1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-7-1996

Antol v. Sec Dept Defense

Precedential or Non-Precedential:

Docket 95-3254

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Recommended Citation

"Antol v. Sec Dept Defense" (1996). 1996 Decisions. Paper 172.

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UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 95-3254 

 

KENNETH C. ANTOL 

 

 Appellant 

 

 

 v. 

 

WILLIAM J. PERRY, Secretary 

Department of Defense, (Defense Logistics Agency) 

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

(D.C. Civil Action No. 94-1282) 

 

Argued October 31, 1995 

Before: NYGAARD, ALITO and SAROKIN, Circuit Judges

(Opinion Filed May 7, 1996) 

BRUCE A. BAGIN (Argued) 

Wienand & Bagin 

312 Boulevard of the Allies 

Suite 700 

Pittsburgh, PA 15222 

Attorney for Appellant 

 

BONNIE R. SCHLUETER (Argued) 

Office of United States Attorney 

633 United States Post Office & Courthouse 

Pittsburgh, PA 15219 

Attorney for Appellee 

 

OPINION OF THE COURT 
 

NYGAARD, Circuit Judge. 

 Kenneth C. Antol sued the Defense Logistics Agency of 

the Department of Defense, alleging gender discrimination under 

Title VII, 42 U.S.C. § 2000e-16(a), disability discrimination 

under the Rehabilitation Act of 1973, 29 U.S.C. § 791, and a 

violation of the Vietnam Era Veterans' Readjustment Assistance 

Act (VEVRA), 38 U.S.C. § 4214. Both parties moved for summary 

judgment; the district court granted the Agency's motion on all 

claims. We conclude that the district court properly granted 

summary judgment for the Agency on Antol's gender discrimination 

claim and his claim for non-monetary relief under VEVRA, that it 

should have dismissed his VEVRA claim for money damages for lack 

of jurisdiction, and that it properly denied his motion for 

summary judgment on his disability discrimination claim.0 We 

find, however, a material issue of fact precluding summary 

judgment for the Agency on Antol's disability discrimination 

claim. Therefore, we will affirm in part, reverse in part, and 

remand the cause to the district court for it to consider the 

disability discrimination claim brought under the Rehabilitation 

Act. 

I. 

 

0

"[W]hen an appeal from a denial of summary judgment is raised in 

tandem with an appeal of an order granting a cross-motion for 

summary judgment, we have jurisdiction to review the propriety of 

the denial of summary judgment by the district court." Nazay v. 

Miller, 949 F.2d 1323, 1328 (3d Cir. 1991). 
 Antol is employed by the Defense Logistics Agency as a 

Budget Assistant. He is also a veteran of the United States 

Army, with a seizure disorder amounting to a "30 percent or more 

disability." As required by VEVRA, the Agency promulgated an 

affirmative action plan for disabled veterans. That plan 

provides that highly qualified veterans with 30% or more 

disability would be preferred for available positions and 

afforded a non-competitive interview, before competitive 

interviews of merit candidates and before the selecting officer 

receives the merit promotion list. The plan allows disabled 

veterans to be considered before the general competition for a 

position in the hopes that more would be promoted than under a 

wholly competitive procedure. 

 In 1991, Antol submitted an application for "Contract 

Specialist GS-1102-5, Target 9," a trainee position which 

eventually leads to a professional-level grade, requiring either 

specific job experience or a college degree. There were two 

positions available in this job classification. When he applied, 

Antol had approximately 30 college credit hours, but no degree. 

The Agency certified Antol as qualified for the position based on 

his work experience. To afford Antol a non-competitive 

interview, the Agency's office in Philadelphia referred Antol's 

application to Mr. Gomez, the selecting officer's supervisor in 

Pittsburgh, who then referred it to Mr. Smith, the selecting 

officer. Contrary to the explicit requirements of the plan, 

Smith received a list of the merit candidates before Antol's noncompetitive interview. 
 Smith interviewed Antol first, but did not offer him 

the position. Later, Smith interviewed Antol again, then as a 

merit candidate. Between Antol's two interviews, Smith 

interviewed three female applicants: Arlene Bigger, Karen Davis, 

and Angelmarie Scott. Smith selected Davis and Scott, who each 

hold a college degree but are not disabled veterans. According 

to Smith's affidavit, Antol was informed on November 18, 1991, 

that he had been rejected.0

 Antol initiated informal counselling within the 

defendant Agency, claiming that he was not selected for the 

promotion based on his disability. Antol then filed a formal 

complaint alleging disability discrimination. The Agency 

investigated his complaint and issued its final decision, which 

found no discrimination. Antol appealed the final Agency 

decision to the Office of Federal Operations of the Equal 

Employment Opportunity Commission. After exhausting his 

administrative remedies on the charge of disability 

discrimination, Antol sued the defendant Agency in federal court. 

Both parties moved for summary judgment. 

II. 

 

0

This date is relevant to the dispute over whether Antol is 

entitled to a jury trial and compensatory damages under the Civil 

Rights Act of 1991, which took effect on November 21, 1991. In 

Landgraf v. USI Films, 114 S. Ct. 1483 (1994), the Supreme Court 

ruled that the Act did not apply retroactively. Because the 

district court granted summary judgment, it did not have occasion 

to rule on Antol's request for a jury trial and compensatory 

damages or to address his argument that Landgraf does not apply 

because he alleges a continuing violation. The district court 

should address this issue in the first instance. 
 The affirmative action plan required the Agency to 

refer qualified disabled veterans for non-competitive selection 

before referring other candidates. Antol contends that the 

Agency discriminated against him because he is disabled and 

violated VEVRA when, contrary to the terms of the plan, it 

referred his name along with the names of the three other merit 

candidates. He also contends generally that the Agency did not 

select him for the position because he is disabled. The Agency 

offered as a legitimate non-discriminatory reason that Smith 

chose the best qualified candidate based on his preference for a 

college graduate and based on the candidate's work experience. 

