                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 15 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    TERESA L. JOHNSTON,

                Plaintiff-Appellant,

    v.                                                    No. 97-7117
                                                    (D.C. No. 97-CV-218-S)
    ARDMORE INDEPENDENT                                   (E.D. Okla.)
    SCHOOL DISTRICT NO. 19,
    a Political Subdivision; ROBERT
    “BOB” HAYNES, an Individual,

                Defendants-Appellees.




                            ORDER AND JUDGMENT *



Before KELLY, BARRETT, and HENRY, Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the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 judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Teresa L. Johnston appeals from the district court’s order granting

summary judgment in favor of the defendants, Ardmore Independent School

District No. 19 and Robert Haynes. We affirm.

      In 1995, plaintiff was a high school science teacher employed by the

defendant school district. In January, 1995, she also began teaching science in

the school’s alternative education program, known as “Take Two,” on Wednesday

evenings. On March 9, 1995, Johnston was assaulted by 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 was informed that, because of

dwindling enrollment, her Take Two teaching assignment had been discontinued

and her class would be combined with another. Plaintiff continued her

employment in her job as daytime science teacher, and she teaches in the school

district today.

      Plaintiff filed, then dismissed, a state court lawsuit claiming she was

discharged from her Take Two teaching assignment in retaliation for filing the

workers compensation claim. She then filed suit in federal court alleging state

and federal due process violations; breach of contract; violations of the Fair

Labor Standards Act, 29 U.S.C. §§ 201-219 (FLSA); violations of state wage and

labor laws; and retaliatory discharge. However, the pretrial order set forth

plaintiff’s claims as breach of contract of employment; retaliatory discharge under


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Okla. Stat. tit. 85, § 5, and retaliation prohibited by the FLSA; and violation of

state and FLSA wage and labor laws.

      Because the pretrial order did not list a civil rights or Fourteenth

Amendment claim based on due process violations, the district court concluded

that plaintiff had not specified any federal due process claims, nor had she pled

such a cause of action upon which relief could be granted. The only federal

question was her allegation of FLSA violations, as to which the district court

granted summary judgment. Finally, because there was 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 due process claim upon which

relief could be granted. Plaintiff’s complaint included a brief, conclusory

assertion that defendants violated her federal due process rights. However, the

pretrial order did not include any federal due process 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 filed after the pretrial order.

      A pretrial order supersedes the complaint and controls the subsequent

course of litigation. See Franklin v. United States, 992 F.2d 1492, 1497 (10th


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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 pretrial order did not include a

federal due process claim. Although plaintiff argues in her appellate reply brief

that certain statements in the pretrial order could be 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 conclusion 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 provision applicable to the

facts pled by plaintiff was a claim for FLSA retaliation under 29 U.S.C.

§ 215(a)(3), which makes it unlawful for an employer to discriminate against an

employee because she has filed a complaint or instituted any proceeding under the

FLSA. The district court held that plaintiff had not established a FLSA

§ 215(a)(3) retaliation claim because she had not filed a complaint or proceeding

under the FLSA at any time prior to the alleged retaliation.

                                A. FLSA Wage Claim




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      Plaintiff contends that the district court erred in dismissing her FLSA claim

because, in addition to her claim that defendants retaliated against her in violation

of the FLSA, she also alleged that defendants failed to properly pay her and

account for her leave in violation of the FLSA. In their motion for summary

judgment, defendants conceded that they initially did not properly pay plaintiff or

account for her leave following her assault in March 1995, but they presented

evidence demonstrating that they subsequently fully reimbursed plaintiff and that

she had received all the pay to which she was entitled.

      In response, plaintiff made only a conclusory allegation that defendants did

not properly pay her for her Take Two teaching assignment 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 days 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 evidence plaintiff cites for this

allegation consists of the letter she sent to defendants 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 been properly reimbursed for

docked days or salary.” Id. at 224-25, 283. This evidence is insufficient to refute


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defendants’ evidence that, following the reimbursement, plaintiff received all the

pay to which she was entitled.

      If the party moving for summary judgment carries its 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 must set forth specific facts

showing a genuine issue for trial as to those dispositive matters for which [she]

carries the burden of proof.” Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.

1996) (quotation omitted; emphasis added). Although 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 defendants 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 judgment, ‘non-movant’s affidavits

must be based upon personal knowledge and set forth facts that would be

admissible in evidence; conclusory and self-serving affidavits are not

sufficient’”). Accordingly, we find no error in the 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 there is a record sufficient to




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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 in holding 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 accounted for her leave following

her assault constituted her FLSA complaints.

      Plaintiff’s FLSA retaliation claim before the district court focused on her

allegation that defendants failed to properly pay her 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 district court’s conclusion that

neither the filing of the workers compensation claim nor the state court action

constituted a complaint or proceeding asserting violations of the FLSA.

      Plaintiff points to a single statement in her motion opposing summary

judgment that she was “making claims pursuant to the 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 under § 215(a)(3). See Conner v.

Schnuck Mkts., Inc., 121 F.3d 1390, 1394 (10th Cir. 1997) (the “‘unofficial


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assertion of rights through complaints at work’ is protected” under § 215(a)(3)).

However, plaintiff’s conclusory statement that defendants retaliated against her

for her wage complaints is unsupported by any evidence.

      The only retaliatory action that plaintiff arguably linked to her wage

complaints was her allegation that defendants did not 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 letter 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] not 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. May 18,



1
       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 FLSA 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 will not consider an issue
raised for the first time on appeal), nor would such 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).

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1998). The doctors’ notes and the letter to the school demonstrate nothing, in the

absence of some evidence that the defendants inappropriately disallowed plaintiff

sick leave; nor would an inappropriate denial of sick 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 termination not sufficient to justify

inference of causation). Because plaintiff failed to present sufficient evidence

demonstrating that defendants retaliated against her for engaging in protected

activity, we affirm the district court’s summary judgment dismissal of plaintiff’s

FLSA claims.

                                          III.

      Plaintiff contends the district court erred in dismissing her state claims. In

reviewing a district court’s decision whether to exercise supplemental jurisdiction

over state law claims, we apply an abuse of discretion standard. See Anglemyer

v. Hamilton County Hosp., 58 F.3d 533, 541 (10th Cir. 1995). Judicial economy,

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


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prior to trial, the district court should usually decline 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 disposed of the federal claims

on which jurisdiction rested, the district court did 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 for the Eastern District of

Oklahoma is AFFIRMED.



                                                      Entered for the Court



                                                      James E. Barrett
                                                      Senior Circuit Judge




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