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NDOR Holds State-Wide Series of Public Information Open House MeetingsNACO Budget Workshop Cancelled for 2014  

Legal Line 

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Editor's Note: Legal Line is a feature that will periodically appear in NACO E-Line. This edition has been prepared by Beth Ferrell of the NACO legal staff. Legal Line is not intended to serve as legal advice. Rather, it is published to alert readers to court decisions and legal or advisory matters important to county government. For a specific opinion on how the information contained in this article or that which will be discussed in future issues relates to your county, consult your county attorney or personal counsel. 

Two University of Nebraska managers who made good faith judgments about how to protect their employees were protected by qualified immunity in a case decided by the Nebraska Supreme Court on March 21. In Potter v. Board of Regents, 287 Neb. 732, ___ N.W.2d ___ (2014), a terminated employee sought monetary relief for the alleged deprivation of his right to procedural due process. The district court granted summary judgment in favor of the Board of Regents and the Supreme Court affirmed that decision.

Potter was a student and employee who was escorted from his workplace by two police officers as the result of a bench warrant from a missed court date on charges of driving under the influence. Prior to this incident, Potter's work performance was questioned and a "threat assessment" was conducted as part of a possible termination. After Potter's sudden departure, the decision to terminate was finalized. An email from Human Resources stated that if Potter showed up to work, the University Police would be involved in the termination meeting. A later email from an administrative staff member urged employees to shut and lock their doors if they saw him in the building. As the word of his termination spread, there were rumors that he had a gun and that a "lockdown" was possible.

Potter sued the Board of Regents and the two managers in their individual capacities. Initially he sought equitable relief but by the time the case was heard by the Supreme Court, he sought only monetary relief. He alleged a cause of action under §1983 and Neb.Rev.Stat. §20-148 for being 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 Court rejected the claims under §20-148 and examined the claims against the managers in their individual capacities under color of state law.

The Court reviewed the doctrine of qualified immunity, which protects government officials acting in their individual capacities from civil damages to the extent their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A qualified immunity analysis has two prongs: (1) whether the official violated a statutory or constitutional right and (2) whether the right was clearly established at the time of the challenged conduct. The Court agreed with the district court that qualified immunity barred the §1983 action against the managers.

Next, the Court addressed procedural due process issues. Among other things, procedural due process requires parties deprived of liberty or property interests to be provided adequate notice and an opportunity to be heard. Other courts have held that neither liberty nor property interests are at stake when an at-will employee loses a job but remains as free as before to take another. Likewise, stigma to one's reputation through defamatory statements is not sufficient to invoke the procedural protections of the 14th Amendment.

When stigmatizing state action is combined with some more tangible interest that gives rise to a protectable interest under the 14th Amendment, it is referred to as "stigma plus." The individual's status as a government employee furnishes the "plus" in at-will termination cases. The stigma has generally been found when an employer has accused an employee of a serious character flaw, such as dishonesty, racism, or immorality.

The Eighth Circuit Court sets out the following test for an at-will termination stigma-plus claim.

 "(1) the public employer's reasons for the discharge stigmatized the employee by seriously damaging his standing and association in the community or by foreclosing employment opportunities that may otherwise have been available, (2) the public employer made the reason or reasons public, and (3) the employee denied the charges." Speer v. City of Wynne, Ark., 276 F.3d 980 (8th Cir. 2002)

If the termination 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 hearing to clear his or her name.

In this case, the alleged stigma arose from an implied character charge of dangerousness that was communicated during the employee's termination. The Court found that the managers were not responsible for alleged statements that Potter was roaming around campus with a gun. Under §1983, a supervisor is not responsible in a stigma-plus claim for unauthorized rumors circulating among employees.

The Court noted that the stigma alleged in this case is unique due to highly publicized incidents of workplace and school violence. However, even if there was no character charge, Potter failed to present a material issue that the charge seriously damaged his standing and foreclosed employment opportunities.

The Court also considered whether the managers' statements fell within the protections of conditional or qualified privilege. In general, the protection applies to

"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." Turner v. Welliver, 226 Neb. 275, 411 N.W.2d 298 (1987) (additional citations omitted).

Whether a qualified privilege exists is a matter of law. The Court found that the warnings given by the managers were on a subject matter to which the managers had a moral duty and the statements were made to persons with an interest in their well-being. While the managers might have been mistaken about the need for the measures taken, there was no actual malice. The managers made good faith judgments about how to best protect their employees, students, and others and were protected by qualified immunity.

The Court granted summary judgment in favor of the managers.

The full text of the case is available here.