NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0707n.06 No. 11-1371 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

RI CHARD PACK; MI CHEL L E PACK, Plaintiffs-Appellants,

v. MT. MORRI S CONSOL I DATED SCHOOL S, et al., Def

endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

BEF ORE: MOORE, ROGERS, and GRI FF I N, Circuit J udg es. ROGERS, Circuit J udg e. The plaintiff Richard Pack appea ls the di s t ri ct co urt’s deter mination that the doctrine of collater al estoppel bars his § 1983 claim. The Mt. Morris School District terminated Richard Pack, a former tenure d teac her, for sexually hara ssing fema le students and committing g rade fra

ud. Pack challeng ed his termination in a hear ing befor e an administrative law judge

. The AL J conclude d that the school district had just cause to discharg e Pack. Pack then appea led that deter

mination to the Michig an State Tenure Commi ssion; it too rejec ted his claims. Finally , he sought leave to appea l to the M ichig an C ourt of Appeals, which denied his motion for lack of merit. Pack subsequently filed a § 1983 suit in federa l district court wher e he c laimed that the school district and the student he sexually hara ssed violated his due proce ss rig hts by knowing ly prese nting false testimony in his termination proce eding

. At eac h stag e, Pack argue d that theNo. 11-1371

Pack v. Mt. Morris Consolidated Schools, et al. testimony ag ainst him wa s fa l s e and that the wit nesses were not to be believed. The AL J and the State Tenure Commi ssion expressly reje cted these contentions. The district court corr ectly g rante d the school district’s motion to dismiss on the g round Pack is collater ally estopped from relitig ating the truthfulness of the testimony prese nted ag ainst him. Richard Pack beg an teac hing wood shop in the Mt. Morris School District in 1996. As ear ly

as Pack’s second y ear of teac hing the school rec eived complaints from pare nts and teac hers that Pack g ave pref ere ntial trea

tment to his fema le students. The school continued to rec eive complaints about Pack despite nume rous discussions betwee n Pack and the M t. Morris principal c oncer ning Pac k’s behavior

. On at least two o ccasions Pack rec eived suspensions without pay for violating school policies in incidents involving fe male students. The events g iving rise to Pack’s termination occur red during the 2006-2007 school y ear . At the time, the defe ndant Ashlie Ba in w as a student in Pack’s wood shop class. Pack informed Ba in that if she sat in f

ront of the class and looked pretty , she would re ceive an A. B ain later explained that she in fac t rec eived an A in Pack’s class without doing the re q u ired work. On one occa sion, Pack approa ched Ba in f

rom behind, g rabbe d her belt loops, pulled her toward him, and rubbed his pelvic reg ion into her until she asked him to stop. On other occa sions, Pack eng ag ed in inappropria te fronta l “h u gs ” wi t h Ba in and brushed his hand acr oss her buttocks and chest. She eventua lly reque sted a scheduling chang e to be remove d from Pack’s class, but the counselor considering her reque st denied it, telling he r to “ha ng in there.”

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Pack v. Mt. Morris Consolidated Schools, et al.

Ba in’s boy friend at the time, also a student, beca me conce rned over Pack’s behavior toward Ba in. The student repor

ted his conce rns to a district school board member, and an investiga tion into Pack’s be havior e nsued. The sc hool district terminated Pack on O ctober 9, 2007. The Michig an Tea cher s’ Tenure Act, Mich. Comp. L aws §§ 3 8

. 7 1

- . 1 9 1 , s e ts f o rth the proce ss to be employ ed when a Michig an public school district terminates a tenure d teac her. That proce ss g uara ntees cer tain proce dural safe g uards for the terminated employ ee, including the rig ht to appea l to the State Tenure Commi ssion. On October 29, 2007, Pack filed an appea l with the State Tenure Commi ssion, befor e which he ar g ued that he w as not discharg ed for rea sonable or just cause . An AL J conducte d a three -day hear ing at which Pack was repr esente d by counsel. I n his de cision, the AL J found that the d i s t ri ct had rea sonable and just cause to terminate Pack. The AL J stated: “Critical to the deter

