                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                         August 1, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
MILOSLAV MULLER,

      Plaintiff - Appellant,

v.                                                         No. 17-2185
                                               (D.C. No. 1:13-CV-00431-MCA-KK)
SONNY PERDUE, Secretary,                                    (D. N.M.)
U.S. Department of Agriculture;
DR. STEVEN R. ENGLAND, Veterinarian
of the New Mexico Livestock Board;
DANIEL MANZANARES, Executive
Director, New Mexico Livestock Board;
DR. DAVE FLY, New Mexico State
Veterinarian; DR. TIMOTHY J.
HANOSH, New Mexico State
Veterinarian, STAFFING SOLUTIONS,
Albuquerque, New Mexico business entity,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, EID, and CARSON, Circuit Judges.
                  _________________________________




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Miloslav Muller, appearing pro se, appeals the dismissal of his retaliation and

defamation complaint against the Secretary of the U.S. Department of Agriculture

(“USDA”), four state officials with the New Mexico Livestock Board (“NMLB”),

and Staffing Solutions Southwest, Inc. (sued as “Staffing Solutions”). The district

court dismissed some of the claims under Fed. R. Civ. P. 12(b)(1), (5) and (6) and

12(c), and granted summary judgment on the remaining claims under Fed. R. Civ. P.

56(a). We have jurisdiction under 28 U.S.C. § 1291 and affirm.

                                  I. BACKGROUND

      Dr. Muller was a veterinary medical officer and area epidemiology officer with

the USDA until his 2008 termination. His epidemiologist tasks required him to work

with the NMLB.

      This case, Muller III, is Dr. Muller’s third lawsuit regarding the same

underlying matters.1 In his Muller III complaint, Dr. Muller alleged that he engaged

in protected opposition to discrimination on March 31, 2007, when he disclosed that

the USDA and the NMLB allowed an infection agent, scrapie prion, to enter the

      1
          Dr. Muller filed Muller III five weeks after he voluntarily dismissed Muller
II.
       Muller I was a Title VII and 42 U.S.C. § 1983 suit against the NMLB filed in
2009. The district court dismissed that complaint for failure to state a claim because
the NMLB was not Dr. Muller’s employer, and this court affirmed. Muller v.
Culbertson, 408 F. App’x 194, 198 (10th Cir. 2011).
       Muller II, filed in 2012, alleged Title VII and NMHRA claims against the
USDA Secretary, the NMLB Defendants, and two Staffing Solutions employees.
But Dr. Muller failed to effect timely service on any defendants as required by
Fed. R. Civ. P. 4(m). The court directed Dr. Muller to show cause why the complaint
should not be dismissed. Dr. Muller instead moved to withdraw his complaint. The
district court granted his motion and dismissed Muller II without prejudice.

                                            2
human food chain on the Navajo Reservation in New Mexico, and that a USDA

employee had committed fiscal fraud. He further alleged that in May 2007, four

NMLB employees—Dr. Steven R. England, Daniel M. Manzanares, Dr. Dave Fly,

and Dr. Timothy J. Hanosh—wrote negative comments about Dr. Muller’s job

performance in correspondence sent to his USDA supervisor. In June 2008, the

USDA proposed to remove Dr. Muller, specifying 71 instances of improper conduct.

One related to the poor job performance described by the four NMLB employees.

The USDA terminated Dr. Muller in August 2008.

      Based on the foregoing allegations, Dr. Muller asserted retaliation claims

against the Secretary of the USDA under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq.; retaliation claims against the four NMLB employees

(“NMLB Defendants”) under the New Mexico Human Rights Act (“NMHRA”),

N.M. Stat. Ann. § 28-1-7; retaliation claims against Staffing Solutions under

Title VII and the NMHRA; and defamation claims against the NMLB Defendants and

Staffing Solutions.

      The retaliation claims stemmed from Dr. Muller’s March 2007 protected

activities, and were based on NMLB’s correspondence and numerous USDA actions,

including its August 2008 termination of Dr. Muller. The defamation claims were

based on the NMLB Defendants’ correspondence to his USDA supervisor.

      As to the USDA Secretary, the district court dismissed the Title VII retaliatory

discharge claim as barred by the applicable statute of limitations. In doing so, the

court denied Dr. Muller’s request to equitably toll the Title VII limitations period.

                                           3
The court later dismissed the remaining Title VII retaliation claims against the USDA

on summary judgment.

      As to the NMLB Defendants, the district court dismissed all of the NMHRA

retaliation claims, except those against Dr. England, for insufficient service of

process. The court later dismissed the remaining retaliation claims against

Dr. England on summary judgment.

      The district court dismissed the defamation claims against the NMLB

Defendants as time-barred.

