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maximize speed and efficiency of distributions while minimizing expenses.

Thus, the court today correctly declines the appellant’s invitation to expand its review under the waiver rule to evidence 

outside of the divorce decree and the associated property 

settlement agreement. But a better approach is available, and I 

commend it to the Legislature.

Paul D. Potter, appellant, v. Board of Regents

University of Nebraska et al., appellee

___ N.W.2d ___

Filed March 21, 2014. No. S-13-544.

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 violate clearly established statutory or constitutional rights of which a reasonable person would have known.

3. ____: ____: ____. 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.
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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 protectable 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 nameclearing 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 respondeat superior 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. ____: ____: ____: ____. What is sufficient to constitute “public disclosure” in a 

stigma-plus claim will vary with the circumstances of each case.

18. ____: ____: ____: ____. 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.

Appeal from the District Court for Lancaster County: 

Stephanie F. Stacy, Judge. Affir
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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.

Heavican, C.J., Connolly, McCormack, Mill

and Cassel, JJ

McCormack, 

NATURE OF CASE

A former temporary employee brought action under 42 

U.S.C. § 1983 (2006) 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.

BACKGROUND

Paul D. Potter was a student at the University of NebraskaLincoln (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.
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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 timetracking 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 
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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 for Potter’s arrest had been issued after he missed 

a court date in relation to his probation for the conviction 

of driving under the influence. Potter testified in his deposition that he had not received the mailing advising him of the 

court date.

Potter did not explain to his superiors or coworkers the circumstances surrounding the police visit and his sudden departure, which was witnessed by Bockstadter. Potter explained 

that he did not say anything, because he thought Bockstadter 

had been the one to alert the police of the outstanding warrant. 

Losee alerted human resources that two plainclothes Lincoln 

Police Department officers had been looking for Potter at his 

place of work.

The decision to terminate Potter’s employment was finalized that afternoon. A personnel coordinator consulted human 

resources about drafting a release to employees in what had 

recently become known as the EdMedia department (formerly 

CIT), pursuant to University procedure to ensure the safety 

of University technology when an employee with access to 

sensitive technological equipment is terminated. The proposed 

release did not mention termination of any employee, but 

advised that the EdMedia department would be changing passwords and access privileges. The proposed release was sent via 

e-mail to a few select University employees.

Human resources asked that the recipients of the e-mail be 

discreet and explained:

We will move forward with termination of [Potter] 

tomorrow if possible. We are not sure when that will 
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happen. It will depend if [Potter] shows up to work. HR, 

[University] Police and EAD will be involved in the termination meeting.

At this point the police have been unable to locate 

[Potter].

Potter did not show back up to work and did not advise 

Bockstadter or Losee as to the reason for his unexpected and 

police-escorted departure. On the afternoon of July 21, 2010, 

an administrative employee sent an e-mail to 27 University 

employees working in either Miller Hall or Agricultural Hall. 

The e-mail stated:

Judy went around this afternoon to let available staff 

members know of the situation regarding the termination 

of . . . Potter, Help Desk student worker. If you see him 

in the building, please shut and lock your door and call 

me . . . and I will alert the Campus Police. We do not 

need to be fearful but cautious and aware of who is in 

our building.

Potter was in court the morning of July 21, 2010, responding to the bench warrant. He explained in his deposition that 

he could not be reached while in court. When he arrived at east 

campus later that afternoon, Potter received an e-mail from a 

coworker telling him that his coworkers were told to call the 

police if they saw him. According to Potter, another coworker 

who also received the e-mail told him that an administrative 

employee was crying and telling people to check their e-mail 

and lock their doors. According to Potter, that coworker told 

Potter that the administrative employee had “implied” that 

Potter had a gun.

When Potter saw campus police, he left without incident. 

Potter subsequently received a letter dated July 22, 2010, 

informing him of his termination effective that same date.

In addition to those employees who received the e-mail, 

Potter identified three other persons who were warned of his 

possible presence on campus that day.

First, according to Potter, an employee working in 

Agricultural Hall told him someone had come in and told her 

“there was an alert that there was somebody on campus.”
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Second, Potter’s CIT manager from 2006 to 2009 was 

defending her dissertation in Agricultural Hall when her advisor warned her that they may have to go into “lockdown.” 

She learned from the vice chancellor’s office that the warning 

related to Potter. She testified that she also heard a “rumor” 

that Potter had a gun.

