Kenneth C. Antol v. William J. Perry, Secretary Department of Defense, (Defense Logistics Agency)

judgment of the district court on specif- L cate the any of & F’s offer evidence failed to presented enough argues basis that evi- Kowalski ERISA Kowalski intent to violate ic suggest to that máterial issues of fact dence facts available to were sufficient that there L & F’s reliance on the reasonably infer exist as whether it court for the district investigator’s report pretextual. Based discriminatory in- was L F with a that & acted (and case, in the us on the evidence record before agree. note that We tent. We us, i.e., part not before on what evidence is whether do not determine need not and we successfully report), Kowalski has stood of a an essential element specific intent is ground against L & sum- because, her F’s motion for or not § 510 cause mary judgment. required, there was sufficient such intent is satisfy in the the essential evidence record

elements of 510. to show Kowalski offered same facts non-discriminatory proffered L F’s & terminating pretextual was her

reason for specific intent to to infer L & F’s

can be used Mary’s In St. Honor Center

violate ERISA Hicks, Supreme Court commented ANTOL, Appellant, Kenneth C. put disbelief of the reasons factfinder’s “[t]he (particularly if by defendant forward accompanied suspicion [the] disbelief PERRY, Secretary Depart- William J. mendacity) may, together with the ele- (Defense Defense, Logis- ment of case, prima suffice ments of facie Agency). tics U.S. at intentional discrimination.” 509 show Indeed, at 2749. we have 113 S.Ct. No. 95-3254. that, plaintiff point- has similarly “if the held Appeals, Court of United States the de- to discredit ed to evidence sufficient Third Circuit. reasons, sum- proffered to survive fendant’s mary judgment plaintiff not also come need 31, 1995. Argued Oct. with additional evidence discrimi- forward 7,May Decided prima her case.” beyond nation his or facie Fuentes, this stan- 32 F.3d at 764. Under dard, evidence, enough Kowalski has offered specified section III-C of this

which we summary judgment

opinion, to on the survive L F’s

issue of whether & actions demonstrat- to violate 510 of specific

ed intent

ERISA such,

As we cannot sustain the district has offered

court’s conclusion that Kowalski specific of L & intent

no evidence F’s § 510 of ERISA.

violation

IV. Kowalski, sum, an em- hold been

ployee who claims have terminated having her employer her exercised arising

right of her benefits out bunioneetomies, cognizable raised

two notwithstanding

claim under 510 ERISA from

the fact that she received the benefits prior va- employer

her to termination. We (argued), Bag- Bagin A. Wienand &

Bruce in, Pittsburgh, Appellant. for PA (argued), R. Office of Bonnie Sehlueter Attorney, Pittsburgh, for United States PA Appellee. NYGAARD, ALITO and Before: SAROKIN, Judges. Circuit OF THE COURT OPINION NYGAARD, Judge. Circuit Antol sued Defense Kenneth C. Logistics Agency Department of De fense, alleging under gender discrimination VII, 2000e-16(a), disability Title Act discrimination under the Rehabilitation and a violation of 29 U.S.C. Readjustment the Vietnam Era Veterans’ (VEVRA), 4214. Assistance 38 U.S.C. summary judgment; parties Both moved Agency’s mo granted the the district court all We conclude tion on claims. summary properly granted district court gender judgment for the on Antol’s non- his claim for discrimination claim and should monetary relief under that it VEVRA money his VEVRA claim for have dismissed jurisdiction, that it damages lack summary properly denied his motion disability judgment on his discrimination however, find, a material issue claim.1 We judgment summary for the precluding fact disability on Antol’s Therefore, part, affirm in we will claim. part, remand the cause reverse summary judgment by propriety summary denial of appeal “[W]hen from a denial of Miller, judgment appeal Nazay F.2d is raised in tandem district court.” Cir.1991). granting an order a cross-motion for judgment, jurisdiction to review the have district court for it to consider the Smith applicants: interviewed three female brought discrimination claim Bigger, the Re- Angelmarie Arlene Karen Davis and habilitation Act. Scott, Scott. Smith selected Davis and who college degree each earned a but are not