                                  II. DISCUSSION

      We address the dismissed claims against the Secretary of USDA and then turn

to the dismissed claims against the NMLB Defendants.2 Because Dr. Muller is

pro se, we liberally construe his filings but do not act as his advocate. Yang v.

Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

            A. Dismissal of Title VII Retaliation Claims Against USDA

      Dr. Muller exhausted his administrative remedies as to his Title VII retaliation

claims against the USDA by filing three different administrative complaints with the

EEOC—Complaint 60, Complaint 783, and Complaint 27. Complaint 60 concerned


      2
         The district court dismissed the Title VII claims against Staffing Solutions
under Rule 12(b)(1) for failure to exhaust administrative remedies and declined to
exercise supplemental jurisdiction over the state law NMHRA and defamation claims
against it. Dr. Muller has waived any appellate challenge to the dismissal of Staffing
Solutions because he failed to contest those rulings in his opening brief. Coleman v.
B–G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir. 1997) (“Issues not
raised in the opening brief are deemed abandoned or waived.”).

                                           4
Dr. Muller’s retaliatory discharge claim. Complaint 783 alleged three retaliatory

actions by the USDA in early 2008, and Complaint 27 alleged nine retaliatory actions

the USDA took in 2006 and 2007.

1. Rule 12(c) Dismissal of Retaliatory Discharge (Complaint 60) Claim as
   Time-Barred

      Dr. Muller filed Muller III on May 7, 2013. The statute of limitations for his

Title VII retaliatory discharge claim against the USDA—the claims he

administratively exhausted in Complaint 60—expired on November 2, 2012, the date

he filed his Muller II complaint. Dr. Muller argues the district court erred in not

applying the doctrine of equitable tolling to extend the statute of limitations. We

review a “district court’s refusal to apply equitable tolling for an abuse of discretion.”

Barnes v. United States, 776 F.3d 1134, 1148–49 (10th Cir. 2015) (internal quotation

marks omitted).

      The district court explained in great detail why the Complaint 60 claims were

time-barred. Dr. Muller had timely filed these claims in Muller II but his voluntary

dismissal of the Muller II complaint did not toll the applicable limitations periods.

See Brown v. Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d 959, 961 (10th Cir. 1991)

(holding that a voluntary dismissal without prejudice under Fed. R. Civ. P. 41 leaves

the parties as though the action had never been brought, and does not toll Title VII’s

limitations period), abrogated on other grounds by Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 114 (2002).




                                            5
       Dr. Muller concedes the Complaint 60 claims were untimely filed in Muller

III, but he argues the district court should have equitably tolled the deadline.

Equitable tolling is warranted in Title VII cases “only if the circumstances of the case

rise to the level of active deception which might invoke the powers of equity to toll

the limitations period” such as if the plaintiff was “lulled into inaction by . . . the

courts,” has been “actively misled, or has in some extraordinary way been prevented

from asserting his or her rights.” Biester v. Midwest Health Servs., Inc., 77 F.3d

1264, 1267 (10th Cir. 1996) (internal quotation marks omitted).

       Dr. Muller argues equitable tolling applies because the district court did not

warn him in Muller II that the dismissal without prejudice would not toll the

limitations period, thus actively deceiving him and lulling him into inaction. We

agree with the district court that nothing in its Muller II orders gave Dr. Muller any

reason to believe he was excused from complying with the applicable statute of

limitations.

       Dr. Muller also argues more specifically that the district court was obligated to

notify him that his dismissal of Muller II would not toll the limitations period, citing

Jaxon v. Circle K Corp., 773 F.2d 1138 (10th Cir. 1985), in which we cautioned that

“[d]istrict courts must take care to insure that pro se litigants are provided with

proper notice regarding the complex procedural issues involved in summary

judgment proceedings,” id. at 1140 (internal quotation marks omitted). But the facts

of Jaxon are entirely different. There, the pro se plaintiff presented evidence that

would preclude summary judgment, but some of the evidence was not in proper form.

                                             6
The plaintiff asked the court for additional time to submit verified affidavits, and we

ruled the court’s refusal was an abuse of discretion. Id. Here, there is no evidence

Dr. Muller was diligent, nor was he misled.

      Beyond this distinction, the Supreme Court held after Jaxon that federal

district court judges have no obligation to calculate or warn pro se litigants about

statutes of limitations, as they “have no obligation to act as counsel or paralegal to

pro se litigants.” Pliler v. Ford, 542 U.S. 225, 231 (2004). “[N]o case has ever held

that a pro se litigant should be given actual notice of a statute of limitations.” Mala

v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (internal quotation

marks omitted).

      Unrepresented parties are required to comply with the same substantive law

and procedural rules as a represented party. See McNeil v. United States, 508 U.S.

