ARAOYE v. VILSACK

Filing 60

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 2/5/24. 2/5/24 ENTERED AND COPIES E-MAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION

SAMUEL O. ARAOYE a/k/a
ELLSWORTH D.,
Plaintiff,
v.

NO. 23-1331
THOMAS J. VILSACK, JOSEPH
HARRISON, STEPHANIE NIEMI, and
DENNIS JEMMERSON,
Defendants.
MEMORANDUM OPINION
Plaintiff Samuel Araoye, a Black man from Nigeria who was “hired as a disabled
veteran,” worked for the United States Department of Agriculture (“USDA”) for almost a year
and a half between 2019 and 2021. Proceeding pro se, he alleges: (1) racial and disability-based
discrimination, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000d et seq., and the Rehabilitation Act, 29 U.S.C. § 794; (2) a hostile work environment
based on sexual harassment, in violation of both Title VII; (3) failure to accommodate his
disability, in violation of the Rehabilitation Act; (4) retaliation, in violation of Title VII and the
Rehabilitation Act; and, (5) violations of unspecified provisions of the United States
Constitution. For the reasons stated below, Defendants’ Motion to Dismiss and Substitute
Certain Defendants and Motion for Summary Judgment will be granted. Araoye’s Motion for
Summary Judgment will be denied.
BACKGROUND
This factual recitation is taken in large part from Defendants’ Statement of Undisputed
Material Facts because Araoye did not submit any factual statement disputing their
characterization of what happened in this case. The scheduling order for this case (ECF No. 52)
required the party moving for summary judgment to file a separate Statement of Undisputed
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Material Facts, and it required the party opposing summary judgment to file both: (1) a response
to the summary judgment motion itself; and, (2) a response identifying any objections to that
Statement of Undisputed Material Facts. Araoye provided neither a Statement of Undisputed
Material Facts to support his motion for summary judgment nor a response to Defendants’
Statement of Undisputed Material Facts. “Pro se litigants are afforded additional flexibility with
regard to procedural rules, but they are ultimately held to the same substantive standard as
counseled litigants.” Lance v. SEPTA, 2023 WL 5916464, at *2 n.3 (E.D. Pa. Sept. 11, 2023)
(citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)); see also Watson
v. Phila. Hous. Auth., 629 F. Supp.2d 481, 485 (E.D. Pa. 2009) (citation omitted) (“[D]espite . . .
liberal interpretation [of their pleadings], the same standards for summary judgment apply to pro
se litigants.”). Further, in the context of a summary judgment motion, “[t]he non-moving party
may not merely deny the allegations in the moving party’s pleadings; instead, he must show
where in the record there exists a genuine dispute over a material fact.” Doe v. Abington Friends
Sch., 480 F.3d 252, 256 (3d Cir. 2007) (citation omitted). Defendants’ factual statements thus
“are treated as uncontested” except where Araoye’s own evidence is sufficiently responsive to
place them in genuine dispute. Lance, 2023 WL 5916464, at *2 n.3 (citing Ankele v. Hambrick,
286 F. Supp.2d 485, 496 (E.D. Pa. 2003)).
Araoye worked within the Special Crops Market News Division of the USDA’s
Agricultural Marketing Service as a Market News Reporter in the Department’s Philadelphia
office. His pay grade when he joined the USDA was GS-9. According to a job posting for the
position, as a Market News Reporter, Araoye’s responsibilities included: (1) “[c]ontacting the
many firms by face to face or telephone interview in collecting and analyzing information
relative to general and specific market conditions;” (2) “[r]econciling . . . price quotation[s] . . .