I. According disabled veterans. to Smith’s affi- employed davit, Antol is Logis- the Defense Antol was informed on November Budget rejected.2 tics as a Assistant. that he had He been also Army, a veteran of the United States counselling Antol initiated informal within amounting with a seizure disorder to a “30 Agency, claiming the defendant that he was percent disability.” required by more As promotion not selected for the based on his VEVRA, Agency promulgated the an affir- disability. Antol then filed a formal com- plan mative for disabled veterans. plaint alleging disability discrimination. The provides highly qualified That vet- Agency investigated complaint his and issued erans 30% or more would be decision, finding its final no discrimination. preferred positions for available and afforded appealed Agency Antol final the decision to interview, non-competitive a competi- before Operations the Equal Office Federal of the tive interviews of merit candidates and be- Employment Opportunity Commission. Af- selecting fore the officer receives the merit exhausting ter his administrative remedies promotion list. The allows disabled vet- charge disability discrimination, on the be general erans to compe- considered before Antol Agency sued the defendant in federal position a hope tition for in the that more parties court. Both summary moved for promoted would wholly be than under a com- judgment. petitive procedure. In application Antol submitted an for II. Specialist GS-1102-5, Target 9,” “Contract a plan required The affirmative action the position eventually trainee which leads ato Agency to qualified refer disabled veterans professional-level grade, requiring spe- either non-competitive for referring selection before job experience cific college or a degree. other candidates. Antol contends that the positions There job were two available this Agency discriminated him because he applied, classification. When he Antol had when, is disabled and violated VEVRA con- approximately college hours, credit but no trary plan, to the terms of the it referred his degree. Antol quali- certified along name with the names of the three position fied for the based on his expe- work other merit candidates. He also contends To non-competitive rience. afford Antol a generally that the did not select him interview, the Philadelphia office in for position because he is disabled. Be- Gomez, application referred Antol’s to Mr. cause the two successful candidates were fe- selecting supervisor officer’s in Pitts- male, gender Antol also claims burgh, Smith, who then referred it to Mr. legitimate as well. The offered as a Contrary officer. explicit to the non-discriminatory reason that Smith chose requirements plan, of the Smith received a qualified the best candidate for each list merit candidates before Antol’s preference college based on his gradu- a non-competitive interview. ate and based on the work expe- candidate’s first, Smith Antol interviewed but did not rience. position. Later, offer him the Smith inter- again, viewed Antol this time as a appeal summary merit On from judg interviews, ment, candidate. Between Antol’s two we view the evidence de novo and in 2. date dispute tively. This is relevant to the over granted wheth- Because the district court sum- jury er is a compensa- mary judgment, entitled to trial and it did not have occasion to rule tory damages Rights under the request jury Civil Act of compensa- on Antol's a trial and which took tory damages effect on argument November or to address his - Film, -, Landgraf v. USI Landgraf U.S. apply alleges S.Ct. does not because he (1994), Supreme continuing L.Ed.2d violation. The district court should apply Court ruled that the Act did not retroac- address issue in the first instance. EEOC, fairly non-moving was within earlier EEOC to the light most favorable genu- complaint charging retaliation. We held there is determine whether party to not, and, plaintiffs suit was not barred for failure if fact of material ine issue judgment to exhaust administrative remedies because moving party is entitled suit grievances filed and the core of law. matter complaint earlier EEOC were the same— however, must, sufficient evi- be There filing Requiring a new retaliation. EEOC jury return a verdict dence every discriminatory would for each and act if the nonmoving party; evi- favor statutory purposes of the not serve the signifi- merely or not colorable dence discriminatory acts scheme where later judgment cantly probative, squarely scope within earlier fell granted. be should complaint investigation. or EEOC Corp., Unisys Armbruster Cir.1994) (citations omitted). Waiters, gender Unlike the suit Antol’s fall discrimination claim does not within the III. scope investiga- complaint of the EEOC Manager tion. The affidavit of the EEO summary judg challenges responsible processing complaint Antol’s for his discrimi Agency gender the on ment for that stated claim, Agency violat arguing that the nation for by choosing two females the Title VII ed complaint pre- the issue and basis for argues Agency him. The position instead of sented to the counselor was that of EEO summary judgment we should affirm that promotion upon for based non-selection 1)Antol grounds: failed to exhaust his two on (seizure alleged handicap physical disor- 2) remedies;3 and Antol administrative der). raise Mr. did not the issue pretext. produce evidence of We failed to sex discrimination the informal counsel- his adminis Antol failed to exhaust find that process.... ing stage of the administrative affirm the remedies and will trative provides The further that Antol affidavit judgment for on this claim. gender failed discrimination to raise Antol never points out that The well, and process formal administrative any gender discrimination asserted investigated that of that “the sole issue was responds proceedings. administrative handicap discrimination.” fairly within gender discrimination was investigation here that of his Antol asserts scope proceedings of the EEOC investi- complaint disability discrimination disability his discrimination claim. gating Parsons, 729 F.2d 233 He cites Waiters inevitably developed facts of must have Cir.1984) curiam), (per to establish the discriminatory alleged two event: proposition that he is excused from exhausts promoted, while a man was women were ing his administrative remedies. furthermore, promoted; a his- not there is tory being women offered advancement In Waiters we held: ques- through promotion to the determining relevant test in squarely tion. ... These acts were before required her ad- appellant was to exhaust investigator could have been inves- therefore, remedies, ministrative wheth- tigated. subsequent in the Title alleged the acts er fairly scope of suit within the VII are added). he (emphasis Antol even admits that investiga- prior complaint, or the EEOC gender dur- suspected discrimination never arising tion therefrom. Nonetheless, ing process. the administrative gender fell argues now discrimination he Id. at 237. At issue was whether Waiters’ investigation. court, retaliatory scope of the EEOC alleging a within the suit in federal disagree. firing filing previous complaints for with the We bring- prerequisite to As exhaustion is a district did not address the claim. 3. The court suit, argument ing Antol failed exhaust his admin- issue. we will address threshold gender for the discrimination istrative remedies veterans, specifies his military discrimina- virtue their ser- charge fairly vice, encompass do opportunities pursue claim have lost edu- merely gender for discrimination because in- and training cation oriented towards civil- is, vestigation therefore, reveal 'that Antol is a policy man ian careers.... It (would (cid:127) employees and the two who received the purpose of the United States and the positions investigation are women. The fo- promote this section to the maximum of cused, think, quite properly grava- employment job opportu- advancement complaint disability ofmen Antol’s discrimi- nities within the Federal Government for — agency nation. Neither nor the EEOC disabled veterans and certain veterans of put on gender were of a notice post-Vietnam the Vietnam Era and requiring claim. The exhaustion qualified employ- Era who are for such opportunity is to afford the EEOC the ment and advancement.