mination of rea sonable and just cause here is the deter mination of the cre dibilit y of the witnesses. I n my opinion, [Bain’s] testimony reg arding Mr. Pack’s conduct is truthful. [Bain] has no re ason to fabr icate.” Pack filed nine exceptions to the AL J ’s decision with the State Tenure Commi ssion. I n his second exception, Pack challeng ed the AL J ’s finding that Ba in’s testimony was truthful. Pack called Ba in’s versi o n o f events “inconsistent” and claimed that her story chang ed depending on the audienc e. The Commi ssion disag ree d, finding no signific ant inconsisten c ie s th a t c a ll e d in to q u e s tion Ba in’s cre dibilit y . The Commi ssion conclude d that the rec ord “amply supports a finding that [Bain]

was a cre dible witness” and denied Pack’s exceptions. Pack soug ht leave to appea l to the Michig an Court of Appea ls, which denied his motion for lac k of merit.

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Pack v. Mt. Morris Consolidated Schools, et al.

On May 27, 2010, Pack filed suit ag ainst the school district, three district administrators, and Ba in, alleg ing f

our ca uses of a ction. Pack cla imed that his due proce ss rig hts were violated under the Fifth and Four

teenth Amendments pursuant to 42 U.S.C. § 1983 beca use school district officia ls and Ba in knowing ly offe red perjure d testimony at his tenure hear ing. Pack also asser ted claims for tortious interfe renc e with a vali d em ploy ment rela tionship, intentional infliction of emotional distress, and loss of consor tium (as to the plaintiff Michelle Pac k only ). The defe ndan t s m oved to dismiss the complaint under Fe dera l Rule of Civil Procedur e 12(b)( 6). The district court g rant ed the motion and held that the doctrine of collater al estoppel

1 barr ed Pack’s relitig ation of “the truthfulness of the evidenc e prese nted ag ainst [hi m] at the hear ing befor e AL J Ward, specific ally the vera city of Ba in’s testimony .” The court stated that Pack’s § 1983 claim put the issue of Ba in’s testimony at the administrative hear ing at issue and that the issue was fully and fairly litigated and finally deter mined in the three -day , ten-witness administrative hear ing. Pack filed a motion to rec onsider, which the district court denied in a short order that noted that Pack failed to demonstrate a “palpa ble defe ct” in the court’s analy sis that would war rant rec onsideration. The district c ourt also conclude d that it ne ed not g rant Pack leave to a mend his c omplaint be cause any amendment would be futile. Pack a ppeals. Pack is collater ally estopped from claiming t h at Ba in and the school district knowing ly prese nted false evidenc e in his termination hear ing. Both the AL J and the State Tenure Commi ssion

Pack failed to serve Ba in proper ly

. I n any event, Pack has not shown that she is a state actor 1 for pur poses of § 1983. - 4 -No. 11-1371

Pack v. Mt. Morris Consolidated Schools, et al. expressly considere d an d af firmed the vera city of the testimony offe red at Pack’s hear ing. Pack seeks r econside ration of that sa me issue in his § 1983 claim. Be cause the issue at the cente r of Pack’s § 19 8 3 claim has been deter mined by the State Tenure Commi ssion, Pack may not re l i t i gate that issue in fede ral court. Fe dera l courts mus t g ive state administrative decisions the same prec lusive eff ect they would rec eiv e i n the courts of the rende ring state when the state ag ency “‘is acting in a judicial capa city and resolves disputed issues of fac t pr operly befor e it which the parties have had an adequate opportunity to litigate.’ ” Univ. of Tenn. v. Elliott , 478 U.S. 788, 797–98 (1986) (quoting United States v. Utah Constr. & Mining Co. , 384 U.S. 394, 421–22 (1966))

. I n Michig an, courts apply collater al estoppel when: (1) a question 2 of fac t essential to the judgme nt was actua lly litigated and deter mined by a valid and final judgme nt; (2) the same parties had a full and fair opportunity to litigate the issue; and (3) there is mutuality of estoppel. McCormick v. Braverm an , 451 F.3d 382, 397 (6th Cir. 2006) (citing Monat v. State Farm Ins. Co. , 677 N.W.2d 843, 845–46 (Mich. 2004)). A defe ndant must satisfy three ad d i t i o nal require ments when s eeking to prec lude relitig ation of an issue on the basis of an administrative decision. First, the administrative decision must ha ve been adjudicator y in nature; second, it must provide a rig ht to appea l; and third, the l egi s l at u re must have intended to make the decision final absent an appea l. Nummer v. Treasury Dep’ t , 533 N.W.2d 250, 253 (Mich. 1995). Pack only takes

