NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0348n.06

No. 10-4011
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

ROBERT EVANS, fathe r and leg al g uardian of L .E., a minor; TONYA RI FF E, mother and leg al g uardia n of B.R., a minor, Plaintiffs-Appellee s

v. BO ARD O F E D U CA T I O N SO U T H WES TERN CI TY SCHOOL DI STRI CT; PAUL SMATHERS, Principal,
Def endants-A

ppellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEA L FR OM T HE UNI TED STATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OH I O

OP INION

BEFORE: M CK

EAGU E and WHITE , Circuit Judges, and ZOUHARY, District Judge *
HELE NE N. WHITE , Circuit Judge. Paul Smathers (Smathers), the principal of an Ohio
middle school , ap p ea ls the district court’s denial of his motion for summary judgme nt based on qualified immunit y with respe ct to two due proce ss claims premised on 42 U.S.C. § 1983. Smathers

argue s that the di strict court erre d in failing to apply res judicata or collater al estoppel to fi n d i n gs made at a school suspension hear ing, and that these administrative finding s prec lude L .E., a former student, from showing a constitutional violation. We AF F IRM beca use we find t h at n either res judicata nor

collater al estoppel a

pplies to bar L .E. from a sserting these c laims in feder al cour t.

The Honora

ble J ack Z ouhary , United States District J udg e for the Norther n District of Ohio, * sitti ng by desig nation.
-1-No. 10-4011

Evans, et al. v. B oard of Education Southwestern Cit y School District, et al.
I.
The district cour

t summarized the backg round of this ca se as f ollows:
1. The 2007-2008 School Year
I n Aug ust 2 0 0 7 , L .E. and B.R. wer e twelve- y ear old g irls enter ing seventh g rade at Finland [Mi ddle School (F inland)]. Both L .E. and B.R. wer e transporte d to and from Finland by school bus. Students riding the school bus wer e g iven assig ned seats; boy s were assig ned sea ts in the front of the bus and g irls were assig ned sea ts in the back.
Not lon g afte r t he st art of the s chool y ear in Aug ust, M.C., a boy who also attended Fi n l and and rode the same school bus as L .E. and B.R., beg an making comments to the g irls on the bus, most often during the ride home from school in the afte rnoons. These comments wer e sexual in nature and included asking g irls to show him their brea sts and to have sex. Acc ording to L .E. and B.R., while M.C. initially made these comments in g ener al [t o] all of the fema les on the bus, he later beg an to fo cu s h i s comments on L .E. and B.R. B.R. stated in her deposition that M. C

. ’s 1 behavior intensified from verba l comments to phy sical contac t. Acc ording to B.R., M.C. would g rab her and try to push her into his bus seat on multipl e occa sions eac h wee k. M.C. would also hit B.R. on her buttocks or attempt to g rab at her chest. M.C. acte d simil arly

towards L .E.

a. The October 2007 Incident
One afte rnoon in October 2007, both B.R. and L .E. al l ege t hat M.C. phy sically assaulted them. B.R. states that while she was walking to the front of the bus to dispose of some paper , M.C. reac hed out, g rabbe d B.R.’s pants, pulled them down, and exposed her underw ear
. This incident was appar ently witnessed by other students on the bus, who laug hed.
On that s am e afte rnoon, L .E. alleg es that she was sitti ng in her seat when M.C. and his friend, B.B ., came to her assig ned seat. Acc ording to L .E., while B.B

. g rabbe d her arms and pinned them down, M.C. pulled L .E.’s shirt down, and exposed one bre ast. Neither

B.R. or L .E. repor

ted these inc idents to the bus driver.

“I n their Response to Def endants’ Motion for Summary J udg ment, P l aint iffs[] posit that 1 ‘M.C. targ eted L .E. and B .R. beca use the g irls were ‘more de veloped’ than their c lassmates.’”