Because the two successful candidates were female, Antol also 

claims gender discrimination. 

 On appeal from summary judgment, we view the evidence 

de novo and in the light most favorable to the non-moving party 

to determine whether there is a genuine issue of material fact 

and, if not, whether the moving party is entitled to judgment as 

a matter of law. 

There must, however, be sufficient evidence 

for a jury to return a verdict in favor of 

the nonmoving party; if the evidence is 

merely colorable or not significantly 

probative, summary judgment should be 

granted. 

Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994) 

(citations omitted). 

III. 

 Antol challenges the summary judgment for the Agency on 

his gender discrimination claim, arguing that when the Agency 
chose two females for the position instead of him, it violated 

Title VII. The Agency argues that we should affirm the summary 

judgment on two grounds: 1)Antol failed to exhaust 

administrative remedies;0 and 2) Antol failed to produce evidence 

of pretext. We find that Antol failed to exhaust his 

administrative remedies and will affirm the summary judgment for 

the Agency on this claim. 

 The Agency points out that Antol never asserted gender 

discrimination in any of the administrative proceedings. Antol 

responds that gender discrimination was fairly within the scope 

of the EEOC proceedings investigating his disability 

discrimination claim. He cites Waiters v. Parsons, 729 F.2d 233 

(3d Cir. 1984) (per curiam), to establish the proposition that he 

is excused from exhausting his administrative remedies. 

 In Waiters we held: 

The relevant test in determining whether 

appellant was required to exhaust her 

administrative remedies, therefore, is 

whether the acts alleged in the subsequent 

Title VII suit are fairly within the scope of 

the prior EEOC complaint, or the 

investigation arising therefrom. 

Id. at 237. At issue was whether Waiters' suit in federal court, 

alleging a retaliatory firing for filing previous complaints with 

the EEOC, was fairly within the earlier EEOC complaint charging 

retaliation. We held that the plaintiff's suit was not barred 

for failure to exhaust administrative remedies because the core 

 

0

The district court did not address the Agency's argument that 

Antol failed to exhaust his administrative remedies for the 

gender discrimination claim. As exhaustion is a prerequisite to 

bringing suit, we will address this threshold issue. 
grievance in the suit filed and the earlier EEOC complaint were 

the same--retaliation. Requiring a new EEOC filing for each and 

every discriminatory act would not serve the purposes of the 

statutory scheme where the later discriminatory acts fell 

squarely within the scope of the earlier EEOC complaint or 

investigation. 

 Unlike the suit in Waiters, Antol's gender 

discrimination claim does not fall within the scope of the EEOC 

complaint or investigation. The affidavit of the EEO Manager 

responsible for processing Antol's complaint stated that: 

the issue and basis for the complaint 

presented to the EEO counselor was that of 

non-selection for promotion based upon an 

alleged physical handicap (seizure disorder). 

Mr. Antol did not raise the issue of sex 

discrimination at the informal counseling 

stage of the administrative process. . . . 

The affidavit further provides that Antol failed to raise gender 

discrimination in the formal administrative process as well, and 

that "the sole issue investigated was that of handicap 

discrimination." 

 Antol asserts here that investigation of his disability 

discrimination complaint 

must inevitably have developed the facts of 

the alleged discriminatory event: two women 

were promoted, while a man was not promoted; 

furthermore, there is a history of women 

being offered advancement through promotion 

to the position in question. . . . These acts 

were squarely before the investigator and 

could have been investigated. 

(emphasis added). Antol even admits that he never suspected 

gender discrimination during the administrative process. 
Nonetheless, he now argues that gender discrimination fell within 

the scope of the EEOC investigation. We disagree. 

 The specifics of his disability discrimination charge 

do not fairly encompass a claim for gender discrimination merely 

because investigation would reveal that Antol is a man and the 

two employees who received the positions are women. The 

investigation focused, quite properly we think, on the gravamen 

of Antol's complaint--disability discrimination. Neither the 

EEOC nor the agency were put on notice of a gender discrimination 

claim. The purpose of requiring exhaustion is to afford the EEOC 

the opportunity to settle disputes through conference, 

conciliation, and persuasion, avoiding unnecessary action in 

court. Antol failed to exhaust administrative remedies for his 

gender discrimination claim. 

IV. 

 Antol seeks to recover from the Agency under 38 U.S.C. 

§ 4214(c) for violating its affirmative action plan for disabled 

veterans. He argues that when Congress included language in 

VEVRA instructing agencies to incorporate their affirmative 

action plans for disabled veterans into Rehabilitation Act 

§501(b) affirmative action plans, Congress created a private 

right of action for violation of a VEVRA affirmative action plan. 

The Agency responds that VEVRA's section regulating employment 

and training does not contain an express waiver of sovereign 

immunity, that there is no express private cause of action, and 

that no private cause of action against the government can be 

inferred. We agree with the Agency that VEVRA contains no waiver 
of sovereign immunity for Antol's claim for money damages and 

will therefore vacate the summary judgment and remand the cause 

to the district court for it to dismiss this claim. We also 

agree that VEVRA § 4214 does not provide a private right of 

action and will affirm the summary judgment on Antol's claim for 

non-monetary relief under VEVRA. 

