Muller v. Vilsack et al

Filing 305

MEMORANDUM OPINION AND ORDER by Chief Judge M. Christina Armijo granting 258 Motion for Summary Judgment (cab)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MILOSLAV MULLER,
Plaintiff,
v.

No. 13-CV-431 MCA/KK

TOM VILSACK, SECRETARY,
U.S. DEPARTMENT OF
AGRICULTURE, et al.
Defendants.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant Tom Vilsack’s Motion for
Summary Judgment and Supporting Memorandum. [Doc. 258] Having considered the
parties’ submissions, the relevant law, and otherwise being fully advised in the premises,
the Court hereby GRANTS the Motion.
BACKGROUND
In this suit, Plaintiff pro se sues Secretary of the Department of Agriculture Tom
Vilsack1 and others for claims arising from Plaintiff’s employment as a Veterinary
Medical Officer and Area Epidemiology Officer with the Department of Agriculture,
Animal Plant Health Inspection Services (APHIS) for the State of New Mexico.2 [Doc.

1

Mr. Vilsack is no longer the Secretary of the Department of Agriculture. The Agency
has not yet moved to substitute the current Secretary of the Department of Agriculture.
2
This is Plaintiff’s second lawsuit against the Secretary of the Department of Agriculture
arising from his employment. Muller v. Vilsack et al., Civ. No. 12-1136 RB/LFG
(D.N.M). Plaintiff moved to withdraw his previous complaint because he was unable to
serve certain defendants (other than Vilsack). [Doc. 166, p. 2]
1

141, ¶¶ 23, 28]

Prior to filing this suit, Plaintiff filed three administrative claims

concerning the matters in his Second Amended Complaint [Doc. 141]: APHIS 200800060, APHIS 2008-00783, and APHIS 2008-00027. Earlier in these proceedings, this
Court dismissed Plaintiff’s claims arising from Plaintiff’s Administrative Complaint
APHIS-2008-00060 (relating to Plaintiff’s termination) as untimely because Plaintiff did
not file those claims within the 30-day limitation period set forth in the Civil Service
Reform Act. [Doc. 141, ¶¶ 14-15; Doc. 166, p. 10] Accordingly, the only claims
remaining against Defendant Vilsack were set forth in Administrative Complaints APHIS
2008-0073 (hereafter Complaint 783) and APHIS 2008-00027 (hereafter, Complaint 27),3
which both allege unlawful retaliation contrary 42 U.S.C. § 2000e-3. [Doc. 141, ¶¶ 32847]
After stating the controlling law, the Court sets out the facts pertaining to each
complaint separately, along with the Court’s analysis, below.
ANALYSIS
Review of Pro Se Filings
A district court must construe a pro se plaintiff’s pleadings liberally and hold the
pleadings to a less stringent standard than formal pleadings drafted by lawyers. See
McBride v. Deer, 240 F.3d 1287, 1289, 1290 (10th Cir. 2001). While a district court may
make some allowances if a pro se plaintiff fails to cite proper legal authority, confuses
various legal theories, uses poor syntax and sentence construction, and is unfamiliar with

3

The parties analyze these claims by Administrative Complaint, and the Court will do the
same.
2

pleading requirements, “the court cannot take on the responsibility of serving as the
litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Moreover, pro se parties
must follow the same rules of civil procedure that govern other litigants. Id.
Summary Judgment
“Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Jones v. Kodak Med. Assistance Plan, 169 F.3d 1287,
1291 (10th Cir. 1999) (internal quotation marks and citation omitted); see also Fed. R.
Civ. P. 56(a), (c). “An affidavit or declaration used to support or oppose a motion must
be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to testify on the matters stated.” Fed. R.
Civ. P. 56(c)(4). “A disputed fact is ‘material’ if it might affect the outcome of the suit
under the governing law, and the dispute is ‘genuine’ if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” MacKenzie v. City &
Cnty. of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005) (internal quotation marks and
citation omitted). “Once the movant demonstrates no genuine issue of material fact, the
nonmovant is given wide berth” to demonstrate that a factual controversy exists. Id. The
Court views the evidence in the light most favorable to the nonmovant. Ward v. Jewell,
772 F.3d 1199, 1202 (10th Cir. 2014). “Unsupported conclusory allegations, however,
do not create an issue of fact.” MacKenzie, 414 F.3d at 1273.
3

Preliminary Issues
Construing Plaintiff’s Response in Opposition to Secretary Vilsack’s Motion for
Summary Judgment liberally, Plaintiff objects to the affidavits and declaration submitted
by Defendant Vilsack in toto on the grounds that they are not made on personal
knowledge. [Doc. 263, pp. 10-11] Despite the fact that Plaintiff fails to identify which
portions of which affidavits/declaration are not made on personal knowledge, the Court
has taken this objection into account. Accordingly, in setting out the facts, where the
facts come from an affidavit or declaration, the Court has first determined that such facts
were based on personal knowledge. See, e.g., Argo v. Blue Cross & Blue Shield of
Kansas, Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) (stating that to have personal
knowledge of a matter the witness must “have actually perceived or observed that which
he testifies to” (internal quotation marks and citations omitted)).
Furthermore, Plaintiff argues that, at the time he filed his Response, he had
pending motions to compel discovery he sought from Defendant Vilsack.

Plaintiff

specifically argues that he needs to obtain various evidence he sought pertaining to his
allegation that one of his USDA co-workers engaged in fraud and that there was “an
absolute collapse of the USDA’s inspection activities for the presence of Scrapie infected
sheep at Hunts Meats slaughter plant . . . that supplies mutton to residents of nearby
Navajo Reservation.”

[Doc. 263, pp. 2-3]

He states this evidence is “critical to

Plaintiff’s claim of reckless exposure of Native Americans to Scrapie prion proximately
caused by the USDA, and . . . by the NMLB officials’ deliberate failure to enforce the
statutory Scrapie control and eradication program.” []Doc. 263, p. 3] Plaintiff argues
4

that this evidence will demonstrate a material issue “related to USDA officials and State
Defendants’ liability for their racially-motivated retaliatory acts against Plaintiff,
including their involvement in illegal activities.” [Doc. 263, p. 5] Plaintiff also argues
that he needed “sanitized fiscal documents that Plaintiff needs for comparison for lost
overtime earnings.” [Doc. 263, p. 3]
After Plaintiff filed his Response, Magistrate Judge Khalsa denied Plaintiff’s
motion to compel evidence regarding the Scrapie control and eradication program
because the requested documents were irrelevant to Plaintiff’s claims. [Doc. 276, pp. 34] The Court agrees. This case is about whether Defendant Vilsack retaliated against
Plaintiff for engaging in activity protected by 42 U.S.C. § 2000e-3 (protected activity
includes having “made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter[,]” thereby pertaining to an
unlawful employment practice). Evidence regarding the purportedly fraudulent activity
by Plaintiff’s co-worker and/or the Agency is immaterial to retaliation against Plaintiff
for engaging in protected activity under Section 2000e-3, and thus would not establish
any genuine issue of material fact allowing this Court to deny summary judgment. As to
the overtime documents Plaintiff sought to compel, because the Court grants summary
judgment on the ground that no unlawful retaliation occurred under 42 U.S.C. § 2000e-3,
documents demonstrating damages4 are irrelevant. Accordingly, Plaintiff’s Rule 56(d)
request is denied.

