Brock v. Dunning

Nebraska Advance Sheets
BROCK v. DUNNING 909
Cite as 288 Neb. 909
cancel the notice of lis pendens. If time for appeal remains,
the merits of the underlying action affecting the title to real
property are not relevant to whether good cause to cancel
a notice of lis pendens exists. Nor does the existence of a
prospective purchaser of the subject property amount to good
cause. Accordingly, we reverse the district court’s order can-
celing Kelliher’s notice of lis pendens.
R eversed.
Cassel, J., not participating.
David Brock, appellant, v. Tim Dunning, sheriff,
individually and in his official capacity,
and Douglas County, a political
subdivision, appellees.
___ N.W.2d ___
Filed August 29, 2014. No. S-13-647.
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 infer-
ences that may be drawn from the 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 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 judg-
ment 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 proceedings do not resolve factual issues, but instead
determine whether there is a material issue of fact in dispute.
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7. ____. 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. ____: ____. 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. ____: ____. The public concern test functions to prevent every employee’s griev-
ance 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. ____: ____. 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. ____: ____. 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.
Appeal from the District Court for Douglas County: W.
Mark Ashford, Judge. Affirmed.
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.
Nebraska Advance Sheets
BROCK v. DUNNING 911
Cite as 288 Neb. 909
Miller-Lerman, J.
NATURE OF CASE
David Brock, the appellant, was employed as a deputy sher-
iff 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 dis-
trict court for Douglas County against Tim Dunning, individ­
ually 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 retal­
iation 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.
STATEMENT OF FACTS
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
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Interstate 80. The Sheriff’s Office received significant income
from the property seizures by the K-9 unit’s drug interdic-
tion 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 rea-
sons; 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 under-
went 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 employ-
ees, 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 surveil-
lance 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 operat-
ing his pickup truck with a snowplow attached to it for 5
hours. During that time, Brock was clearing snow from busi-
ness parking lots for his father’s lawn maintenance and snow
removal business.
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BROCK v. DUNNING 913
Cite as 288 Neb. 909
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 rotat-
ing 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 snow-
plow. 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 capac-
ity evaluation (FCE). The physical therapist who conducted
the FCE sent a letter to Johnson regarding the results. The
physical therapist indicated that Brock had “self-limited sev-
eral of the lifting tasks.” The physical therapist defined self-
limiting behavior as “stopp[ing] the activity prior to objective
signs consistent with maximal effort being demonstrated.” The
physical therapist stated that he could not complete an accu-
rate assessment of Brock’s physical abilities due to this self-
limiting behavior.
After these reports, in April 2009, an internal investigation
regarding Brock’s activities commenced. A lieutenant from the
Sheriff’s Office conducted the internal investigation, which
included an interview with Brock. During the interview, Brock
at first denied any involvement with his father’s business, but
once he was shown documentation of his involvement and
work for the business, he admitted that he owned stock and
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participated in the business. Brock thereafter admitted to the
lieutenant that he had operated the pickup truck with the snow-
plow attached to it on February 13.
After the internal investigation, on May 29, 2009, Brock was
provided notice of a predisciplinary hearing. The notice for the
predisciplinary hearing contained three instances where the
Sheriff’s Office believed that Brock had been untruthful and
referenced various General Orders of the Sheriff’s Office that
the Sheriff’s Office believed Brock had violated. The predisci-
plinary hearing was held on June 8, and Brock appeared with
his union representative.
Following the hearing, Brock’s employment was terminated
on June 10, 2009. He was provided written notice of the ter-
mination, which indicated that the termination was due to his
being “untruthful and deceptive when interacting with doc-
tors, Workers Comp [sic] personnel and a Sheriff’s Internal
Affairs investigator.”
After Brock’s employment was terminated, he exercised
his statutory right to appeal the termination to the Merit
Commission. A hearing was held before the Merit Commission,
and by a letter dated August 23, 2010, the Merit Commission
stated that it had unanimously voted, 5 to 0, to affirm Brock’s
termination of employment.
Brock then appealed the decision of the Merit Commission
to the district court for Douglas County in case No.
CI XX-XXXXXXX. The district court filed an order on December
30, 2010, affirming the decision of the Merit Commission. The
district court determined, inter alia, that the record of the Merit
Commission’s proceeding included sufficient evidence to sup-
port the termination and that there was no evidence to support
Brock’s allegation that his due process rights were violated.
Brock did not appeal the December 30 order of the district
court in the prior action.
On December 23, 2010, Brock filed his petition in this
case, in which he alleged two causes of action. Dunning was
sued as a defendant in his official and individual capaci-
ties. Douglas County was also sued as a defendant. These
defend­ nts are the appellees. With respect to his first cause of
a
action, Brock alleged that the appellees wrongfully terminated
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BROCK v. DUNNING 915
Cite as 288 Neb. 909
his employment in retaliation for having filed and pursued
a workers’ compensation claim. Brock’s second cause of
action, based on § 1983, alleged three theories of liability.
First, Brock alleged that the appellees had a policy or cus-
tom of obstructing, delaying, and denying receipt of workers’
compensation benefits in violation of his protected property
interests. Second, Brock alleged that the appellees retaliated
against him by terminating his employment for exercising
his right of free speech under the First Amendment when
he reported racial profiling. Third, Brock alleged that the
appellees violated his right to privacy when he was placed
under surveillance.
On January 27, 2011, the appellees filed their answer gen-
erally denying Brock’s allegations. The appellees raised as
a defense that Brock “has failed to state a claim against the
[appellees] upon which relief can be granted for his First and
Second Causes of Action.” No affirmative defense of immunity
was pled.