A. 

 Section 403 of VEVRA, 38 U.S.C. § 4214, provides: 

 (a)(1) The United States has an 

obligation to assist veterans of the Armed 

Forces in readjusting to civilian life since 

veterans, by virtue of their military 

service, have lost opportunities to pursue 

education and training oriented towards 

civilian careers. . . . It is, therefore, the 

policy of the United States and the purpose 

of this section to promote the maximum of 

employment and job advancement opportunities 

within the Federal Government for disabled 

veterans and certain veterans of the Vietnam 

Era and of the post-Vietnam Era who are 

qualified for such employment and 

advancement. 

*** 

 (c) Each agency shall include in its 

affirmative action plan for the hiring, 

placement, and advancement of handicapped 

individuals in such agency as required by 

section 501(b) of the Rehabilitation Act of 

1973 (29 U.S.C. 791(b)), a separate 

specification of plans . . . to promote and 

carry out such affirmative action with 

respect to disabled veterans in order to 

achieve the purpose of this section. 

(emphasis added). Thus, under VEVRA, the Agency must include in 

its affirmative action plan required by the Rehabilitation Act a 

separate specification of its plan for disabled veterans. 

B. 
 It is a "well-settled principle that the federal 

government is immune from suit save as it consents to be sued." 

FMC Corp. v. U.S. Dept. of Commerce, 29 F. 3d 833, 839 (3d Cir. 

1994)(in banc) (internal quotations omitted). As an agency of 

the United States, sovereign immunity protects the Defense 

Logistics Agency of the Department of Defense. In Re University 

Medical Center, 973 F.2d 1065, 1085 (3d Cir. 1992). The federal 

government must unequivocally consent to be sued and the consent 

"must be construed narrowly in favor of the government." FMC 

Corp., 29 F.3d at 839. The Supreme Court cautioned in Touche 

Ross & Co. v. Redington, 442 U.S. 560, 571, 99 S. Ct. 2479, 2486 

(1979), that "implying a private right of action on the basis of 

congressional silence is a hazardous enterprise, at best." 

 Antol asserts that VEVRA's express requirement--that 

the Agency include its affirmative action plan for disabled 

veterans in its Rehabilitation Act affirmative action plan--

suffices to incorporate the Rehabilitation Act's waiver of 

sovereign immunity into VEVRA. However, merely mentioning the 

Rehabilitation Act constitutes neither an express nor an 

unequivocal waiver of sovereign immunity from suit under VEVRA. 

We cannot enlarge the waiver in the Rehabilitation Act "beyond 

what the language of the statute requires." U.S. v. Idaho, ex 

rel. Director Dep't. of Water Resources, 508 U.S. 1, 113 S. Ct. 

1893, 1896 (1993). The Agency correctly argues that the language 

in § 4214 does not purport to waive sovereign immunity or to 

create an express cause of action. Nevertheless, Antol contends 

that when Congress amended the Rehabilitation Act in 1978 to 
include the remedies of § 505,0

 Congress knew that § 403 of VEVRA 

mentioned Rehabilitation Act § 501, and therefore Congress 

intended to incorporate into VEVRA the rights, remedies, and 

waiver of sovereign immunity expressed in the Rehabilitation Act. 

 The Supreme Court made clear, however, in U.S. v. 

Nordic Village Inc., 503 U.S. 30, 112 S. Ct. 1011 (1992), that 

the "unequivocal expression" of elimination 

of sovereign immunity that we insist upon is 

an expression in statutory text. If clarity 

does not exist there, it cannot be supplied 

by a committee report. 

112 S. Ct. at 1016. As we stated in Beneficial Consumer Discount 

Co. v. Poltonowicz, 47 F.3d 91 (3d Cir. 1995), 

even if we were disposed to imply a cause of 

action . . . , we could not imply a waiver of 

sovereign immunity with respect to that cause 

of action without running afoul of the wellestablished injunction against recognizing a 

waiver of federal sovereign immunity not 

evidenced in the statutory text. 

Id. at 95, citing Idaho, 113 S. Ct. at 1896; see also Dorsey v. 

U.S. Dept. of Labor, 41 F.3d 1551, 1555 (D.C. Cir. 1994) 

(legislative history cannot supply an express or unequivocal 

waiver). 

 

0

Rehabilitation Act § 505(a)(1) provides: 

The remedies, procedures, and rights set 

forth in section 717 of the Civil Rights Act 

of 1964 (42 U.S.C. 2000e-16) . . . shall be 

available, with respect to any complaint 

under section 791 of this title, to any 

employee . . . aggrieved by the final 

disposition of such complaint, or by the 

failure to take final action on such 

complaint. . . . 

29 U.S.C. § 794a(a)(1). 
 The district court did not address whether VEVRA 

contained an express waiver of sovereign immunity. It first 

concluded that the mere reference in VEVRA to the affirmative 

action plan required under § 501(b) of the Rehabilitation Act 

does not provide an express private cause of action. It then 

concluded that a private cause of action could not be inferred 

because it found no evidence that Congress intended a private 

cause of action.0 Although it reached the correct result, the 

district court first should have considered whether Congress 

unequivocally expressed a waiver of sovereign immunity in VEVRA, 

because "[s]overeign immunity is jurisdictional in nature." FDIC 

v. Meyer, 114 S. Ct. 996, 1000 (1994). 

 Antol cannot point to any language in VEVRA expressing 

a waiver of sovereign immunity for his claim under 38 U.S.C. 