4

Alternatively, Plaintiff may believe that these documents would demonstrate a
materially adverse employment action by showing differential treatment of similarly
5

Retaliation Claims Under 42 U.S.C. § 2000e-3
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to
retaliate against an employee for engaging in protected activities. 42 U.S.C. § 2000e-3.
A plaintiff can demonstrate unlawful retaliation under Title VII by either direct or
circumstantial evidence. “[D]irect evidence demonstrates on its face that the employment
decision was reached for discriminatory reasons.” Riggs v. AirTran Airways, Inc., 497
F.3d 1108, 1117 (10th Cir. 2007) (internal quotation marks and citation omitted); see also
Gorny v. Salazar, 413 F. App’x 103, 107 (10th Cir. 2011) (unpublished decision)
(“[D]irect evidence of retaliation is evidence, which if credited, does not require any
inference or presumption to establish that unlawful retaliation motivated an employer’s
action.”). No such evidence is present in this case. Because Plaintiff relies solely on
circumstantial evidence, he must rely on the McDonnell Douglas three-step, burdenshifting framework. See Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th
Cir. 2011). At the first step in this framework, the employee must make out a prima facie
case of retaliation by showing: “(1) [he or] she engaged in protected [conduct], (2) a
reasonable employee would have considered the challenged employment action
materially adverse, and (3) a causal connection existed between the protected activity and
the materially adverse action.” Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 638
(10th Cir. 2012) (internal quotation marks and citation omitted).

situated employees. However, the Agency does not dispute that allowed other employees
to attend the task force meetings, thus obviating the need for documentation.
6

The first prong of the McDonnell Douglas prima facie case is whether the
employee engaged in protected conduct. An employee who has “made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under
this subchapter” has engaged in protected conduct. 42 U.S.C. § 2000e-3(a); see also
Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2522 (2013) (stating that Section
2000e-3 prohibits “employer retaliation on account of an employee’s having opposed,
complained of, or sought remedies for, unlawful workplace discrimination”).
The second prong of the McDonnell Douglas prima facie case is that a
“reasonable employee would have found the challenged employment action materially
adverse.”

McGowan v. City of Eufala, 472 F.3d 736, 741 (10th Cir. 2006).

An

employer's action is materially adverse under Title VII if it “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington N.
& Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks and citation
omitted). “The materiality of a claimed adverse action is to be determined objectively;
petty slights, minor annoyances, and simple lack of good manners will not deter a
reasonable worker from making or supporting a charge of discrimination.” McGowan,
472 F.3d at 742 (internal quotation marks and citations omitted). The Court must decide
whether an act alleged to be materially adverse meets this standard on a case-by-case
basis. Id.
The real social impact of workplace behavior often depends on a
constellation of surrounding circumstances, expectations, and relationships
which are not fully captured by a simple recitation of the words used or the
physical acts performed. . . . A schedule change in an employee's work
7

schedule may make little difference to many workers, but may matter
enormously to a young mother with school-age children.
White, 548 U.S. at 69 (internal quotation marks and citations omitted). Thus, with regard
to changes in shift or work schedule, generally, the Court must decide whether such
change is “a mere inconvenience or an alteration of job responsibilities [which is] not
actionable.” McGowan, 472 F.3d at 742 (internal quotation marks and citation omitted).
Given this highly fact driven standard, at the summary judgment stage, the Plaintiff must
point to facts which demonstrate that a change in work schedule was more than a minor
annoyance. See id. at 742-43 (concluding that the plaintiff failed to demonstrate that a
reasonable person would find the action of denial of a shift change to be materially
adverse where the plaintiff relied only on her “undefined subjective preference” for a
shift change).
With regard to causation, the third prong of the McDonnell Douglas prima facie
case, in Nassar, our Supreme Court held that “Title VII retaliation claims require proof
that the desire to retaliate was the but-for cause of the challenged employment action.”
Nassar, 133 S.Ct. at 2528. Our Tenth Circuit has applied Nassar’s but-for causation test
at prima facie stage of the McDonnell Douglas analysis. Ward, 772 F.3d at 1203 (stating
that the plaintiff did not meet his burden of presenting a prima facie case where he failed
to meet the but-for causation standard).
To establish a causal connection, [the plaintiff] must present “evidence of
circumstances that justify an inference of retaliatory motive.” Williams v.
W.D. Sports, N.M., Inc., 497 F.3d 1079, 1091 (10th Cir. 2007). If the
protected conduct is closely followed by the adverse action, courts have
often inferred a causal connection. Id.
8

Id. Where the protected conduct took place significantly earlier, the Plaintiff must rely
on additional evidence to establish causation. Id.; see Anderson v. Coors Brewing Co.,
181 F.3d 1171, 1179 (10th Cir.1999) (noting that a three-month period between the
protected conduct and the adverse action was too long for a fact-finder to infer
causation). The plaintiff bears the burden of showing that the individual who took
adverse action against him or her knew about the protected activity. Williams v. Rice,
983 F.2d 177, 181 (10th Cir. 1993).
Once the plaintiff meets his or her burden of establishing a prima facie case of
retaliation, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for its employment decision. This burden is “exceedingly light.” See, e.g.,
Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1173 (10th Cir. 2007) (internal quotation
marks and citation omitted). “To satisfy this burden, the employer need only produce
admissible evidence which would allow the trier of fact rationally to conclude that the
employment decision had not been motivated by discriminatory animus.” Anaeme v.
Diagnostek, Inc., 164 F.3d 1275, 1279 (10th Cir. 1999) (internal quotation marks and
citation omitted). “By producing evidence (whether ultimately persuasive or not) of
nondiscriminatory reasons, [the employer] sustain[s] [its] burden of production.