tion, and persuasion, avoiding unnecessary settle disputes through conference, concilia- ^[******] in court. Antol failed to exhaust ad- (c) agency Each shall include in its affir- gender for ministrative remedies his discrim- hiring, place- mative claim. ination ment, handicapped and advancement of in- agency required dividuals such

IV. 501(b) section of the Rehabilitation Act of (29 791(b)), separate specifi- U.S.C. Antol seeks to recover from the 4214(c) plans promote violating carry cation ... respect out such affirmative action with disabled veterans. argues Congress He disabled veterans in order to achieve when included lan- in of guage instructing agencies this section. VEVRA to in- corporate plans affirmative action their added). Thus, (emphasis VEVRA, under disabled into veterans Rehabilitation Act Agency separate specification must include a 501(b) § plans, Congress of its for disabled veterans in its affir- private right a created of action for violation plan required by mative action the Rehabili- plan. of a VEVRA affirmative action The tation Act. Agency responds that reg- VEVRA’s section ulating employment training does not B. express an sovereign contain waiver of immu- nity, express private that there is no cause of principle It is a “well-settled that action, private and that no of cause action government the federal is immune from suit against government can be inferred. We Corp. save as it consents to be sued.” FMC agree with that VEVRA contains Commerce, Dept. v. United States of immunity sovereign no waiver of for Antol’s 888, (3d Cir.1994)(in bane) (internal quo 839 for money damages claim and will therefore omitted). agency tations As an of the United summary judgment vacate the and remand States, sovereign immunity protects the De the cause to the district court for it to dis- Logistics Agency fense of Department of agree miss this claim. also that We VEVRA Center, University In Re Defense. Medical § provide private right 4214 does not of 1065, (3d Cir.1992). 1085 The fed action and judgment will affirm the government unequivocally eral must consent non-monetary on Antol’s claim for relief un- to be sued and the consent be con “must der VEVRA. narrowly strued in government.” favor of the Corp., Supreme FMC 29 F.3d at 839. The A. Court in cautioned Touche Ross Co. v. & VEVRA, Section 403 38 U.S.C. 560, 571, Redington, 2479, 442 U.S. 99 S.Ct. 4214, § provides: 2486, (1979), 61 L.Ed.2d “implying 82 (a)(1) private The has an right United States obli- action the basis con gation to gressional assist veterans of the enterprise, Armed silence is a hazardous readjusting Forces in to civilian at life since best.”

