Hullman v. BD. OF TRUSTEES OF PRATT COM. COLLEGE, 86-4026-C.
| Decision Date | 12 February 1990 |
| Docket Number | No. 86-4026-C.,86-4026-C. |
| Citation | 732 F. Supp. 91 |
| Parties | Don H. HULLMAN, Plaintiff, v. BOARD OF TRUSTEES OF PRATT COMMUNITY COLLEGE, Defendant. |
| Court | U.S. District Court — District of Kansas |
Wesley A. Weathers, Weathers & Riley, Topeka, Kan., for plaintiff.
Kelly J. Rundell, Hershberger, Patterson, Jones & Roth, Wichita, Kan., for defendant.
The case comes before the court on the parties' respective motions to reconsider the court's order filed November 29, 1989, 725 F.Supp. 1536, and on the plaintiff's alternative motion for certification of controlling questions of law for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). In its prior order, the court granted in part the defendant's motion for summary judgment on all of the plaintiff's claims. Plaintiff seeks reconsideration of the court's entry of summary judgment on his right to petition claim and on the issue of whether he conditionally accepted the defendant's contract offer for the 1985-1986 school year. Defendant requests reconsideration of the court's denial of summary judgment on plaintiff's first amendment claim. Since defendant's motion raises a number of points which if resolved in a particular way would also affect the substance of plaintiff's motion, the court will address first the defendant's motion. Because of its lengthy discussion of the issues in the November 29th order, the court's ruling and explanation on the motions to reconsider will be brief.
Summarizing the court's holdings on the first amendment claims, plaintiff's complaints over his reassignment, including his comments to the Board in executive session on July 15th, are not protected speech. Plaintiff's criticisms of financial mismanagement of the ASEF and student scholarships made on earlier dates do address issues of public concern. Due to the deposition testimony of Board member, James Van Blaricum, questions of fact exist concerning whether plaintiff's reassignment and nonrenewal were done in retaliation for his criticisms of financial mismanagement and wrongdoing.
Defendant contends the last holding should be altered for either of the following reasons—plaintiff has not alleged in the pretrial order a first amendment claim on his criticisms of financial mismanagement, or additional portions of Van Blaricum's deposition clarify his testimony on whether the plaintiff's claims of fiscal improprieties were a reason for plaintiff's reassignment. Defendant's first reason apparently arises from the court's earlier observation in the November 29th order that a literal reading of the pretrial order does not reveal such a claim. This motion to reconsider has provided yet another opportunity for the court to review carefully the plaintiff's issues and contentions in the pretrial order. Plaintiff's first amendment claims are stated in general and conclusory terms, with few specific references to the occasions or content of his speech. There is nothing directly or indirectly alleged in the pretrial order that plaintiff's protected speech includes his complaints of financial mismanagement. The only indication of speech content is made in regards to plaintiff's peaceful and orderly protest of his reassignment.
The pretrial order supersedes the pleadings and controls the subsequent course of litigation. Fed.R.Civ.P. 16(e). The trial court has the discretion to exclude from trial those issues and claims not found in the pretrial order. Randolph County v. Alabama Power Co., 784 F.2d 1067, 1072 (11th Cir.1986), modified on other grds, 798 F.2d 425 (1986), cert. denied, 479 U.S. 1032, 107 S.Ct. 878, 93 L.Ed.2d 833 (1987). A plaintiff cannot escape the binding effect of the pretrial order by raising new issues in a response to the defendant's motion for summary judgment. Bieber v. Associated Collection Services, Inc., 631 F.Supp. 1410, 1414 (D.Kan.1986). In the case at bar, the plaintiff simply has failed to set forth any issue or claim that his protected speech involves his complaints of financial mismanagement, and the fact that he may have done so in an earlier interrogatory does not bear on a liberal construction of the pretrial order. There being no motion to modify or amend the pretrial order pending, the court is well within its discretion to exclude such assertions from the action. On reconsideration, the court grants summary judgment for defendant on plaintiff...
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