in part and dissenting in part). In any case, the Third Circuit had made the inconsistent suggestion that a post-suspension hearing, had one been provided, might have been adequate under Loudermill or FDIC v. Mallen, 486 U.S. 230 (1988). Homar, 89 F.3d at 1016 n.3, 1025 (citing Bradley, 913 F.2d at 1078)). Thus, we do not believe that the principle that Plaintiff was entitled to a Loudermill presuspension hearing was clearly established in June 1995.
In addition, the precise nature of the process due Plaintiff was not clear in June 1995. The pretermination requirements set forth in Loudermill itself are neither extensive nor specific. Loudermill, 470 U.S. at 545-46 ("the pretermination 'hearing'... need not be elaborate...In general, 'something less' than a full evidentiary hearing is sufficient...the tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.").
Given this standard, the Third Circuit has approached Loudermill suits on a case-by-case basis. In order for Defendant Board Members to forfeit their qualified immunity they would have to have objectively violated a case with a similar fact pattern decided before they took their actions. Plaintiff has cited no case decided before June 19, 1995 that indicates that Defendant Board Members reasonably should have known that they were not affording Plaintiff clearly established constitutionally adequate notice and an opportunity to respond. Defendant Board Members were relying on the advice of Solicitor Steele, who drafted the July 19th letter and presented it to Coover. See Kincade v. City of Blue Springs, Missouri, 64 F.3d 389, 399 (8th Cir. 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1565 (1996) ("Reliance on the advice of counsel is a factor to be weighed in assessing whether a public official is entitled to qualified immunity."). The undisputed evidence establishes that the Board Members tried to afford Plaintiff some notice and an opportunity to respond. In fact, there is no dispute that Plaintiff was provided with proper notice and an opportunity to respond before she was terminated permanently from her position through the hearing conducted on July 17, July 31, August 1, August 9, August 24, and September 19, 1995. In addition, the letter of January 19th did give Plaintiff some notice, apprised her of her rights associated with her dismissal hearing to occur one month later, and provided for a meeting with Solicitor Steele. We believe that reasonable Board Members acting in June 1995 could have believed that their actions were lawful. Accordingly, Defendant Board Members are entitled to qualified immunity in their individual capacities.
E. Res Judicata and Collateral Estoppel
We come now to Defendants' contention that Plaintiff's claims against Defendants School District and Board Members in their official capacities are precluded under the theories of res judicata or collateral estoppel.
Because res judicata and collateral estoppel are affirmative defenses,
Defendants bear the burden of showing that they apply. United States v. Athlone Indus., Inc., 746 F.2d 977, 983 (3d Cir. 1984); Faison v. Sex Crimes of Philadelphia, 845 F. Supp. 1079, 1085-86 (E.D.Pa. 1994); Fed. R. Civ. P. 8(c).
Defendants argue that they are entitled to summary judgment based on the doctrines of res judicata and collateral estoppel in light of Edmundson v. Borough of Kennett Square, 4 F.3d 186 (3d Cir. 1993); Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 85, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984); and England v. Louisiana State Board of Med. Exam'rs., 375 U.S. 411, 11 L. Ed. 2d 440, 84 S. Ct. 461 (1964). Plaintiff argues that her claims are not precluded because, unlike the claimants in Migra and Edmundson and in line with England, she preserved her federal civil rights claim for adjudication in federal court. Bradley, 913 F.2d at 1064.
The concepts of res judicata and collateral estoppel are distinct. Res judicata, also known as claim preclusion, gives dispositive effect to a prior judgment if the particular issue although never litigated could have been raised in the prior action. Bradley, 913 at 1070. Collateral estoppel, also known as issue preclusion, bars relitigation only of an issue identical to an issue adjudicated in the prior action. Id. We must give the state judgment the same preclusive effect as would the state. Id. (citing Migra, 465 U.S. at 81; 28 U.S.C. § 1738). In § 1983 cases, we must apply the same preclusion rules as would the courts of that state. Edmundson, 4 F.3d at 189 (citing Migra, 465 U.S. at 85-87).
1 . Res Judicata
a. Claim Splitting
The Defendants argue that all of Plaintiff's claims against the School District and Board Members are res judicata because Plaintiff cannot satisfy four factors that are "necessary for a proper reservation of the plaintiff's rights to separately litigate his federal claim." (Defs.' Reply Br. at 13; see also Defs.' Reply Br. at 14 ("the Bradley decision ...established [that plaintiff must seek an abstention] as a prerequisite to a proper reservation of rights.")). We believe this is a misreading of Bradley.
The Third Circuit in Bradley relied on two separate grounds when it held that claim preclusion did not apply. The Third Circuit first considered whether plaintiff had made a valid reservation under England "without deciding the general parameters of an England reservation." Bradley, 913 F.2d at 1072. The court concluded that the reservation of plaintiff's claims for federal adjudication must be recognized in the procedural situation facing that court, that is, where:
(1) the plaintiff initiates an action in federal court, (2) the plaintiff appeals the termination of his employment through state prescribed procedures while explicitly reserving his federal claim, (3) both the defendant and the state tribunal acquiesce in the reservation, and (4) the federal action is stayed pending the outcome of the state proceeding...
Id. at 1072.
In holding that res judicata did not apply, the Third Circuit in Bradley also relied on the exception in section 26(1) of the Restatement (Second) of Judgments which, in accord with the law of Pennsylvania, permits claim splitting. Bradley, 913 F.2d at 1072 (citing Coleman v. Coleman, 361 Pa. Super. 446, 522 A.2d 1115 (Pa. Super. Ct. 1987)(en banc) ("'the law of Pennsylvania is in accord with the approach taken by [section 26(1)(a) and (b) of] the Restatement.'")). Section 26(1) provides for an exception to the general rule of claim preclusion where:
"(a) the parties have agreed in terms or in effect that the plaintiff may split his claim or that the defendant has acquiesced therein; or