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by commodity unit of sale, size, variety, grade and other distinguishing factors;”
(3) “[s]tud[ying] daily and seasonal operations;” and, (4) “prepar[ing] and disseminat[ing] a
number of daily, weekly, monthly, and special market reports.” This job required an “ability to
establish and maintain sound working relationships” and knowledge of, for example: (1) “the
characteristic physical features of many different specialty crops;” (2) “all quality grading
criteria and factors of economic significance in the specialty crops market;” and, (3) “members
of the trade for specialty crops and the characteristics of each market with economics, business
and marketing crops and the manner in which they are stored, marketed and distributed.” The
job posting warned that:
The majority of work is performed in a typical office setting but some work may
be performed outside with exposure to inclement weather, slippery docks, power
lift equipment, high noise levels and similar risks. Occasional visits to farms and
packing sheds and travel to perform temporary relief in other offices is required.
While he worked at USDA, Araoye’s supervisors included Defendants Joseph Harrison, Alesia
Swan, and Terry Long. Defendant Dennis Jemmerson was among his colleagues in the
Agricultural Marketing Service.
Araoye received extensive training in his job. He received an initial round of training in
Philadelphia, but, according to the record from the USDA’s investigation that preceded this case,
Swan felt that “the way he was being trained was not working,” either because he “was not
catching on” or because Harrison’s training was not effective. Araoye thus was sent to
Baltimore, Maryland for additional training in March 2020 but quickly returned after the
COVID-19 pandemic struck. Once back in Philadelphia, however, Harrison and Jemmerson
expressed their concern that, despite “limited improvement,” Araoye “still demonstrate[d] a
consistent inability to work independently to a degree in certain areas,” so Swan decided to
request further “one on one training” for him. Araoye thus received six additional weeks of
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training at the Hunts Point Terminal Market in New York starting that June. Araoye received
this additional training—per Swan, “more opportunities than the average employee”—in part
because he was not performing well, and his supervisors wanted to “give him every opportunity
to receive training and be successful.”
Despite this training, Araoye received consistently poor feedback from his supervisors.
While in New York, Araoye repeatedly got “lost in his surroundings” and “gathere[ed]
information that was not his to gather.” Harrison noted that he needed to work on
“[r]emembering sources of data and pricing” and “[r]ecognizing mistakes and making necessary
corrections.” For example, one day he failed to get complete pricing data from eight vendors in
the Philadelphia Wholesale Produce Market. He also “failed to get origin and grades” for and
mis-graded other produce in the market, reporting prices for cantaloupe as prices for cauliflower.
On February 23, 2021, Araoye was terminated for “[u]nacceptable [p]erformance.”
Prior to his termination, while he was in New York, Araoye suffered some health issues.
He complained of pain consistent with plantar fasciitis—a condition where tissue in the foot
becomes inflamed, causing severe pain in the heel. He requested a reasonable accommodation
from Harrison, asking that his job be “limited to office work (e.g., database entries, retails, and
auction reporting)” and to “[b]e considered for [a] position as a Market News Reporte[r] at
Headquarters.” He indicated that these accommodations were necessary because he “could not
walk throughout the terminal market for market data.” Following two interactive discussions
between Araoye, Harrison, Swan, and a reasonable accommodation coordinator, the USDA
provided an interim accommodation of “tak[ing] leave, as needed” until Araoye’s physician
could return the necessary information. When the physician’s report came in, it indicated that
Araoye could not: (1) walk through the market to talk with business representatives; (2) complete

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“[p]rolonged periods of standing, walking, and climbing in and through markets;” or, (3) perform
“[o]n-site visual and physical handling of commodities to determine [their] physical
characteristics.” The physician thus recommended a “sedentary job” for Araoye. The
accommodation he was provided did not include transfer to a sedentary job, but it did allow him
“[f]lexible use of leave for medication condition/appointments/treatments” and “[c]ontinue[d]
use of time off/accrued leave, as needed, when not feeling well and/or unable to perform the
essential functions of the position.”
Araoye appealed that accommodation to Long in an email without identifying any
specific errors in the decision. The appeal was unsuccessful in that Araoye’s “position as a
wholesale or terminal market reporter requires a physical presence on the market . . . [s]o, based
on the documentation that [he] has provided regarding his physical limitations, he is unable to
perform the duties for which he was hired.” Moreover, as Long explained in an affidavit, the
position at USDA Headquarters that Araoye had requested was a GS-12 position for which he
was not qualified, although according to the USDA’s own records, the position could be
“[a]dvertise[d] . . . as an entry level Market Reporter; GS-7/9/11.”
Consistent with the accommodation that he had been granted, Araoye requested leave
without pay. The USDA granted that request, and human resources officials at the USDA
engaged in extensive discussions with Araoye about his rights to leave, the appropriate forms to
file to avail himself of those rights, and the amount of leave he could take in a year.
A few years later, after he had been terminated, Defendant Stephanie Niemi, a human
resources specialist, completed a Department of Veterans’ Affairs (“VA”) disability benefits
form that is filled out by an applicant’s most recent employer (Form 21-4192), but in doing so—

