearson, supra note 44.
50
See Hammond v. Chester Upland School Dist., No. Civ. A. 13-6209, 2014
WL 4473726 (E.D. Pa. Sept. 9, 2014) (unpublished decision).
51
Id.
- 739 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
of an adequate opportunity to respond to allegations of mis-
conduct, coupled with an extensive suspension, can constitute
a due process violation.52
But other courts have acknowledged the difficulty of extend-
ing the predeprivation requirements of Loudermill to a con-
structive discharge:
A constructive discharge differs in essential ways from
a true discharge. When an employer decides to fire an
employee, there is no ambiguity about the loss that the
employee will suffer. If the employee has a property
interest in the job, the government employer must pro-
vide proper notice and a hearing before the firing is
effected. . . . In the constructive-discharge context, how-
ever, the employer may not even know that its actions
have compelled the employee to quit. When that is the
case, the employer can hardly be required to provide
notice or a hearing before the resignation . . . .53
The Fifth and the Ninth Circuits have similarly reasoned
that in an actual discharge case, if an employer failed to pro-
vide minimum predeprivation due process, it clearly ignored
those due process requirements, whereas an employer may not
be on notice that it should provide predeprivation due process
procedures in a constructive discharge case.54
Accordingly, the Fifth Circuit has held that a construc-
tive discharge can support a viable § 1983 claim only if it
amounted to a forced discharge to avoid providing pretermina-
tion hearing procedures.55 The 10th Circuit requires a plaintiff
employee to show that (1) the employer intentionally or know-
ingly created intolerable working conditions, or was at least on
notice of those conditions; (2) such conditions compelled the
52
See Levenstein v. Salafsky, 164 F.3d 345 (7th Cir. 1998).
53
Lauck v. Campbell County, 627 F.3d 805, 812 (10th Cir. 2010).
54
See, Fowler v. Carrollton Public Library, 799 F.2d 976 (5th Cir. 1986);
Gravitt v. Brown, 74 F. Appx. 700 (9th Cir. 2003).
55
Fowler, supra note 54.
- 740 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
plaintiff’s resignation; and (3) the employer failed to provide
minimum pretermination procedures.56
[15] Loudermill and Gilbert57 established that the due proc
ess requirements for depriving public employees of a pro-
tected property interest in employment must be determined
under the Mathews balancing factors.58 But we need not
decide whether these facts show a constructive discharge or
what due process requires in a constructive discharge case. It
is enough here to conclude that White’s due process rights in
the context of a constructive discharge claim were not clearly
established at the time that the Department placed White on
an unpaid suspension. This is particularly true in light of
our decision in Scott,59 which implied that posttermination
grievance procedures could provide all the due process that
was required under Loudermill, even in cases involving an
actual discharge.60
(c) Law Has Not Clearly Established Employee’s
Predeprivation Due Process Rights
for Unpaid Suspension
The holding in Loudermill was limited to setting out the
minimum due process requirements before discharging an
employee with a protected property interest in employment. As
noted, in Gilbert, the Supreme Court did not decide whether
procedural due process protections extend to adverse employ-
ment actions short of a discharge.61 It held only that under the
facts of the case, due process did not prohibit an unpaid sus-
pension without predeprivation procedures.
56
Lauck, supra note 53.
57
See Loudermill, supra note 12, and Gilbert, supra note 21.
58
See Mathews, supra note 24.
59
Scott, supra note 10.
60
See Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396
(1982).
61
See Gilbert, supra note 21.
- 741 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
In 2011, the Third Circuit applied the Mathews factors
and held that absent extraordinary circumstances, due process
requires notice and an informal hearing before suspending a
state employee without pay if the employee has a protected
property interest in employment, even if postsuspension griev-
ance procedures are available. But the court also held that this
right was not clearly established when the plaintiff was sus-
pended.62 Two other federal appellate courts have also held that
a state employer must provide at least some type of predepriva-
tion process before imposing an unpaid suspension.63
In contrast, the 10th Circuit held that a school board’s place-
ment of an administrator on unpaid leave without any type of
hearing did not violate his due process rights.64 Applying the
Mathews factors, the court specifically held that the plaintiff
was not constitutionally entitled to notice and opportunity to
respond before he was suspended without pay. The court stated
that his private interest in continuous income was attenuated
by the relatively prompt postsuspension grievance procedure
that was available to him, even though the administrator did
not file a grievance. In effect, the court held that in unpaid
suspension cases, an employee forfeits a predeprivation due
process claim by failing to invoke postdeprivation procedures
that were available. In a footnote, the Sixth Circuit stated that
even if the administrator were entitled to a presuspension hear-
ing, that right was not clearly established when the district
suspended him.65
Given this conflicting federal case law and a statement by
two federal appellate courts that the right to predeprivation
notice and a hearing was not clearly established in unpaid
62
See Schmidt v. Creedon, 639 F.3d 587 (3d Cir. 2011).