-2-No. 10-4011

Evans, et al. v. B oard of Education Southwestern Cit y School District, et al. b. Reports to School Off icials
The next day at school, howeve r, L .E. and B.R. went to see Diana McDa niel ([] McDa niel[] ), the g uidance counselor at Finland , a n d r e p o r te d th e incidents that had taken plac e on the school bus the previous afte rnoon. L .E. and B .R. state that afte r hear ing the ir version of the events, McD aniel aske d both gir ls to write a stateme nt. McDa niel also indicated tha t the g irls should not be trea ted in tha t ma nner a nd that the incidents would be taken car e of. L .E. and B.R. claim that, upon rec eiving their written statements, McDa n i el threw them in the trash. Def endants [Board of Educa tion S outhwestern City School District (Southwestern) and Smathers (collec tively , defe ndants)] claim that L .E. and B.R. repor ted only that they had been subjected to inappropria te verba l comments, that nothing phy sical had happe n ed, and that McDa

niel never would have thr own the g irls’ written stateme nts in the trash.
I n the n o t es o btained by Plaintiffs [R obert Evans (Evans) and Tony a Riffe (Riffe) (collec tively , plaintiffs)] from McDa niel, taken afte r thes e incidents, McDa niel writ es t hat s he had both B.R. and L .E. write a statement. Acc ording to 2 McDa niel’s notes, she and [Bradle y ] A d a ms [( A d a ms ) ], F in la

nd’s assistant principal, informed M.C. and another boy of the school’s zero toleranc e policy for the ty pe of comments that M.C. had alleg edly been making to B.R. and L .E. The following day , M cD an i el ’s notes document that “M.C. did not listen & this day he tried to rub ag ainst l egs (LE? or BR? ) as he walked down the aisle.” At this point, McDa niel notes that she took M.C. to Smathers,

. . . share d with Smathers that M. C

. “isn’t g etting the messag e” a

nd “filled Mr. S. [i] n on what had tr anspired & left.”
P laintiffs[] also asser

t that Smathers was ag ain made awa re of the ong o i n g hara ssment of L .E. and B.R. on the bus when B.R., at Riffe’s urg ing, made a repor t direc tly to Smathers [ some time] af t er t h e girls had met with McDa niel. Riffe has stated that, af

ter meeting with her da

ug hter, Smathers c alled her [and informed her that the boy s whom L .E. and B.R. had repor ted woul d be suspended]. During the hear ing conducte d by Southwestern pursuant to Evans’s appea l of L .E.’s suspension, Smathers denied ever having spoken with Riffe or M.C. about any investiga tion into hara ssment. At his deposition, however, Smathers a dmitted calling Riff e. 3

“McD aniel ‘has no explanation as to why the statements disappea red’ and testified that she 2 turned the statements over the school secr etary who was responsible for maintaining Finland’ s discipline files.” “Smathers’ s testimony at the hear ing on the appea l of L .E.’s suspension is also contra dicted 3 by the testimony of A.G. A.G., another student at Finland, testified that around J anuar y 2008, afte r -3-No. 10-4011

Evans, et al. v. B oard of Education Southwestern Cit y School District, et al. c. The May 2008 Incident
On M ay 8, 2008, Plain t i ff s alleg e that L .E. was sex ually assaulted by M.C. while riding the bus home from school. On May 9, 2008, afte r another teac her saw her cr y i n g i n the lunch room and told her to g o to the office , L .E. repor ted the incident and wr ote the following statement:
On May 8, 2008 I was sitti ng in the last s eat on the bus (#170) and [M.C .] came back to the back of the bus and sat down in my seat. When he sat down he asked if he could see m y b reast and I said no like alway s. Then he stuck his h an d up my shirt and I didn’t say any thing. So when we wer e on Fr ank Rd. at the light and he asked me to g ive him head and I said no then he said “thats (sic) g ay .” Then afte r that he took my hand and put it on the outside of his shor ts and said is it big enoug h for me then I said nothing. After that he took my hand and pu t i t o n t he inside of his pants afte r that he pulled it and forc ed my

head down there and af

ter a bout 5 sec. I

picked my

head up and said “now what” and he put his hand on my head ag ain and forc ed me down there ag ain. After all this he g ot of (sic) the bus and [C .M.] s aid did y ou g ive [M.C .] head and I said y es.