Third, according to the aforementioned former CIT manager, 

Losee had told the assistant vice chancellor’s wife about the 

alert. Losee had apparently attempted to contact the assistant 

vice chancellor/CIT unit director at his home, but he was out of 

town. Losee told the assistant vice chancellor’s wife, who had 

answered the telephone, that if Potter showed up, she should 

not let him in.

According to Potter, that same assistant vice chancellor 

later apologized to him for the way his termination was handled. The assistant vice chancellor explained there had been 

a “mistake.”

Potter stated that since the incident, he has not returned 

to east campus. But he has not had any trouble enrolling in 

classes, which he takes at the main campus. He was able to 

obtain employment as a network manager with a retirement 

home, but was laid off for lack of funds for the position. He is 

currently self-employed. Potter presented no evidence that prospective employers were aware or were likely to become aware 

of the events that transpired on July 21, 2010. Potter presented 

no evidence that the community at large was aware or likely to 

become aware of the incident.

Potter sued the Board of Regents and Bockstadter and Losee 

in their individual capacities. Potter alleged a cause of action 

under § 1983 and § 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. Potter 

also alleged an action for discrimination under Neb. Rev. Stat. 

§ 48-1104 (Reissue 2010), but that claim is no longer asserted 

on appeal. The principal relief sought was compensatory damages for loss of reputation, emotional distress, and humiliation, 

but he also stated claims for declaratory and injunctive relief. 
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Potter did not seek reinstatement of his employment with 

the University.

The district court granted summary judgment in favor of 

the defendants. The court found the evidence insufficient to 

create a genuine issue of material fact that the statements 

in the e-mail stigmatized Potter by seriously damaging his 

reputation or that the statement foreclosed other employment opportunities; thus, Potter’s due process rights were 

not violated. The court found that even if they were violated, 

sovereign immunity protected the defendants from the claim. 

As to Bockstadter and Losee, the court found that the constitutional right allegedly violated had not been clearly established 

and that thus, the claim was barred by qualified immunity. 

Potter appeals.

ASSIGNMENTS OF ERROR

Potter assigns that the district court erred in finding (1) that 

there was no genuine issue of material fact that he had not sufficiently suffered a constitutional violation and (2) that Potter’s 

alleged right was not clearly established at the time.

STANDARD 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.1

ANALYSIS

Potter admits he is no longer pursuing equitable relief. 

Instead, he seeks monetary relief for the alleged deprivation of 

his right to procedural due process. The Board of Regents and 

Bockstadter and Losee in their official capacities are entitled 

to sovereign immunity and do not qualify as “persons” under 

1 Peterson v. Homesite Indemnity Co., ante p. 48, 840 N.W.2d 885 (2013).
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§ 1983.2 Section 20-148 is a procedural statute designed to 

allow plaintiffs to bypass administrative procedures in discrimination actions against private employers; it does not operate to 

waive sovereign immunity and has no application here.3

[2,3] We are presented with Potter’s claims under § 1983 

against Bockstadter and Losee for actions taken in their individual capacities under color of state law.4

 Qualified immunity protects government officials acting in their individual 

capacities from civil damages insofar as their conduct does 

not violate clearly established statutory or constitutional rights 

of which a reasonable person would have known.5 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.6 Courts have discretion to decide which of the two 

prongs to address first.7 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.8 We agree with the district court 

2 See, Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S. Ct. 2304, 

105 L. Ed. 2d 45 (1989); Michael E. v. State, 286 Neb. 532, 839 N.W.2d 

542 (2013); Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 

(2010); Shearer v. Leuenberger, 256 Neb. 566, 591 N.W.2d 762 (1999), 

disapproved on other grounds, Simon v. City of Omaha, 267 Neb. 718, 677 

N.W.2d 129 (2004).

3 See, Stanton v. Sims, ___ U.S. ___, 134 S. Ct. 3, 187 L. Ed. 2d 341 (2013); 

Ritchie v. Walker Mfg. Co., 963 F.2d 1119 (8th Cir. 1992); Goolsby v. 

Anderson, 250 Neb. 306, 549 N.W.2d 153 (1996); Wiseman v. Keller, 218 

Neb. 717, 358 N.W.2d 768 (1984); Sinn v. City of Seward, 3 Neb. App. 59, 

523 N.W.2d 39 (1994).

4 See, e.g., Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 116 L. Ed. 2d 301 

(1991).

5 See, Brandon v. Holt, 469 U.S. 464, 105 S. Ct. 873, 83 L. Ed. 2d 878 

(1985); Michael E. v. State, supra note 2.