R ather than decide whether the single -sentenc e order of the Michig an Court of Appea ls 2 deny ing Pack l ea v e to appea l for lack of merit constitutes state-c ourt revie w of the State Tenure Commi ssion’s decision, we trea t the State Tenure Commi ssion’s decis io n a s if it wer e an unrevie wed administrative dec ision. The result in this case would be the same unde r either analy sis. - 5 -No. 11-1371

Pack v. Mt. Morris Consolidated Schools, et al.

issue with the first require ment for collater al estoppel—that the i s s u e i n t h i s matter was actua lly litigated in his termination hea ring —and does not c halleng e the r emaining fac tors. The truthfulness of the testimony offe red ag ainst Pack in the proce eding befor e the AL J and in his appea l to the State Tenure Commi ssion was actua lly litigated. A question is “ac tually litigated” when it is put into issue by the pleading s, submitt ed to the trier of fac t, and deter mined by the trier. Keywell & Rosenfeld v. Bithell , 657 N.W.2d 759, 783 n.49 (Mich. Ct. App. 2002) (citing VanDev enter v . Mich. Nat’l Bank , 432 N.W.2d 338, 341 (Mich. Ct. App. 1988)). The issue in the prese nt suit cente rs on Pack’s claim that the defe ndan t s k nowing ly and improperly manipulated evidenc e to justify his termination by prese nting Ba in’s purportedly untruthful testimony

. This same issue fact o re d prominently in Pack’s administrative hear ing and subsequent challeng es. When direc tly asked by the school district’s attorney if she had any rea son to make up her testimony , Ba in

answe red no and explained t h at s h e endured neg ative comments from former friends afte r the investiga tion beg an. She stated that she “would never ask for any of that false attention if it wasn’t true.” Pack, who was repr esente d by counsel, cross-e x amined (and re- cross-e x amined) Ba in during the hear ing. The AL J ’s opinion ref lects his consideration of Ba in’s believability

. The AL J stated: “Critical to the deter

mination of rea sonable and just cause here is the deter mination of the cre dibilit y of the witnesses. I n my opinion, [Bain’s] testimony reg arding Mr. Pack’s conduct is truthful. [Bain] has no rea son to fabr icate.” T h e ALJ observe d that Ba in only discussed Pack’s conduct afte r a school board member investiga ted her boy friend’ s conce rns. Fur ther, the AL J noted that Ba in tried to remove he rself f

rom Pack’s c lass but a counse lor preve nted her from doing so.

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Pack v. Mt. Morris Consolidated Schools, et al.

Not only did the AL J evalua te Ba in’s cre dibilit y , but the issue was square ly prese nted to and addre ssed by the State Tenure Commi ssion. Pack arg ued that Ba in told cer tain school officia ls one story and oth er officia ls a differ ent story

. The Commi ssion reje cted this arg ument, finding “no signific ant inconsistencies that call into question the cre dibilit y of [Bain’s] testimony .” The Commi s s i o n fu rther found it signific ant that Ba in had no rea son to fabr icate events about Pack’s conduct. I ndeed, her reluc tance to complain lent cre dibilit y to he r testimony

. Although Pack now attempts to expand the issue t o i n cl u de alleg ations that the school district bribed and threa tened witnesses, the is s u e i s es s entially the same—that the school district and Ba in prese nted false testimony

. Pack does not provide the names of the wit nesses who wer e supposedly bribed or any other supporting information. Nor does he e x plain when he lear ned of this information or w hy he

was unable to prese nt this arg ument during the hear ing or in the exceptions he filed with the Commi ssion. Pack skirts these questions by char acte rizing the proce eding s befor e the State Tenure Commi ssion as involving only the i s s u e of whether the school district had just cause for his termination. This is an oversimplification. The AL J made clea r that he considere d Ba in’s cre dibilit y to be crit i ca l t o his decision. I n the end, neither the AL J nor the State Tenure Commi ssion had

rea son to believe that B ain or a ny one else fabr icated te stimony

. Pack’s challeng e closely rese mbles sever al case s wher e Michig an courts and fede ral courts apply ing Michig an law have made clea r that pre cl u sion principles apply to decisions of the State Tenure Commi ssion. I n Cooper v. Oak Park School District , 624 F. Supp. 515 (E.D. Mich. 1986),