Smathers states that L .E. was reluc tant to come forwa rd and that she was broug ht to the office by a teac her. After speaking with L .E., S m ather s called the police and L .E.’s parents. Smathers also called M.C. into the s chool office and called M.C.’s mother.
After interviewing other s tu d e n t w it n e s s e s , Sm a

th e r s s u s p e n ded both L .E. and M.C. for five day s, co ncluding that the students had eng ag ed in some consensua l sexual ac t i v ities and cause d a disruption of school. Criminal char g es wer e filed ag ainst M.C. and M.C. [pl eade d] g uilty to an attempted assault char g e. L .E.’s pare nts to o k h e r to Je n n ifer Dorn, M.Ed., L .P.C.C

. [(Dorn)], to beg in counseling and thera py
. Ms. Dorn conc luded that L .E. suffe rs from Post-Tra umatic Stress Disorder

.

winter vaca

tion, she was called into the school office , wher e Smathers, with Adams prese nt, questioned her as to whether she had witnessed any one touch B.R. o r L

. E

. i n appropr iately on the bus.”
-4-No. 10-4011

Evans, et al. v. B oard of Education Southwestern Cit y School District, et al.
d. Th e Susp ension Ap peal Hearing On May 12, 2008, Smathers completed a Notice of I ntent to Suspend L .E., pursuant t o wh i ch L .E. was suspended from school until May 19, 2009. After rec eiving [t he] Notice of I ntent to Suspend, L .E.’s pare nts

. . . appea led Smathers’s decision to Southwestern. On Ma y 28, 2008, a suspension appe al hea ring w a s h e l d

. Af t er the hear ing, Southwestern’s desig nated hear ing office r, J anice Collette [(Col lette)], made cer

tain finding s of fa ct

. On J une 3, 2008, L .E.’s pare nts wer e advise d of these f

indings a nd of the de cision to affirm L .E.’s suspension in a letter. After L .E.’s suspension, there wer e approximately three wee ks rema ining in the school y ear
. No further interac tion betwee n M.C. and L .E. occur red during this time.
2. The 2008-2009 School Year
L .E. repor

ts that from the beg inning of her eighth g rade y ear she was subjected to repe ated instances of sexual innuendo by fellow students. I n October 2008, L .E. and C.B., another g irl, repor ted to McDa

niel that K.T., a male classmate, was touching them inappropria tely and making sexual l y char g ed comments. K.T. was suspende d as a r esult of this behavior.
Def endants re port a diff

ere nt version of these events:
L .E. claims that a differ ent boy , K.T. beg an making comments to her about her chest and that he pinched another stu d en t , and poked her with a pencil. As was ty pical wi t h L

. E

. , she did not repor t it to any one. On October 2, 2008[, ] L .E. was in the auditorium in a “Viking s” meeting which was a meeting with all ei gh t h g rade students. K.T. made some additional rema rks to her friend C.B., and L .E. told K.T. t o shut up. I t was eventually repor ted t o teac her M s
. I son, who t o o k her to the office , and the incident was fully investiga ted by Assistant Princip al Adams. K.T. also filed a complaint back ag ainst L .E., alleg ing inappropria te tou ch ing and commen t s. Mr. Adams investiga ted the incident, found K.T.’s version not cr edible and suspended him for his actions ag ainst L .E. and C.[B]. . . . On August 18, 2008, plaintiffs filed sui t on behalf of L