6 See, e.g., Ashcroft v. al-Kidd, ___ U.S. ___, 131 S. Ct. 2074, 179 L. Ed. 

2d 1149 (2011).

7 Id.

8 Messerschmidt v. Millender, ___ U.S. ___, 132 S. Ct. 1235, 182 L. Ed. 2d 

47 (2012).
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that qualified immunity bars Potter’s § 1983 action against 

Bockstadter and Losee.

[4-6] “Section 1983, which derives from § 1 of the Civil 

Rights Act of 1871, 17 Stat. 13, creates a private right of action 

to vindicate violations of ‘rights, privileges, or immunities 

secured by the Constitution and laws’ of the United States.”9

The 14th Amendment’s Due Process Clause does not, however, 

extend to citizens a right to be free of injury wherever the State 

may be characterized as the tort-feasor.10 Rather, 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.11 Procedural due process claims 

center on the “requirement that ‘a person in jeopardy of serious 

loss [be given] notice of the case against him and opportunity 

to meet it.’”12

[7,8] 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.13 Likewise, standing alone, stigma to one’s reputation through defamatory statements is not sufficient to invoke 

the procedural protection of the Due Process Clause.14

[9] But one of the liberties protected by the 14th 

Amendment is the individual’s right “‘to engage in any 

of the common occupations of life.’”15 And federal circuit 

9 Rehberg v. Paulk, ___ U.S. ___, 132 S. Ct. 1497, 1501, 182 L. Ed. 2d 593 

(2012).

10 See Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976).

11 See State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).

12 Mathews v. Eldridge, 424 U.S. 319, 348, 96 S. Ct. 893, 47 L. Ed. 2d 18 

(1976).

13 See, e.g., Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 

(1976); Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. 

Ed. 2d 548 (1972); Speer v. City of Wynne, Ark., 276 F.3d 980 (8th Cir. 

2002); Johnston v. Panhandle Co-op Assn., 225 Neb. 732, 408 N.W.2d 261 

(1987).

14 See Paul v. Davis, supra note 10.

15 Board of Regents v. Roth, supra note 13, 408 U.S. at 572.
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courts have universally held that 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.16

[10] The combination of stigmatizing state action coupled 

with some more tangible interest, thereby giving rise to a 

protectable interest under the 14th Amendment, is referred 

to as “stigma plus.”17 It is the individual’s status as a government employee and not his property interest in continued 

employment which furnishes the “plus” in at-will termination cases.18

[11] Once 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 name-clearing hearing.19 If no name-clearing 

hearing is provided, or if the hearing is inadequate, the former 

employee may sue for monetary damages.20

It appears that in the context of termination of at-will 

employment, more is required to allege the necessary level 

of defamation and dissemination in a stigma-plus due process 

claim than the kind of damage to reputation sufficient for 

a simple tort defamation claim.21 Thus, the Second Circuit 

16 See Paul v. Davis, supra note 10, 424 U.S. at 705. See, also, e.g., Codd 

v. Velger, 429 U.S. 624, 97 S. Ct. 882, 51 L. Ed. 2d 92 (1977); Board of 

Regents v. Roth, supra note 13; Brown v. Simmons, 478 F.3d 922 (8th Cir. 

2007); Ridpath v. Board of Governors Marshall University, 447 F.3d 292 

(4th Cir. 2006); Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262 (10th Cir. 

1989); Doe v. United States Dept. of Justice, 753 F.2d 1092 (D.C. 1985).

17 See, e.g., Zutz v. Nelson, 601 F.3d 842 (8th Cir. 2010); State v. Norman, 

282 Neb. 990, 808 N.W.2d 48 (2012).

18 Dennis v. S & S Consolidated Rural H.S. Dist., 577 F.2d 338 (5th Cir. 

1978).

19 See Paul v. Davis, supra note 10. See, also, e.g., Codd v. Velger, supra

note 16; Board of Regents v. Roth, supra note 13; Brown v. Simmons, 

supra note 16.

