Muller v. Vilsack et al

Filing 306

MEMORANDUM OPINION AND ORDER by Chief Judge M. Christina Armijo granting 257 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, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendants’ Daniel M. Manzanares, Dr.
Dave Fly, Dr. Timothy J. Hanosh and Dr. Steven R. England’s Motion for Summary
Judgment. [Doc. 257] Having considered the parties submissions, the relevant law, and
otherwise being fully advised in the premises, the Court hereby GRANTS the Motion.
BACKGROUND
The facts set out below are either undisputed or supported by the record and
viewed in the light most favorable to Plaintiff.
In this suit, Plaintiff pro se sues “Dr. Steven R. England, in his individual capacity
as a former Veterinarian of the New Mexico Livestock Board” [Doc. 141] and others,1
for acts that Plaintiff alleges contributed to Plaintiff’s termination. During the period
relevant to this case, Plaintiff was employed by the United States Department of
1

Plaintiff also sued Tom Vilsack, Secretary of the U.S. Department of Agriculture,
Daniel Manzanares (former Executive director of the New Mexico Livestock Board), Dr.
Dave Fly (the New Mexico State Veterinarian) and Dr. Timothy Hanosh (New Mexico
Deputy State Veterinarian). [Doc. 141] In prior Orders, the Court has dismissed the
claims against all other Defendants. [Doc. 271; Doc. 305]
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Agriculture as a Veterinary Medical Officer and the Area Epidemiology Officer. [Doc.
257, ¶ 1] Defendant Dr. Steven England was employed in a managerial position with the
New Mexico Livestock Board. [Doc. 257, ¶ 2] In May of 2007, Dr. England wrote an
email to Plaintiff’s supervisor, Dr. Paul Sciglibaglio. [Doc. 262, p. 16] This email2
stated:
Dr. Sciqlibaglio: this is in regard to Dr. Miloslav Muller’s performance as
our designated epidemiologist. In my opinion he is incapable of doing this
job. When we had the Mitchel Dairy become infected and we spent a year
drafting a regionalization plan As NM State Veterinarian I had to bring Dr.
Terry Beals in to do the epi portion because nothing was being done by Dr.
Muller. In fact we had contacted Dr. Weston numerous times for
information and she told us she had forwarded it all to Dr. Muller . Dr.
Beals went to the APHIS office and found all the information she had sent
in a box in his office that he didn”t seem to know what to do with it or even
if it was there. Dr. Beals went ahead and did the basic epi work so we
could complete our request. However the follow up on Mitchell Dairy has
never been completed to my knowledge. In dealing with Cornerstone
dairies responders—at our regular bi-weekly TB meeting it was obvious
when he was told to do the indemnity appraisal he had no idea how to do it
and did not understand basic production records Dr. Sciqlibaglio instructed
him to do this at the local level and not to go to CEAH or.region for help
but simply do it in house—it was obvious to me he wouldn”t be able to get
close and time was of essence . Once again I enlisted outside help to get
something that we and the owner could live with so we could these cows
killed. Dr. Beals basically did the epi work on B23 outbreak. We are now
looking at two dairies in the Clovis area that will require a lot of epi work.
We have contracted with Dr. Beals to work on the epidemiology as I have
no faith in Dr. Muller”s ability to do the job. Dr. England
[Doc. 257-1, p. 14] Three other employees of the New Mexico Livestock Board (the
other three state Defendants) and one contract employee, Dr. Beals, also wrote letters to

2

The Court has not corrected any typographical, punctuation, spelling, or grammatical
errors within the email.
2