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the plaintiff teac her, Ruth Cooper, was terminated and then lost her challeng e to that deter mination befor e the Michig an State Tenure Commi ssion. She next broug ht a Title VI I case in fede ral court. The school district arg ued that the doctrines of res judicata and collater al estoppel barr ed Cooper’s claim. Cooper counter ed that her Title VI I claim should not be prec luded beca use the issue befor e the State Tenure Commi ssion had been whether just cause exis t ed fo r h er discharg e, wher eas the issue in her Title VI I claim involved whether she experience d discrimination. The court ag ree d with the school district: Cooper raised and adjudicate d the issue of discrimination in her hear ing befor e the State Tenure Commi ssion. Id. at 519. Fu rt h er , she had been aff orded due proce ss befor e the Commi ssion. L ike Cooper, Pack challeng ed and litigated Ba in’s cre dibilit y befor e the State Tenure Commi ssion. He see ks to do the same in this matter. The Michig an Court of Appea ls rea ched a simil ar conclusion in Knubbe v. Detroit Board of Education , No. 240076, 2003 WL 22681553 (Mich. Ct. App. Nov. 13, 2003), when it applied the doctrine of collater al estoppel to a teac her’ s lawsuit following proce eding s befor e the State Tenure Commi ssion. There , the plaintiff tea cher , Sheila Knubbe, r ece ived unsatisfac tory evalua tions a nd eventua lly lear

ned that the school board intended to terminate her employ ment. She filed an appea l with the St at e Tenure Commi ssion, which ag ree d with the board on its termination decision. Knubbe then filed an unfair labor rela tions claim with the Michig an Employ ment Relations Commi ssion. I t too denied her claim. The Michig an Court of Appea ls subse quently aff irmed that decision, and the M ichig an S upreme Court denied leave to appe al. Knubbe then filed a six -count complaint ag ainst the union and school board in which she arg ued that the school board defe ndants

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Pack v. Mt. Morris Consolidated Schools, et al. discharg ed her without fac tual support. Id. at * 4

. I n aff irming the trial court’s dismiss al of her claims, the court of appeals recog nized that the State Tenure Commi ssion had squarely addre ssed the issue of Knubbe ’s unsatisfac tory perf ormanc e as a

teac her; she w as collater ally estopped from arg uing her discharg e was not for cause . Id. As the Michig an Court of Appea ls observe d in another

ca s e, “[ i ]f a teac her wer e allowed to relitig ate a fac tual question previously decide d by t h e commission, it would reduc e the administrative proce ss to a me r e r ehea rsal.” Dearborn Heights Sch. Dist. No. 7 v. W

ayne Cnty. M

EA/NEA , 592 N.W.2d 408, 412-13 (Mich. Ct. App. 1998)). Pack disreg ards thi s l i n e o f case s and instead bases his challeng e on a series of Supreme Court decisions reg arding t h e co n t en t o f a due proce ss claim. Albright v. Oliver , 510 U.S. 266 (1994), United States v. Agurs , 427 U.S. 97 (1976), Napue v. Illinois , 360 U.S. 264 (1959), Pyle v. Kansas , 317 U.S. 213 (1942), Mooney v. Holohan , 294 U.S. 103 (1935). He relies on these c ases for the proposition that the knowing prese ntation at trial of perjure d testimony violates o n e’ s due proce ss rig hts. Assum i n g that is corr ect, that does not addre ss the district court’s relianc e on collater al estoppel with respe ct to the fac tual issue of whether there was such a knowing prese ntation of per jured testimony

. I n sum, Pack’s § 1983 challeng e conce rns t h e s am e i ssue resolved throug h the state administrative proc ess. He is ther efor e collate rally estopped fr om relitiga

ting that issue. The judg ment of the district cour t is affirmed.

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