20 Patterson v. City of Utica, 370 F.3d 322 (2d Cir. 2004).

21 Filgueiras v. Newark Pub. Schools, 426 N.J. Super. 449, 45 A.3d 986 

(2012).
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requires that the defendant employer made stigmatizing statements about the plaintiff that call into question the plaintiff’s 

good name, reputation, honor, or integrity or that denigrate 

the plaintiff’s competence as a professional and impugn the 

plaintiff’s professional reputation in such a fashion as to 

effectively put a significant roadblock in the plaintiff’s continued ability to practice his or her profession.22 The Ninth 

Circuit requires that the charge against the plaintiff is one that 

might seriously damage his or her standing and associations 

in the community.23 The Sixth Circuit requires that the false, 

stigmatizing statements not be merely allegations of improper 

or inadequate performance, incompetence, neglect of duty, 

or malfeasance.24 The Seventh Circuit requires a tangible 

loss of other employment as a result of a stigmatizing public disclosure.25

Most courts set forth several conjunctive elements for an 

at-will termination stigma-plus claim. The elements are variously stated and somewhat intertwined. We will utilize the 

test of the Eighth Circuit, which requires that (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.26

[12,13] We have explained that a stigma is a mark or 

token of infamy, disgrace, or reproach.27 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, 

22 Segal v. City of New York, 459 F.3d 207 (2d Cir. 2006); Patterson v. City 

of Utica, supra note 20.

23 See Llamas v. Butte Community College Dist., 238 F.3d 1123 (9th Cir. 

2001).

24 See Brown v. City of Niota, Tenn., 214 F.3d 718 (6th Cir. 2000).

25 See Abcarian v. McDonald, 617 F.3d 931 (7th Cir. 2010).

26 See Speer v. City of Wynne, Ark., supra note 13.

27 State v. Norman, supra note 17.
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744 287 NEBRASKA REPORTS

and the like;28 it must be more than allegations of incompetence or the fact of the employment decision itself.29

This case involves the alleged stigma arising from an implied 

character charge of dangerousness communicated in security 

warnings during an employee’s termination. Specifically, the 

warnings at issue stated that Potter was being terminated that 

day and that persons who saw him should be “cautious” and 

lock their doors and notify campus police.

[14,15] We find insufficient evidence that either Bockstadter 

or Losee was responsible for any alleged statements or implications to the effect that Potter was roaming around east 

campus with a gun. A supervisor is not responsible under a 

§ 1983 stigma-plus claim for unauthorized rumors circulating 

among employees.30 The U.S. Supreme Court has made clear 

that there is no respondeat superior liability under § 1983.31

The standard by which a supervisor is held liable under § 1983 

in his or her individual capacity for the actions of a subordinate is extremely rigorous.32 The plaintiff must establish that 

the supervisor personally participated in the unconstitutional 

conduct or was otherwise the moving force of the violation 

28 See, e.g., Board of Regents v. Roth, supra note 13; Ridpath v. Board of 

Governors Marshall University, supra note 16; Winegar v. Des Moines 

Indep. Com. School Dist., 20 F.3d 895 (8th Cir. 1994).

29 See, e.g., Zepp v. Rehrmann, 79 F.3d 381 (4th Cir. 1996); Jones v. 

University of Iowa, 836 N.W.2d 127 (Iowa 2013); Herrera v. Union No. 

39 School Dist., 186 Vt. 1, 975 A.2d 619 (2009).

30 See Palmer v. City of Monticello, 31 F.3d 1499 (10th Cir. 1994). See, also, 

Lancaster v. Independent School Dist. No. 5, 149 F.3d 1228 (10th Cir. 

1998); Silva v. Worden, 130 F.3d 26 (1st Cir. 1997); Fittshur v. Village of 

Menomonee Falls, 31 F.3d 1401 (7th Cir. 1994); Moore v. State of Ind., 

999 F.2d 1125 (7th Cir. 1993); Lipsett v. University of Puerto Rico, 864 

F.2d 881 (1st Cir. 1988).

31 See, Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 

(2009); Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 117 

S. Ct. 1382, 137 L. Ed. 2d 626 (1997); Monell v.New York City Dept. of 

Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

32 Mann v. Taser Intern., Inc., 588 F.3d 1291 (11th Cir. 2009).
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by authorizing, approving, or knowingly acquiescing in the 

unconstitutional conduct.33

Potter only presented limited evidence of Bockstadter’s 

and Losee’s involvement in the e-mail and the corresponding verbal warnings. Potter did not present Bockstadter’s 

or Losee’s testimony, or the testimony of the author of the 

e-mail warning or the employee who verbally disseminated 

that warning. There are no admissions in the record pertaining to Bockstadter’s or Losee’s participation in the warnings. 

Nevertheless, based on the chain of events reflected in internal 

e-mails and Bockstadter’s and Losee’s positions within the 

EdMedia department, we will generously infer a material issue 

as to whether they were responsible for the alleged character 

charge. We will also accept for purposes of this appeal the 

hearsay testimony that Losee called the assistant vice chancellor’s wife and told her not to open the door for Potter, because 

there was no objection to that testimony.