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according to Araoye—she “knowingly falsified” the information she included. 1 One of the lines
on that form asked if the applicant was “receiving or entitled to receive, as a result of his/her
employment with [the employer], sick retirement or other benefits?” If the answer to that
question is “yes,” the preparer of the form is to fill out its next three lines. Although Araoye was
not receiving any such benefits, Niemi pointed out on the next line of his Form 21-4192 that
“[h]e is eligible to apply for Disability Retirement with OPM”—the Office of Personnel
Management. In an email exchange with Niemi, Araoye expressed his displeasure with how she
had filled it out, but Niemi declined to change its contents because they were correct. She noted
his eligibility for OPM disability benefits because, although he “applied for disability retirement
and was denied, . . . that does not change the fact that [he is] still eligible to apply again.” Niemi
offered to have Araoye “pass along [her] contact information” to the VA if the agency had any
questions about his benefits application.
A few weeks before he was terminated Araoye filed a complaint alleging race-, gender-,
national-origin-, and disability-based discrimination and retaliation with the USDA’s Civil
Rights Enforcement Center. This was a formal follow-up to a series of emails sent in October
2020 to USDA management alleging racial and disability-based discrimination and retaliation by
Harrison, Long, and Niemi for requesting leave. The USDA’s Final Agency Decision concluded
that “discrimination did not occur with respect to the issues in [Araoye’s] complaint.” The next
month, Araoye appealed to the Equal Employment Opportunity Commission (“EEOC”), again
arguing that if he were white, American, a woman, and/or not disabled, he would have been
treated differently. The EEOC upheld the USDA’s decision on February 27, 2023. Araoye then

1

He also argues that Niemi “[i]ntentionally . . . delayed” filing this form but does not explain how she did so or how
doing so violated his constitutional rights.

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brought this suit.
DISCUSSION
A. Harrison’s, Jemmerson’s, and Niemi’s Misjoinder Motion
As a preliminary matter, Defendants Harrison, Niemi, and Jemmerson argue that they
should be dismissed from the case because Vilsack alone is the proper defendant for Araoye’s
suit. Fed. R. Civ. P. 21 (“On motion or on its own, the court may at any time, on just terms, add
or drop a party.”).
They are correct. Title VII’s plain text provides that, in “civil action[s]” against the
federal government, “the head of the department, agency, or unit, as appropriate, shall be the
defendant.” 42 U.S.C. § 2000e-16(c). This provision directs litigants to proceed against a single
individual—“the defendant.” Id. The Rehabilitation Act has been interpreted to contain similar
limitations. Adams v. EEOC, 932 F. Supp. 660, 664 n.3 (E.D. Pa. 1996) (citations omitted).
Here, the “head of the department” and proper defendant is Secretary Vilsack. The claims
against Harrison, Niemi, and Jemmerson will, accordingly, be dismissed. Fed. R. Civ. P. 21.
B. Motion to Dismiss Araoye’s Bivens Action
Next up is Defendants’ argument that, to the extent that Araoye is requesting damages for
alleged violations of the United States Constitution under Bivens v. Six Unknown Agents of the
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), such an action is improper in the employment
discrimination context. Fed. R. Civ. P. 12(b)(6). A Bivens claim is “an implied private action
for damages against federal officers alleged to have violated a citizen’s constitutional rights.”
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). But “expanding the Bivens remedy is a
‘disfavored’ judicial activity.” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 675 (2009)). Among the circumstances in which it is improper to allow a
Bivens claim to proceed is “if there is an alternative remedial structure present in a certain case.”
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Id. at 137. And the Supreme Court has made clear that Title VII is the “exclusive, pre-emptive
administrative and judicial scheme for the redress of federal employment discrimination.”
Brown v. Gen. Servs. Admin., 425 U.S. 820, 829 (1972); see Francis v. Mineta, 505 F.3d 266,
271 (3d Cir. 2007) (citation omitted). Bivens actions to press employment discrimination claims
against the federal government thus are improper where, as here, Title VII provides such a
remedy. Doe v. DeJoy, 2020 WL 4382010, at *10-11 (E.D. Pa. 2020); Beach v. Smith, 150 F.
Supp.3d 41, 47 & n.6 (D. Me. 2015); Kittner v. Gates, 708 F. Supp.2d 47, 53 (D.D.C. 2010).
Accordingly, to the extent that Araoye’s claims are premised on alleged violations of his
constitutional rights, they will be dismissed. His allegations of employment discrimination will
be analyzed under Title VII, 2 the Rehabilitation Act, and other relevant federal statutes.
C. Secretary Vilsack’s Motion for Summary Judgment
Secretary Vilsack moves for summary judgment on all remaining claims against him
pursuant to Federal Rule of Civil Procedure 56(a), which provides that “[t]he 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). “By its very
terms, this standard provides that the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986). “Material facts are those that could affect the outcome of the
proceeding.” Roth v. Norfalco LLC, 651 F.3d 367, 373 (3d Cir. 2011) (internal quotation marks
and citation omitted). “A genuine issue is present when a reasonable trier of fact, viewing all of