St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (10th Cir. 1993).
If the employer proffers a legitimate, non-discriminatory reason for taking an
adverse action, the burden of persuasion then falls to the Plaintiff to demonstrate that the
proffered reason is pretexual. “A plaintiff demonstrates pretext by showing either that a
discriminatory reason more likely motivated the employer or that the employer’s
9

proffered explanation is unworthy of credence.” Zamora v. Elite Logistics, Inc., 478 F.3d
1160, 1166 (10th Cir. 2007) (en banc). “In establishing pretext, an employee can show
the employer's proffered reason was so inconsistent, implausible, incoherent, or
contradictory that it is unworthy of belief.” Piercy v. Maketa, 480 F.3d 1192, 1200 (10th
Cir. 2007) (internal quotation marks and citations omitted).
With these standards in mind, the Court first turns to considering the question of
whether Plaintiff has met his initial burden of showing a prima facie case under the
McDonnell Douglas test.
Complaint 783
The Court sets forth the following material facts, which are either undisputed or
viewed in the light most favorable to Plaintiff as the nonmovant. In Complaint 783,
Plaintiff states that he complained of “continuous harassment and retaliation from the
Agency’s management showing a pattern of adverse actions,” referring to three discrete
events. For ease of discussion, the Court describes and analyzes each event before
discussing the next event.
Plaintiff alleges:5

5

The parties did not attach Plaintiff’s administrative complaints or other documents
pertaining to Plaintiffs administrative complaints as exhibits in their briefing on the
Motions for Summary Judgment. In describing Plaintiff’s complaints, Defendant Vilsack
cites the Second Amended Complaint. [Doc. 258, ¶¶ 3, 5, 7] Plaintiff does not dispute
Defendant’s description of his administrative complaints. [Doc. 263] Thus, construing
the facts in the light most favorable to Plaintiff, and liberally construing his filings given
his pro se status, the Court recites verbatim Plaintiff’s description of his administrative
complaints set forth in the Second Amended Complaint and treats this description as an
accurate statement of the administrative complaints.
10

329. Issue One: On May 30, 2008 at 4:46 p.m., Plaintiff sent an e-mail to
Dr. John Belfrage, the USDA Western Regional Brucellosis
Epidemiologist, requesting him to respond to the Plaintiff's e-mail sent two
weeks earlier regarding the previously un-encountered issue of brucellosis
testing in the field in New Mexico. Dr. Belfrage replied on June 3, 2008 at
[9:01 a.m.] However, he refused to appropriately respond and to describe
proper procedures Plaintiff asked to clarify. Dr. Belfrage had duty to clarify
such issues, but he in bad-faith refused to do so in retaliation for the
Plaintiff's EEO activity consisting from representing a member of Isleta
Pueblo in his EEO complaint of racial discrimination against the USDA.
(ROI 783 at Exh. A, page 2; 3).
[Doc. 258, ¶ 4; Doc. 141 (Emphasis added.)]6 First, as it is not disputed, the Court
assumes that Plaintiff engaged in protected activity, that is, representation of an employee
in his EEO complaint. However, Defendant Vilsack argues that: Plaintiff has not
identified a materially adverse employment action; Plaintiff cannot establish a causal
connection between his EEO activity and Dr. Belfrage’s actions; Dr. Belfrage has
articulated a legitimate, non-retaliatory explanation for his actions; and Plaintiff failed to
demonstrate pretext.

[Doc. 258, p. 13]

The Court agrees with Defendant on all

arguments.

6

Plaintiff cites the ROI (the Agency’s Record of Investigation) in his Second Amended
Complaint. Neither party attached these portions of the administrative record to their
filings. It appears that Plaintiff attempted to file the entire ROI as a stand-alone
document at the time he filed his Second Amended Complaint, however, the Magistrate
Judge struck the documents Plaintiff attempted to file because “evidence should generally
not be submitted in conjunction with pleadings” and the evidence was not relevant to the
pending motions to dismiss. [Doc. 92] The Magistrate Judge did not err in striking these
documents. It would not be appropriate for this Court to now rely on properly stricken
documents, and thus the Court will not do so.
11

First, the email exchange demonstrates that Dr. Belfrage advised Plaintiff under
which circumstances various actions were warranted.7 [Doc. 258-6, p. 4] Dr. Belfrage
also told Plaintiff to “[m]ake a decision based on sound [judgment],”8 that, given
Plaintiff’s education and training, he “should know what to do,” [Doc. 258-6, p. 4] and “I
am sure you can make the appropriate decision.” [Doc. 258-6, p. 1] Nothing within
these emails approaches an action which a “reasonable employee would have found . . .
materially adverse.” McGowan, 472 F.3d at 742 (internal quotation marks and citation
omitted). While Plaintiff claims that Dr. Belfrage had a duty to “clarify such issues,”
[Doc. 141, ¶ 329] he has produced no evidence of such a duty, particularly given
Plaintiff’s education and professional duties. Further, Dr. Belfrage’s emails advised
Plaintiff of the circumstances in which particular actions were appropriate. Accordingly,
no reasonable jury could conclude that these emails or Dr. Belfrage’s statements were a
materially adverse employment action.
Second, Plaintiff cannot demonstrate a causal connection between this event and
Plaintiff’s prior EEO activity. The EEO activity which Plaintiff relies upon with regard
to Complaint 783 is his “represent[ation of] a member of Isleta Pueblo in his EEO
complaint of racial discrimination against the USDA.” [Doc. 141, ¶ 329] However,

7

Dr. Belfrage stated “[i]f supplemental work results in reactor classification, a trace is
[warranted]” and “tracing out card positives with no other titers indicating that the animal
could be affected should not initiate any other work.” [Doc. 258-6, p. 4]
8
The Court notes that statements by various witnesses have typographical errors, spelling
errors, punctuation errors, grammatical errors, and/or awkward phrasing. To promote the
ease of reading and in an effort to not interfere with the witness’s or Plaintiff’s word
choice, the Court elects not to use “(sic)” or bracketed corrections with the exceptions of:
misspelled words, apostrophe related errors, and the elimination of one aberrant comma.
12

Plaintiff has not provided the Court with details about this activity, including its date.9
Dr. Belfrage attests that he did not know about any of Plaintiff’s prior EEO activity, and,
rather than pointing to evidence which creates a factual dispute as to this knowledge,
Plaintiff argues that the fact that Dr. Belfrage copied his email response to Plaintiff’s
supervisor demonstrates “that Dr. Belfrage was aware about [Plaintiff’s] EEO activity.”
[Doc. 263, p. 13] The Court concludes that no reasonable jury could draw the same
conclusion. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008)
(stating that the plaintiff must “come forward with evidence from which a reasonable
factfinder could conclude that those who decided to fire him had knowledge of his
protected activity”); Pioneer Ctrs. Holding Co. Emp. Stock Ownership Plan & Trust v.
Alerus Fin., N.A., 858 F.3d 1324, 1334 (10th Cir. 2017) (“[A]n inference is unreasonable
if it requires a degree of speculation and conjecture that renders the factfinder’s findings a
guess or mere possibility.” (Internal brackets, quotation marks and citations omitted)).
Third, Dr. Belfrage offered a legitimate, non-discriminatory explanation of why he
responded the way he did. He states that he knows that Plaintiff has an advanced
university degree in epidemiology and had specialized training on evaluating brucellosis
titers. Plaintiff was the “Designated Brucellosis Epidemiologist for New Mexico for a
9

