Antol v. Sec Dept Defense ( 1996 )

Opinions of the United
1996 Decisions 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Precedential or Non-Precedential: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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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 non-
competitive 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 well-
established 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 burden-
shifting 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 non-
monetary 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.