§4214(c). Moreover, Congress did not include in VEVRA a section 

adopting the rights or remedies of the Rehabilitation Act. To 

construe the reference in VEVRA to the Rehabilitation Act as a 

waiver of sovereign immunity, which Antol would have us do, we 

would have to heap inference upon inference. But we cannot 

inferentially incorporate the waiver from the Rehabilitation Act 

 

0

The district court offered in support of its decision that the 

courts have unanimously held that another section of VEVRA, 38 

U.S.C. § 4212(a) (formerly § 2012(a)), does not create an implied 

private cause of action against federal contractors, citing 

Harris v. Adams, 873 F.2d 929 (6th Cir. 1989), and Barron v. 

Knightingale Roofing, Inc., 842 F.2d 20 (1st Cir. 1988). The 

Courts of Appeals in Harris and Barron applied the factors from 

Cort v. Ash, 422 U.S. 66 (1975), and found that there was no 

evidence of congressional intent to create a private right of 

action and that implying one would conflict with VEVRA's 

legislative scheme. See 873 F.2d at 932; 842 F.2d at 21-22. 
into the VEVRA section at issue; a waiver in VEVRA must be 

unequivocally expressed, and the waiver of sovereign immunity in 

the Rehabilitation Act must be narrowly construed. Therefore, we 

hold that Antol cannot maintain an action for money damages 

against the Agency under VEVRA. 

C. 

 To the extent that the Administrative Procedure Act, 5 

U.S.C. § 702,0 waives sovereign immunity for non-monetary claims 

made directly under 38 U.S.C. § 4214, we will address whether we 

can infer a private right of action under VEVRA. Antol again 

argues that VEVRA's reference to the Rehabilitation Act suffices 

to create a private right of action; however, that reference does 

not purport to incorporate the rights and remedies of the 

Rehabilitation Act into VEVRA. Analyzing the factors articulated 

in Cort v. Ash, 422 U.S. 66 (1975), we agree with the Agency and 

the district court that there is no private right of action under 

38 U.S.C. § 4214. 

 "The crucial question is whether Congress intended to 

create such a right." American Tel. & Tel. Co. v. M/V Cape Fear, 

967 F.2d 864, 866 (3d Cir. 1992). The statute is silent on 

 

0

Neither party mentioned the Administrative Procedure Act, much 

less the waiver of sovereign immunity for non-monetary relief, 

and Antol did not seek review under the APA. Arguably, the 

agency's action in failing to follow the affirmative action plan 

for disabled veterans, which it created and adopted, could be 

directly challenged under the APA; however, we hesitate to 

proceed upon this ground for review. This complex area of 

administrative law has not been briefed before us, nor has 

appellant sought review of the Agency's action under it. 

Therefore, because Antol seeks review only under VEVRA itself, he 

must show that a private right of action exists. 
whether an agency can be sued for failure to comply with its own 

affirmative action plan for disabled veterans, and there is 

nothing in the legislative history indicating that Congress 

intended a private right of action. 

 Antol asserts that if there is no cause of action 

against the agency, then § 4214(c) has no enforcement mechanism. 

However, VEVRA specifically provides for the Office of Personnel 

Management's oversight and review of the affirmative action plans 

required under it: 

The Office of Personnel Management 

shall be responsible for the review 

and evaluation of the 

implementation of this section and 

the activities of each agency to 

carry out the purpose and 

provisions of this section. 

38 U.S.C. § 4214(d). Section 4214(d) also provides for annual 

reports to Congress on the progress made under the plans. 

Pursuant to its duty under § 4214(d), the Office of Personnel 

Management has authored regulations specifically detailing the 

duty of federal agencies to create, implement, and improve 

affirmative action plans for disabled veterans. See 5 C.F.R. 

§§720.301-720.306. 

 There may be many reasons why Congress chose not to 

provide for private suit against an Agency under VEVRA to enforce 

§ 4214(c). We will not speculate as to what those reasons are. 

Regardless of whether we would agree with those reasons, Congress 

did not intend a private right of action, and we cannot create 

one under the guise of statutory construction. Therefore, we 

will affirm the summary judgment on Antol's claim for non-
monetary relief under VEVRA, and we will reverse and remand 

Antol's claim for monetary relief under VEVRA for the district 

court to dismiss for want of jurisdiction. 

V. 

 Although Antol cannot sue the Agency under VEVRA, 

nonetheless, he has a remedy under the Rehabilitation Act of 

1973. The Rehabilitation Act's extensive statutory scheme 

protects disabled individuals, regardless of veteran status, from 

discrimination by their Agency employers and requires 

implementation of an affirmative action plan. 29 U.S.C. §§ 791, 

794. Under § 501 of the Rehabilitation Act, Antol argues that 

the Agency failed to follow its affirmative action plan, in 

violation of the Act, and that the violation constitutes a breach 

of its duty to reasonably accommodate individuals with 

disabilities. Antol also argues generally that in failing to 

promote him, the Agency discriminated against him based on his 

disability. 

 In the context of employment 

discrimination, the ADA, ADEA and Title VII 

all serve the same purpose--to prohibit 

discrimination in employment against members 

of certain classes. Therefore, it follows 

that the methods and manner of proof under 

one statute should inform the standards under 

the others as well. . . . In addition, courts 

routinely employ the Title VII burdenshifting rules in pretext cases brought under 

the Rehabilitation Act of 1973, 29 U.S.C. 

§701 et seq., which prohibits disability 

discrimination in public employment. 

Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995). 

"Whether suit is filed under the Rehabilitation Act or under the 

Disabilities Act, the substantive standards for determining 
liability are the same." McDonald v. Commonwealth of Pa., Dep't. 

of Public Welfare, 62 F.3d 92, 95 (3d Cir. 1995). 

A. 

 Antol miscasts his case as one involving accommodation, 

citing the following discussion in Prewitt v. United States 

Postal Service, 662 F.2d 292 (5th Cir. 1981): 

Preliminarily, however, we should observe 

that section 501 requires affirmative action 

on the part of federal agencies; unlike 

section 504 of the Rehabilitation Act and 

Title VII of the Civil Rights Act which 

usually require only nondiscrimination. . . . 

[S]ection 501 requires that federal agencies 

do more than just submit affirmative action 

plans--section 501 "impose[s] a duty upon 

federal agencies to structure their 

procedures and programs so as to ensure that 

handicapped individuals are afforded equal 

opportunity in both job assignment and 

promotion." 

Id. at 306 (quoting Ryan v. FDIC, 565 F.2d 762, 763 (D.C. Cir. 

1977)). 

 That Antol's allegations center around an affirmative 

action plan does not render it a reasonable accommodation case. 

Reasonable accommodation refers to affirmative efforts which the 

employer must take in order to ensure that an employee can 

perform the essential job functions. See McDonald, 62 F.3d at 

92. Employers can not legitimate their failure to promote or 

hire a disabled individual if they can remedy an individual's 

inability to perform the required job function through reasonable 

accommodation, such as by providing special equipment or making a 

simple change in job structure. Where an employer can 

accommodate a disabled individual without undue burden, the 
refusal to make necessary accommodations can become unreasonable 

and discriminatory. See Americans Disabled for Accessible Pub. 

Transp. v. Skinner, 881 F.2d 1184, 1192 (3d Cir. 1989) (in banc). 

 In Buckingham v. United States, 998 F.2d 735 (9th Cir. 

1993), on which Antol relies, the plaintiff sought a transfer to 

an available position in another city to allow him to pursue AIDS 

therapy. The court held that this accommodation, especially 

where the condition was life-threatening, was reasonable and 

necessary in order to enable the plaintiff to continue performing 

his job. The court emphasized that the plaintiff did not seek 

another job or a promotion. Antol, however, did seek a different 

position and did not need accommodation to qualify him or enable 

him to perform it. 

 The Agency did not defend by arguing that Antol was 

unqualified. Rather, it argued that the selecting officer 

considered him less qualified for the trainee position than the 

two successful candidates. Accommodation regards efforts that 

address the individual's ability to perform a job, not his 

entitlement to it. For that reason, the district court 

appropriately did not analyze his case as one involving the duty 

of reasonable accommodation. 

B. 

 Antol also argues that the Agency intentionally 

discriminated against him. In response to Antol's prima facie 

case, the Agency articulated as its legitimate non-discriminatory 

reason for not selecting Antol that the selecting official 

preferred an applicant with a college degree and felt that the 
work experience of the two successful candidates made them better 

qualified for the job. The burden then shifted to Antol to 

produce sufficient evidence of pretext, rebutting the Agency's 

legitimate non-discriminatory reason. The district court 

characterized Antol's evidence as consisting merely of a stray 

remark and a single violation of the affirmative action plan. It 

held that a single violation of an affirmative action plan does 

not constitute a violation of the Rehabilitation Act, and further 

opined that although the violation of the affirmative action plan 

is evidence of discrimination, Antol produced insufficient 

evidence of pretext to rebut the Agency's proffered legitimate 

non-discriminatory reason. It therefore granted the Agency's 

motion for summary judgment. We will reverse. 

 We note at the outset that we need not and do not 

consider whether a single violation of an Agency's affirmative 

action plan mandated by the Rehabilitation Act constitutes a 

violation of the Act. As we stated, supra, VEVRA does not 

provide an action against the Agency for failure to comply with 

38 U.S.C. § 4214(c)'s mandatory affirmative action plan. Thus, 

Antol cannot transform an alleged VEVRA violation into a per se

Rehabilitation Act violation.0

 

0

Antol did not produce evidence that the Agency violated its 

Rehabilitation Act affirmative action plan. At issue is the 

affirmative action plan for disabled veterans required by VEVRA, 

not the plan required by the Rehabilitation Act. The dissent, 

however, would find that VEVRA expressly provides a private right 

of action and incorporates the Rehabilitation Act's remedies by 

requiring agencies to include their VEVRA affirmative action plan 

for disabled veterans in their Rehabilitation Act affirmative 

action plan for disabled individuals. 
 Contrary to the characterization adopted by the Agency 

and the district court, Antol's evidence did not consist merely 

of a single violation of an affirmative action plan and a stray 

remark by a non-decisionmaker. Rather, Antol produced the 

following evidence of pretext: 1) that the Agency violated its 

affirmative action plan for disabled veterans by failing to 

provide Antol a truly non-competitive interview; 2) that, in 

general, selecting officials repeatedly resisted full 

implementation of the affirmative action plan; 3) that the 

selecting official's supervisor, who was involved in the 

selection process, uttered grossly distasteful epithets against 

Antol regarding his disability, referring to him as "spasm head;" 

4) that the position did not require a college degree and was a 

trainee position; and 5) that the selecting official changed his 

justification for not selecting Antol after the personnel 

staffing specialist pointed out that his justification for not 

selecting Antol would not suffice. Accordingly, we find that the 

record reflects a genuine issue of material fact regarding 

whether the Agency's asserted reason for not selecting Antol is a 

pretext for discrimination. 