. E

. an d B.R. aga inst Southwestern, Smathers, and J oy ce Malainy (Malainy ), the direc tor of seconda

ry education for Southwestern City

-5-No. 10-4011

Evans, et al. v. B oard of Education Southwestern Cit y School District, et al. Schools, alleg ing discrimination and reta liation under Title I X and violations of L .E. and B.R.’s rig ht to equal prote ction of the law s pursuant to 20 U.S.C. § 1681(a) a nd 42 U.S.C. § 1983.
P l ai n tiffs filed an amende d complaint on May 8, 2009 and an ag ree d second amend ed complaint on Dec ember 30, 2009. Pursuant to the latter filing, t he only defe ndants left i n the s uit

wer e Southwestern and Smathers. Plaintiffs alleg ed the following claims ag ains t defe ndants: (1)
discrimination by Southwestern in violation of Title I X; (2) reta liation by Southwestern in violation
of Title I X; and (3) constitutional violations of equal protec tion and due p ro cess. Additionally , Evans alleg ed the following supplemental claims ag ainst defe ndants: (1) violation of Title I X by
Southwestern due to a failu re to take action during the 2008-2009 school y ear g iven t he incidents

o f t he previous school y ear ; (2) constitutional violations of equal protec tion and due proces s ; (3 )
intentional or rec kless infliction of sever e emotional distress; and ( 4) wa nton misconduct.
On De cember 31, 2009, defe ndants filed a motion for summary judgme nt on all cl ai m s
. Pursuant to the district court’s opinion and order , issued J uly 20, 2010, the following claims

re m ained ag ainst Southwestern: (1) plaintiffs’ first claim for discrimination under Title I X; (2 ) plaintiffs’ second claim for reta liation under Title I X; (3) Evans’s first supplement al cl aim for
violations of Title I X during the 2008-2009 school y ear ; and (4) Evans’s fourth supplemental claim
for wanton misconduct. The following claims rema ined ag ainst Smathers: (1) the due proce ss component of plaintiffs’ third claim under § 1983; (2) the due proce ss component of Evans’s second supplemental cla im under § 1983; ( 3) Evans’s third supplemental claim for intentional or rec kless
infliction of emotional distress; and (4) Evans’s fourth supplemental claim for wanton misconduct.

-6-No. 10-4011

Evans, et al. v. B oard of Education Southwestern Cit y School District, et al. Additionally , the district court deter mined that Smathers was not entitled to qualified immunit y with

respe ct to the due proce ss components of the rema ining § 1983 claims. A timely appea l was filed.
II.
Def endants’ sole, narr ow arg ument on appea l is that res judi c a ta or collater al estoppel applies

to the finding s of fac t made at L .E.’s suspension hear ing and that these finding s fore close plaintiffs’ ability to show that L .E.’s constitutional rig hts wer e violated. Def endants do not arg ue that plaintiffs
have f ailed to satisfy

the re maining r equire ments of the qualifie d immunit y test. 4
A.
As an initial matter, plaintiffs asser t that we do not have jurisdiction to consider defe ndants’

appea l, as the issue whether the district court improperly declined to g ive prec lusive eff ect to the finding s of fac t made at L .E.’s suspension hear ing cannot be prese nted to this court on interlocutory

“Gove rnment officia ls who perf orm d iscretionar

y functions are g ener ally protec ted from 4 liability for civil damag es as long as their conduct does not violate ‘cle arly established statutory or constitutional rig hts of which a rea sonable person would have known.’” Sallier v. Brooks , 343 F.3d 868, 878 (6th Cir. 2003) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982))