The alleged stigma in this case is unique. Because of highly 

publicized incidents of workplace and school violence and 

the mounting pressure on employers and educational institutions to proactively protect their employees and students from 

such violence,34 the warnings may have merely communicated 

zealous security measures rather than a stigmatizing character charge. Even assuming there was a stigmatizing character 

charge, however, Potter failed to present a material issue that 

this charge seriously damaged his standing and association in 

the community or foreclosed employment opportunities that 

might otherwise have been available.

33 See, Franklin v. Curry, 738 F.3d 1246 (11th Cir. 2013); Schneider v. City 

of Grand Junction Police Dept., 717 F.3d 760 (10th Cir. 2013); Myers v. 

Bowman, 713 F.3d 1319 (11th Cir. 2013); Burlison v. Springfield Public 

Schools, 708 F.3d 1034 (8th Cir. 2013); Evans v. Chalmers, 703 F.3d 636 

(4th Cir. 2012); Heyerman v. County of Calhoun, 680 F.3d 642 (6th Cir. 

2012); Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011).

34 See Kimberly Smith, A Plea for Mandatory Disclosure: Urging Michigan’s 

Legislature to Protect Employees Against Increasing Phenomena of 

Workplace Violence, 79 U. Det. Mercy L. Rev. 611 (2002).
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746 287 NEBRASKA REPORTS

[16] There can be no “infamy” unless the character charge 

is sufficiently made public.35 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.36

Potter argues that dissemination of the warning to certain 

employees not in the building where he worked, and to the 

assistant vice chancellor’s wife, means there was “public” dissemination and that, thus, that element of his claim has been 

met. He also points out that in Putnam v. Keller,

37 the court 

upheld the denial of summary judgment for defendants who 

had disseminated to the faculty and staff of several campuses, 

as well as to the local sheriff and county attorney, “‘stayaway’” letters accusing a former employee of theft and other 

immoral conduct.

[17] But what is sufficient to constitute “public disclosure” 

in a stigma-plus claim will vary with the circumstances of 

each case.38 In determining the degree of dissemination that 

satisfies the “public disclosure” requirement, courts must 

look to the potential effect of dissemination on the employee’s standing in the community and the foreclosure of job 

opportunities.39 Accordingly, in a different case, Nuttle v. 

Ponton,

40 a student who sought employment at the college 

where she studied did not state a stigma-plus claim, because 

the “‘judiciary file’” against her was not disseminated outside 

the college.

35 See State v. Norman, supra note 17.

36 See, e.g., Donato v. Plainview-Old Bethpage Cent. School Dist., 96 

F.3d 623 (2d Cir. 1996); Eberhardt v. O’Malley, 17 F.3d 1023 (7th Cir. 

1994); Wilcox v. Newark Valley Cent. School Dist., 107 A.D.3d 1127, 967 

N.Y.S.2d 432 (2013).

37 Putnam v. Keller, 332 F.3d 541, 547 (8th Cir. 2003).

38 See, e.g., Brandt v. Board of Co-op. Educational Services, 820 F.2d 41 (2d 

Cir. 1987).

39 Id.

40 Nuttle v. Ponton, 544 F. Supp. 2d 175, 176 (W.D.N.Y. 2008).
Nebraska Advance She

POTTER v. BOARD OF REGENTS 747

Cite as 287 Neb. 732

Other than the assistant vice chancellor’s wife, Potter did not 

allege that the warning was or would be disseminated outside 

of east campus. There is no evidence that the e-mail is maintained as part of Potter’s personnel file and will be shared with 

prospective employers. As explained already, the statements 

were unique to the circumstances existing at the time they were 

made, and the stigma associated with the warnings is tempered 

by the commonsense understanding that proactive security 

measures do not always target those who are genuinely dangerous. In fact, Potter admitted that none of the people whom 

he knew and who had received the warning changed their 

opinion of his character as a result. Under the circumstances, 

the extent of the dissemination did not threaten to seriously 

damage his standing and association in the community or to 

foreclose employment opportunities that may otherwise have 

been available.

[18] Moreover, there is no material issue of fact that the 

statements were protected by qualified privilege. Statements 

protected by qualified privilege do not pass the stigmaplus test.41

[19] 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.42 Whether a qualified privilege exists is a 

matter of law.43

The warnings here were on a subject matter to which the 

authors had a moral duty, and the statements were made 

41 See, Abelli v. Ansonia Bd. of Educ., No. 3:12-cv-1432, 2013 WL 6587784 

(D. Conn. Dec. 13, 2013); Wilcox v. Newark Valley Cent. School Dist., 

supra note 36; Sweet v. Tigard-Tualatin School Dist. #23J, 124 Fed. Appx. 