Plaintiff attaches to his Response a letter from the USDA to the Governor of the Pueblo
of Isleta addressing an Isleta tribal member’s “allegations of discriminatory treatment by
officials with our Animal and Plant Health Inspection Service.” [Doc. 263-1, p. 49] This
letter is dated June 23, 2003, i.e., approximately five years before Plaintiff’s email
exchange with Dr. Belfrage. Thus, assuming this letter has something to do with
Plaintiff’s representation of the Isleta Tribal member, it occurred years before the alleged
retaliatory acts, and thus no inference of causation can be made. See, e.g., Hinds, 523
F.3d at 1204 (discussing the temporal proximity necessary for a causal inference;
pointing out that three months or longer is insufficient).
13

number of years prior to 2005.” [Doc. 258-7, p. 1] He stated that he did not have all of
the facts, but Plaintiff did. [Doc. 258-7, p. 2] He stated that it was within Plaintiff’s job
description as the Designated Brucellosis Epidemiologist to “use his best judgment based
on his overall knowledge of the cattle in his state” and that he would have supported
Plaintiff’s decision. [Doc. 258-7, pp. 2-3] In other words, Dr. Belfrage’s legitimate, nondiscriminatory reason for telling Plaintiff to use his best judgment was because it was
Plaintiff’s job to do so.
Finally, Plaintiff has not come forward with evidence of pretext. Plaintiff states:
“by significantly departing from the agency’s policy that instructed Dr. Belfrage to help
field epidemiologist with complicated issues, as such this one, is indicative of retaliatory
pretext.” [Doc. 263, p. 13] However, Plaintiff has not provided evidence of such policy.
In sum, for the above reasons, Plaintiff fails to meet his burden of establishing a
prima facie case that Dr. Belfrage retaliated against him in violation of 42 U.S.C.
§ 2000e-3. Alternatively, Plaintiff failed to demonstrate pretext.
Next, Plaintiff alleges:
330. On May 16, 2008, at 8:53 a.m., an Administrative Officer Mr. Tim
Uding employed by the USDA at the Albuquerque Area Office, sent an email to all agency’s employees stationed in New Mexico notifying them
about the availability of the USDA sponsored and funded Live Birds
Marketing System. On May 22, 2008, Plaintiff approached Mr. Uding with
a verbal request to help him with application for the above-cited training
because he needed it for his professional development as an Area
Epidemiology Officer in New Mexico. However, Mr. Uding responded that
the Albuquerque Area Office had no money to send its employees to
trainings.
331. Later on that day at 4:08 p.m., Plaintiff sent an e-mail to Mr. Uding
with "cc” to his supervisor Dr. Paul Sciglibaglio, suggesting that in the
14

future not to advertise these types of training activities if the Albuquerque
Area Office has no money to send employees on training. Neither Mr.
Uding nor Dr. Paul Sciglibaglio responded to that e-mail.
332. Few days later, Plaintiff discovered that another USDA employee
working under the same supervisor at Albuquerque Area Office, Ms. Jamie
Wells, a friend of Dr. Paul Sciglibaglio who spent with him considerable
amount of the time almost on daily basis at his office behind a closed door,
and who is also involved in the issue of the Plaintiff’s wrongful
termination, was allowed to take training classes scheduled for next few
months in the summer 2008.
333. Therefore, because the Agency had money for its employees training
as shows the case of Ms. Wells, who is a similarly situated employee to
Plaintiff in aspect to obtain career advancement, Mr. Uding in bad-faith
falsely responded to the Plaintiff that the Albuquerque Area Office had no
money to fund trainings, in retaliation for the Plaintiff's EEO activity
representing a member of Isleta Pueblo in his EEO complaint of racial
discrimination against the USDA.
[Doc. 141; Doc. 258, ¶ 4] Again, the Court presumes that Plaintiff engaged in protected
conduct. The Court also assumes that denying Plaintiff the opportunity to attend this
training was an adverse employment action. See White, 548 U.S. at 69 (noting that
excluding an employee from a training which “contributes significantly to the employee’s
professional advancement” may be a materially adverse employment action). Defendant
Vilsack does not argue that Plaintiff has not shown a causal connection at the prima facie
stage, and Dr. Sciglibaglio admits that he knows of Plaintiff’s prior EEO activity. [Doc.
258, pp. 12-13; Doc. 258-4, p. 1] Given that Defendant does not contest causation at the
prima facie stage, and instead relies on the second and third steps in the McDonnell

15

Douglas analysis [Doc. 258, pp. 12-13], the Court does so as well, measuring the
evidence against the but-for causation standard. Ward, 772 F.3d at 1203.10
Defendant’s immediate supervisor, Dr. Sciglibaglio, attested that the poultry
industry in New Mexico was not large enough to justify spending money to send anyone
from New Mexico to Plaintiff’s requested training. [Doc. 258-5, p. 2] Dr. Sciglibaglio
stated that his Administrative Officer, Mr. Uding, sent the email advertising the training
out while Dr. Sciglibaglio was out of the office, and that if he was in the office he would
not have allowed the email to be sent. [Doc. 258-5, p. 2] Mr. Uding attested that no one
from New Mexico went to that training and he testified that there was insufficient money
in the poultry budget to send someone to the training. [Doc. 258-4, p. 2] This evidence
is sufficient to meet Defendant’s “exceedingly light” burden to show a legitimate, nondiscriminatory reason for the employment action.

10

See DePaula v. Easter Seals El

Ward does not explicitly address whether, and when, the district court should consider
the Defendant’s proffered non-discriminatory reason for the employment action and the
plaintiff’s evidence of pretext. Ward, 772 F.3d at 1203-04. However, following Ward,
our Tenth Circuit subsequently re-affirmed the McDonnell Douglas three-part test, and
specifically reached its conclusion based on a lack of evidence of pretext in a Title VII
retaliation case. Thomas v. Berry Plastics Corp., 803 F.3d 510, 514 (10th Cir. 2015)
Thus, this Court considers the second two steps of the McDonnell Douglas framework. It
is noteworthy that other Circuit Courts have declined to adopt Ward’s application
Nassar’s but-for causation test to the Plaintiff’s prima facie case because doing so
“‘would be tantamount to eliminating the McDonnell Douglas framework in retaliation
cases. . . . If plaintiffs can prove but-for causation at the prima facie stage, they will
necessarily be able to satisfy their ultimate burden of persuasion without proceeding
through the pretext analysis. Had the Nassar Court intended to retire McDonnell
Douglas and set aside 40 years of precedent, it would have spoken plainly and clearly to
that effect.’” Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 259 (3d Cir.
2017) (quoting Foster v. Univ. of Md.–E. Shore, 787 F.3d 243, 251 (4th Cir. 2015)).
16

