Shietze v. ITT Financial

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 16, 1997
• Docket: 96-6168
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 16 1997 TENTH CIRCUIT PATRICK FISHER Clerk

WILLIAM D. SHIETZE,

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

Defendant-Appellee.

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY, Circuit Judges.

After examining the briefs and appellate record, this 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 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* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. 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 Services Corporation

(ITT) alleging he was terminated in violation of the public policies of Oklahoma

for being a whistleblower. Specifically, Mr. Shietze asserted he was fired for his

refusal to participate in violations of ITT's contract with the United States

government and for reporting such violations to government 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. Donald 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 was fired, he had a conversation

with Mr. Fitch wherein Mr. Fitch stated he was tired 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 testified 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.

-2- On April 23, 1996, the jury returned a verdict in favor of ITT on all Mr.

Shietze's claims. On May 15, 1996, Mr. Shietze filed 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 discretion in governing the

presentation of evidence ...." Comcoa, Inc. v. NEC Telephones, Inc., 931 F.2d

655, 663 (10th Cir. 1991). Therefore, we review the 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 will not disturb the district

court's decision absent manifest injustice to the parties. Id. at 32. After a review

of the record, we conclude there is no manifest injustice 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 contract with the United States

government and his disclosure of these alleged violations to government officials.

1 To the extent Mr. Shietze attempts to assert a denial of due process claim based on the district court’s evidentiary ruling, his claim is without merit and will not be considered further.

-3- During the defense case-in-chief, Mr. Fitch testified 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. Shietze 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 the conversation on the day Mr.

Shietze was terminated. Even assuming Mr. Kent's testimony was a proper

rebuttal to Mr. Fitch's testimony that he could not recall a conversation, Mr. Kent

was available during Mr. Shietze's case-in-chief and, 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 rebuttal 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 abuse its discretion in

refusing to allow Mr. Shietze to call Mr. Kent as a rebuttal witness.

AFFIRMED.

Entered for the Court

WADE BRORBY United States Circuit Judge

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