On August 31, 2012, the appellees filed a motion for sum-
mary judgment. A hearing was held on the motion on January
22, 2013. At the hearing, the appellees offered and the court
received 15 exhibits, including documents and the transcript
of the proceedings before the Merit Commission, the district
court’s order affirming the decision of the Merit Commission
in the previous case, the depositions of Brock and Johnson,
the affidavits of Dunning and Johnson, medical reports, inves-
tigation reports, internal communications, the notice and tran-
script of the predisciplinary hearing, and the notification of
Brock’s termination of employment. Brock offered and the
court received three exhibits, including the depositions of
Brock, Dunning, and a former deputy, Matthew L. Murphy, the
latter of whom testified about having reported witnessing racial
profiling by Van Buren, the sergeant in charge of the K-9 unit,
to Bilek.
On July 5, 2013, the district court filed its order granting
the appellees’ motion for summary judgment and dismiss-
ing Brock’s petition. With respect to the first cause of action
regarding retaliatory discharge due to Brock’s having filed a
claim for workers’ compensation, the district court determined,
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inter alia, that Brock’s wrongful termination action, a tort,
was barred for failure to make a claim. The court noted that
both the appellees, Dunning and Douglas County, are political
subdivisions of the State of Nebraska, or an elected official
of the same, and that they are therefore subject to the provi-
sions of Nebraska’s Political Subdivisions Tort Claims Act.
Because Brock’s termination of employment occurred on June
10, 2009, the court stated that Brock was required to file a
notice of claim of an action arising in a tort by June 10, 2010.
The court determined that Brock had failed to plead and prove
that he had complied with the 1-year notice of claim require-
ment under Neb. Rev. Stat. § 13-919(1) (Reissue 2012) of the
Political Subdivisions Tort Claims Act. Therefore, the district
court granted summary judgment in favor of the appellees on
the first cause of action.
With respect to Brock’s second cause of action, the dis-
trict court stated that it “is based in . . . § 1983, and has
three separate and distinct theories of liability.” Brock’s first
theory was that the appellees “had an official custom, prac-
tice and officially adopted policy to delay, hinder, obstruct,
and deny [Brock] his federally protected property entitle-
ment in obstructing, delaying, denying and finally terminating
[Brock’s employment] for exercising his right to receive the
Nebraska statutory program of workers’ compensation ben-
efits.” The district court stated that a plaintiff must prove the
following in order for there to be liability under § 1983: “1.
a constitutional violation, or a federal law violation, 2. which
was committed by a person acting under the color of state
law, and 3. with proximate causation between the actor and
the constitutional/legal deprivation.” The district court deter-
mined that there was “no official policy, and no continuing
widespread, persistent custom or practice by the [appellees]
to terminate the employment of injured employees includ-
ing [Brock] who claim and/or receive workers’ compensation
benefits,” and that therefore, Brock failed to prove a constitu-
tional or law violation.
Brock’s second theory under § 1983 alleged that the appel-
lees retaliated against him for exercising his First Amendment
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BROCK v. DUNNING 917
Cite as 288 Neb. 909
right to freedom of speech when he reported racial profil-
ing by the K-9 unit staff. The court determined that Brock’s
speech was not protected because he had spoken in his official
capacity as an employee about official practices, not as a pri-
vate citizen. Additionally, the court determined that Brock’s
2009 termination of employment was not in retaliation for
speech made in 2004 or 2005 because the alleged retaliatory
action was too remote in time as a matter of law.
Brock’s third theory under § 1983 alleged that the appel-
lees violated his right to privacy based on the surveillance by
investigators authorized by Johnson. The court analyzed this
issue under the 4th Amendment, not the 14th Amendment, and
determined that the use of private investigators was routine
“in the industry” and that Brock had no expectation of privacy
in the business parking lots where he was recorded plow-
ing snow.
Based on the foregoing reasons, the district court deter-
mined that there were no genuine issues as to any material
facts presented by the parties and that the appellees were
entitled to judgment as a matter of law. The court granted
the appellees’ motion for summary judgment and dismissed
Brock’s petition.
Brock appeals.
ASSIGNMENTS OF ERROR
Brock claims that the district court erred when it granted
summary judgment in favor of the appellees and dismissed
Brock’s petition. Brock’s numerous contentions regarding each
cause of action and each theory under § 1983 are addressed
individually in our analysis below.
STANDARDS OF REVIEW
[1] 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. Coffey v. Planet Group, 287 Neb. 834, 845 N.W.2d
255 (2014).
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[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 gives that party
the benefit of all reasonable inferences deducible from the
evidence. Id.
ANALYSIS
In this case, Brock appeals from the district court’s order
granting summary judgment in favor of the appellees. Thus,
as a preliminary matter, we set forth the legal principles appli-
cable to a motion for summary judgment.
[3-7] 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. Latzel
v. Bartek, ante p. 1, 846 N.W.2d 153 (2014). 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 mate-
rial issue of fact that prevents judgment as a matter of law
shifts to the party opposing the motion. Id. In the summary
judgment context, a fact is material only if it would affect
the outcome of the case. Id. Summary judgment proceedings
do not resolve factual issues, but instead determine whether
there is a material issue of fact in dispute. Id. If a genuine
issue of fact exists, summary judgment may not properly be
entered. Id.
First Cause of Action: Tort of Wrongful
Discharge in Retaliation for Filing a
Workers’ Compensation Claim.
At the core of his first cause of action, Brock alleged that
he was wrongfully discharged by the appellees in retaliation
for filing a workers’ compensation claim. The district court
determined that Brock had failed to plead and the evidence
did not suggest that he had filed written notice of his claim
within 1 year of the alleged tortious act, as required by
§ 13-919(1) of the Political Subdivisions Tort Claims Act, and
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Cite as 288 Neb. 909
entered summary judgment in favor of the appellees on this
cause of action for this reason. Brock claims that the district
court erred when it so ruled. We find no merit to this assign-
ment of error.
In Jackson v. Morris Communications Corp., 265 Neb. 423,
657 N.W.2d 634 (2003), we determined that an employee may
bring a common-law tort action when an employer wrongfully
discharges the employee in retaliation for filing a workers’
compensation claim. See, also, Trosper v. Bag ’N Save, 273
Neb. 855, 734 N.W.2d 704 (2007); Riesen v. Irwin Indus. Tool
Co., 272 Neb. 41, 717 N.W.2d 907 (2006). Thus, Brock’s first
cause of action is a tort claim.
[8] Brock brought his cause of action for wrongful discharge
in retaliation for filing a workers’ compensation claim against
Douglas County and Dunning, an elected official of Douglas
County, the appellees. Both of the appellees are subject to the
provisions of the 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. Keller v. Tavarone, 265 Neb.
236, 655 N.W.2d 899 (2003). Section 13-919(1) of the Political
Subdivisions Tort Claims Act provides in relevant part that
“[e]very claim against a political subdivision permitted under
the Political Subdivisions Tort Claims Act shall be forever
barred unless within one year after such claim accrued the
claim is made in writing to the governing body.”
Brock was terminated from his employment on June 10,
2009. Brock’s claim of retaliatory discharge accrued on this
date. Thus, under § 13-919(1), Brock was required to make
his claim in writing within 1 year after June 10, 2009, other-
wise his claim was barred. As demonstrated by the appellees,
Brock did not allege in his petition or otherwise assert that
he made the claim within the 1-year period. Brock did not
pre­ent evidence which would indicate that he made such a
s
claim. Because Brock failed to show that he provided written
notice of his tort action for wrongful discharge in retaliation
for filing a workers’ compensation claim within 1 year of his
termination of employment, the appellees were entitled to
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summary judgment on this issue. The district court did not err
when it determined that the claim is barred under § 13-919(1)
and entered summary judgment in favor of the appellees on
the first cause of action.
Second Cause of Action: § 1983.
[9] In the “Second Cause of Action” in his petition, Brock
alleged three theories, each of which he alleges were violations
of the provisions of § 1983. Thus, we set forth some basic prin-
ciples concerning § 1983 applicable to each theory.
Section 1983 provides in relevant part:
Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State . . . sub-
jects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit at equity, or other
proper proceeding for redress . . . .
Section 1983 provides “a civil remedy for ‘deprivations of
federally protected rights,’ statutory or constitutional, ‘caused
by persons acting under color of state law.’” Amanda C. v.
Case, 275 Neb. 757, 765, 749 N.W.2d 429, 437 (2008), quoting
Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d
420 (1981), overruled on other grounds, Daniels v. Williams,
474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986).
We have previously stated that
“[i]n any § 1983 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.”
Amanda C. v. Case, 275 Neb. at 765-66, 749 N.W.2d at 437,
quoting Parratt v. Taylor, supra. The second element requires
a plaintiff to prove not only a deprivation of a right, but
also that the defendant’s conduct was a cause in fact of the
alleged deprivation. Soto v. Flores, 103 F.3d 1056 (1st Cir.
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1997), cert. denied 522 U.S. 819, 118 S. Ct. 71, 139 L. Ed.
32 (1997).
In this case, it is not disputed that the appellees were acting
under color of state law, and Brock makes no argument that
Dunning should be individually liable. We treat the allega-
tions against Dunning individually as abandoned. Given the
foregoing, as to each of the theories, we focus on the second
element regarding whether the appellees’ conduct deprived
Brock of his rights, privileges, or immunities secured by law
and whether the appellees’ conduct was a cause in fact of the
alleged deprivation.
Second Cause of Action Under § 1983,
First Theory: Deprivation
of Property Rights.
In his first theory under § 1983, Brock alleged a depriva-
tion of property rights under the 14th Amendment. As to
this theory, Brock claims that the district court erred when it
determined that the evidence failed to show and there was no
inference that the appellees had an official policy, practice, or
custom of obstructing, delaying, and denying workers’ com-
pensation benefits and entered summary judgment in favor of
the appellees on this theory. We find no merit to this assign-
ment of error.
[10] We have stated that the 14th Amendment’s protection
of property extends to benefits for which, under state law
or practice, a person has a claim or entitlement. Braesch v.
DePasquale, 200 Neb. 726, 265 N.W.2d 842 (1978). The U.S.
Supreme Court has stated that
[p]roperty interests, of course, are not created by the
Constitution. Rather, they are created and their dimen-
sions are defined by existing rules or understandings that
stem from an independent source such as state law—rules
or understandings that secure certain benefits and that
support claims of entitlement to those benefits.
Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701,
33 L. Ed. 2d 548 (1972).
Pursuant to the Nebraska Workers’ Compensation Act,
Brock was entitled to workers’ compensation benefits and,
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therefore, he had a property interest in his workers’ compen-
sation benefits. Given this entitlement, the 14th Amendment
is implicated.
Referring to the U.S. Supreme Court’s interpretation of
§ 1983, we have observed that a municipality is not liable for
the acts of its employees when those acts do not represent the
official policy or custom of the municipality. See Manning v.
Dakota Cty. Sch. Dist., 279 Neb. 740, 782 N.W.2d 1 (2010).
See, also, Pembaur v. Cincinnati, 475 U.S. 469, 106 S. Ct.
1292, 89 L. Ed. 2d 452 (1986); Monell v. New York City Dept.
of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d
611 (1978). In Manning, we stated:
A rigorous standard of culpability and causation must
be applied to ensure that the municipality is not held
liable solely for the actions of its employees. The U.S.
Supreme Court elaborated that Congress did not intend
municipalities to be held liable unless action pursuant to
“official municipal policy of some nature caused a consti-
tutional tort.” In other words, a municipality is liable only
when the execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts
or acts may fairly be said to represent official policy,
inflicts injury.
Manning v. Dakota Cty. Sch. Dist., 279 Neb. at 748-49, 782
N.W.2d at 9, quoting Monell v. New York City Dept. of Social
Services, supra. Because Brock has alleged a deprivation pur-
suant to a “policy” or “custom,” we explain those terms.
Policy is made when a decisionmaker, possessing final
authority to establish municipal policy with respect to the
action, issues an official proclamation, policy, or edict.
Manning v. Dakota Cty. Sch. Dist., supra. “The fact that a
particular official—even a policymaking official—has discre-
tion in the exercise of particular functions does not, without
more, give rise to municipal liability based on an exercise of
that discretion.” Pembaur v. Cincinnati, 475 U.S. at 481-82.