Mirador, 859 F.3d 957, 970, 2017 WL 2529634, *8 (10th Cir. 2017) (internal quotation
marks and citations omitted).
Plaintiff responds by arguing that the backyard poultry industry is important in
New Mexico and that there was a zoonotic disease outbreak in El Paso in 2003. [Doc.
263, pp. 12-13] Plaintiff has not submitted record evidence, such as an affidavit or
report, of either of these facts, and thus he fails to meet his evidentiary burden.
Nonetheless, even if the Court were to assume that Plaintiff could establish these facts
because Plaintiff is a veterinarian and epidemiologist, Plaintiff still cannot demonstrate
pretext and thus he cannot meet Nassar’s requirement that he demonstrate that his
protected activity was the but-for cause of the denial of his attendance at the training.
“The relevant inquiry is not whether [the employer’s] proffered reasons were wise, fair or
correct, but whether [it] honestly believed those reasons and acted in good faith upon
those beliefs.” Rivera v. City and Cnty. of Denver, 365 F.3d 912, 924-25 (10th Cir.
2004); see also McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998)
(“An articulated motivating reason is not converted into pretext merely because, with the
benefit of hindsight, it turned out to be poor business judgment. . . . The test is good faith
belief.”). Specifically, Plaintiff’s evidence does not demonstrate that, at the time that Dr.
Sciglibaglio denied Plaintiff’s request to attend the training, Dr. Sciglibaglio knew or
believed that the training was of sufficient importance to send someone from New
Mexico to it. Accordingly, Plaintiff has not demonstrated pretext nor shown that his
protected activity was the but-for cause of Defendant’s employment action.
Plaintiff’s final basis of retaliation alleged in Complaint 783 is:
17

334. On June 11, 2008, at 11:40 a.m., Plaintiff sent an e-mail to his
supervisor Dr. Paul Sciglibaglio, requesting to submit the Plaintiff's name
for the Designated Tuberculosis Epidemiology training class. Earlier on
that day when reading the USDA Training Catalog, Plaintiff discovered
that he as an Area Epidemiology Officer and a Designated Tuberculosis
Epidemiologist for New Mexico, in accordance with the USDA policy he
had to have this type of mandatory training at every two years. However, in
contrary to the agency’s own policy, Plaintiff realized that he received the
last mandatory Designated Tuberculosis Epidemiology training three and
half years earlier. However, Dr. Paul Sciglibaglio refused to respond to the
Plaintiff’s request in retaliation for the Plaintiff s EEO activity representing
a member of Isleta Pueblo in his EEO complaint of racial discrimination
against the USDA.
[Doc. 141; Doc. 258, ¶ 4] Defendant argues: that Plaintiff has not demonstrated that the
denial of Plaintiff’s request to attend this training is a materially adverse employment
action; that Defendant has articulated a legitimate non-retaliatory explanation for the
Agency’s action; and that Plaintiff has failed to demonstrate pretext. [Doc. 258, p. 16]
The Court assumes that the denial of the training was a materially adverse employment
action. Nonetheless, the Court agrees with Defendant’s latter two arguments.
Plaintiff’s immediate supervisor, Dr. Sciglibaglio, attested that he did not respond
to Plaintiff’s request because 1) he was already preparing to remove Plaintiff from his
position, and he in fact issued the Notice of Proposed Removal two days after Plaintiff’s
email, putting Plaintiff on administrative leave at that time; and 2) Plaintiff had missed
the deadline to register for the training by approximately three weeks. [Doc. 258-5, pp.
2-3]

Both explanations are legitimate, non-discriminatory reasons for denying the

training. Plaintiff offers no argument or evidence that these reasons were pretextual.
[Doc. 263; Doc. 263-1, pp. 5, 6] Having failed to demonstrate pretext, Plaintiff cannot

18

demonstrate but-for causation.

Accordingly, the Court cannot conclude that the

complained of action was retaliatory.
In sum, Plaintiff has not met his burden of demonstrating a question of fact that
any of the complained-of actions set forth in Complaint 783 were retaliatory contrary to
42 U.S.C. § 2000e-3, and thus Defendant Vilsack is entitled to summary judgment on
these claims. See Jones, 169 F.3d at 1291.
Complaint 27
With regard to Complaint 27, Plaintiff states:
335. In this consolidated EEOC complaint there are nine issues that serve
as a background evidence of the Agency’s continuous harassment and
intimidation of Plaintiff during the time period April 2007 until November
2007.
336. Issue One: On April 25, 2007 Plaintiff was ordered to complete cattle
valuation for 101 [Cornerstone] Dairy cows by the end of April 30, 2007.
However, Plaintiff was not qualified to do that task.
337. Issue Two: On April 25, 2007, the Agency commingled records of
normal healthy cows from [Cornerstone] Dairy with records of TB positive
cows that had to be indemnified, enormously increasing the amount of the
time needed for calculations.
338. Issue Three: On August 27, 2007, the Agency announced the
Plaintiff’s change tour of duty without discussing this subject with Plaintiff,
causing him to travel to his work and back during the peak traffic hours.
339. Issue Four: On August 27, 2007, the Agency intentionally interfered
with the Plaintiff’s ability to participate in the daily TB Incident
management meetings, critical for the [Plaintiff’s] work performance.
340. Issue Five: On September 19, 2007, the Agency denied the Plaintiff’s
request for overtime to accomplish the labor intensive TB Task Force
duties, while at the same time similarly situated employees could work
overtime on the same issues.
341. Issue Six: On September 19, 2007, the Agency publicized to coworkers the[] denial of the Plaintiff’s request for overtime.
342. Issue Seven: In early November 2007, the Agency cancelled previous
approval of the Plaintiff's attendance at the Border Governor’s Agricultural
Worktable Functional Exercise needed for the Plaintiff's performance of his
duties, while other similarly situated employees were allowed to attend.
19

343. Issue Eight: Between June 13 and September 22, 2007, the Agency
intentionally wrongfully accused Plaintiff of violating regulations and
allowing illegal movement of cattle from New Mexico to California.
344. Issue Nine: On July 12, 2007, during the performance review with the
Proposing and Deciding Official, Plaintiff was informed that his new duties
would include calculation of cattle values without obtaining the appropriate
training.
[Doc. 141] The Court first addresses Issues 1-7 and Issue 9, as they primarily involve Dr.
Sciglibaglio, Plaintiff’s immediate supervisor. The Court addresses Issue 8 separately.
Defendant does not dispute that Plaintiff engaged in protected activity.11 [Doc.
258-5, pp. 1, 3] Nonetheless, the Court assumes that Plaintiff engaged in protected
activity. Defendant disputes that most of the actions of which Plaintiff complains were
materially adverse.

[Doc. 258, pp. 16-23] However, taking into account the facts

disputed by Plaintiff and viewing the evidence in the light most favorable to him, the
Court assumes that each of the actions described in Issues 1-7 and 9, alone and taken
together, are materially adverse employment actions. [Doc. 263, pp. 13-16] Thus, the
Court must consider whether Plaintiff has demonstrated causation. In doing so, the Court
considers Defendant’s proffered causal basis for the action (i.e., the legitimate, nondiscriminatory basis for the action) and Plaintiff’s responsive evidence, if any.