106, 113 (1993); Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir.

2002). Dr. Muller has not shown that any extraordinary circumstances stood in his

way to warrant equitable tolling. The district court did not abuse its discretion in

denying his equitable tolling request.

2. Rule 56(a) Summary Judgment for USDA on Remaining Title VII Retaliation
   Claims

      The district court granted summary judgment in favor of the USDA on

Dr. Muller’s retaliation claims based on Complaints 783 and 27, finding that




                                            7
Dr. Muller did not present any evidence of a materially adverse employment action;3

a causal connection between the challenged actions and his protected opposition; or

evidence that the USDA’s proffered legitimate, non-retaliatory reasons for its actions

were pretextual. See Lounds v. Lincare, Inc., 812 F.3d 1208, 1233‒34 (10th Cir.

2015) (describing plaintiff’s evidentiary burdens to withstand summary judgment on

a Title VII retaliation claim). Dr. Muller challenges only evidentiary matters related

to that ruling.

       He first contends the district court erred in denying his objection to all of the

affidavits from USDA employees, alleging generally that the affidavits were not

based on personal knowledge. The court rejected his objection because Dr. Muller

did not identify any portion of any USDA affidavit that was not based on the affiant’s

personal knowledge. The court further stated that, in setting out the undisputed facts,

it first determined that any of the facts from an affidavit or declaration that it relied

upon were based on the affiant’s personal knowledge.

       “[A] district court’s assessments of the admissibility and probative value of

affidavits at the summary-judgment phase . . . are reviewed for an abuse of

       3
         In the claims based on Complaints 783 and 27, Dr. Muller alleged that the
USDA retaliated against him by denying his request to attend live bird marketing
system training; ordering him to complete an indemnity calculation for 101 dairy
cows; comingling records of healthy cows with responder cows, increasing his
workload; changing his hours from 9:00 a.m. to 5:30 p.m. to 8:00 a.m. to 4:30 p.m.;
interfering with his ability to attend the daily TB taskforce meetings; denying him
overtime; requiring him to copy others on his email requesting overtime; cancelling
approval of his attendance at an agricultural worktable functional exercise; accusing
him of allowing illegal movement of cattle; and assigning him a new duty to prepare
indemnity calculations.

                                             8
discretion.” Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1201 (10th Cir.

2015). Based on our review of the USDA’s affidavits and the district court’s order,

we find no abuse of the court’s discretion.

      Dr. Muller next argues the district court erred in denying his request that it

take judicial notice of volumes of documents related to his protected activities, which

he submitted while motions to dismiss were pending. The magistrate judge denied

the request and struck the documents, ruling they were not relevant to the pending

motions to dismiss. Dr. Muller objected and refiled these documents. The district

court struck the filings, ruling they were not related to the pending motions to

dismiss. It further ruled Dr. Muller’s submission of these documents violated the

district court’s local rules limiting the number of exhibits attached to filings to no

more than 50 pages and prohibiting a surreply without prior court authorization. See

D.N.M.LR-Civ. 7.4(b), 10.5. Based on our review of the proposed documents, we

again find no abuse of the court’s discretion. See Ellis, 779 F.3d at 1201.

                            B. Dismissal of NMLB Claims

1. Dismissal of Claims for Insufficient Service of Process

      Four days before the deadline to effect service of process in Muller III,

Dr. Muller attempted service by sending the summons by certified mail to

Mr. Manzanares, Dr. Fly and Dr. Hanosh at their place of business, not their usual

place of abode. Mr. Manzanares refused to sign for or accept service, and the

certified letters to Dr. Fly and Dr. Hanosh were signed for by persons who were not

authorized to accept service on their behalf. The district court explained in detail

                                              9
why these attempts at service were insufficient under the applicable rules.

See Fed. R. Civ. P. 4(e)(1) (allowing service by “following state law . . . in

the state where the district court is located or where service is made”);

N.M. R. Ann. 1-004(E)(3) (stating that service by mail is complete when it is signed

by the defendant or a person authorized to accept service); N.M. R. Ann. 1-004(F)(3)

(stating that service of process on an individual’s place of business is proper only if

service of process has first been attempted on the individual personally and at the

person’s usual place of abode). Two months after the deadline to complete service,

Dr. Muller moved for an extension of time to effect service. The district court denied

this motion, and Dr. Muller argues this was error.4

      Dr. Muller describes the service rules as procedural niceties and asserts they

are confusing even to attorneys. He argues the district court was obligated to give

him additional time to comply with the service of process rules because he is

proceeding pro se. Federal Rule of Civil Procedure 4(m) states that “if the plaintiff

