* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 15 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

TERESA L. JOHNSTON,

Plaintiff-Appellant,

v. ARDMORE INDEPENDENT SCHOOL DISTRICT NO. 19, a Political Subdivision; ROBERT “BOB” HAYNES, an Individual,

Defendants-Appellees. No. 97-7117 (D.C. No. 97-CV-218-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff Teresa L. Johnston appeals from the distr ict court’s order granting summary judgment in favor of the defendants, Ardmor e Independent School District No. 19 and Robert Haynes. We affirm. In 1995, plaintiff was a high school science teache r employed by the defendant school district. In January, 1995, she a lso began teaching science in the school’s alternative education program, known a s “Take Two,” on Wednesday evenings. On March 9, 1995, Johnston was assaultedby a student during the performance of her duties at the high school. She was injured and filed a workers compensation claim. On April 13, 1995, plaintiff w as informed that, because of dwindling enrollment, her Take Two teaching assignm ent had been discontinued and her class would be combined with another. Plai ntiff continued her employment in her job as daytime science teacher, a nd she teaches in the school district today. Plaintiff filed, then dismissed, a state court laws uit claiming she was discharged from her Take Two teaching assignment inretaliation for filing the workers compensation claim. She then filed suit infederal court alleging state and federal due process violations; breach of contr act; violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (FLSA); v iolations of state wage and labor laws; and retaliatory discharge. However, th e pretrial order set forth plaintiff’s claims as breach of contract of employm ent; retaliatory discharge under-3-

Okla. Stat. tit. 85, § 5, and retaliation prohibite d by the FLSA; and violation of state and FLSA wage and labor laws. Because the pretrial order did not list a civil rig hts or Fourteenth Amendment claim based on due process violations, th e district court concluded that plaintiff had not specified any federal due pr ocess claims, nor had she pled such a cause of action upon which relief could be g ranted. The only federal question was her allegation of FLSA violations, as to which the district court granted summary judgment. Finally, because there w as no basis other than the FLSA claims for federal jurisdiction, the district court declined to exercise supplemental jurisdiction over plaintiff’s pendent state law claims. I. Federal Due Process Claim Plaintiff first argues the district court erred in holding that she had not specified a civil rights or Fourteenth Amendment du e process claim upon which relief could be granted. Plaintiff’s complaint inc luded a brief, conclusory assertion that defendants violated her federal due process rights. However, the pretrial order did not include any federal due proc ess cause of action in its listing of claims, and defendants did not address, nor did plaintiff assert, any federal due process claim in the summary judgment motions filedafter the pretrial order. A pretrial order supersedes the complaint and contr ols the subsequent course of litigation. See Franklin v. United States , 992 F.2d 1492, 1497 (10th-4-

Cir. 1993); see also Fed. R. Civ. P. 16(e). Plaintiff’s opening brief on appeal did not dispute the district court’s finding that the p retrial order did not include a federal due process claim. Although plaintiff argu es in her appellate reply brief that certain statements in the pretrial order couldbe construed to state a federal due process claim, issues raised for the first time in a reply brief will generally not be considered. See Zimmerman v. Sloss Equip., Inc. , 72 F.3d 822, 830 (10th Cir. 1995). Plaintiff’s arguments on this point do not compel us to abandon that rule here. We agree with the district court’s conc lusion that the pretrial order did not include any federal civil rights or Fourteenth Amendment claim based on due process violations.

II. Summary Judgment Dismissal of the FLSA Claims The district court found that the only FLSA provisi on applicable to the facts pled by plaintiff was a claim for FLSA retali ation under 29 U.S.C. § 215(a)(3), which makes it unlawful for an employe r to discriminate against an employee because she has filed a complaint or insti tuted any proceeding under the FLSA. The district court held that plaintiff had n ot established a FLSA § 215(a)(3) retaliation claim because she had not f iled a complaint or proceeding under the FLSA at any time prior to the alleged ret aliation. A. FLSA Wage Claim-5-

Plaintiff contends that the district court erred indismissing her FLSA claim because, in addition to her claim that defendants r etaliated against her in violation of the FLSA, she also alleged that defendants faile d to properly pay her and account for her leave in violation of the FLSA. Intheir motion for summary judgment, defendants conceded that they initially d id not properly pay plaintiff or account for her leave following her assault in Marc h 1995, but they presented evidence demonstrating that they subsequently fullyreimbursed plaintiff and that she had received all the pay to which she was entit led. In response, plaintiff made only a conclusory alleg ation that defendants did not properly pay her for her Take Two teaching assi gnment and that such failure constituted violations of the FLSA. See Appellant’s App. at 213. Plaintiff did not specify the FLSA wage requirements she claimed had been violated. Plaintiff agreed that defendants “did reimburse [her] leave d ays and salary and they did pay for her Take Two salary before she was fired,” but added only that defendants “did not pay her correctly.” Id. at 209. Her brief does not explain how defendants failed to pay her correctly. The eviden ce plaintiff cites for this allegation consists of the letter she sent to defen dants about her pay prior to the reimbursement and the allegations in her affidavit that she was improperly paid prior to the reimbursement and “still [has] not bee n properly reimbursed for docked days or salary.” Id. at 224-25, 283. This evidence is insufficient to refute-6-