 In Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), we 

stated that, for a plaintiff to prevail: 

when the defendant answers the plaintiff's 

prima facie case with legitimate, 

non-discriminatory reasons for its action, 

the plaintiff must point to some evidence, 

direct or circumstantial, from which a 

factfinder could reasonably either (1) 

disbelieve the employer's articulated 

legitimate reasons; or (2) believe that an 

invidious discriminatory reason was more 
likely than not a motivating or determinative 

cause of the employer's action. 

32 F.3d at 764. We do not require the plaintiff to adduce 

evidence directly contradicting the defendant's proffered 

legitimate reasons. Id.

 In support of Antol's motion for summary judgment and 

in opposition to the Agency's motion, Antol submitted testimony 

by Mr. Hubbard, a personnel staffing specialist for the Agency 

who has special responsibility for the affirmative action plan, 

that in Antol's case, the Agency violated its affirmative action 

plan0 by providing the list of other candidates to the selecting 

official before Antol's non-competitive interview. In addition 

to providing the merit list prematurely, Personnel failed to 

provide the selecting official with the required command policy 

statement in support of affirmative action. Hubbard also 

testified that Agency personnel actively resisted efforts to 

implement the affirmative action plan, and that the plan rarely, 

if ever, resulted in non-competitive hiring of a disabled 

veteran. The Agency's failure to adhere to its own rules is 

evidence of discriminatory intent. See Colgan v. Fisher 

Scientific Co., 935 F.2d 1407, 1422-23 (3d Cir.) (in banc), cert. 

denied, 502 U.S. 941 (1991). 

 

0

We recognize that the affirmative action plan at issue provides 

a preference for disabled individuals who are veterans. Standing 

alone, evidence that the Agency violated this plan in Antol's 

case might not be sufficient to defeat a motion for summary 

judgment. Nevertheless, when combined with the other evidence 

which casts doubt on the credence of the asserted reason for the 

defendant's employment decision, an inference of discriminatory 

motive is permissible. 
 In the context of Title VII, the Ninth Circuit has 

stated that "evidence that the employer violated its own 

affirmative action plan may be relevant to the question of 

discriminatory intent." Gonzales v. Police Dep't., San Jose, 

Cal., 901 F.2d 758, 761 (9th Cir. 1990); see also Yatvin v. 

Madison Metro. School Dist., 840 F.2d 412, 415-416 (7th Cir. 

1988) (violation of a voluntary affirmative action plan might 

help support a claim of discrimination); Craik v. Minnesota State 

University Bd., 731 F.2d 465, 472 (8th Cir. 1984) ("evidence that 

employer has failed to live up to [a voluntary] affirmative 

action plan is relevant to the question of discriminatory 

intent."). But see Liao v. Tennessee Valley Authority, 867 F.2d 

1366, 1369 (11th Cir. 1989), cert. denied, 494 U.S. 1078 (1990) 

(failure to give preference under voluntary affirmative action 

plan cannot support allegation of discrimination). The 

circumstances of the failure to follow the affirmative action 

plan bear on its relevance. Here, the crux of the Agency's 

affirmative action plan is an applicant's enhanced opportunity 

for selection through non-competitive consideration. Although 

the Agency granted Antol an initial and separate interview, the 

selecting official's knowledge of the merit candidates 

eviscerated the plan's core benefit: non-competitive 

consideration. The Agency's failure to follow its own plan in 

Antol's case and the more general active resistance by selecting 

officials to its implementation is relevant under Fed. R. Evid. 

401 as to whether Smith, the selecting official who rejected 

Antol, fairly considered Antol's candidacy. A reasonable jury 
could consider the Agency's failure to take seriously its stated 

commitment to disabled veterans and the active resistance to 

implementing that commitment as evidence of discriminatory 

intent. 

 In order to defeat the motion for summary judgment, 

Antol also offered evidence of discriminatory animus: Smith's 

supervisor, Mr. Gomez, referred to Antol as "spasm head." Antol's 

affidavit averred that Antol had become accustomed to the 

epithet. Characterizing it as a "stray remark," the district 

court afforded it little weight. The district court did not 

appropriately consider this demeaning remark as probative 

evidence; because the Agency sent correspondence relating to the 

selection process and submitted Antol's application through Gomez 

to Smith, and Gomez discussed Antol's application with Smith, it 

was much more than a mere stray remark. 

 Gomez' involvement in and influence on the 

decisionmaking process was as Smith's supervisor. This is not a 

case where the person making the statement "was outside the chain 

of decision-makers who had the authority to hire and fire 

plaintiff." Gomez v. Allegheny Health Services, Inc., 71 F.3d 

1079, 1085 (3d Cir. 1995); see also Ezold v. Wolf, Block, Schorr 

and Solis-Cohen, 983 F.2d 509, 546-47 (3d Cir. 1992), cert. 

denied, 114 S. Ct. 88 (1993) (six comments made over the five 

years before decision at issue by individual not working for 

employer at time of decision too remote to show independently

that unlawful discrimination more likely than proffered reason). 

Evidence that an individual involved in the selection process, 
such as the decisionmaker's supervisor, referred to Antol as 

"spasm head" often enough for Antol to state that he had become 

accustomed to it, supports an inference of discrimination. See

Wilson v. Susquehanna Township Police Department, 55 F.3d 126, 

128-30 (3d Cir. 1995) (statement by decisionmaker's supervisor 

that "there would be no woman supervisor if he had anything to do 

with it" was not a stray remark); see also Lockhart v. 

