* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral 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 

### MAY 16 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
WILLIAM D. SHIETZE, Plaintiff-Appellant,
v. ITT FINANCIAL SERVICES, a Delaware Corporation, Defendant-Appellee. No. 96-6168 (D.C. No. CIV-95-763-L) (W.D. Okla.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Mr. William D. Shietze appeals the district court's refusal to allow him to call a rebuttal witness.
Mr. Shietze filed this action against ITT Federal S ervices Corporation (ITT) alleging he was terminated in violation of th e public policies of Oklahoma for being a whistleblower. Specifically, Mr. Shiet ze asserted he was fired for his refusal to participate in violations of ITT's contr act with the United States government and for reporting such violations to gov ernment officials.
Mr. Shietze's claims were tried to a jury March 18- 22, 1996. After ITT's case-in-chief, Mr. Shietze attempted to call Mr. Do nald Kent as a rebuttal witness to the testimony of Mr. Jim Fitch, Mr. Shietze's supervisor. Allegedly, Mr. Kent would have testified that on the day Mr. Shietze wa s fired, he had a conversation with Mr. Fitch wherein Mr. Fitch stated he was tire d of Mr. Shietze complaining and going to the government and he had figured out a way to get rid of him.
The district court disallowed this testimony on the grounds it was not proper rebuttal testimony considering Mr. Fitch tes tified he could not recall a conversation with Mr. Kent on the date Mr. Shietze was fired and that it should have been presented in Mr. Shietze's case-in-chief.1 To the extent Mr. Shietze attempts to assert a de nial of due process claim

based on the district court’s evidentiary ruling, h is claim is without merit and will not be considered further.
-3- On April 23, 1996, the jury returned a verdict in f avor of ITT on all Mr. Shietze's claims. On May 15, 1996, Mr. Shietze fil ed his notice of appeal.
On appeal, Mr. Shietze challenges the district court's refusal to allow him to call Mr. Kent as a rebuttal witness to Mr. Fitch 's testimony. 1
"A district court possesses considerable discretionin governing the presentation of evidence ...." Comcoa, Inc. v. NEC Telephones, Inc. , 931 F.2d 655, 663 (10th Cir. 1991). Therefore, we review th e district court's evidentiary rulings for an abuse of discretion. Pandit v. American Honda Motor Co. , 82 F.3d 376, 379 (10th Cir. 1996). More specifically, we w ill not disturb the district court's decision absent manifest injustice to the p arties. Id . at 32. After a review of the record, we conclude there is no manifest inj ustice in this case.
Mr. Shietze's entire case rested on the theory ITT terminated him for his refusal to participate in ITT's violations of its c ontract with the United States government and his disclosure of these alleged viol ations to government officials.-4-

During the defense case-in-chief, Mr. Fitch testifi ed he did not recall a conversation regarding Mr. Shietze's termination on the date Mr. Shietze was fired and that he did not tell Mr. Kent that Mr. Sh ietze complained too often and was going to be gotten rid of. After this testimony, Mr. Shietze attempted to call Mr. Kent to rebut Mr. Fitch's testimony regarding t he conversation on the day Mr. Shietze was terminated. Even assuming Mr. Kent's t estimony was a proper rebuttal to Mr. Fitch's testimony that he could notrecall a conversation, Mr. Kent was available during Mr. Shietze's case-in-chief an d, given the nature of Mr. Kent's testimony, should have been called then. See Pandit , 82 F.3d at 383 (affirming district court's refusal to allow rebutt al evidence available in appellant's case-in-chief). Additionally, there is no indication in the record Mr. Fitch's testimony was unexpected.
Accordingly, we hold the district court did not abu se its discretion in refusing to allow Mr. Shietze to call Mr. Kent as arebuttal witness.

AFFIRMED
. Entered for the Court WADE BRORBY United States Circuit Judge