. Be cause such a decision solely involves a question of law, we revie w de novo a district court’s denial of qualified immunit y . Siggers-El v. Barlow , 412 F.3d 693, 699 ( 6th Cir. 2005).
We follow a three -step analy s i s when revie wing a district court’s decision conce rning qualified immunit y
. See Feathers v. Aey , 319 F.3d 843, 848 (6th Cir. 2003). First, we evalua te whether the fac ts demonstrate that a constitutional violation has occur red. Holzeme r v. City of Mem phis , 621 F.3d 512, 519 (6th Cir. 2010). Second, we deter mine “whe ther the violation involved a clea rly established constitutional rig ht of which a rea sonable perso n wo u l d h av e known.” Id. (citations omitted). Third, we consider “whe t h er the plaintiff has offe red sufficie nt evidenc e ‘to indicate that what the offic i al al leg edly did was objectively unrea sonable in light of the clea rly established constitutional rig hts.’” Id. (citations omitted). “We are not bound to follow the sequenc e of this inquiry .” Id. Whil e conduc ting its revie w, we view the f acts in the lig ht most favorable to the plaintiff. Siggers-El , 412 F.3d a t 699.
-7-No. 10-4011

Evans, et al. v. B oard of Education Southwestern Cit y School District, et al. revie w. Howeve r, defe ndants’ argument reg arding the application of res judicata or collater al estoppel i s not a separate issue, but rathe r i s part of their overall claim t hat pl aintiffs cannot show
that L .E.’s constitutional or statutory rig hts wer e viola t ed

. W e have routinely analy zed the applicability of res judicata or collater al estoppel in deter mining the propriety of a denial of qualified
immunit y
. See Brindley v. Best , 192 F.3d 525, 530 (6th Cir. 1999); Triomphe Inve stors v. C ity of
Northw ood , 49 F.3d 198, 202 (6th Cir. 1995). As a result, we can proce ed to the merits of this case
. B.
Def endants arg ue that beca

use “L .E. alre ady litigated all issues surrounding the propriety of
her five (5) day suspension stemming from the May 8, 2008 bus incident with M.C., including the
issue of whether or not it was consensua l,” and the “[h] ear ing [o] ffice r’s [f] indings established that
L .E.’s actions wer e consensua l,” “ther e exis ts no fac tual basis for L .E. to claim reta liation, damag es, depra vation of due proce ss, or educa tional benef

it.” Plaintiffs arg ue that if this court does rea ch the
merits of the case , it should aff irm the denial of qualified immunit y to Smathers beca use the hear ing
office r made no finding s on consent and never addre ssed (and was not empower ed to addre ss) L .E.’s constitutional and statutory claims. “[F]edera l courts must g ive the fac tual finding s of a state ag ency that is acting in a judicial

capa city prec lusive eff

ect if such finding s would have prec lusive eff ect in the State’s courts.”
Cockrel v. Shelby Cnty. Sch. Dist ., 270 F.3d 1036, 1046 (6th Cir. 2001) (citations omitted); see also
Astoria Fed. Sav. & Loan Ass’n v. Solimino , 501 U.S. 10 4 , 107 (1991) (“We have long favor ed application of the common-law doctrines of collater al estoppel (as to issues) and res judicata (as to claims) to those deter

minations of administrative bodies that have attained f inality .”). O hio courts
-8-No. 10-4011

Evans, et al. v. B oard of Education Southwestern Cit y School District, et al.
g ive prec lusive eff

ect to fac tual finding s in a previous proce eding “whe re the p roceeding [] [was] judicial in nature , fac tual disputes resolved were cl early rele vant to issues proper ly befor e it, and both pa rties had a full and fair opportunity to a rg ue their version of the fac ts a nd an opportunity to
seek out revie w of any adver se finding s.” W ilson v. Semc o, Inc. , 152 Ohio App. 3d 7 5 , 8 1, 786
N.E.2d 906, 910 (Ohio Ct. App. 2002) (citing Office of Consumers’ Counsel v. Pub. Utils. Comm’n of Ohio , 16 Ohio St. 3d 9, 10, 475 N.E.2d 782, 873 (Ohio 1985)). Plaintiffs do not dispute that the suspension hear ing was judicial in nature and that the hear ing office r’s fi ndings could be g iven

prec lusive eff

ect if othe rwise a

ppropriate

. Under Ohio law, “[t] he doctrine of res j u d i ca ta encompa sses the two rela ted conce pts of
claim prec l u s i o n , also known as res judicata or estoppel by judgme nt, and issue prec lusion, also
known as collater al estoppel.” State ex rel. Nickoli v. Erie MetroParks , 124 Ohio St. 3d 449, 453, 2010-Ohio-606, 923 N.E.2d 588, 592 (citatio n s an d internal quotations omitted) (alter ation in orig inal). Whil e claim prec lusion “pre vents subsequent actions, by the same parties or their privies,
based upon any claim arising out of a transac tion that was the subject matter of a previous action,”
issue prec lusion or collater al estoppel “pre cludes the relitig ation, in a second action, of an issue that
had been actua lly and nece ssarily litigated and deter mined in a prior action that wa s based on a differ ent ca

use of a ction.” Id. (citations and inter nal quotations omitt ed).
Pursuant to O hio Revised Code § 3313.66(E), Collette, the suspension hear ing office r, had the authority to act on behalf of S outhwestern and t o “af firm t he order of suspension

. . . reinstate
the p u p i l , o r o t h er wise reve rse, vacate, or modify the order of suspension.” At the start of the
hear ing, Collette informed the parties that th e p u rp o s e o f L .E.’s suspension hear ing was “for the
-9-No. 10-4011

Evans, et al. v. B oard of Education Southwestern Cit y School District, et al. family to prese n t re as o n s why the student shouldn’t be suspended or [si c] rathe r explaining the
student’s actions.” Collette also explained that the rea son g iven for the suspension was “a violation
of the Southwestern City School Student Code of Conduct for disruption of school,” and noted that
the suspension form also stated that “[L .E.] was involved i n i n appropr iate sexual behavior with

an other male student on the bus. [L .E.] claims the male student forc ed her to perf orm thes e behavior s.”
Two wi t n es s es, McDa

niel and Smathers, testified at the hear ing and counsel for
Southwestern and L .E. wer e p er m i t t ed to question them. Smathers testified that, based on his investiga tion and his professional e x perie nce, he could not “validate whether [L .E.] was forc ed or
not, but [he did] know that something inappropria te happene d and disrupted school.” He also stated
that “at no point did I ever say that [L .E.] wasn’t fo rc ed

. I ca lled the police. I called Children’s
Service s. I talked to the pare nts. I helped them throug h the proce ss
. . . . [I ]n my opinion I think that something inappropria te happene d at my school. As far as the forc e and nature , I have no proof on that, so I ref

err ed it to the police.” Smathers repe atedly asser ted that he could not “make a decision
whether [L .E.] was voluntarily a participa nt in [t he conduct in question].” When asked why he suspended L .E. when he could not deter mine whether she was forc ed to perf orm oral sex on M.C.,
Smathers stat ed t h at he “suspende d [L .E.] beca use she and another boy perf ormed inappropria te
sexual acts in the back of the bus, both of them had admitted to that, and it disrupted school.” Thus,
it appea rs that Smathers believed that beca use L .E. admitted to participa ting in sexual activities with M.C., she should be suspended for the resulting disruption of school, reg ardle ss of whether she was forc ed to pa

rticipate in some or all of these activities. L .E.’s attorne y also prese nted the statement
-10-No. 10-4011

Evans, et al. v. B oard of Education Southwestern Cit y School District, et al.
L .E. wrote the day

following the incident, and other students’ statements wer e discussed, but the ir

names we re not re veale d.
Severa l day s afte r the hear ing, Collette issued a decision aff irming L .E.’s suspension. Collette made the following rele vant finding s of fa ct: [ L

. E

. ] was suspended for five day s from Finland Middle School on May 12, 2008 for violating the South-W estern City Sc h o o ls St u d e n t Co d e o f Co n d

u c t f or Disruption of School based on her involvement in a sexual e ncounter on the school bus with a male student. Principal Smathers was made awa re of the incident by a teac her. Upon lear ning of the incident, Pr in c ip a l Sm a th e r s in te r v ie w e d s e vera l students including [L .E.] During [L .E.’s] interview, Principal Smathers provided [L .E.] with notice of an intended suspension and g ave her an opportuni t y t o respond. [L .E.] admitted that she was involved in a sexu al en co unter with a male student on the bus. Although she acknow ledg ed that she participa ted in the sexual a ctivity she re ported that she was forc ed to participat e i n s o m e of the conduct. [L .E.] provided names of potential witnesses to Mr. Smathers. Although Mr. Smathers interviewe d sev er al o f the students named by [L .E.], he was not able to identify any direc t witness to the alleg ed forc e. I n written statements c ollected f rom the students, the students repor ted that [L .E.] acknowledg ed her

participa tion in the sex ual ac tivity

. The principal acte d promptly and prudently in c o n ta c ti n g F r a n k li n County Children’s Service s and the local law enfor ceme nt ag ency to repor t [L .E.’s] alleg ations as soon as he w as made awa

re of the incident.
The sexual activity betwee n [L .E.] and the male student cause d a disruption of school since many students wer e talking abou t t h e i ncident during school time there by diverting attention from school activities, and the principal had to disrupt instruction to interview students re g arding the incident.
I n conclusion I find that [L .E.] violated the South-W es t er n C i ty Schools Student Code of Conduct for

Disruption of School. Contrary to d ef

en d ants’ arg ument, these finding s of fac t do not prec lude plaintiffs from

asser ting L .E.’s claims i n t h e d i strict court. Def endants do satisfy some of the elements of res

-11-No. 10-4011

Evans, et al. v. B oard of Education Southwestern Cit y School District, et al. judicata. Howeve r, claim prec lusion doe s not apply beca use the “tra

nsaction” that was the subject

matter of the suspension hear ing was Smathers’s suspension of L

. E

. , and did not incorporate the
entire course of conduct on which L .E. premised her § 1983 due proce ss claims ag ainst Smathers.
See Portage Cnty. Bd. of Comm’rs v. City of Akron , 109 Ohio St. 3d 106, 123, 2006-Ohio-954, 846
N.E.2d 478, 495 (def

ining “tra nsaction” as a “common nucleus of opera tive fac ts ”)

. Fu rt h er , the suspension hear ing office r was not empower ed to consider L .E.’s constitutional or statutory claims.
Nor does issue prec lusion apply to bar L .E.’s due proce ss claims. Collette’s finding s of fac t do not expli citly state or even sug g est that she found that L .E. consente d to the improper sexual c onduct. And, even if Collette had in fac t deter mined that L .E. did consent to the sexual acts, it is unclea r how
such a finding would prec lude L .E. from prese nting her constitutional and statutory claims in fede ral
court, as it is doubtful “whe ther an elementa ry school child can welcome sexual a dvance s.” Mary M. v. N. Lawrence Cmty . Sch. Corp. , 131 F.3d 1220, 1225 ( 7th Cir. 1997).
Def endants make no other arg uments bey ond the one descr ibed above. I n fac t, defe ndants’ reply brief e x plicitly

states t hat “[ t] he is sue of whether or not [pl aintiffs] had a c lear ly established
constitutional rig ht under the applicable case law has never been befor e this Court in this appea l,”
and that “the second [ and thi rd] prong [s] of t he qualified immunit y test . . . [are] not even at issue
in this appea l.” Given these circ umstances, we AF F IRM the district court’s denial of qual i fied
immunit y to Smathers.

-12-No. 10-4011

Evans, et al. v. B oard of Education Southwestern Cit y School District, et al.
Concurre nce by J udg e Z ouhary : I concur in the judgme nt. After ca re fu l l y revie wing the

rec ord, the applicable law, and the parties’ briefs, I find the district court proper ly reje cted Smathers’

res judicata and collater al estoppel claims. Part I V-A of the district court’s opinion (“Res J udicata” )

car efully sets forth the c orre ct re asoning

.

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