Rather, “municipal liability under § 1983 attaches where—and
only where—a deliberate choice to follow a course of action
is made from among various alternatives by the official or
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officials responsible for establishing final policy with respect
to the subject matter in question.” U.S. at 483-84.
A custom is proved by demonstrating that a given course of
conduct, although not specifically endorsed or authorized by
state or local law, is so well settled and permanent as virtually
to constitute law. Manning v. Dakota Cty. Sch. Dist., supra.
In support of the appellees’ motion for summary judgment
on this theory, they presented evidence, including the deposi-
tion of Johnson, demonstrating how workers’ compensation
claims made by Douglas County employees are processed. The
evidence showed the processing of claims in a conventional
manner, and nothing in the evidence suggested a deliberate
policy or custom designed to deprive Brock or others of work-
ers’ compensation benefits.
Brock presented no evidence to indicate that there have
been instances of the obstruction, delay, or denial of other
Douglas County employees’ workers’ compensation benefits,
so as to constitute or infer a policy or custom. As to his own
claim, Brock points to the delay in having an MRI and seeing
an orthopedic specialist and the delay in receiving a second
opinion regarding his pain and injuries as evidence of a policy
or custom of the appellees. While the medical personnel may
have been slow to correctly diagnose Brock’s injuries, this
does not constitute a showing or inference that the appellees
had a policy or custom fostering delay so as to frustrate ben-
efits. Further, although the record shows that while Johnson, an
employee and agent of Douglas County, had some discretion
regarding the handling of workers’ compensation claims and
benefits for Douglas County employees, she did not have the
authority to establish final policy for Douglas County. Thus,
Johnson’s case-by-case decisions regarding administering the
workers’ compensation claims of injured Douglas County
employees and approving medical treatment does not demon-
strate a § 1983 violation.
For completeness, we note that to the extent that Brock
contends the appellees had a policy or custom to terminate
the employment of employees of Douglas County in retalia-
tion for seeking workers’ compensation claims, the evidence
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fails to support inferences of this claim. The evidence pre-
sented by the appellees showed that Johnson has discretion in
handling workers’ compensation claims and that there is no
policy or custom of terminating the employment of employees
in retaliation for seeking such benefits. Brock did not present
any evidence showing or inferring the existence of a policy or
custom of terminating the employment of employees for fil-
ing workers’ compensation claims, and he has not presented
evidence of any other Douglas County employees whose
employment has been terminated due to filing workers’ com-
pensation claims.
Even viewing the evidence in the light most favorable to
Brock, there is no evidence of an official policy or custom to
obstruct, delay, or deny Douglas County employees’ workers’
compensation benefits to which they were entitled or a policy
or custom of terminating employees’ employment in retalia-
tion for seeking workers’ compensation benefits. The appellees
demonstrated that they were entitled to judgment as a matter of
law, and Brock did not present evidence precluding judgment.
The district court did not err when it entered summary judg-
ment in favor of the appellees on this theory.
Second Cause of Action Under § 1983,
Second Theory: Protected
Speech Retaliation.
In his second theory under § 1983, Brock alleged his
employment was terminated in retaliation for exercising his
First Amendment right to freedom of speech. As to this
theory, Brock claims the district court erred when it deter-
mined that his reports of racial profiling by Van Buren, the
supervisor of the K-9 unit, were not protected speech and that
therefore, the appellees did not violate his First Amendment
right to freedom of speech. Although our analysis differs from
that of the district court, we find no merit to Brock’s assign-
ment of error in which he claims that the district court erred
when it entered summary judgment in favor of the appellees
on this theory.
As to the procedural posture of this case, the appellees
moved for summary judgment. As set forth in greater detail
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at the beginning of our analysis, ordinarily, the moving party
must establish its entitlement to judgment and then the burden
shifts to the nonmoving party to produce evidence showing
the existence of a material issue of fact that prevents judg-
ment. See Latzel v. Bartek, ante p. 1, 846 N.W.2d 153 (2014).
On appeal, we view the evidence in the light most favorable
to Brock as the nonmoving party and give him the benefit
of all reasonable inferences deducible from the evidence.
See Coffey v. Planet Group, 287 Neb. 834, 845 N.W.2d
255 (2014).
As to the substantive law applicable to this theory, we
have stated that in order for a plaintiff to make a substantive
prima facie case of protected speech retaliation, the plaintiff
must prove two elements: first, that the statements are pro-
tected speech and, second, that the speech was a substantial
or motivating factor in the employment decision. See Cox
v. Civil Serv. Comm. of Douglas Cty., 259 Neb. 1013, 614
N.W.2d 273 (2000). As to the first element, protected speech,
the identification of such speech is itself a two-step process
requiring proof: first, that the speech was made as a citizen
addressing a matter of public concern, Lane v. Franks, ___
U.S. ___, 134 S. Ct. 2369, ___ L. Ed. 2d ___ (2014), and,
second, that the interest of the plaintiff in so speaking, bal-
anced against the interest of the public employer in promoting
the efficiency of the public services it performs through its
employees, favors the plaintiff, Cox v. Civil Serv. Comm. of
Douglas Cty., supra.
If the plaintiff proves the first element, i.e., the speech is
constitutionally protected, the plaintiff must then establish the
second element, i.e., the protected speech was a substantial or
motivating factor in the employment decision. Id.
If the plaintiff makes a prima facie case of protected speech
retaliation as just described, the burden then shifts to the
employer to show by a preponderance of the evidence that it
would have reached the same decision in the absence of the
protected activity. Id.
As the foregoing descriptions show, “burden-shifting” is
present in this case in two separate respects: first, as to the
summary judgment procedure and, second, as to the protected
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speech retaliation substantive claim. Other courts have taken
note of this phenomenon and described the path accommodat-
ing both burden-shifting principles.
In a First Amendment retaliation case where the defendant
public employers moved for summary judgment, the U.S.
Court of Appeals for the Sixth Circuit stated that the plaintiff
must first make a prima facie case of retaliation, and
[i]f the employee establishes a prima facie case, the
burden then shifts to the employer to demonstrate “by a
preponderance of the evidence that the employment deci-
sion would have been the same absent the protected con-
duct.” Eckerman v. Tenn. Dep’t of Safety, 636 F.3d 202,
208 (6th Cir.2010) . . . . “Once this shift has occurred,
summary judgment is warranted if, in light of the evi-
dence viewed in the light most favorable to the plaintiff,
no reasonable juror could fail to return a verdict for the
defendant.” Id. Unlike in the McDonnell Douglas [Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d
668 (1973),] burden-shifting framework [pertaining to
employment discrimination], the burden does not shift
back to a plaintiff to show pretext in First Amendment
retaliation claims.
Dye v. Office of the Racing Com’n, 702 F.3d 286, 294-95 (6th
Cir. 2012).
Similar to the Sixth Circuit, we have sometimes referred to
a hypothetical jury when discussing the summary judgment
process. As to whether to enter summary judgment, we have
stated in part that where the facts “are such that reasonable
minds can draw but one conclusion therefrom, it is the duty
of the trial court to decide the question as a matter of law
rather than submit it to the jury for determination.” Sweem v.
American Fidelity Life Assurance Co., 274 Neb. 313, 319, 739
N.W.2d 442, 447 (2007). This does not mean that the standards
for granting motions for summary judgment and motions for
directed verdict are the same. The former focuses on individual
facts or inferences, while the latter addresses the evidence as
a whole at the time of the motion. With that caveat, we agree
with the process mentioned by the Sixth Circuit, including
the statement that the burden does not shift back to a plaintiff
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in First Amendment retaliation claims. See Mt. Healthy City
Board of Ed. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed.
2d 471 (1977). With the foregoing process in mind, we review
the evidence.
[11-14] As stated above, to establish the first element, the
plaintiff must show that he or she engaged in constitutionally
protected speech or conduct, the first component of which is a
showing that the speech addressed a matter of public concern.
As to public concern, we recently stated:
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. To fall
within the realm of public concern, an employee’s speech
must relate to a matter of political, social, or other con-
cern to the community. 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. 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.
Carney v. Miller, 287 Neb. 400, 414, 842 N.W.2d 782, 795
(2014).
In this case, on two occasions between October 2001 and
April 2004, Brock, along with three other deputies, met with
commanding officers of the Sheriff’s Office, including Bilek.
At these meetings, Brock reported that he believed he had
observed racial profiling by Van Buren, the sergeant in charge
of the K-9 unit, while patrolling I-80. It has recently been
observed that “the mere fact that a citizen’s speech concerns
information acquired by virtue of his public employment does
not transform that speech into employee—rather than citizen—
speech.” Lane v. Franks, ___ U.S. ___, 134 S. Ct. 2369, 2379,
___ L. Ed. 2d ___ (2014). Nothing in the record indicates
that it was part of Brock’s duties to advise the agency of his
concerns. It has also been observed that “[t]he inquiry into
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whether a public employee is speaking pursuant to [his] official
duties is not susceptible to a brightline rule.” Ross v. Breslin,
693 F.3d 300, 306 (2d Cir. 2012). “Courts must examine the
nature of the plaintiff’s job responsibilities, the nature of the
speech, and the relationship between the two.” Id. Looking at
the summary judgment record, Brock’s reports were not part of
his duties and can be fairly considered as citizen speech relat-
ing to a matter of concern to the community.
We have recognized that courts have consistently stated that
employee statements alleging racial discrimination within a
public agency are inherently matters of public concern and that
allegations of racism in a public agency are of concern to the
community at large. See Cox v. Civil Serv. Comm. of Douglas
Cty., 259 Neb. 1013, 614 N.W.2d 273 (2000) (collecting cases).
We have also identified matters of public concern involving an
agency’s treatment of the public. Thus, in Carney v. Miller,
supra, we recently determined that a public employee’s com-
plaints about allegedly wrongful cancellation of services to aid
recipients was of interest to the community at large, not a mat-
ter of interest to the employee alone, and therefore a matter of
public concern.
Racially discriminatory conduct by an agency toward the
public, as distinguished from racially discriminatory conduct
within the agency, has been considered by other courts and
found to be a matter of public concern. More specifically,
racial profiling of the public by a public law enforcement
agency has been identified as a matter of public concern.
E.g., Smith v. County of Suffolk, No. CV 10-1397(ARL), 2013
WL 752635 (E.D.N.Y. Feb. 27, 2013) (unpublished memoran-
dum and order) (involving racial profiling concerning arrests
for unlicensed drivers); Nonnenmann v. City of New York,
No. 02 Civ. 10131 JSR AJP, 2004 WL 1119648 (S.D.N.Y. May
20, 2004) (unpublished report and recommendation) (involving
racial profiling during stop and frisk). See, similarly, Daniels
v. City of New York, 138 F. Supp. 2d 562, 565 (S.D.N.Y. 2001)
(stating in non-First Amendment case that “[p]laintiffs are liti-
gating a controversial matter of serious public concern, namely
racial profiling”). As the U.S. Court of Appeals for the Second
Circuit has noted:
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The effectiveness of a city’s police department depends
importantly on the respect and trust of the community
and on the perception in the community that it enforces
the law fairly, even-handedly, and without bias. . . . If
the police department treats a segment of the population
of any race, religion, gender, national origin, or sexual
preference, etc., with contempt, so that the particular
minority comes to regard the police as oppressor rather
than protector, respect for law enforcement is eroded and
the ability of the police to do its work in that community
is impaired.
Pappas v. Giuliani, 290 F.3d 143, 146-47 (2d Cir. 2002).
Consistent with our analysis in Cox, Carney, and other authori-
ties, we believe Brock’s reports of his observations of racial
profiling by his agency are of public concern.
