Brock v. Dunning
| Decision Date | 29 August 2014 |
| Docket Number | No. S–13–647,S–13–647 |
| Citation | 854 N.W.2d 275 |
| Parties | David Brock, appellant, v. Tim Dunning, sheriff, individually and in his official capacity, and Douglas County, a political subdivision, appellees. |
| Court | Nebraska Supreme Court |
Bruce G. Mason, of Mason Law Office, for appellant.
Donald W. Kleine, Douglas County Attorney, and Bernard J. Monbouquette for appellees.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
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 the facts and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error.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 gives that party the benefit of all reasonable inferences deducible from the evidence.
3. Summary Judgment: Proof.The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law.
4. Summary Judgment: Evidence: Proof.After the movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence was uncontroverted at trial, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion.
5. Summary Judgment.In the summary judgment context, a fact is material only if it would affect the outcome of the case.
6. Summary Judgment.Summary judgment proceedings do not resolve factual issues, but instead determine whether there is a material issue of fact in dispute.
7. Summary Judgment.If a genuine issue of fact exists, summary judgment may not properly be entered.
8. Political Subdivisions Tort Claims Act.The Political Subdivisions Tort Claims Act is the exclusive means by which a tort claim may be maintained against a political subdivision or its employees.
9. Constitutional Law: Actions.In any 42 U.S.C. § 1983 (2012) action, the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.
10. Constitutional Law: Property.The 14th Amendment's protection of property extends to benefits for which, under state law or practice, a person has a claim or entitlement.
11. Constitutional Law: Public Officers and Employees.The content, form, and context of a given statement must be considered in determining whether an employee's speech addresses a matter of public concern.
12. Constitutional Law: Public Officers and Employees.To fall within the realm of public concern, an employee's speech must relate to a matter of political, social, or other concern to the community.
13. Constitutional Law: Public Officers and Employees.The public concern test functions to prevent every employee's grievance from becoming a constitutional case and to protect a public employee's right as a citizen to speak on issues of concern to the community.
14. Constitutional Law: Public Officers and Employees.When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.
15. Constitutional Law: Public Officers and Employees.Factors relevant in determining whether an employee's speech undermines the effective functioning of the public employer's enterprise are whether the speech creates disharmony in the workplace, impedes the speaker's ability to perform his or her duties, or impairs working relationships with other employees.
16. Constitutional Law: Due Process.The Due Process Clause of the 14th Amendment contains a substantive component that provides some protection to a person's right of privacy.
David Brock, the appellant, was employed as a deputy sheriff with the Douglas County sheriff's office (Sheriff's Office). In March 2007, Brock was injured while on duty, and he filed a workers' compensation claim. While receiving workers' compensation benefits, Brock periodically was placed under surveillance. Eventually, the Sheriff's Office determined that Brock had been untruthful regarding the extent of his injuries with medical personnel, workers' compensation personnel, and personnel within the Sheriff's Office. Accordingly, Brock's employment was terminated on June 10, 2009. By a letter dated August 23, 2010, the Douglas County Sheriff's Merit Commission (Merit Commission) stated that it affirmed the termination. The district court for Douglas County affirmed the Merit Commission's decision on December 30. This previous action is not the case before us.
On December 23, 2010, Brock filed his petition in the district court for Douglas County against Tim Dunning, individually and in his official capacity as Douglas County Sheriff, and Douglas County, the appellees, alleging two causes of action. This case gives rise to the instant appeal. The first cause of action was a claim of wrongful discharge in retaliation for having filed and pursued a workers' compensation claim. The second cause of action was brought under 42 U.S.C. § 1983 (2012), and alleged three theories. The appellees filed their answer on January 27, 2011, generally denying Brock's allegations. On August 31, 2012, the appellees filed a motion for summary judgment. After a hearing, the district court filed an order on July 5, 2013, in which it determined there were no issues of material fact and granted the appellees' motion for summary judgment. Brock appeals. We find no merit to Brock's assignments of error on appeal, and we therefore affirm the district court's order.
Brock began his employment as a deputy sheriff with the Sheriff's Office in 1995. From 2001 to 2004, Brock was assigned to the K–9 unit involved in drug interdiction along
Interstate 80. The Sheriff's Office received significant income from the property seizures by the K–9 unit's drug interdiction along the interstate. Brock believed that he had observed racial profiling of drivers by Edward Van Buren, the sergeant in charge of the K–9 unit. On two occasions between October 2001 and April 2004, Brock and three other deputies reported their concerns of racial profiling to Chief Deputy Marty Bilek and other command officers of the Sheriff's Office. In April 2004, Brock was reassigned to road patrol for disciplinary reasons; two of the other reporting deputies were asked to leave the K–9 unit due to “burn out.”
On March 18, 2007, Brock sustained injuries to his neck and shoulder when struggling with a suspect while on duty. Brock filed a claim for workers' compensation benefits. Brock asserts that the Sheriff's Office consistently delayed or refused his needed medical care. Once authorized, MRI's revealed disk herniation and a rotator cuff tear
. Brock eventually underwent five surgeries and attended physical therapy due to his injuries.
As early as May 2007, Janice Johnson, who was employed by Douglas County and was responsible for administering the workers' compensation claims of Douglas County employees, hired private investigators to periodically place Brock under surveillance and to report on Brock's physical abilities. Between May 2007 and June 2008, Brock was under surveillance on approximately 10 different days for approximately 73 hours.
By February 13, 2009, Brock was released by his doctor to return to light duty for 4 hours per day at the Sheriff's Office. From February 13 through 16, Brock was again placed under surveillance. Including the most recent surveillance, Brock was under surveillance for a total of approximately 100 hours from May 2007 through February 2009. On February 13, an investigator videotaped Brock while he was operating his pickup truck with a snowplow attached to it for 5 hours. During that time, Brock was clearing snow from business parking lots for his father's lawn maintenance and snow removal business.
On March 17, 2009, Brock met with Dr. Kirk S. Hutton, one of his treating physicians. Prior to that appointment, Dr. Hutton had viewed the surveillance film from February 13. Dr. Hutton characterized the film as showing Brock's rotating the steering wheel and twisting his neck to see behind him. During the examination on March 17, Dr. Hutton asked Brock about the range of activities that Brock could perform and specifically asked Brock whether he could operate a snowplow. Brock responded that there was “no way” he could drive a truck or operate a snowplow. Dr. Hutton's notes from the March 17 examination state:
I should also mention that I reviewed a surveillance video taken of [Brock] in February operating a snow plow and a pick-up truck. He was driving using his left hand extensively rotating the wheel, turning around watching behind him, twisting his neck with no apparent problems using his left arm. I did question him about activities that he has been able to do. We got on the topic of scooping snow and running a snow plow. When I asked him if he could do this he said there was no way that he could even drive a truck or work a snow plow.
On March 26, 2009, Brock completed a functional capacity evaluation (FCE). The physical therapist who conducted the FCE sent a letter to Johnson regarding the results. The physical therapist indicated that Brock had ...
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