11

In Dr. Sciglibaglio’s Affidavit, he states: “I understand from the investigator that the
Complainant contends he was discriminated against for engaging in protected activity by
reporting in previous EEO cases that Michael Braman and I falsified our job applications
and that Mr. Braman falsified other documents, including laboratory reports for scrapie
prion detection, with my approval.” [Doc. 258-5, p. 3] Plaintiff also refers to this alleged
falsification by Mr. Braman, which Plaintiff contends “recklessly endangered health and
well-being of Native Americans residing on Navajo Reservation,” and was racially
motivated. [Doc. 263, pp. 4-5]
20

Considering such evidence, the Court determines whether Plaintiff has proffered
evidence of but-for causation. Nassar, 133 S.Ct. at 2528.
Defendant offers the following reasons for each employment action. As to Issue
1, Dr. Sciglibaglio’s directive that Plaintiff value 101 cattle, Dr. Sciglibaglio states in his
declaration that his understanding of Agency policy is that, contrary to Plaintiff’s
assertion, a compensation specialist was not required nor would the agency hire one
except when dealing with large herds, i.e., 1000 head of cattle or more. [Doc. 258-2,
¶¶ 5-10] Dr. Sciglibaglio characterizes the Memorandum upon which Plaintiff relies as
outdated, and he cites to an Agency Memorandum which replaced the Memorandum
upon which Plaintiff relies. [Doc. 258-2, ¶¶ 11, 12]

However, the replacement

Memorandum was issued three months after Dr. Sciglibaglio assigned Plaintiff the task
of valuation, making this argument unpersuasive. [Doc. 258-2, ¶¶ 4, 12] Dr. Sciglibaglio
further states that he honestly believed that the task fell within Plaintiff’s duties and also
that Dr. Meyer, the “approving authority for indemnity requests,” would review the value
ascribed by Plaintiff. [Doc. 258, ¶¶ 12, 15] Because the Court defers to an employer’s
reasonable beliefs, this explanation is sufficient to articulate a legitimate, nondiscriminatory basis for Defendant’s action. Even if Dr. Sciglibaglio was incorrect as to
Agency policy, Defendant nonetheless met his burden of stating a legitimate, nondiscriminatory reason for the assignment. The Court’s “role is to prevent intentional
discriminatory . . . practices, not to act as a ‘super personnel department,’ second
guessing employers’ honestly held (even if erroneous) business judgments.” Young v.

21

Dillon Cos., Inc., 468 F.3d 1243, 1250 (10th Cir. 2006); accord Rivera, 365 F.3d at 92425.
In Issue 2, Plaintiff accuses the Agency of intentionally comingling 68 healthy
cow records with 101 potentially TB positive cow records. [Doc. 141, ¶ 337] In
response, Defendant submits the affidavit of Dr. Sue Weston, Plaintiff’s co-worker, who
stated that: she was tasked with obtaining the records from the dairy; she asked the dairy
only for the records pertaining to the 101 potentially TB positive cows; and the dairy only
provided 101 records. [Doc. 258-8, pp. 3-4] However, Dr. Sciglibaglio appears to
concede that the records given to Plaintiff included records for 169 cows. [Doc. 258-2,
¶ 18] Dr. Sciglibaglio states that it appears that, despite the Agency’s request for only the
records for the 101 cows,12 the dairy provided records for 169 cows, but the Agency
“does not have any control over the producer’s records and how they are submitted to
us.” [Doc. 258-2, ¶ 18] Assuming Plaintiff was given 169 records, Plaintiff offers no
evidence to dispute that Agency only requested the records for the 101 cows which were
potentially TB positive.

[Doc. 258-2, ¶ 18; Doc. 258-8, pp. 3-4]

Moreover, Dr.

Sciglibaglio stated that resolving the issue was a simple matter of cross-referencing the
Agency’s spreadsheet, and therefore the additional records did not “greatly increase the
amount of work necessary to prepare the indemnity requests.” [Doc. 258-2, ¶¶ 19-21]
Thus, even assuming that the inclusion of 68 extra records within the records which Dr.
Sciglibaglio asked Plaintiff to review was a materially adverse action, the Agency’s
12

This is an instance in which the basis of Dr. Sciglibaglio’s personal knowledge is not
given. However, his belief supports Plaintiff’s case, and reviewing the facts in the light
most favorable to Plaintiff, therefore the Court will not disregarded the statement.
22

description of the action as an unintended and unfortunate but minor issue is a legitimate,
non-discriminatory explanation for the Agency’s action.
In Issue 3, Plaintiff complains that his work hours were changed. [Doc. 141,
¶ 338] Dr. Sciglibaglio states that he changed Plaintiff’s work hours from 9:00 a.m. to
5:30 p.m. to 8:00 a.m. to 4:30 p.m. [Doc. 258-2, ¶ 22] He states that he did so, along
with changing other key personnel’s hours to begin at 8:00 or earlier, “to better serve our
Agency, State Officials and our stakeholders,” including field staff “who began working
earlier in the day.” [Doc. 258, ¶¶ 22, 25] He stated that when Plaintiff was not in the
office from 8:00 to 9:00 a.m., other employees would “have to try and field calls” without
sufficient information, but those calls “could have been addressed by the Plaintiff had he
been at the office earlier.” [Doc. 258-2, ¶ 22] This is a legitimate, non-discriminatory
explanation for the Agency’s action.
In Issue 4, Plaintiff complains that when Dr. Sciglibaglio changed his work hours,
the Agency also interfered with his ability to participate in daily Tuberculosis Taskforce
Incident Management meetings, which lasted beyond 4:30. [Doc. 141, ¶ 339; Doc. 263,
p. 14] Dr. Sciglibaglio responded by explaining that: he allowed Plaintiff to attend the
meetings if he requested overtime in advance; Plaintiff was not a member of the
taskforce—his participation was to allow him to gain experience, to provide assistance,
and to be a resource to the taskforce if needed; that the taskforce moved to Clovis six
weeks after it was formed because it was set up to deal with an infection in Clovis; and
that the taskforce was created in July 2007 and disbanded in early November 2007.
[Doc. 258-2, ¶¶ 27-31] Plaintiff responds by attaching Dr. Sciglibaglio’s original email
23

containing the change in work hours for several employees, including Plaintiff, and
which stated that employees must notify him in advance when requesting “a change in
scheduled tour of duty hours” and that employees were not allowed to stay after hours or
perform work duties on their own time. [Doc. 263-1, pp. 15-17] However, with regard
to particular overtime requests to attend the TB taskforce meetings, while Plaintiff
attaches evidence that Dr. Sciglibaglio denied his initial request for overtime “each
working day,” Dr. Sciglibaglio attached evidence showing that he ultimately approved
Plaintiff’s subsequent date-specific requests. [Doc. 263-1, p. 20; Doc. 258-3, pp. 5-8] It
is difficult to find an adverse employment action here, because Dr. Sciglibaglio allowed
Plaintiff to attend the meetings, even though he was not a taskforce member, and because
Dr. Sciglibaglio ultimately approved Plaintiff’s overtime requests.