[15] Because Brock’s reports of racial profiling involved
matters of public concern, in order to determine if the state-
ments were protected speech, we must next balance Brock’s
First Amendment interest in making the statements against
the interest of the public employer in “promoting the effi-
ciency of the public services it performs through its employ-
ees.” Pickering v. Board of Education, 391 U.S. 563, 568,
88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). In Carney v.
Miller, 287 Neb. 400, 416, 842 N.W.2d 782, 796 (2014), we
stated: “Factors relevant in determining whether an employ-
ee’s speech undermines the effective functioning of the public
employer’s enterprise are whether the speech creates dishar-
mony in the workplace, impedes the speaker’s ability to per-
form his or her duties, or impairs working relationships with
other employees.”
We have reviewed the record for purposes of applying
the balancing factors. There is no evidence in the record
of disharmony in the workplace. There is no evidence that
Brock’s statements impaired his ability to perform his duties or
impaired working relationships with other employees. In bal-
ancing the interests of the parties, we believe that Brock’s First
Amendment interest in making the statements outweighs the
appellees’ interest as employers where there is no evidence that
the effective functioning of the public employer’s enterprise
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was affected. Thus, we determine that Brock’s speech was pro-
tected by the First Amendment.
Because Brock’s statements were protected speech, and
because the appellees took an adverse employment action
against Brock by terminating his employment, the next con-
sideration is the second element: whether Brock’s protected
speech was a substantial or motivating factor in the decision to
terminate his employment.
As noted, Brock reported racial profiling on two occasions
between October 2001 and April 2004. In a protected speech
retaliation case, it has been observed that “temporal proximity
between protected activity and an adverse employment action
can contribute to establishing” a case of retaliation. Davison v.
City of Minneapolis, Minn, 490 F.3d 648, 657 (8th Cir. 2007).
However, the lack of temporal proximity tends to disprove
causation. “The cases that accept mere temporal proximity
between an employer’s knowledge of protected activity and an
adverse employment action as sufficient evidence of causality
to establish a prima facie case uniformly hold that the temporal
proximity must be ‘very close.’” Clark County School Dist. v.
Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L. Ed. 2d
509 (2001), quoting O’Neal v. Ferguson Const. Co., 237 F.3d
1248 (10th Cir. 2001).
Brock’s termination of employment occurred on June 10,
2009, which was at least 5 years after Brock had reported
that he believed he had observed racial profiling in the K-9
unit. Without other evidence, 5 years is not close enough in
time to raise an inference of causation. See Recio v. Creighton
University, 521 F.3d 934, 941 (8th Cir. 2008) (determining
that 6 months between plaintiff’s discrimination complaint
and reduction of her assigned courses to teach was “not close
enough to raise an inference of causation”); Kipp v. Missouri
Highway and Transp. Com’n, 280 F.3d 893 (8th Cir. 2002)
(determining that 2 months between plaintiff’s complaint and
her termination of employment did not establish causal link).
The lack of temporal proximity suggests that Brock’s pro-
tected speech was not a substantial or motivating factor in
the decision to terminate his employment. However, we are
aware of other evidence in the record relating to a racial
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profiling case, Omair v. Douglas County, Douglas County
District Court, docket 1110, page 291, the pendency of which,
taking the inferences favorable to Brock, favor the conclusion
that Brock’s evidence established a prima facie case of First
Amendment retaliation. The Omair case involved an allega-
tion of racial profiling of a driver, Michael Omair, on I-80 by
Van Buren, filed against the appellees herein and other defend­
ants. Brock’s theory is that the claims in the Omair matter
motivated the appellees to investigate and terminate Brock’s
employment in order to destroy his credibility as a potential
witness on behalf of Omair.
The deposition testimonies of Brock and Murphy, a former
sheriff’s deputy, in the Omair case were received as evidence
at the hearing on summary judgment in the instant case. On
the whole, the testimony is anecdotal and, in particular, lacks
specificity as to dates which would be helpful to establish cau-
sation. At one point, Murphy testified that he read a newspaper
article shortly after the Omair case was filed in which Bilek
stated that he had never heard of racial profiling by the agency.
Murphy testified that in view of the meeting with Dunning and
Bilek, “I don’t believe it is a correct statement, no.”
Elsewhere in the record, the deposition testimony of appellee
Dunning, taken in this case, indicates that Dunning was aware
of a lawsuit alleging racial profiling, that one of the individuals
accused of racial profiling is Van Buren, and that he became
aware of the matter “[s]ome time ago . . . .” Dunning explained
that his counsel asked him to provide some documents and
to prepare a document, exhibit 12, entitled “Internal Affairs
Cases of Alleged Violations Against Deputies While Making
a Traffic Stop.” Exhibit 12 lists internal affairs investigations
from “5/30/2003” through “1/5/2010,” the last investigation of
which involved Van Buren.
The Omair lawsuit, Omair v. Douglas County, Douglas
County District Court, docket 1110, page 291, was filed in
2010. The defendants listed in the caption of the depositions
from the Omair case are as follows: Douglas County; the
Sheriff’s Office; Dunning, in his official and individual capaci-
ties; and Van Buren, in his official and individual capacities.
Because the defendants are subject to the Political Subdivisions
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Tort Claims Act, the suit was necessarily preceded by the mak-
ing of a claim within 1 year of the accrual of the action. See
§ 13-919(1). We can infer from the record that Omair made a
claim sometime in 2009 and that it was rejected or withdrawn
after 6 months, thus resulting in the lawsuit. See id. The record
shows that the internal investigation of Brock commenced in
April 2009.
Brock asserts that the Omair allegations were a matter of
concern at the Sheriff’s Office in 2009 and that they were trou-
blingly reminiscent of Brock’s allegations of racial profiling.