2

In a supplemental filing, Araoye argues that Title VII does not apply to him because he no longer works at the
USDA. That is not the case. Robinson v. Shell Oil Co., 519 U.S. 337, 342 (1997) (“Title VII’s definition of
‘employee’ . . . lacks any temporal qualifier and is consistent with either current or past employment.

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the record evidence, could rationally find in favor of the non-moving party in light of his burden
of proof.” Doe, 480 F.3d at 256 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-26 (1986);
Anderson, 477 U.S. at 248-52). A moving party is entitled to judgment as a matter of law where
the “nonmoving party has failed to make a sufficient showing on an essential element of her case
with respect to which she has the burden of proof.” Celotex, 477 U.S. at 323.
“Inferences to be drawn from the underlying facts contained in the evidential sources
must be viewed in the light most favorable to the party opposing the motion.” Peters Twp. Sch.
Dist. v. Hartford Acc. & Indem. Co., 833 F.2d 32, 34 (3d Cir. 1987); see also Scott v. Harris, 550
U.S. 372, 378 (2007) (cautioning that “courts are required to view the facts and draw reasonable
inferences” in favor of the nonmoving party (emphasis added)). “When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott, 550 U.S. at 380.
Given that Araoye is proceeding pro se, his filings are construed liberally. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Nonetheless, “on a motion for summary judgment, a pro se plaintiff is not relieved of his
obligation under Rule 56 to point to competent evidence in the record that is capable of refuting
a defendant’s motion for summary judgment.” Lloyd v. Presby’s Inspired Life, 251 F. Supp.3d
891, 898 (E.D. Pa. 2017) (internal quotation marks and citation omitted); see also Edwards v.
Rice-Smith, 606 F. Supp.3d 151, 154 (E.D. Pa. 2022). “The party opposing summary judgment,
whether pro se or counseled, must present evidence, through affidavits, depositions, or
admissions on file, to show that there is a genuine issue for trial.” Watson, 629 F. Supp.2d at
485.

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As a preliminary matter, many of Araoye’s claims implicate the familiar burden-shifting
framework for cases involving indirect evidence of discrimination from McDonnell Douglas v.
Green, 411 U.S. 792, 802 (1973). Under that framework, once the plaintiff has established the
prima facie case for the action, “an inference of discriminatory motive arises and the burden
shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse
employment action.” Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008) (citation omitted). “If
the defendant does so, the inference of discrimination drops and the burden shifts back to the
plaintiff to show that the defendant’s proffered reason is merely pretext for intentional
discrimination.” Id. (citation omitted). For the reasons set forth below, Secretary Vilsack’s
Motion for Summary Judgment will be granted.
i.