Dr. Sciglibaglio in May raising concerns about Dr. Muller’s job performance. [Doc. 257,
¶ 6; Doc. 257-1, pp. 15-17, 20-21; Doc. 262, p. 17]
Dr. England wrote his email to Dr. Sciglibaglio less than two months after
Plaintiff made protected disclosures during an administrative proceeding before the
EEOC. [Doc. 257, ¶ 8] The referenced disclosures appear to be that Michael Braman, a
USDA employee, falsified his time sheet and failed to report to work, potentially
exposing hundreds of residence of the Navajo Reservation to Scrapie prion. [Doc. 257,
¶ 8; Doc. 262, 3-4, 12]
Subsequently, on June 13 2008, Dr. Sciglibaglio issued a Proposal to Remove
Plaintiff from employment with the USDA. [Doc. 257, ¶ 3] The proposal listed 71
specifications of improper conduct by Plaintiff. [Doc. 257, ¶ 3] Specification 69 was the
sole specification concerning Dr. England and his co-workers.

[Doc. 257, ¶ 5]

Specification 69 cited Plaintiff’s alleged failure to maintain a good working relationship
with NMLB officials and was supported by the letters sent by Dr. England’s co-workers
and the email sent by Dr. England. [Doc. 257, ¶¶ 5, 6] Based on the proposal of Dr.
Sciglibaglio, Dr. Jerry Diemer, the Associate Regional Director for Veterinary Services,
rendered the decision to terminate Plaintiff’s employment. [Doc. 257, ¶ 4; Doc. 262-1, p.
40]
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
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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
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
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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.
New Mexico Human Rights Act Retaliation Claim
Plaintiff sues Dr. England under N.M.S.A. 1978, § 28-1-7(I), which states that it is
unlawful for “any person or employer to: . . . (2) engage in any form of threats, reprisal or
discrimination against any person who has opposed any unlawful discriminatory practice
or has filed a complaint, testified or participated in any proceeding under the Human
Rights Act.” [Doc. 141, ¶¶ 323-24] Individual defendants can be sued under the New
Mexico Human Rights Act, Sonntag v. Shaw, 2001-NMSC-015, ¶ 12, 22 P.3d 1188, and
the Court has already rejected Defendant England’s argument that Plaintiff failed to
exhaust his administrative remedies against Dr. England. [Doc. 271]
“To establish a prima facie case of retaliation, Plaintiff must show that (1) he
engaged in protected activity, (2) he was subject to adverse employment action
subsequent to, or contemporaneous with the protected activity, and (3) a causal
connection exists between the protected activity and the adverse employment action.”
Juneau v. Intel Corp., 2006-NMSC-002, ¶ 11, 127 P.3d 548. New Mexico Courts apply
the McDonnell Douglas burden shifting test to retaliation claims. Gonzales v. New
Mexico Dep’t of Health, 2000-NMSC-029, ¶ 21, 11 P.3d 550. “[A] plaintiff bears the
initial burden of establishing a prima facie case; once the prima facie case is established,
the employer bears the burden of producing evidence of a legitimate, nondiscriminatory

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reason for its action; and finally, a plaintiff must be afforded an opportunity to rebut the
employer’s proffered reason.” Id.
Defendant England moves for summary judgment pursuant to Rule 56(a), on the
ground that “there is no genuine dispute as to any material fact and [therefore England] is
entitled to judgment as a matter of law.”3 [Doc. 257, pp. 16-19] Defendant England
argues that Plaintiff cannot establish a case of retaliation because he failed to produce
evidence that he engaged in a protected activity and he cannot establish a causal
connection between any alleged protected activity and the adverse employment action.
[Doc. 257, pp. 17-18]
Defendant England first argues that Plaintiff has not established that he engaged in
protected activity. The Court is not persuaded by this argument. It is not disputed that
Plaintiff filed complaints with the EEO and that he “made disclosures” in an EEO
proceeding on March 31, 2007. [Doc. 257, ¶ 8] These activities meet the statutory
definition of a protected activity. 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful
employment practice for an employer to discriminate against any of his employees . . .
because he has opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter.” (Emphasis
3