Brock contends that because of his earlier racial profiling alle-
gations, the appellees focused on the facts surrounding Brock’s
current workers’ compensation matter in order to terminate his
employment. An inference can be made on the record before us
that allegations of racial profiling in the Omair case reignited
the racial profiling allegations by Brock and that thus, Brock’s
protected speech allegations motivated the employment action
against him. Given the summary judgment context in which
we are reviewing the evidence, we determine that notwith-
standing the passage of time, there is an inference Brock’s
earlier racial profiling comments were a substantial motivat-
ing factor in the decision to terminate Brock’s employment,
and that thus, the evidence shows a prima facie case of First
Amendment retaliation.
Having established a prima facie case of First Amendment
retaliation, the burden shifted to the appellees to show by a
preponderance of evidence that the same decision would have
been reached in the absence of protected activity. Having
reviewed the record, we conclude that the evidence relating to
the appellees’ same-decision defense was such that no reason-
able jury could fail to return a verdict for the appellees. That
is, a review of the evidence shows that the appellees have dem-
onstrated that the same employment action would have been
taken in the absence of the protected activity.
The appellees presented evidence and the record indicates
without dispute that Brock was untruthful or deceptive on
three occasions, in violation of various General Orders of
the Sheriff’s Office, and that it was this untruthfulness that
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resulted in Brock’s termination of employment. For complete-
ness, we note that there was other testimony regarding Brock’s
reputation for lack of candor or veracity in addition to these
three discrete events. First, Brock was untruthful with one
of his treating physicians, Dr. Hutton. Brock met with Dr.
Hutton on March 17, 2009, and prior to their meeting, Dr.
Hutton had reviewed surveillance video of Brock’s operating a
pickup truck with a snowplow attached. At their meeting, Dr.
Hutton asked Brock about the range of activities Brock could
perform, and specifically asked whether Brock could operate
a snowplow. Dr. Hutton stated in his notes after the meeting
that Brock stated “there was no way that he could even drive a
truck or work a snow plow.”
Second, Brock was not forthcoming with the physical thera-
pist who conducted Brock’s FCE on March 26, 2009. During
the FCE, Brock failed to give a valid indication of his physical
abilities because, according to the evidence, Brock had “self-
limited several of the lifting tasks.” The physical therapist was
unable to complete an accurate assessment of Brock’s physical
abilities due to this self-limiting behavior.
Third, Brock was untruthful with the lieutenant who con-
ducted the internal investigation regarding Brock. During an
interview with Brock, the lieutenant asked Brock about his
involvement with his father’s business. At first, Brock denied
any involvement, but after he was shown several documents
indicating Brock’s involvement, Brock admitted that he owned
stock and participated in the lawn maintenance and snow
removal business.
A letter from Bilek dated May 29, 2009, was sent to Brock
notifying him of a predisciplinary hearing, and the letter out-
lined these three instances when Brock was untruthful. The
May 29 letter alleged that based on his conduct, Brock had
violated various General Orders of the Sheriff’s Office. After
the predisciplinary hearing was held, a letter from Bilek dated
June 10, 2009, was sent to Brock notifying him of his termi-
nation of employment. The June 10 letter stated that Brock
was “untruthful and deceptive when interacting with doctors,
Workers Comp [sic] personnel and a Sheriff’s Internal Affairs
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investigator. After careful consideration of this matter, it has
been determined that these violations are sufficiently serious to
require termination of employment.”
Even giving Brock the benefit of favorable inferences, the
evidence presented by the appellees demonstrates as a matter
of law that the same decision to terminate Brock’s employ-
ment in June 2009 would have been reached in the absence
of his protected speech. The district court’s entry of sum-
mary judgment in favor of the appellees on this theory was
not error.
Second Cause of Action Under § 1983,
Third Theory: Surveillance Video
and Right to Privacy.
In his third theory under § 1983, Brock alleged that his
right to privacy had been violated when he was placed under
surveillance in order to assess his physical capabilities. As to
this theory, Brock claims that the district court erred when it
determined that the surveillance conducted by the investigators
on behalf of Douglas County was not a violation of his right to
privacy. Although our analysis differs from that of the district
court, we affirm the entry of summary judgment in favor of the
appellees on this claim.
The district court analyzed Brock’s violation of privacy
claim under the Fourth Amendment, which provides individ­
uals the right to be free from unreasonable searches and sei-
zures. As a general matter, the Fourth Amendment applies to
persons, houses, papers, and effects. See State v. Wiedeman,
286 Neb. 193, 835 N.W.2d 698 (2013). The district court
determined that the use of private investigators was routine
“in the industry” and that Brock had no expectation of privacy
in the business parking lots where he was recorded plow-
ing snow.
Brock claims that the district court erred when it analyzed
his claim of violation of his right to privacy because the court
did not apply the two-prong test from Katz v. United States,
389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), a Fourth
Amendment case. Brock refers us to Katz, which has been
summarized as follows: “Since Katz . . . the touchstone of
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[Fourth] Amendment analysis has been the question whether a
person has a ‘constitutionally protected reasonable expectation
of privacy.’” Oliver v. United States, 466 U.S. 170, 177, 104
S. Ct. 1735, 80 L. Ed. 2d 214 (1984), quoting Katz v. United
States, supra (Harlan, J., concurring). The U.S. Supreme Court
has stated that
in order to claim the protection of the Fourth Amendment,
a defendant must demonstrate that he personally has an
expectation of privacy in the place searched, and that
his expectation is reasonable; i.e., one that has “a source
outside of the Fourth Amendment, either by reference to
concepts of real or personal property law or to under-
standings that are recognized and permitted by society.”
Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 142 L.
Ed. 2d 373 (1998), quoting Rakas v. Illinois, 439 U.S. 128, 99
S. Ct. 421, 58 L. Ed. 2d 387 (1978). We are not persuaded by
Brock’s Fourth Amendment analysis.
[16] Despite the parties’ urging and the district court’s
analysis, we believe that Brock’s right to privacy claim may
better be analyzed under the framework provided by the Due
Process Clause of the 14th Amendment. We have indicated
that the Due Process Clause of the 14th Amendment contains
a substantive component that provides some protection to a
person’s right of privacy. State v. Wiedeman, supra. Compare
Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L.
