White v. Busboom

297 Neb. 717

901 N.W.2d 294

William WHITE, appellee and cross-appellant,

v.Scott BUSBOOM, appellant and cross-appellee.

No. S-16-377.

Supreme Court of Nebraska.

Filed September 15, 2017.

Douglas J. Peterson, Attorney General, James D. Smith, and Jessica M. Forch, Lincoln, for appellant.

Abby Osborn, of Shiffermiller Law Office, PC., L.L.O., Lincoln, 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 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) 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 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 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 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 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...