Potter v. Bd. of Regents of the Univ. of Neb.
| Decision Date | 21 March 2014 |
| Docket Number | No. S–13–544,S–13–544 |
| Citation | 844 N.W.2d 741,287 Neb. 732 |
| Parties | Paul D. Potter, Appellant, v. Board of Regents of the University of Nebraska et al., Appellees. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the District Court for Lancaster County: Stephanie F. Stacy, Judge. Affirmed.
Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O., for appellant.
John C. Wiltse, of University of Nebraska, and David R. Buntain, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellees.
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. Public Officers and Employees: Immunity: Liability. Qualified immunity protects government officials acting in their individual capacities from civil damages insofar as their conduct does not violateclearly established statutory or constitutional rights of which a reasonable person would have known.
3. Public Officers and Employees: Immunity: Liability. Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments and protects all but the plainly incompetent or those who knowingly violate the law.
4. Constitutional Law: Civil Rights: Actions. A private right of action to vindicate violations of rights, privileges, or immunities secured by the Constitution and laws of the United States is created by 42 U.S.C. § 1983 (2006).
5. Constitutional Law: Due Process: Tort-feasors. The 14th Amendment's Due Process Clause does not extend to citizens a right to be free of injury wherever the State may be characterized as the tort-feasor.
6. Due Process. Procedural due process limits the ability of the government to deprive people of interests that constitute “liberty” or “property” interests within the meaning of the Due Process Clause and requires that parties deprived of such interests be provided adequate notice and an opportunity to be heard.
7. Due Process: Termination of Employment. Neither liberty nor property interests are at stake when an at-will employee loses a job but remains as free as before to seek another.
8. Due Process: Libel and Slander. Standing alone, stigma to one's reputation through defamatory statements is not sufficient to invoke the procedural protection of the Due Process Clause.
9. Due Process: Public Officers and Employees: Termination of Employment: Libel and Slander. If, in the course of subjecting an at-will employee to the present injury of termination, the State attaches to the employee a “badge of infamy” that impairs future employment opportunities, liberty interests come into play.
10. Due Process: Public Officers and Employees: Termination of Employment: Libel and Slander: Words and Phrases. The combination of stigmatizing state action coupled with some more tangible interest, thereby giving rise to a protect-able interest under the 14th Amendment, is referred to as “stigma plus.”
11. Due Process: Public Officers and Employees: Termination of Employment: Libel and Slander. Once a termination of employment qualifies as “stigma plus,” due process is violated if the employee challenges the substantial truth of the defamatory statement and has not been given an opportunity for a name-clearing hearing.
12. Libel and Slander: Words and Phrases. A stigma is a mark or token of infamy, disgrace, or reproach.
13. Due Process: Public Officers and Employees: Termination of Employment: Libel and Slander. The requisite stigma for a stigma-plus claim has generally been found when an employer has accused an employee of serious character defects such as dishonesty, immorality, criminality, racism, and the like; it must be more than allegations of incompetence or the fact of the employment decision itself.
14. Civil Rights: Due Process: Public Officers and Employees: Termination of Employment: Libel and Slander. A supervisor is not responsible under a 42 U.S.C. § 1983 (2006) stigma-plus claim for unauthorized rumors circulating among employees.
15. Civil Rights: Employer and Employee: Liability. There is no respondeatsuperior liability under 42 U.S.C. § 1983 (2006).
16. Due Process: Public Officers and Employees: Termination of Employment: Libel and Slander. The requirement of public dissemination in stigma-plus claims limits constitutional claims to those instances where the stigmatizing charge is likely to be disseminated widely enough to damage the discharged employee's standing in the community or foreclose future job opportunities.
17. Due Process: Public Officers and Employees: Termination of Employment: Libel and Slander. What is sufficient to constitute “public disclosure” in a stigma-plus claim will vary with the circumstances of each case.
18. Due Process: Public Officers and Employees: Termination of Employment: Libel and Slander. Statements protected by qualified privilege do not pass the stigma-plus test.
19. Public Officers and Employees: Libel and Slander: Words and Phrases. Conditional or qualified privilege comprehends communications made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, on a subject matter in which the author of the communication has an interest, or in respect to which the author has a duty—public, personal, private, legal, judicial, political, moral, or social—made to a person having a corresponding interest or duty.
A former temporary employee brought action under 42 U.S.C. § 1983 against the Board of Regents of the University of Nebraska (Board of Regents) and two of its managers after an e-mail circulated the day of the employee's termination of employment, warning coworkers to alert campus police and lock their doors if they saw him. The employee makes a “stigma plus” claim that he was deprived of a liberty interest in his good name without due process of law in violation of the 14th Amendment to the U.S. Constitution. The Board of Regents asserts that it is shielded by sovereign immunity and is not a “person” under § 1983 or Neb.Rev.Stat. § 20–148 (Reissue 2012) and that the managers are protected by qualified sovereign immunity because the alleged violation was not clearly established. The district court granted summary judgment in favor of the defendants, and the employee appeals the judgment. We affirm.
Paul D. Potter was a student at the University of Nebraska–Lincoln (University) studying electrical engineering. From 2006 to 2009, Potter was a part-time student employee working for the Communications and Information Technology Department (CIT) as a help desk technician at the call center located in Miller Hall on the University's east campus. Potter often provided technical support at nearby Agricultural Hall, where the office of the vice chancellor was located. The assistant vice chancellor was the unit director for CIT.
Potter began working full time in 2009, while still a student. The full-time employment offer stated that the “temporary appointment” was to begin October 28, 2009, and “may last until” August 14, 2010, but could “be ended for any reason and without notice.”
A background check conducted in relation to the full-time position revealed that in 2004, Potter had been charged with burglary, battery, and stalking, and had pled guilty to the misdemeanor offenses of trespass on an unenclosed curtilage, harassing a witness to hinder a report, and battery. He had been fined and sentenced to 12 months of probation. The chancellor's office discussed these matters with Potter, and there is a notation on a copy of his criminal record to “disregard” the 2004 charges. The University also became aware at this time that Potter was on probation for a recent conviction of driving under the influence.
Around the same time that Potter was given the new temporary appointment, Potter's manager at the call center was promoted to a position outside of CIT and a new manager, Terry Bockstadter, transferred in. Robert Losee was the information technology coordinator and Bockstadter's supervisor.
CIT was also moving at that time to a fee-for-service charging model. As a result, CIT technicians were expected to keep time-tracking records with appropriate codes for services provided. Potter and other technicians struggled with the transition. Notes and e-mails reflect that beginning February 15, 2010, and continuing up to July 12, Potter was repeatedly counseled that he needed to do better with his timesheets.
In June 2010, Potter was asked to sign a statement reflecting issues that needed to be rectified “in order for [him] to continue to be an effective part of the CIT Help Desk.” These issues included the accurate and timely submission of time-tracking reports and Potter's failure to communicate daily availability status. Potter refused to sign the statement.
Sometime before July 20, 2010, Losee contacted human resources about the possibility of terminating Potter's employment. Pursuant to standard University procedure, human resources completed a “threat assessment” in relation to the possible termination. The threat assessment for Potter noted manager concerns based on Potter's “previous reaction of getting upset over discussion on work performance,” a decrease in sociability in the last year, and his criminal record. The threat assessment was forwarded to campus police to determine whether there was any cause for concern. The record does not directly reflect what campus police communications took place regarding the threat assessment.
On the morning of July 20, 2010, two police officers arrived at Potter's place of work and escorted him away. Apparently unbeknownst to Potter or anyone else, a bench warrant...
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