63
See, O’Connor v. Pierson, 426 F.3d 187 (2d Cir. 2005); Baerwald v. City
of Milwaukee, 131 F.3d 681 (7th Cir. 1997).
64
Kirkland v. St. Vrain Valley Sch. Dist. No. RE-1J, 464 F.3d 1182 (10th Cir.
2006).
65
See id. at 1194 n.10.
- 742 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
suspension cases, we cannot say that Busboom should have
known that White was entitled to notice and an informal hear-
ing before he was suspended without pay. We conclude that
the court erred in reasoning that any reasonable officer in
Busboom’s position should have understood that notice and an
opportunity to be heard were required before the Department
could deprive White of a protected property interest. That
level of generality was too high to determine whether the
unlawfulness of the suspension was apparent.66 The question
was whether, at the time of Busboom’s actions, the law clearly
established that White was entitled to notice and a predepriva-
tion hearing to respond to the Department’s allegations, despite
the availability of prompt postdeprivation grievance procedures
to challenge his unpaid suspension. We conclude that it did
not. Accordingly, the court erred in failing to determine that
Busboom was entitled to qualified immunity on White’s claim
that he was denied predeprivation due process.
2. White H as Failed to Show Postdeprivation
Due Process Violation
White also contends that his failure to file a grievance
within the allowable time did not waive his postdeprivation
due process. More specifically, he alleges that the grievance
procedures did not comply with due process requirements
because the CBA failed to specify the time for a postsuspen-
sion hearing.
In support of this contention, he relies on the U.S. Supreme
Court case of Barry v. Barchi,67 in which the Court held that
a horseracing board’s suspension of a trainer was unconsti-
tutional for the same failure. In Barry, the board suspended
the trainer for 15 days after one of his horses tested positive
for drugs. Under the applicable statute, it was presumed, sub-
ject to rebuttal, that the drug either was administered by the
66
See Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d
523 (1987).
67
Barry v. Barchi, 443 U.S. 55, 99 S. Ct. 2642, 61 L. Ed. 2d 365 (1979).
- 743 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
trainer or resulted from his negligence in failing to adequately
protect against such occurrence. After the suspension, the
trainer would be entitled to a hearing; however, the statute did
not specify a time for such a hearing and granted the board up
to 30 days after the hearing to issue a final order.
The trainer did not seek a hearing under the statute, but
instead filed suit and challenged the law. The federal district
court found that even a short suspension could irreparably
damage a trainer’s livelihood and that during that period, a
trainer would lose clients to other trainers. It concluded that
a full hearing after he had lost his clients was not a meaning-
ful opportunity to be heard.68 It ruled that the statute violated
the trainer’s due process rights because it allowed the sanction
without a presuspension or a prompt postsuspension hearing.69
The Supreme Court agreed that the board was entitled
to impose an interim suspension, pending a prompt judicial
or administrative hearing that would definitely determine the
issues, whenever it has satisfactorily established probable cause
to believe that a horse has been drugged and that a trainer has
been at least negligent in connection with the drugging.
Nonetheless, the Court noted that the statute, on its face
and as applied, did not provide for a prompt hearing. So train-
ers would often not have an opportunity to test the state’s
evidence before they had suffered the full consequences of a
suspension. The Court reasoned that this result did not satisfy
the due process requirement of an opportunity to be heard on
the ultimate determination “‘at a meaningful time and in a
meaningful manner.’”70 Because the statute was deficient in
that respect, the Court held that the trainer’s suspension was
constitutionally infirm under the Due Process Clause.
But Barry is distinguishable not only because the state pro-
cedures gave the trainer no opportunity to contest the sanction
68
Id.
69
Id.
70
Id., 443 U.S. at 66.
- 744 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
until after it was completed, but because the sanction irrepa-
rably affected the trainer’s future livelihood by causing him to
lose clients.
In contrast, in FDIC v. Mallen,71 the Supreme Court upheld
the administrative postdeprivation procedures for a bank presi-
dent to contest his suspension where the agency was required
to hold a hearing within 30 days of a claimant’s request and to
issue a decision within 60 days of the hearing. The Court con-
cluded that this 90-day period did not exceed permissible lim-
its. It emphasized that leaving the suspension in place would
not increase the plaintiff’s reputational injury, because he had
been indicted of a felony crime of dishonesty, and that the pub-
lic interest in a correct decision counseled against requiring a
hasty one. The Court stated that the indictment demonstrated
that the suspension was not arbitrary and raised a public con-
cern that the bank was not being managed responsibly.
In Zinermon v. Burch,72 the U.S. Supreme Court explained
that when a plaintiff in a § 1983 action alleges a procedural
due process violation, the existence of state remedies is a rel-
evant consideration:
In procedural due process claims, the deprivation by state
action of a constitutionally protected interest in “life,
liberty, or property” is not in itself unconstitutional; what
is unconstitutional is the deprivation of such an interest
without due process of law. . . . The constitutional viola-
tion actionable under § 1983 is not complete when the
deprivation occurs; it is not complete unless and until the
State fails to provide due process. Therefore, to deter-
mine whether a constitutional violation has occurred, it
is necessary to ask what process the State provided, and
whether it was constitutionally adequate. This inquiry
would examine the procedural safeguards built into the
statutory or administrative procedure of effecting the
71
FDIC v. Mallen, 486 U.S. 230, 108 S. Ct. 1780, 100 L. Ed. 2d 265 (1988).