Nonetheless, the

Court will assume that the initial denial of overtime was an adverse action. In this case,
Defendant has offered three legitimate, non-discriminatory explanations for the action,
specifically, that Plaintiff failed to make a specific overtime request, that Plaintiff was not
a member of the taskforce, and that his attendance was not mandatory.
In Issue 5, Plaintiff states that he was denied an overtime request “to accomplish
the labor intensive TB Task Force duties, while at the same time similarly situated
employees could work overtime on the same issues.” [Doc. 141, ¶ 340] The email chain
provided by Dr. Sciglibaglio demonstrates that Plaintiff’s overtime request was
ultimately approved. [Doc. 258-3, pp. 5-8] Further, there is no evidence that the other
employees to whom Plaintiff refers were not assigned to the taskforce. Plaintiff, however
was not assigned to the taskforce and his attendance was voluntary, and therefore
24

Plaintiff has produced no evidence that he was similarly situated to the other employees.
[Doc. 258-3, p. 6]

Defendant’s explanation is a legitimate, non-discriminatory

explanation of the Agency’s action.
In Issue 6 Plaintiff complains that, when he emailed Dr. Sciglibaglio his initial
overtime request pointing out, by name, two other co-workers whose requests were
granted, Dr. Sciglibaglio copied those employees on his response denying Plaintiff’s
blanket overtime request. [Doc. 141, ¶ 341; Doc. 263-1, p. 19] Dr. Sciglibaglio states
that, when he assumed his role as Area Veterinarian in Charge, he “instituted a policy
that any written communication in which the author mentioned other staff members
should also copy those staff members on it.” [Doc. 258-2, ¶ 35] He states: “I did not
regard a request for overtime or it being granted or denied to be a confidential matter,”
and, therefore, he copied the employees Plaintiff had mentioned. [Doc. 258-2, ¶ 35] Dr.
Sciglibaglio’s policy is a legitimate, non-discriminatory explanation for his action. See
St. Mary’s Honor Ctr., 509 U.S. at 508-09 (explaining that the Court cannot conduct a
credibility analysis of the proffered legitimate, non-discriminatory explanation, but that
the fact-finder must make such determination in cases where the employee has proffered
evidence of pretext, i.e., evidence demonstrating that the proffered reason was not the
true reason for the employment decision, and that an unlawful reason was).
In Issue 7, Plaintiff complains that the Agency cancelled his previously approved
attendance at a conference that was going “to address how the different offices
throughout the state would coordinate in the event of some sort of emergency.” [Doc.
141, ¶ 342; Doc. 258-2, ¶ 36] Dr. Sciglibaglio states that, after he had granted Plaintiff’s
25

request to attend the conference, he learned that he would be out of the office. He also
determined that another employee, the Area Emergency Coordinator, had the most
compelling reason to attend the conference, given his duties.

[Doc. 258-2, ¶ 36]

Accordingly, since both Dr. Sciglibaglio and the Area Emergency Coordinator would be
out of the office, Dr. Sciglibaglio determined that it was necessary for Plaintiff to remain
in the office to “handle and endorse requests for export certificates,” which must be acted
upon promptly.

[Doc. 258-2, ¶¶ 36-37]

This is a legitimate, non-discriminatory

explanation for the Agency’s action.
In Issue 9, Plaintiff complains that Dr. Sciglibaglio informed him that “his new
duties would include calculation of cattle values without obtaining the appropriate
training.” [Doc. 141, ¶ 344] Dr. Sciglibaglio responds he did not inform Plaintiff that he
would “have to perform all of the indemnity value calculations as a regular part of his
duties,” but instead remarked about Plaintiff’s “failure to follow instruction.” [Doc. 2582, ¶ 38] It appears that this is in reference to Plaintiff’s prior protest of his assignment to
calculate the indemnity value of 101 cows a few months before the performance
evaluation.

[Doc. 258-2, ¶¶ 4, 9, 21, 38]

The Agency’s explanation that it was

discussing Plaintiff’s failure to follow instructions is sufficient to state a legitimate, nondiscriminatory explanation for the Agency’s action.
Now the Court considers whether Plaintiff has rebutted Defendant’s legitimate,
non-discriminatory explanations for the above actions. Plaintiff offers no evidence which
would allow a reasonable jury to disbelieve the proffered non-discriminatory
explanations for the employment actions. [Doc. 263, pp. 14-16] Issue 1 is the only issue
26

for which Plaintiff has submitted evidence which is arguably in response to Defendant’s
legitimate, non-discriminatory explanation.

Plaintiff submits a copy of an Agency

Memorandum, apparently in effect at the time Plaintiff was asked to assign an
indemnification value to the Cornerstone Dairy cattle, which states that “[p]rofessional
appraisers (9 CFR 50.9) must be used whenever 10 or more animals are involved.”13
Even if Plaintiff could persuade a jury that his interpretation of the policy was correct,
Plaintiff offers no evidence to dispute Defendant’s evidence that Dr. Sciglibaglio
“honestly believed that the task fell with the purview of [Plaintiff’s] duties, and that the
assignment was consistent with past practices and policies.” [Doc. 258-2, ¶ 15] See
Young, 468 F.3d at 1250 (stating that the Court does not second guess an employer’s
honestly held, even if erroneous, business judgment). Thus, with regard to Issue 1, as
well as, Issues 2-7 and 9, Plaintiff has not pointed to evidence which would allow a jury
to conclude that “defendant's explanation is unworthy of credence.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).
Further, even if Plaintiff’s evidence were sufficient on its face to allow a jury to
infer that Dr. Sciglibaglio knew that his directive to Plaintiff to value the Cornerstone
Dairy cattle was contrary to Agency policy at the time he assigned the duty to Plaintiff,14

13

Neither this Memorandum nor 9 C.F.R. § 50.9 define “professional appraisers,” and
Plaintiff does not identify the source of his claim that a “compensation specialist” must
perform the evaluation. It is not clear that Plaintiff would not meet the definition of a
professional appraiser. Further, as Plaintiff’s valuation would be reviewed by “the
approving authority for indemnity requests,” there is no evidence that Dr. Sciglibaglio’s
order would have not complied with the Memorandum.
14
The Court expressly holds that Plaintiff’s evidence is insufficient to allow such an
inference.
27