482 (9th Cir. 2005).

42 Turner v. Welliver, 226 Neb. 275, 411 N.W.2d 298 (1987); Helmstadter v. 

North Am. Biological, 5 Neb. App. 440, 559 N.W.2d 794 (1997).

43 Id.
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748 287 NEBRASKA REPORTS

to persons with a corresponding interest in their well-being. 

Publication is privileged if made for the purpose of protecting 

anyone—friend, employee, or stranger—against violence.44

There was no evidence from which one could reasonably 

find actual malice in disseminating the warning pertaining to 

Potter’s discharge. While Bockstadter and Losee may have 

been mistaken about the need for the measures taken, there 

is no indication that they acted with knowledge that Potter 

presented no danger the day he was terminated or with reckless disregard to the truth of such implied character charge. 

Not only were Bockstadter and Losee aware of Potter’s past 

criminal convictions, which included assault, there was documentation of emotional reactions to negative feedback and 

social withdrawal. Most significantly, Bockstadter and Losee 

were left in the dark after Potter was escorted off campus 

by police pursuant to an outstanding warrant of an unknown 

nature, and they had no knowledge of Potter’s whereabouts or 

state of mind at the time of discharge. Potter testified that he 

worked as a technician throughout east campus, but especially 

in Agricultural Hall. The call center is located in Miller Hall. 

Thus, there is no indication that the extent of dissemination 

throughout Miller Hall and Agricultural Hall was in bad faith. 

Likewise, there was no evidence that Losee acted in bad faith 

when warning the assistant vice chancellor’s wife of Potter’s 

possible arrival at their home. The assistant vice chancellor 

was Potter’s unit director.

Potter has failed to demonstrate a material issue as to 

whether Bockstadter and Losee violated a clearly established 

due process right. Indeed, we can find no other case in which 

a stigma-plus claim has arisen from warnings meant to protect employees and other persons believed to be in danger. 

Bockstadter and Losee made good faith judgments about how 

to best protect their employees, students, and the assistant vice 

chancellor’s wife. They were protected by qualified immunity, and the court properly granted summary judgment in 

their favor.

44 See Restatement (Second) Law of Torts § 595, comment g. (1977).
Nebraska Advance She

STATE v. YOUNG 749

Cite as 287 Neb. 749

CONCLUSION

 For the foregoing reasons, we affirm the judgment of 

the district court granting summary judgment in favor of 

the defendants.

Affirme

Wright and Stephan, JJ., not participatin

State of Nebraska, appellee, v.

Antoine D. Young, app

___ N.W.2d ___

Filed March 21, 2014. No. S-13-557.

1. DNA Testing: Appeal and Error. A motion for DNA testing is addressed to the 

discretion of the trial court, and unless an abuse of discretion is shown, the trial 

court’s determination will not be disturbed.

2. ____: ____. In an appeal from a proceeding under the DNA Testing Act, the 

trial court’s findings of fact will be upheld unless such findings are clearly 

erroneous.

3. DNA Testing. The DNA Testing Act, passed in 2001, was created to allow 

wrongfully convicted persons an opportunity to establish their innocence through 

DNA testing.

4. ____. A person in custody takes the first step toward obtaining possible relief 

under the DNA Testing Act by filing a motion requesting forensic DNA testing of 

biological material.

5. DNA Testing: Evidence. After a proper motion seeking forensic DNA testing has 

been filed, the State is required by Neb. Rev. Stat. § 29-4120(4) (Reissue 2008) 

to file an inventory of all evidence that was secured by the State or a political 

subdivision in connection with the case.

6. DNA Testing: Collateral Attack. An action under the DNA Testing Act is a collateral attack on a conviction and is civil in nature.

7. DNA Testing: Proof. The burden of proof under the DNA Testing Act is upon 

the defendant.

8. DNA Testing: Affidavits: Evidence. Under the DNA Testing Act, the defendant 

has the burden to provide the district court with affidavits or evidence at a hearing establishing the three required factual determinations for the district court 

under Neb. Rev. Stat. § 29-4120(5) (Reissue 2008).

9. DNA Testing: Evidence. Under the DNA Testing Act, DNA evidence which was 

available at trial but not pursued is not considered to have been unavailable.

Appeal from the District Court for Douglas County: Pete

C. Bataillon, Judge. Affirm