      4
        The court initially denied the extension request as moot because it had
dismissed the retaliation claims against the NMLB Defendants for failure to exhaust
administrative remedies. But Dr. Muller later demonstrated that he had exhausted his
administrative remedies in an amended complaint. The NMLB Defendants then
renewed their motion to dismiss for insufficient service of process, which the court
granted. The court then sua sponte reconsidered Dr. Muller’s earlier request for an
extension of time to effect service, and denied the request for lack of good cause.
       The NMLB Defendants argue that we lack jurisdiction over this issue because
Dr. Muller filed his appeal more than thirty days after the district court’s initial
denial of his extension request on September 30, 2014. But that was not a final
order, and the district court’s later denial of Dr. Muller’s extension request on
September 29, 2016, did not become a final order until the court entered final
judgment on September 22, 2017, which Dr. Muller timely appealed on October 23,
2017.

                                           10
shows good cause for the failure [to effect timely service], the court must extend the

time for service for an appropriate period.” “We review the district court’s dismissal

for untimely service for an abuse of discretion.” Espinoza v. United States,

52 F.3d 838, 840 (10th Cir. 1995).

      We find no abuse of the court’s discretion. As noted above, pro se litigants

must follow all of the procedural rules, and by the time Dr. Muller filed Muller III,

the service-of-process rules had already been explained to him in Muller II when he

also failed to serve the Defendants by Rule 4(m)’s deadline. In Muller III, Dr. Muller

made no attempt to serve the NMLB Defendants at their regular place of abode, nor

did he attempt to re-serve them when his initial efforts were unsuccessful, when these

Defendants moved to dismiss based on insufficient service, or at any time in the four

years before the district court finally denied his extension request. We see no good

cause to warrant an extension of time to effect proper service.

2. Summary Judgment for Dr. England

      Defendant Dr. Steven England wrote an email to Dr. Muller’s USDA

supervisor in May 2017, at the supervisor’s request, stating Dr. Muller was incapable

of doing his job as the designated epidemiologist. Dr. Muller alleged the email was

in retaliation for his March 31, 2017 opposition to discrimination.

      The NMHRA makes it unlawful for any person or employer to “engage in any

form of threats, reprisal or discrimination against any person who has opposed any

unlawful discriminatory practice.” N.M. Stat. Ann. § 28-1-7(I)(2). To establish a

prima facie case of retaliation under the NMHRA, Dr. Muller needed to present

                                          11
evidence 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., 127 P.3d 548, 552 (N.M. 2005).

      The district court granted summary judgment in favor of Dr. England, ruling

that Dr. Muller presented no evidence of a causal connection because there was no

evidence that Dr. England had any knowledge of Dr. Muller’s protected activities.

The court therefore ruled Dr. Muller’s protected activities could not have been a

motivating factor in his decision to write the email to Dr. Muller’s supervisor.

Dr. Muller contends this was error. Our review is de novo. Anderson Living Tr. v.

Energen Res. Corp., 886 F.3d 826, 831 (10th Cir. 2018).

      Dr. Muller first contends the district court ignored his argument that his

NMHRA complaint was in the public interest. But this contention has nothing to do

with whether he could show causation. The court’s only relevant consideration was

whether Dr. England was entitled to summary judgment under Rule 56(a), under

which a “court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). The district court properly evaluated the

summary judgment motion under this standard.

      Dr. Muller next contends he was unable to engage in full discovery, claiming

the district court’s discovery rulings were prejudicial. But he fails to identify any of

the court’s discovery orders that he challenges, and he concedes that he did not

                                           12
conduct discovery because he did not want to spend the money to do so. We find no

error.

         Finally, Dr. Muller contends the district court erred in ruling he failed to

present evidence of a causal connection between his protected activities and

Dr. England’s email regarding his job performance. He argues there is a causal

connection because less than two months elapsed between his protected opposition

and Dr. England’s email to his supervisor. But that time frame is irrelevant because

the record supports the district court’s determination that Dr. Muller failed to present

any evidence that Dr. England knew about Dr. Muller’s protected opposition. Unless

a defendant knows that a plaintiff is or has engaged in protected opposition to

discrimination, it cannot retaliate against that plaintiff because of the protected

activity. Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1195 (10th Cir. 2007);

Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993) (A “plaintiff must show that the

individual who took the adverse action against him knew of the . . . protected

activity.”). The district court correctly ruled that Dr. England was entitled to

summary judgment.




                                             13
                                 III. CONCLUSION

      We grant the Unopposed Motion for Withdrawal of Counsel Carmela D.

Starace for the NMLB Defendants. We affirm for substantially the same reasons

stated by the district court in its multiple orders, which were rendered final by

judgment entered on September 22, 2017.


                                            Entered for the Court


                                            Scott M. Matheson, Jr.
                                            Circuit Judge




                                           14