By previous Order [Doc. 271, pp. 13-14], the Court already considered and rejected
additional arguments made by Defendant England, including that the State Defendants
are entitled to qualified immunity and that Plaintiff’s NMHRA claims are barred by the
statute of limitations. [Doc. 257, pp. 10, 15] Further, because the Court concludes,
herein below, that Defendant England is entitled to summary judgment on Plaintiff’s
NMHRA Retaliation Claim, the Court does not address Defendant’s argument regarding
punitive damages under the NMHRA. [Doc. 257, p. 19]
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added.)); N.M.S.A. 1978, § 27-1-7(I) (protecting from reprisal an employee who has
“opposed any unlawful discriminatory practice”).
Defendant England further argues that Plaintiff has not come forward with
evidence that Mr. Braman harbored a discriminatory motive for his conduct, and he
submits that “Plaintiff . . . testified that he has no evidence to support his opinion that
[Mr. Braman’s] alleged exposure of Native Americans to infectious scrapie prion was
racially motivated.” [Doc. 257, ¶ 22, p. 17] Defendant England therefore argues that
Plaintiff has not come forward with evidence that his prior complaints were protected
activities. However, for Plaintiff’s conduct to be protected, Plaintiff needed only a
“reasonable good-faith belief that the underlying conduct violated Title VII.”
Crumpacker v. Kansas Dep’t of Human Res., 338 F.3d 1163, 1172 (10th Cir. 2003).
Plaintiff was not required to have direct evidence that Mr. Braman’s conduct was racially
motivated at the time that Plaintiff made such complaints to reasonably believe, in good
faith, that the conduct was racially motivated.4 Thus, Defendant England has not met his
burden of coming forward with evidence demonstrating that Plaintiff lacked a good faith
belief that he was opposing an unlawful discriminatory practice or making a protected
disclosure, and, accordingly, the Court cannot grant summary judgment on this ground.
4

Defendant England argues that Plaintiff’s evidence of Mr. Braman’s motive in fact
supports two theories (i.e., that Mr. Braman was motivated by financial gain or by
discriminatory motive), and, therefore, his evidence tents to prove neither theory. [Doc.
257, p. 17] The Court does not address this argument because it is not grounded in the
case law specific to determining whether a belief, particularly as to another’s motives, is
unreasonable in the context of discrimination cases. See Smith v. FDC Corp., 1990NMSC-020, ¶ 10, 787 P.2d 433 (recognizing that “often direct proof of discrimination is
not available”). Defendant England fails to develop the argument that Plaintiff’s belief
was unreasonable in light of the applicable standard.
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Defendant England next argues that Plaintiff cannot demonstrate a causal
connection between his allegedly protected activity and the adverse employment action.
[Doc. 257, p. 18] Specifically, he argues that Plaintiff has not produced evidence that
Defendant England was actually aware of Plaintiff’s allegedly protected disclosures.
[Doc. 257, p. 18] The Court agrees with this argument. New Mexico Courts have not
addressed whether the motivating factor or the but-for test applies to determine causation
in an NMRHA retaliation claim. Even so, applying the less stringent motivating factor
test, summary judgment is appropriate because Plaintiff has not come forward with
evidence demonstrating that Plaintiff’s participation in EEO complaints was a motivating
factor in Defendant England’s decision to write his email to Plaintiff’s supervisor.
Plaintiff argues that he has circumstantial evidence that Defendant England “was
fully aware about Plaintiff’s EEO activity.” [Doc. 262, pp. 9-10] Plaintiff states that, on
March 22, 2006, he complained to Dr. Amy Butler about Mr. Braman’s fraudulent
activities, and, the next day, he was not allowed “to participate as an epidemiologist in
Exit Conference related to New Mexico Scrapie Consistency Review.” [Doc. 262, p. 10]
Plaintiff argues that this constitutes evidence that the State Defendants were aware of his
EEO activity. Plaintiff’s argument fails both for lack of evidence—as he submits no
documentary or testamentary evidence supporting his claims—and because the purported
evidence is insufficient to allow an inference that Dr. England knew of Plaintiff’s EEO
activity or was motivated by it to write his letter. Plaintiff’s brief, which implies that Dr.
Butler was an employee of the USDA and not the NMLB [Doc. 262, p. 10], is lacking
any explanation of the connection between Dr. Butler’s knowledge of Plaintiff’s
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complaint and Defendant England’s action. Plaintiff asserts that Dr. Butler made Dr. Fly
(Dr. England’s supervisor) aware of “Plaintiff’s advocacy on behalf of residents of
Navajo Reservation,” but this unsupported assertion does not draw any connection
between Dr. Butler’s knowledge and Dr. England. Further, Plaintiff does not state who
prevented him from participating in the Exit Conference, i.e., whether it was Dr. England,
another NMLB employee, or his own supervisor. And, even if somehow the Court could
conclude (and it cannot) that Dr. England knew of Plaintiff’s 2006 disclosures to Dr.
Butler about Mr. Braman, circumstantial evidence of any causal connection is lacking
because there is no temporal proximity between this activity and Dr. England’s May,
2007 email. Likewise, though Plaintiff mentions that he was suspended on April 13,
2006 [Doc. 262, p. 11], again, he fails to draw any connection between that suspension
(by his USDA supervisor) and Dr. England’s act of writing his email to Plaintiff’s
supervisor over a year later. Accordingly, none of Plaintiff’s unsupported arguments are
sufficient to meet his burden of producing some evidence of that his protected activity
was a motivating factor in Dr. England’s email.