Westinghouse Credit Corp., 879 F.2d 43, 54 (3d Cir. 1989) ("When 

a major company executive speaks, 'everybody listens' in the 

corporate hierarchy."), overruled on other grounds as recognized 

by Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1099 

n.10. In a recent case, we credited "evidence of age-related 

animus or bias in the form of a comment made to" the plaintiff by 

a person involved in the decision to terminate him. Waldron v. 

SL Indus., Inc., 56 F.3d 491, 502 (3d Cir. 1995). We held that: 

[T]he comment may be entitled to some weight 

when considered by the jury, although 

standing on its own it would likely be 

insufficient to demonstrate age-related 

animus. In other words, the comment is not

irrelevant, especially when coupled with 

[plaintiff's] other evidence of 

discrimination. 

Id. Moreover, the slur used by Gomez, as compared to the 

"suggestion" in Waldron that the plaintiff lose weight to look 

younger, clearly demonstrates disability-related animus. 

 Regardless of whether Gomez ever repeated the slur to 

Smith, it is evidence of the atmosphere and context in which 

Smith made the employment decision. The factfinder may likewise 

consider the evidence regarding resistance to affirmative action 
as evidence of the atmosphere in which the Agency made its 

employment decisions. See Brewer v. Quaker State Oil Refining 

Corporation, 72 F.3d 326, 333 (3d Cir. 1995) (evidence of 

employer's "culture" is circumstantial evidence of 

discrimination); Ezold, 983 F.2d at 545 (citing Roebuck v. Drexel 

University, 852 F.2d 715, 733 (3d Cir. 1988) (although temporally 

remote statements standing alone would not suffice, they support 

finding of discrimination when combined with other evidence)). 

Circumstantial proof of discrimination 

typically includes unflattering testimony 

about the employer's history and work 

practices--evidence which in other kinds of 

cases may well unfairly prejudice the jury 

against the defendant. In discrimination 

cases, however, such background evidence may 

be critical for the jury's assessment of 

whether a given employer was more likely than 

not to have acted from an unlawful motive. 

Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir. 

1988). The atmosphere is relevant to whether defendant's 

asserted legitimate non-discriminatory reasons were pretextual, 

and relevant to the ultimate issue of whether defendant 

intentionally discriminated against plaintiff. 

 A factfinder can use evidence revealing inconsistencies 

in statements or procedures and evidence revealing a hostile 

atmosphere to find pretext. See Glass v. Philadelphia Elec. Co., 

34 F.3d 188, 194-195 (3d Cir. 1994); Josey v. John R. 

Hollingsworth Corp. 996 F.2d 632, 639-641 (3d Cir. 1993). 

[W]e recognize that proof of a discriminatory 

atmosphere may be relevant in proving pretext 

since such evidence does tend to add color to 

the employer's decisionmaking processes and 

to the influences behind the actions taken 

with respect to the individual plaintiff. 
Ezold, 983 at 546 (internal quotations omitted). 

 The Agency now asserts that Smith rejected Antol 

because he preferred a college graduate. There is evidence, 

however, that the selecting officer changed his original 

justification for rejecting Antol after Hubbard alerted him to 

problems with his justification. It is unclear from the record 

just what that original justification was. 

 The Agency required Smith to provide a justification 

letter explaining his failure to select Antol. Ms. Gallo, a 

personnel support specialist, sent him a sample justification 

letter. After Smith had completed the interview process, Hubbard 

spoke with Smith regarding his concerns with Smith's original 

justification for passing over Antol, in light of the fact that 

the position was for a trainee. Hubbard testified that he talked 

with Smith, 

and let him know that justification wouldn't 

fly and told him that he has to be most 

persuasive in describing why he is selecting 

the individuals based on their education, 

experience, and knowledge of the job, and he 

reviewed the letter, but I did not tell him 

what to say. 

Hubbard told Smith to write a second justification letter. From 

this evidence a factfinder could disbelieve the reasons which the 

Agency now articulates for not selecting Antol. A factfinder 

might reasonably infer that the justification now asserted is a 

pretext for the true reason Smith did not select Antol. Where 

the Agency's own personnel specialist found fault with the 

justification, and this prompts changes in the justification, a 
factfinder could view the final justification as less worthy of 

credence. 

 The job announcement for the position indicated that 

qualified applicants must either have a college degree or three 

years of experience in specified fields, excluding certain 

clerical and technical support experience. Antol qualified for 

the position based on his experience; one of the successful 

candidates, Ms. Davis, did not. Yet the selecting official 

considered Antol's experience substantially inferior to that of 

Ms. Davis. A factfinder could question, as inconsistent, Smith's 

subjective evaluation when the Agency deemed Antol's experience 

equivalent to a college degree for qualification purposes, and 

deemed Ms. Davis' experience alone insufficient to qualify her 

for the position. 

 Antol produced sufficient evidence of pretext from 

which a factfinder could reasonably infer discrimination. In 

combination, the failure to follow Agency procedures, the 

decisionmakers' active resistance to the affirmative action plan, 

the references to Antol as "spasm head" by the decisionmaker's 

supervisor, and the labile nature of the justification for the 

employment decision, permit a finding of pretext. Therefore, the 

Agency failed to show that it was entitled to judgment as a 

matter of law on Antol's disability discrimination claim, and we 

will reverse the district court on this issue. Although this 

evidence permits an inference of discrimination, that result is 

by no means mandated. Therefore, we will affirm the denial of 

Antol's cross-motion for summary judgment. 
VI. 