Disparate Treatment

Secretary Vilsack moves for summary judgment on Araoye’s claims of racial and
disability-based discrimination, which is predicated on the allegedly poor training he received,
his being sent to New York at the peak of the COVID-19 pandemic, and his alleged denial or
certain types of medical leave.
a. Race
To establish a prima facie case of discrimination under Title VII, a plaintiff must show
that: “(1) s/he is a member of a protected class; (2) s/he was qualified for the position s/he sought
to attain or retain; (3) s/he suffered an adverse employment action; and (4) the action occurred
under circumstances that could give rise to an inference of intentional discrimination.” Id. at
214. The Secretary concedes that the first three elements of the prima facie case are met here but
argues that Araoye has failed to submit any evidence showing that he was treated differently
from any similarly situated employee, so his firing did not occur in circumstances that could give
rise to an inference of intentional discrimination. In the alternative, he argues that Araoye’s
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firing was for legitimate, non-discriminatory reasons. The Secretary is entitled to summary
judgment based on either argument.
A plaintiff can meet their burden in showing that their firing took place under
circumstances that give rise to an inference of intentional discrimination “‘in a number of ways,
including, but not limited to, comparator evidence,’ or evidence of similar . . . discrimination
towards other employees.” Selvato v. SEPTA, 143 F. Supp.3d 257, 268 (E.D. Pa. 2015) (quoting
Golod v. Bank of Am. Corp., 403 F. App’x 699, 702 n.2 (3d Cir. 2010) (not precedential)). For
their treatment to be evidence of intentional discrimination, any comparator colleagues to whom
a plaintiff points must be “similarly situated.” Willis v. UPMC Children’s Hosp. of Pittsburgh,
808 F.3d 638, 646 (3d Cir. 2015). “Although ‘similarly situated’ does not mean identically
situated, the comparator must be similar in all relevant aspects,” such as “whether the
comparators had the same supervisor, were subject to the same standards, and had engaged in
similar conduct.” Durst v. City of Philadelphia, 798 F. App’x 710, 713 (3d Cir. 2020) (not
precedential) (citing Johnson v. Kroger Co., 319 F.3d 858, 867 (6th Cir. 2003)). “Whether two
individuals are similarly situated is generally a fact question for a jury to decide.” Onely v.
Redner’s Mkts., Inc., 2023 WL 6626120, at *6 (E.D. Pa. Oct. 11, 2023) (citation omitted).
Although in his supplemental affidavit from his agency complaint, Araoye submitted that
there was “no evidence” that a woman, a white person, “another employee of foreign origin,” or
“another employee with [a] disability” was sent to New York for training at the peak of the
COVID-19 pandemic or was denied medical leave, he does not point to any specific comparator
colleagues in his filings before the Court. Therefore, there is no debate between the parties over
the similarity between two employees that can be placed into genuine dispute. Nor does the
record reveal any evidence of relevantly similar discrimination towards other USDA employees.

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In short, Araoye has failed to produce evidence from which a rational factfinder could conclude
that he was fired under circumstances that give rise to an inference of intentional discrimination.
He has failed to make out the prima facie case.
Indeed, even if Araoye had pointed to a valid comparator colleague, his claim still would
fail because the poor performance reviews he received are a legitimate, non-discriminatory
reason for his firing. See, e.g., Pearson v. Vanguard Grp., 702 F. App’x 63, 67-68 (3d Cir.
2017) (not precedential); Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989). As discussed
above, Araoye repeatedly fell short of the mark in providing the correct market prices,
maintaining relationships with the businesses that he covered, and identifying the agricultural
products to which he was assigned. These resulted in a finding that his performance was
“[u]nacceptable.” Araoye has not submitted any evidence that those reviews, which build on
over a year of concerns by his colleagues about his performance, were “merely pretext for
intentional discrimination,” Makky, 541 F.3d at 214 (citation omitted), or otherwise were the
result of his supervisors’ discriminatory animus, McKenna v. City of Philadelphia, 649 F.3d 171,
179 (3d Cir. 2011). Relatedly, the undisputed evidence shows that Araoye was given additional
training in Baltimore and New York because of his poor performance, not due to intentional
discrimination. Thus, Secretary Vilsack is entitled to summary judgment on his claim of racial
discrimination under Title VII.
b. Disability
Secretary Vilsack similarly is entitled to summary judgment on Araoye’s claim of
disability-based discrimination under the Rehabilitation Act because he has submitted
uncontroverted evidence that Araoye was fired for a legitimate, non-discriminatory reason. “To
establish a prima facie case of discrimination under the Rehabilitation Act, a plaintiff must show,
‘(1) that he or she has a disability; (2) that he or she is otherwise qualified to perform the
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essential functions of the job, with or without reasonable accommodations by the employer; and
(3) that he or she was nonetheless terminated or otherwise prevented from performing the job.’”
Wishkin v. Potter, 476 F.3d 180, 184-85 (3d Cir. 2007) (quoting Shiring v. Runyon, 90 F.3d 827,
831 (3d Cir. 1996)).
The Secretary concedes that Araoye has made out his prima facie case but argues that his
poor performance provided a “legitimate, nondiscriminatory reason for” his firing. Id. at 185
(citation omitted). As discussed supra in the context of Araoye’s racial discrimination claim, the
Secretary has provided such reasons and those reasons are uncontroverted by anything in the
record. Thus, summary judgment is warranted on his claim of disability-based discrimination
under the Rehabilitation Act is appropriate as well.
ii. Hostile Work Environment
Title VII makes it unlawful for employers to knowingly subject employees to harassment
“sufficiently severe or pervasive to alter the conditions of [the plaintiff’s] employment and create
an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).
To establish a hostile work environment claim, Araoye must establish four elements:
(1) “intentional discrimination because of his[] sex;” (2) that “was severe or pervasive; (3) that
“detrimentally affected” him; and, (4) “would detrimentally affect a reasonable person in like
circumstances.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013) (citation
omitted). “To determine employer liability, the plaintiff also must show that respondeat
superior liability exists.” De Piero v. Pa. State Univ., 2024 WL 128209, at *6 (E.D. Pa. Jan. 11,
2024).
In the context of a hostile work environment case, there is a distinction to be made
between “severe” and “pervasive” harassment. “[S]ome harassment may be severe enough to
contaminate an environment even if not pervasive; other, less objectionable, conduct will
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contaminate the workplace only if it is pervasive.” Castleberry v. STI Grp., 863 F.3d 259, 264
(3d Cir. 2017). That said, when alleging pervasive discrimination, to survive a motion for
summary judgment, the plaintiff must be able to describe “specific comments” instead of
“rely[ing] merely on ‘vague statements’ to defeat summary judgment. Nitkin v. Main Line
Health, 67 F.4th 565, 570-71 (3d Cir. 2023) (quoting Port Auth. of N.Y. & N.J. v. Affiliated FM
Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002)).
Araoye’s hostile work environment claim is predicated on allegations that: (1) Harrison
and Jemmerson “intentionally sagg[ed] their pants, revealing . . . [the] cleavages of their
buttocks;” (2) Harrison told him that his unit manager was, according to Araoye’s statement in
the USDA’s Report of Investigation, “not straight;” and, (3) Jemmerson “incessantly”—per the
Report of Investigation, “several” times—told him that “he should not let them take his manhood
away.” This evidence is insufficient to defeat Secretary Vilsack’s Motion for Summary
Judgment for two reasons. Araoye relies on “vague statements” of harassment that the Third
Circuit has cautioned are not a basis for denying summary judgment. Id. at 571 (quotation
omitted). Araoye’s “general, unsubstantiated allegations that the conduct occurred
‘regularly’”—in his words, “incessantly”—are insufficiently specific. Id. Even taking those
allegations as true, they do not rise to the level of severe or pervasive sexual harassment as
illustrated by Third Circuit precedent. See, e.g., Starnes v. Butler Cnty. Ct. of Com. Pl., 50th
Jud. Dist., 971 F.3d 416, 428 (3d Cir. 2020) (allegations that a supervisor “coerced [plaintiff]
into engaging in sexual relations, shared pornography with her, asked her to film herself
performing sexual acts, engaged in a pattern of flirtatious behavior, scolded her for speaking with
male colleagues, assigned her duties forcing her to be close to him, and treated her differently
than her male colleagues” stated a claim for hostile work environment); Moody, 870 F.3d at 215

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(evidence that supervisor “made sexually charged comments to [plaintiff] and grabbed her,”
“called her into his office” where he was “sitting naked on a chair,” and “called [her] into his
office and attempted to take her shirt off” was sufficient to defeat motion for summary judgment
on a hostile work environment claim); cf. Nitkin, 67 F.4th at 568, 572 (holding that a supervisor
repeatedly referencing his sex life to the plaintiff and mentioning he had been watching
pornography all night did not constitute severe or pervasive sexual harassment); Miller v.
Aluminum Co. of Am., 679 F. Supp. 495, 502 (W.D. Pa. 1988) (noting that “[s]nubs” and even
“unjust criticisms of one’s work are not poisonous enough to create an actionable hostile work
environment”).
Secretary Vilsack thus is entitled to summary judgment on Araoye’s hostile work
environment claim.
iii.Failure to Accommodate
Next is Araoye’s challenge to the USDA’s proposed accommodation of his plantar
fasciitis. “[A] claim stemming from an employer’s failure to accommodate an employee’s
disabilities may be viewed simply as a type of discrimination claim, where” the failure to
accommodate provides “the relevant adverse employment action.” Fowler v. AT&T, Inc., 19
F.4th 292, 306 (3d Cir. 2021). To show that he suffered that adverse employment action, Araoye
“must establish: ‘(1) he was disabled and his employer knew it; (2) he requested an
accommodation or assistance; (3) his employer did not make a good faith effort to assist; and (4)
he could have been reasonably accommodated.’” Capps v. Mondelez Global, LLC, 847 F.3d
144, 157 (3d Cir. 2017) (quoting Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 246
(3d Cir. 2006)) (citations omitted). 3

3

Although Capps involves the Americans with Disabilities Act (“ADA”), the prima facie case for a failure to

15

The Secretary argues that the USDA engaged with Araoye in good faith, so he has failed
to establish his prima facie case. “Employers can show their good faith” by, for example:
(1) holding a meeting with the employee; (2) “request[ing] information about the condition and
what limitations the employee has;” (3) “ask[ing] the employee what he or she specifically
wants” in a reasonable accommodation; (4) “show[ing] some sign of having considered
employee’s request;” and, (5) if the requested accommodation “is too burdensome,” providing
the employee with “available alternatives.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317
(3d Cir. 1999).
It is undisputed that the agency did all of these things as part of the interactive process.
According to the USDA’s Reasonable Accommodation Information Reporting Form, just over
two weeks after Araoye requested a reasonable accommodation, an interactive discussion was
held. At that meeting, Araoye requested telework as an accommodation. The next day, Harrison
emailed Araoye “a job function request that included excerpts from [his] position description and
performance plan . . . to forward to his physician to identify the essential functions, duties, and
responsibilities [he] could perform.” The USDA provided an interim accommodation pending
receipt of that information. A second interactive discussion was held after Araoye’s physician
responded, at which agency personnel discussed his job’s requirements and “the
accommodations that could be provided.” Finally, within four weeks of receiving an assessment
from Araoye’s physician, and after “management also tried to find a position within [the]
Specialty Crops Inspection Division and Marketing Order Administration Division” and found
“no vacant positions . . . available at a beginner level/GS-9,” the agency approved the alternative

accommodate claim is the same under the Rehabilitation Act. Gibbs v. City of Pittsburgh, 989 F.3d 226, 229 (3d
Cir. 2021) (citation omitted). The same is true for regulations and interpretive guidelines expounding employers’
responsibilities under the ADA. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 & n.5 (3d Cir. 1999).

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accommodation of “[f]lexible use of leave for medical condition/appointments/treatments” and
“[c]ontinue[d] use of time off/accrued leave, as needed, when not feeling well and/or unable to
perform the essential functions of the position.” Given these undisputed facts, no rational
factfinder could conclude that USDA’s actions constitute bad faith. 4 See, e.g., Garner v. Sch.
Dist. of Phila., 63 F. Supp.3d 483, 494 (E.D. Pa. 2014).
iv. Retaliation
In his Amended Complaint, Araoye alleged that he was retaliated against for
“complaining about racial discrimination” and a “lack of workplace accommodation” when he
was fired and was “knowingly blocked and delayed” in accessing certain VA benefits. 5 The
Court understands Araoye to be referencing his emails to USDA management, his subsequent
formal complaint to the Civil Rights Enforcement Center, and his appeal to the EEOC. Because
the facts are not in genuine dispute and no rational factfinder could conclude that there was any
causal nexus between this activity and any cognizable adverse employment action that Araoye
suffered, Secretary Vilsack is entitled to summary judgment on this claim.
Establishing the prima facie case of retaliation under Title VII requires the plaintiff to
“show that (1) she engaged in a protected activity, (2) she suffered an adverse employment
action, and (3) there was a causal connection between the participation in the protected activity

4

That this accommodation fell short of what Araoye had requested does not change the calculus either. “The
interactive process does not dictate that any particular concession must be made by the employer; nor does the
process remove the employee’s burden of showing that a particular accommodation rejected by the employer would
have made the employee qualified to perform the job’s essential functions.” Taylor, 184 F.3d at 317 (citation
omitted). As was clear from the job description for Araoye’s position and corroborated by Long, being “a wholesale
or terminal market reporter requires a physical presence on the market.” Telework therefore was not a reasonable
accommodation. Nor was Araoye qualified for a GS-12 position at USDA Headquarters.