defendants’ evidence that, following the reimbursem ent, plaintiff received all the pay to which she was entitled. If the party moving for summary judgment carries it s burden of showing that there is an absence of evidence to support the nonmoving party’s case, “the non-movant may not rest upon [her] pleadings, but m ust set forth specific facts showing a genuine issue for trial as to those dispo sitive matters for which [she] carries the burden of proof.” Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation omitted; emphasis added). Althoug h the district court did not address plaintiff’s claim that defendants violated the FLSA’s wage requirements, it is clear that plaintiff failed to set forth any specific facts demonstrating that defendants’ reimbursement was improper or that defe ndants otherwise violated the FLSA’s wage requirements. See Murray v. City of Sapulpa , 45 F.3d 1417, 1422 (10th Cir. 1995) (“[t]o survive summary judgme nt, ‘non-movant’s affidavits must be based upon personal knowledge and set forthfacts that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient’”). Accordingly, we find no error in th e district court’s summary judgment dismissal of her FLSA wage claim. See Medina v. City & County of
Denver , 960 F.2d 1493, 1495 n.1 (10th Cir. 1992) (appellate court may “affirm a district court decision on any grounds for which th ere is a record sufficient to-7-

permit conclusions of law, even grounds not relied upon by the district court”) (quotation omitted). B. FLSA Retaliation Claim Plaintiff contends that the district court erred inholding that plaintiff had not filed a complaint or instituted any proceeding under the FLSA, a prerequisite to liability under § 215(a)(3) retaliation claim. She asserts that her complaints to the school that it had not properly paid her or acc ounted for her leave following her assault constituted her FLSA complaints. Plaintiff’s FLSA retaliation claim before the distr ict court focused on her allegation that defendants failed to properly pay h er and account for her leave in retaliation for her workers compensation claim and state lawsuit. See Appellant’s App. at 210-13. Plaintiff does not dispute the dis trict court’s conclusion that neither the filing of the workers compensation clai m nor the state court action constituted a complaint or proceeding asserting vio lations of the FLSA. Plaintiff points to a single statement in her motio n opposing summary judgment that she was “making claims pursuant to th e provisions of the FLSA for her wages and leave claims and for the retaliation she has experienced since she made those claims in 1995.” Id. at 213. Plaintiff’s wage complaints in 1995 may be sufficient to constitute protected activity unde r § 215(a)(3). See Conner v. Schnuck Mkts., Inc. , 121 F.3d 1390, 1394 (10th Cir. 1997) (the “‘unoff icial1 Plaintiff also argues, for the first time on appeal , that defendants’ failure to

call her for an interview when a Take Two teaching position opened up two years later constitutes continued retaliation for her FLS A wage complaints. Plaintiff did not link this action to her wage complaints in her arguments to the district court, see Tele- Communications, Inc. v. Commissioner , 12 F.3d 1005, 1007 (10th Cir. 1993) (as a general rule, an appellate court w ill not consider an issue raised for the first time on appeal), nor would suc h action be sufficient to justify an inference of causation; see Conner , 121 F.3d at 1395 (four-month time lag between participation in protected activity and termination not sufficient to justify inference of causation). -8- assertion of rights through complaints at work’ is protected” under § 215(a)(3)). However, plaintiff’s conclusory statement that defe ndants retaliated against her for her wage complaints is unsupported by any evide nce. The only retaliatory action that plaintiff arguablylinked to her wage complaints was her allegation that defendants did n ot pay her properly during the 1995-96 and 1996-97 school years. See Appellant’s App. at 212. 1 The evidence in the record that plaintiff cites to in support of this allegation consists of letters from her doctors explaining her medical status, a l etter she sent to the school requesting several hours of sick time in September 1996, and her conclusory statement in her affidavit that she “still [has] no t been properly reimbursed for docked days or salary.” Id. at 193, 211-13, 225, 263-268, 303-05, 306. “The conclusory allegations in [p]laintiff’s [affidavit] , are of as little help in carrying her burden under Rule 56(e) as are the conclusory arguments in her brief.” Adler v. Wal-Mart Stores, Inc. , No. 97-1026, 1998 WL 247700, at *4 (10th Cir. May18,-9-

1998). The doctors’ notes and the letter to the sc hool demonstrate nothing, in the absence of some evidence that the defendants inappr opriately disallowed plaintiff sick leave; nor would an inappropriate denial of si ck leave in September 1996 be sufficient to justify an inference of causation between such denial and her wage complaints in 1995. See Conner , 121 F.3d at 1395 (four-month time lag between participation in protected activity and terminationnot sufficient to justify inference of causation). Because plaintiff failed to present sufficient evidence demonstrating that defendants retaliated against he r for engaging in protected activity, we affirm the district court’s summary ju dgment dismissal of plaintiff’s FLSA claims.
III. Plaintiff contends the district court erred in dism issing her state claims. In reviewing a district court’s decision whether to ex ercise supplemental jurisdiction over state law claims, we apply an abuse of discret ion standard. See Anglemyer v. Hamilton County Hosp. , 58 F.3d 533, 541 (10th Cir. 1995). Judicial econ omy, fairness, convenience, and comity are all considerations that will guide a district court’s decision to defer to a state court rather than retaining and disposing of state law claims itself. See, e.g. , United Mine Workers v. Gibbs , 383 U.S. 715, 726-27 (1966); Sawyer v. County of Creek , 908 F.2d 663, 668 (10th Cir. 1990); see also 28 U.S.C. § 1367. We have held that when federal claims are resolved-10-

prior to trial, the district court should usually d ecline to exercise jurisdiction over state law claims and allow the plaintiff to pursue them in state court. See Ball v.
Renner , 54 F.3d 664, 669 (10th Cir. 1995). Having dispos ed of the federal claims on which jurisdiction rested, the district court di d not abuse its discretion in dismissing the state law claims. See § 1367(c)(3) (stating that when all federal claims are dismissed, district court may decline to exercise jurisdiction over remaining state claims). The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge