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Muller v. Vilsack

United States District Court, D. New Mexico

September 22, 2017

TOM VILSACK, Secretary, et al., Defendants.



         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');">257');">257');">257] Having considered the parties submissions, the relevant law, and otherwise being fully advised in the premises, the Court hereby GRANTS the Motion.


         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. 1');">141');">1] and others, [1');">1" name="FN1');">1" id= "FN1');">1">1');">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 Agriculture as a Veterinary Medical Officer and the Area Epidemiology Officer. [Doc. 257');">257');">257');">257, ¶ 1');">1] Defendant Dr. Steven England was employed in a managerial position with the New Mexico Livestock Board. [Doc. 257');">257');">257');">257, ¶ 2] In May of 2007, Dr. England wrote an email to Plaintiff's supervisor, Dr. Paul Sciglibaglio. [Doc. 262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262, 1');">16');">p. 1');">16] This email[2] 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');">257');">257');">257-1');">1, p. 1');">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 Dr. Sciglibaglio in May raising concerns about Dr. Muller's job performance. [Doc. 257');">257');">257');">257, ¶ 6; Doc. 257');">257');">257');">257-1');">1, pp. 1');">15-1');">17, 20-21');">1; Doc. 262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262, p. 1');">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');">257');">257');">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');">257');">257');">257, ¶ 8; Doc. 262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262, 3-4, 1');">12]

         Subsequently, on June 1');">13 2008, Dr. Sciglibaglio issued a Proposal to Remove Plaintiff from employment with the USDA. [Doc. 257');">257');">257');">257, ¶ 3] The proposal listed 71');">1 specifications of improper conduct by Plaintiff. [Doc. 257');">257');">257');">257, ¶ 3] Specification 69 was the sole specification concerning Dr. England and his co-workers. [Doc. 257');">257');">257');">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');">257');">257');">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');">257');">257');">257, ¶ 4; Doc. 262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262');">262-1');">1, p. 40]


         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 1');">1287, 1');">1289, 1');">1290 (1');">10th Cir. 2001');">1). 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 (1');">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, 1');">169 F.3d 1');">1287');">1');">169 F.3d 1');">1287, 1');">1291');">1 (1');">10th Cir. 1');">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, 41');">14 F.3d 1');">1266, 1');">1273 (1');">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 ...

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