MacKenzie, 414 F.3d at 1273

(“Unsupported conclusory allegations . . . do not create an issue of fact.”).
Plaintiff next argues that he has “strong circumstantial evidence of retaliatory
motives that was behind writing of those publications [referring to Dr. England’s email
and his coworker’s letters]” because they were written less than two months after he
made protected disclosures during an administrative proceeding before the EEOC. [Doc.
262, p. 12] Again, however, there is no argument or evidence to support the notion that
Dr. England or any of his co-workers were aware that Plaintiff had made these
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disclosures.

Accordingly, Defendant has demonstrated that summary judgment on

Plaintiff’s retaliation claim is appropriate. See Clark Cnty. Sch. Dist. v. Breeden, 532
U.S. 268, 273 (2001) (holding that summary judgment was proper where there was no
indication that person taking adverse action knew about the purportedly protected
activity); Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002) (stating
that a supervisor’s knowledge that the employee engaged in protected activity “is critical”
to a retaliation claim”); Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993) (“[P]laintiff
must show that the individual who took adverse action against him knew of the
employee’s protected activity”). Finally, Plaintiff submits that Dr. England willingly
made “materially false statements” with the purpose of getting Plaintiff fired. Even if the
Court were to conclude that a factual issue exists as to whether the statements in Dr.
England’s email were materially false, this alone is insufficient to demonstrate that Dr.
England made false statements in retaliation for Plaintiff’s protected activity.

C.f.

Juneau, 2006-NMSC-002, ¶ 14 (“The NMHRA protects against discriminatory
treatment, not against general claims of employer unfairness.”).
Accordingly, the Court concludes that Plaintiff has failed to establish a prima facie
case of retaliation by Defendant England as prohibited by the New Mexico Human
Rights Act. Therefore, the Court GRANTS summary judgment against Plaintiff and in
favor of Defendant England.
CONCLUSION
WHEREFORE, for the foregoing reasons, the Court hereby GRANTS
Defendant’s Daniel M. Manzanares, Dr. Dave Fly, Dr. Timothy J. Hanosh and Dr.
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Steven R. England’s Motion for Summary Judgment [Doc. 257] on the sole remaining
claim against the sole remaining State Defendant, Dr. England.
SO ORDERED this 22nd day of September, 2017 in Albuquerque, New Mexico.

___________________________
M. CHRISTINA ARMIJO
Chief United States District Judge

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