72
Zinermon, supra note 36, 494 U.S. at 125-26 (emphasis in original).
- 745 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
deprivation, and any remedies for erroneous deprivations
provided by statute or tort law.
[16] Consistent with Zinermon, lower federal appellate
courts have concluded that a plaintiff fails to state a viable pro-
cedural due process claim when adequate postdeprivation state
procedures were available but the plaintiff failed to invoke
them.73 We agree. These holdings are not an exception to the
no exhaustion requirement.74 Instead, a plaintiff cannot show a
procedural due process violation if the governmental actor pro-
vided an adequate postdeprivation procedure and the plaintiff
failed to invoke the remedy.75
The CBA in this matter permits an employee to file a griev-
ance for a violation of the labor contract within 15 days of the
contested action, unless the employer exercises its discretion to
extend the time limit. The decisionmaker who took the action
must confer with the employee and respond to the grievance
within 10 days. If dissatisfied with the response, an employee
can appeal to the agency head, who must respond within 15
days of the appeal. If instead, the agency head was the deci-
sionmaker, he or she must respond to the grievance in 15 days.
After that, an employee can appeal to the state’s employee rela-
tions division, which must issue a decision within 20 days of
a conference between the parties. An employee can appeal that
decision to an arbitrator or hearing officer. And employees can
additionally seek judicial review.76
73
See, e.g., Raymond v. Bd. of Regents of the University of MN, 847 F.3d
585 (8th Cir. 2017); Christiansen, supra note 38; Kirkland, supra note
64; Alvin v. Suzuki, 227 F.3d 107 (3d Cir. 2000); Chiles v. Morgan,
No. 94-10980, 1995 WL 295931 (5th Cir. Apr. 26, 1995) (unpublished
disposition listed in table of “Decisions Without Published Opinions” at
53 F.3d 1281 (5th Cir. 1995)).
74
See Alvin, supra note 73.
75
Id.
76
See Ahmann v. Nebraska Dept. of Corr. Servs., 278 Neb. 29, 767 N.W.2d
104 (2009).
- 746 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
Here, the Department knew that White had been arrested
for a misdemeanor offense of unlawful intrusion, not a fel-
ony offense. But regardless of whether the decision to sus-
pend White without pay was correct, we conclude that under
Mallen, the postdeprivation procedures available to White
were constitutionally adequate. His failure to invoke them
does not render his unpaid suspension an unlawful depriva-
tion of a protected property interest without due process. We
conclude that he has failed to show a postdeprivation due
process violation.
3. White Is Not Entitled
to Attorney Fees
[17] 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 enforce-
able settlement, which materially alters the legal relationship
of the parties in a way that benefits the plaintiff.77 We have
determined that Busboom was entitled to qualified immunity
on White’s claim that he was deprived of predeprivation due
process and that White has failed to show a postdeprivation
due process violation. Accordingly, White is not entitled to
attorney fees, because he is not a prevailing party.
VI. CONCLUSION
We conclude that the court erred in determining that any
reasonable officer in Busboom’s position should have under-
stood that notice and an opportunity to be heard were required
before the Department could deprive White of a protected
property interest. Federal case law has not clearly established
77
See, Lefemine v. Wideman, 568 U.S. 1, 133 S. Ct. 9, 184 L. Ed. 2d 313
(2012); Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of
Health and Human Resources, 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed.
2d 855 (2001); Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L.
Ed. 2d 40 (1983).
- 747 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
WHITE v. BUSBOOM
Cite as 297 Neb. 717
that in unpaid suspension cases, a public employer must pro-
vide predeprivation notice and a hearing to an employee with a
protected property interest in employment. Nor has federal case
law clearly established that these due process rights are avail-
able in constructive discharge cases.
Moreover, when White was suspended, the controlling
authority of both the Eighth Circuit and this court established
that a state official’s failure to provide pretermination due
process could be cured by posttermination grievance proce-
dures. A prison official in Busboom’s position could have
reasonably concluded that the same rule applied to the lesser
disciplinary action of an unpaid suspension. Accordingly, the
court erred in failing to sustain Busboom’s qualified immu-
nity defense.
Additionally, we conclude that White has failed to state a
viable § 1983 claim that he was denied posttermination due
process because he failed to invoke the grievance procedures
that were available to him. Because White is not a prevail-
ing party, he is not entitled to attorney fees. We therefore
reverse the district court’s judgment and remand the cause with
instructions for it to enter summary judgment for Busboom and
dismiss White’s complaint.
R eversed and remanded with instructions.