Plaintiff still fails to demonstrate but-for causation. Given that Plaintiff failed to identify
the date of his protected activity, Plaintiff failed to submit evidence demonstrating either
a close temporal proximity between the protected activity or evidence “tying the adverse
employment actions to [the plaintiff’s] participation in the EEOC proceedings.” Ward,
772 F.3d at 1203. Plaintiff has not presented any “evidence of circumstances that justify
an inference of retaliatory motive.” Id. (internal quotation marks and citation omitted).
“The evidence of but-for causation must be based on more than mere speculation,
conjecture, or surmise.” Id. (internal quotation marks and citation omitted). Applying
Ward, Plaintiff failed to point to evidence upon which a jury could conclude that his
protected activity was the but-for cause of the adverse actions identified in Issues 1-7 and
9, and therefore Defendant is entitled to summary judgment on those issues.
Finally, the Court addresses Issue 8, in which Plaintiff complains that “[b]etween
June 13 and September 22, 2007, the Agency intentionally wrongfully accused Plaintiff
of violating regulations and allowing illegal movement of cattle from New Mexico to
California.” [Doc. 141, ¶ 343] The actions of which Plaintiff complains involved, in
part, Dr. Varner, who attested that he is the Area Veterinarian in Charge for California
and Nevada, and that he has no direct organizational relationship to Plaintiff. [Doc. 2589, p. 1] He further attested that he did not know of Plaintiff’s prior EEO activity. [Doc.
258-9, p. 2] He explained that he was advised by a district office in California that some
cattle, potentially having tuberculosis, had been shipped from New Mexico to California.
Dr. Varner states that he called to speak to the New Mexico Area Veterinarian in Charge,
i.e. Dr. Sciglibaglio, who was out, and thus he spoke to Plaintiff instead. [Doc. 258-9, p.
28

3] He states that he does not recall the substance of the communications, including the
emails, but that his actions were taken to carry out the Agency’s mission to eradicate
bovine TB and they had nothing to do with any prior EEO activity by Plaintiff. [Doc.
258-9, p. 3]
Plaintiff submits several emails pertaining to this issue. [Doc. 263-1, pp. 24-40],
The first email, dated June 13, 2007, from Dr. Varner to Dr. Sciglibaglio, discusses cattle
which were identified on health certificates as “CFT responders,”15 but the certificates
also had hand-written notes that the cattle were cleared by Dr. Susan Weston, one of
Plaintiff’s co-workers. Dr. Varner made the following inquiries to Dr. Sciglibaglio:
1. Could you confirm whether or not New Mexico contacted California
Officials to gain their approval prior to this movement?
2. What New Mexico DTE approved the movement?
3. CDFA requests a copy of the Gamma results for the 15 head of CFT
responders.
4. CDFA requests any epi information concerning the . . . Dairy[,]
especially with reference to any connections to known infected herds in
New Mexico.
[Doc. 263-1, pp. 38-39] Dr. Sciglibaglio referred this email to Plaintiff, asking Plaintiff
to respond to Dr. Varner.

[Doc. 263-1, p. 38]

Plaintiff responds, giving some

background about the dairy and the cattle, as well as his understanding of the appropriate
process.16

[Doc. 263-1, pp. 34-35]

Plaintiff stated that the process (which is not

identified) was changed as a precaution in June 2007 “to clear all cattle out-of-state
15

According to Dr. Varner, “[t]hese cattle are referred to as responders, that is, they have
tested positively for bovine TB and are suspected of having the disease even though it has
not been conclusively established that they have it without further testing.” [Doc. 258-9,
p. 2]
16
Dr. Weston also responds, explaining the documents she had and the process she used.
[Doc. 263-1, p. 36]
29

movements from herds that had one or more CF responders, through Area Epidemiology
Officer.” [Doc. 263-1, p. 35] Dr. Varner forwarded this information to other individuals,
including Dana Nelson, an Area Epidemiology Officer for California and Nevada. [Doc.
263-1, pp. 33-34] Dana Nelson then sent an email to several people, including Plaintiff,
Dr. Sciglibagio, Dr. Varner and others, in which he or she: called the shipment of the
cattle “illegitimate;” raised a concern that the cattle had now been dispersed through
central California; requested brand information to track the cattle; and raised a concern
with the process used and the failure to consult “receiving state stakeholders.” [Doc.
263-1, p. 33] The next day, Dana Nelson sent another email stating that he or she had
spoken with Dr. Meyer and Plaintiff and was “now more comfortable” with New
Mexico’s policies and that they have been adjusted to conform to Agency requirements.
[Doc. 263-1, p. 32] Thereafter, Plaintiff sent two emails, one to Dr. Meyer on July 18,
2007, and one to Dr. Varner on September 21, 2007, each containing more historical
information about the cattle and their vaccination history, and each questioning the
assertion that New Mexico officials should have contacted California officials for
approval prior to shipping the cattle. [Doc. 263-1, pp. 29-32] Plaintiff provides no other
evidence pertaining to Issue Eight.
Plaintiff makes the following argument with regard to Issue 8:
Dr. Varner initiated a 3-months long pattern of harassment and intimidation
of Plaintiff, based on fully fabricated charges as asserted by Plaintiff in this
instant civil action, Dr. Varner, in cooperation with Plaintiff’s chain-ofcommand, intentionally subjected Plaintiff to adverse acts that sent on
Plaintiff “chilling effect”. By charging Plaintiff with fabricated accusations
that were not based on any agency’s policies, Dr. Varner and Plaintiff’s
30

chain-of-command, significantly departed from the agencies own policies
and regulation, indicative of retaliatory pretext.
[Doc. 263, p. 16]
Plaintiff’s arguments are not well-taken.
materially adverse employment action.

First, Plaintiff fails to point to a

See Davis v. NYS Dept. of Corrections, 46

F.Supp.3d 226 (W.D.N.Y. 2014) (concluding that an allegation, even if false, which does
not result in any negative consequences is not a materially adverse employment action);
Boyd v. Presbyterian Hosp. in City of New York, 160 F.Supp.2d 552, 537 (S.D.N.Y.
2001) (same). Second, Defendant has submitted a legitimate, non-discriminatory reason
for the emails, i.e, “carrying out the Agency’s mission to eradicate bovine TB.” [Doc.
258-9, p. 3] Third, Plaintiff fails to demonstrate causation. Plaintiff submits no evidence
that anyone concerned with the cattle shipment knew about Plaintiff’s protected activity.
None of the documents Plaintiff provided on their face indicate that any of the persons
raising concern with the cattle shipped to California were raising concerns because
Plaintiff had engaged in protected activity. Nor does Plaintiff explain how the Agency’s
proffered explanation is pretextual. Thus, Defendant is entitled to summary judgment on
Issue 8. See Nassar, 133 S.Ct. at 2517 (“Title VII retaliation claims require proof that the
desire to retaliate was the but-for cause of the challenged employment action.”).
In sum, Plaintiff failed to meet his burden of demonstrating a “genuine issue as to
any material fact” and, therefore, Defendant “is entitled to a judgment as a matter of
law.” Jones, 169 F.3d at 1291 (10th Cir. 1999); accord Fed. R. Civ. P. 56(a).

31

CONCLUSION
WHEREFORE, for the foregoing reasons, the Court GRANTS Defendant Tom
Vilsack’s Motion for Summary Judgment and Supporting Memorandum. [Doc. 258]
SO ORDERED this 22nd day of September, 2017 in Albuquerque, New Mexico.

___________________________
M. CHRISTINA ARMIJO
Chief United States District Judge

32