 In sum, we affirm the summary judgment for the Agency 

on the gender discrimination claim and on the claim for nonmonetary relief under 38 U.S.C. § 4214(c). Because VEVRA does 

not contain a waiver of sovereign immunity from Antol's suit for 

money damages under § 4214(c), we will reverse the order entering 

judgment on this claim and remand with instructions for the 

district court to dismiss it for lack of jurisdiction. Although 

we affirm the denial of summary judgment in favor of Antol, we 

find that the district court erred by granting summary judgment 

to the Agency on Antol's disability discrimination claim, and we 

therefore reverse and remand the cause for the district court to 

consider the remaining disability discrimination claim. 

ALITO, Circuit Judge, concurring: 

 I join the opinion of the court, but I wish to clarify 

my understanding of the significance of the Agency's violation of 

its Vietnam Era Veterans Readjustment Assistance Act (VEVRA), 38 

U.S.C. § 4214, affirmative action plan. We reverse the decision 

of the district court and remand for further proceedings with 

respect to Antol's claim that the Agency intentionally 

discriminated against him because of his disability. In order to 

succeed on this claim, Antol must prove that (putting aside the 

question of reasonable accommodation) the Agency gave him less

favorable treatment than it would have given an identical 

applicant without a disability. Southeastern Community College 
v. Dans, 442 U.S. 397 (1979).0

 The VEVRA affirmative action plan 

required the Agency to give Antol more favorable treatment than 

either (a) an identical applicant without a disability or (b) an 

identical applicant with a disability who did not fall within 

VEVRA's coverage. While I agree that evidence of the Agency's 

violation of the VEVRA affirmative action plan meets the low 

standard of relevance set out in Fed. R. Evid. 401, this evidence 

seems to me to have very little probative value for the purpose 

of proving intentional discrimination against Antol. However, 

even without this evidence, I think that the proof in the record 

is sufficient to defeat summary judgment for the Agency under the 

standard contained in Fuentes v. Peskie, 32 F.3d 759 (3d Cir. 

1994)0, or the somewhat different standards adopted by other 

circuits. See, e.g., Rhodes v. Guiberson Oil Tools, 75 F.3d 989 

(5th Cir. 1996) (in banc). 

SAROKIN, J., concurring in part and dissenting in part. 

 I join the Court's opinion as to Parts I, II, III, 

IV.A. However, because I believe that VEVRA does create a 

private cause of action, I dissent from Part IV.B. 

 I do not agree that Congress would require federal 

agencies to implement affirmative action plans designed to 

 

0

Although Antol's claim is couched as a claim under Section 501 

of the Rehabilitation Act, § 791, it is the equivalent of a §504 

claim. See Spence v. Straw, 54 F.3d 196, 198-201 (3d Cir. 1995). 

0

Our court has granted rehearing in banc in a case that presents 

the question whether the Fuentes standard is correct. See

Sheridan v. E.I. DuPont de Nemours and Co., No. 94-7509. 
protect employees from discrimination, but then give employees no 

adequate recourse if an agency violated its plan and denied 

employees those very procedures designed to protect them. My 

position is based upon my understanding of the statutory scheme 

designed by Congress -- an understanding similar to that of the 

one reported federal case that is precisely on point, Blizzard v. 

Dalton, 876 F. Supp. 95 (E.D. Va. 1995). The court's statutory 

analysis in that case convinces me as a matter of law that 

Congress did not enact a legislative toothless tiger. 

 The deciding issue is the relationship between section 

403 and section 501(b). Section 403(a)(c) states: 

Each agency [of the federal government] shall 

include in its affirmative action plan for 

the hiring, placement, and advancement of 

handicapped individuals in such agency as 

required by section 501(b) of the 

Rehabilitation Act of 1973 (29 U.S.C. 

791(b)), a separate specification of plans . 

. . to promote and carry out such affirmative 

action with respect to disabled veterans in 

order to achieve the purpose of this section. 

38 U.S.C. § 4214(c) (emphasis added). 

 The plain language of § 403(a) does more than "merely 

mentioning the Rehabilitation Act." Majority Opinion, typescript 

at 10. It makes the plan with respect to disabled veterans a 

part of the agency's 501(b) plan. See Blizzard, 876 F. Supp. at 

98 ("[A]ffirmative action protection for disabled veterans . . . 

comprises part of the Department of [Defense]'s affirmative 

action plan under section 501(b) of the Rehabilitation Act."). 

 Accordingly, there is no need to "enlarge the waiver in 

the Rehabilitation Act 'beyond what the language of the statute 
requires,'" Majority Opinion, typescript at 10; and there was no 

need for Congress to provide a private cause of action as part of 

VEVRA since a person aggrieved under VEVRA is at the same time 

aggrieved under section 501(b), and since "section 505(a)(1) of 

the Rehabilitation Act provides that individuals aggrieved under 

section 501(b) of the Act, can seek redress through a private 

right of action." Blizzard, 876 F. Supp. at 98. There was also 

no need for Congress to "include in VEVRA a section adopting the 

rights or remedies of the Rehabilitation Act," Majority Opinion, 

typescript at 12, since section 505(a)(1) plainly applies to a 

501 plan, of which the 403 plan is merely a subpart. There is no 

need to "heap inference upon inference," Majority Opinion, 

typescript at 12, because the statutory scheme is 

straightforward. 

 Therefore, as I think the court correctly concluded in 

Blizzard, I would hold that "Plaintiff's allegation that he 

suffered discrimination under the disabled veterans portion of 

the 'Section 501(b) Plan' allows him access to the rights and 

remedies contained in Title VII of the Civil Rights Act at 42 

U.S.C. § 2000e-16." Id. For this reason, I dissent.