Ed. 2d 510 (1965) (suggesting that right to privacy is rooted in
penumbra of specific guarantees in Bill of Rights rather than
Due Process Clause of 14th Amendment). The U.S. Supreme
Court has said that privacy entails at least two kinds of inter-
ests: (1) the individual interest in avoiding disclosure of per-
sonal matters and (2) the interest of independence in making
certain kinds of important decisions. State v. Wiedeman, supra.
See, also, Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L.
Ed. 2d 64 (1977). The first type of interest is the “‘right to be
let alone,’” which has been characterized as “‘the right most
valued by civilized men.’” Whalen v. Roe, 429 U.S. at 599
n.25. The second type of interest protects individual autonomy
in making decisions and engaging in conduct relating primarily
to personal relationships. See Whalen v. Roe, supra. The first
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privacy interest focuses on government action that is intru-
sive or invasive; the second concerns decisions or conduct by
individuals. Id. The first privacy interest is implicated in the
instant case.
Brock argues that his right to privacy was violated when
Douglas County, through Johnson’s office, hired private inves-
tigators and placed Brock under surveillance as a means to
determine Brock’s level of physical activity outside the work-
place. Brock asserts that he was placed under surveillance from
May 2007 to February 2009. He contends that such conduct,
done at the direction of a Douglas County employee, was intru-
sive and offends societal standards.
Challenges to surveillance in workers’ compensation cases
are not uncommon. In Tagouma v. Investigative Consultant
Servs., 4 A.3d 170 (Pa. Super. 2010), an employee who had
been videotaped sued a surveillance company hired by the
employer’s workers’ compensation carrier and the investigator
for the company. The Superior Court of Pennsylvania deter-
mined that videotape surveillance of the injured employee did
not violate the worker’s privacy. In making its decision, the
court stated:
“It is not uncommon for defendants in accident cases
to employ investigators to check on the validity of claims
against them. Thus, by making a claim for personal inju-
ries appellant must expect reasonable inquiry and investi-
gation to be made of her claim and to this extent her inter-
est in privacy is circumscribed. It should be noted that all
of the surveillances took place in the open on public thor-
oughfares where appellant’s activities could be observed
by passers-by. To this extent appellant has exposed herself
to public observation and therefore is not entitled to the
same degree of privacy that she would enjoy within the
confines of her own home.
“Moving to the question of whether [the investigator’s]
conduct is reasonable, we feel that there is much social
utility to be gained from these investigations. It is in the
best interests of society that the valid claims be ascer-
tained and fabricated claims be exposed.”
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Id. at 175, quoting Forster v. Manchester, 410 Pa. 192, 189
A.2d 147 (1963). See, also, 7 Arthur Larson & Lex K. Larson,
Larson’s Workers’ Compensation Law § 127.10 (2011) (dis-
cussing admissibility of video and photographic evidence of
employee and privacy issues). We have long approved the
admission of surveillance videotapes in workers’ compensation
cases. See, e.g., Harpham v. General Cas. Co., 232 Neb. 568,
441 N.W.2d 600 (1989).
The appellees presented evidence which showed that the
surveillance was not unique to Brock, that it served a valid
purpose, and that it was not intrusive. Johnson testified that
she authorizes surveillance in approximately 5 to 10 cases per
year. She stated that these observations help verify “the level
of physical activity of the [claimants] outside the work envi-
ronment, and then to correlate that activity with the medical
treatment records.” Until a task force meeting was held in April
2009, where Johnson showed Dunning and others the videotape
of Brock’s plowing snow in February 2009, the undisputed evi-
dence showed that Dunning was unaware of the surveillance.
In this case, the record shows that when Brock was under sur-
veillance, he was in places that were open to the public, and he
was not videotaped regarding personal matters. In particular,
Brock exposed himself to public observation when he plowed
snow in a business parking lot. By the introduction of this evi-
dence, the appellees demonstrated that Brock’s privacy interest
had not been violated and that they were entitled to judgment
on this theory.
In response, Brock referred the district court to evidence
showing that the surveillance had been conducted for 100 hours
from May 2007 to February 2009. He claimed that this amount
of surveillance was intrusive and offends societal norms. He
did not dispute the fact that the surveillance was entirely in
public places. We determine that the district court did not err
when it determined that Brock has not shown that the appel-
lees’ conduct violated his constitutional right to privacy. The
appellees’ evidence showed they were entitled to judgment as
a matter of law on this theory, and Brock’s evidence did not
show there was a genuine issue of material fact preventing
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summary judgment in their favor. The district court’s entry of
summary judgment in favor of the appellees on this theory was
not error.
CONCLUSION
With respect to Brock’s first cause of action, the district
court determined that because Brock failed to show that he
made a written claim for the tort of wrongful discharge in
retaliation for filing his workers’ compensation claim, his
claim was barred under § 13-919(1) and entered summary
judgment in favor of the appellees on this cause of action.
With respect to Brock’s second cause of action under § 1983,
the district court determined that the appellees did not violate
Brock’s constitutional right to property, right to freedom of
speech, or right to privacy and entered summary judgment in
favor of the appellees on each of these three theories. Although
our reasoning differs somewhat from that of the district court,
we find no error in the entry of summary judgment in favor
of the appellees on both causes of action, and, therefore,
we affirm.
Affirmed.
Big John’s Billiards, Inc., a Nebraska corporation, appellee
and cross-appellant, v. State of Nebraska et al.,
appellants and cross-appellees, and Douglas
County Health Department, appellee.
___ N.W.2d ___
Filed August 29, 2014. No. S-13-803.
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is consti-
tutional presents a question of law, which the Nebraska Supreme Court resolve
independently of the lower court’s determination.
2. Constitutional Law: Statutes: Presumptions. A statute is presumed to
be constitutional, and all reasonable doubts are resolved in favor of its
constitutionality.
3. Constitutional Law: Statutes: Proof. The burden of establishing the unconstitu-
tionality of a statute is on the one attacking its validity.
4. ____: ____: ____. The unconstitutionality of a statute must be clearly established
before it will be declared void.