5

Araoye describes these benefits as “unemployment insurance” and “[u]nemployment [c]ompensation benefits” in
his briefing, but based on the record and context, the Court understands him to be discussing the VA disability
benefits for which Niemi needed to submit the Form 21-4192.

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and the adverse action.” Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 257 (3d Cir.
2017) (citation omitted). The prima facie case of retaliation under the Rehabilitation Act is
materially identical and relies on the same modes of proof. Krouse v. Am. Sterilizer Co., 126
F.3d 494, 500-01 (3d Cir. 1997). 6 Analogous to other causes of action that implicate McDonnell
Douglas, the employer can rebut the prima facie case of retaliation by proffering “‘a legitimate,
non-retaliatory reason’ for its conduct.” Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d
Cir. 2006) (quoting Krouse, 126 F.3d at 500). While the plaintiff eventually must “prove that
retaliatory animus was the ‘but-for’ cause of the adverse employment action,” in proving the
prima facie case, she merely “must produce evidence ‘sufficient to raise the inference that her
protected activity was the likely reason for the adverse [employment] action.’” CarvalhoGrevious, 851 F.3d at 258-59 (quotation omitted). The “temporal proximity” between the
protected activity and adverse employment action can be “unusually suggestive” evidence of
causation. Moody, 870 F.3d at 221 (quotation omitted); see also Farrell v. Planters Lifesavers
Co., 206 F.3d 271, 279-80 (3d Cir. 2000). Alternately, a plaintiff can prove causation by
showing “a pattern of antagonism coupled with timing” suggestive of retaliation. Lauren W. ex
rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
Here, the record is bereft of evidence connecting either Araoye’s firing or his denial of
his proposed reasonable accommodation to any of his formal or informal complaints of
discrimination. First, Araoye was fired almost four months after he first emailed the USDA’s
civil rights office. The Third Circuit has held that “[a]n inference of ‘unduly suggestive’

6

Although Krouse is an ADA case, as is the case with failure-to-accommodate claims, the statutes are read together
when assessing retaliation claims as well. Boandl v. Geithner, 752 F. Supp.2d 540, 561 (E.D. Pa. 201) (citations
omitted).

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temporal proximity begins to dissipate where there is a gap of three months or more between the
protected activity and the adverse action.” Moody, 870 F.3d at 221 (quoting LeBoon v.
Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007)). Given that Araoye has
not produced evidence of a “pattern of antagonism” in response to his email, DeFlaminis, 480
F.3d at 267, a rational jury thus could not conclude that there was a causal connection between
his complaints and his firing. Second, Araoye has failed to produce any evidence that Niemi
“knowingly” delayed or erred at all in advising him about his leave forms or filling out his VA
Form 21-4192, let alone that she did so in retaliation for his email. A rational jury could not
conclude based on the record before the Court that there was a causal connection between these
acts and any protected conduct in which Araoye engaged. Moreover, even if Araoye had
established the prima facie case of retaliation, as discussed supra in the context of his disparate
treatment claims, his poor performance provided the USDA with a legitimate, non-retaliatory
reason for terminating him. Secretary Vilsack therefore is entitled to summary judgment on
Araoye’s retaliation claim as well. 7
CONCLUSION
For the foregoing reasons, the Court will grant Defendants’ Motion for Summary
Judgment. Araoye’s Motion for Summary Judgment will be denied.

7

Araoye also moves for summary judgment, but his motion will be denied. He argues in a conclusory manner that
Defendants have failed to “respond [to] or disprove” his “allegations per Title VII and Bivens.” But Defendants’
detailed factual statement in support of their Motion for Summary Judgment, to which Araoye does not
meaningfully respond, belies this assertion. He next renews his argument that Defendants’ responses were untimely
under Rule 12, but, as discussed supra, that is not so.
Araoye further maintains that Defendants did not respond to his Amended Complaint in a timely manner. The
Federal Rules of Civil Procedure dictate that, when an officer of the United States is sued in his or her individual
capacity, the defendant “must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after
service on the officer or employee or service on the United States attorney, whichever is later.” Fed. R. Civ. P.
12(a)(3). But Defendants filed an answer on June 29, 2023, less than sixty days after the United States Attorney was
served on May 4, 2023, and thus complied with Rule 12.

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BY THE COURT:
/S/Wendy Beetlestone, J.
_______________________________
WENDY BEETLESTONE, J.

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