1297 immunity respect to sovereign ex Antol asserts that VEVRA’s running afoul of the include cause of action without requirement press —that injunction recog- action'plan for disabled veter its affirmative well-established nizing sovereign affirmative ac immu- Rehabilitation Act of federal ans in its waiver incorporate nity statutory Reha text. evidenced —suffices sovereign immunity waiver of bilitation Act’s 7, 95, Idaho, at 113 citing Id. at 508 U.S. However, mentioning merely into VEVRA 1896; Dorsey v. see also United S.Ct. neither Act constitutes Rehabilitation an. Labor, 1551, F.3d Dept. States unequivocal express an waiver sover nor (D.C.Cir.1994) sup (legislative history cannot immunity from eign suit under VEVRA. We waiver). ply express unequivocal an enlarge the in the Rehabilita cannot waiver did The district court not address language of “beyond what the tion Act express of sov VEVRA contained waiver Idaho, ex requires.” United States statute Resources, ereign immunity. It first concluded Dep’t. rel. Water Director mere to the affirmative 1893, 1896, reference VEVRA 1, 7, 128 L.Ed.2d U.S. 113 S.Ct. 501(b) § (1993). plan required correctly argues provide an ex Rehabilitation Act does not purport §in language 4214 does not that the con press private cause of action. It then sovereign immunity or to create waive Nevertheless, private cluded that a cause of could express of action. cause it no Congress amended the not be inferred because found evidence that when contends private cause of Congress Act 1978to include rem intended Rehabilitation 505,4 Congress Although 403 of it the correct re knew that action.5 reached edies of 501, sult, con Rehabilitation court first should have VEVRA mentioned district Congress incorpo Congress unequivocally intended ex therefore sidered whether remedies, rights, immunity sovereign rate into pressed VEVRA a waiver expressed in sovereign immunity VEVRA, immunity “[s]overeign waiver of because Act. jurisdictional Meyer, in nature.” FDIC 1000, -U.S.-,-, 114 S.Ct. clear United Supreme Court made (1994). L.Ed.2d 308 Inc., Village 503 U.S. States v. Nordic (1992), 117 L.Ed.2d S.Ct. any language point to in cannot sovereign expressing a waiver of VEVRA expression” “unequivocal of elimination immunity claim 38 U.S.C. for his under sovereign immunity upon that we insist of 4214(c). Moreover, Congress § did not in- statutory in If expression text. clari- is an adopting section clude VEVRA there, ty sup- it cannot be not exist does rights of the Rehabilitation Act. or remedies plied report. by a committee to To construe the reference VEVRA Dis sovereign As Consumer we stated Act as a waiver of Rehabilitation Beneficial Poltonowicz, do, 47 F.3d 91 count v. Co. immunity, Antol would have us we which Cir.1995), upon heap to inference inference. would have incorporate inferentially imply a But we cannot disposed if were to cause

even we into ..., Rehabilitation Act imply a waiver from the of we could not waiver action 2012(a)), implied 505(a)(1) an provides: (formerly § § does not create 4. Act Rehabilitation against private tors, federal contrac remedies, of action cause procedures, rights and set forth Adams, (6th citing 929 Rights 873 F.2d Act 1964 Harris 717 Civil in section U.S.C.2000e-16) available, (42 Cir.1989), Nightingale Roofing, ... shall be and Barron any complaint Inc., respect (1st Cir.1988). to under section with Courts 20 title, aggrieved any employee ... 791 of applied Appeals the factors Harris and Barron complaint, disposition by of such the final 2080, Ash, U.S. S.Ct. 45 from Cort v. action on the failure take final such (1975), there was and found that no L.Ed.2d 26 complaint.... pri congressional to create a intent evidence of 794a(a)(1). § 29 U.S.C. implying right one would and that vate of action legislative scheme. See conflict with VEVRA’s support of court offered in its deci- The district F.2d at 21-22. 873 F.2d at unanimously courts have held that sion that the VEVRA, 4212(a) § another section issue; provisions VEVRA section a waiver out the VEV- and of this sec- expressed, unequivocally RA must be and the tion. sovereign immunity in

waiver of the Rehabil- 4214(d). 4214(d) § 38 U.S.C. Section also narrowly itation must Act be construed. provides reports Congress for annual on Therefore, we hold that Antol cannot main- progress plans. made under the Pursu- damages money against tain an action for duty 4214(d), § ant to its under Office Agency under VEVRA. Management regula- Personnel has authored specifically duty tions detailing the of federal C. create, agencies implement improve To the extent Administra plans for disabled veter- Act, 702,6 § tive Procedure 5 U.S.C. waives §§ ans. See 5 C.F.R. 720.301-720.306. sovereign immunity non-monetary for claims directly § made under 38 U.S.C. we may many why There be Congress reasons private will address whether infer a we can provide private against chose not to suits right again of action under VEVRA. under VEVRA enforce argues that VEVRA’s reference the Reha 4214(c). speculate We will not as to what private Act suffices to create a bilitation those Regardless reasons are. of whether action; right however, that reference does reasons, agree we would with Congress those purport to incorporate rights private action, did not right intend remedies of the into VEV guise we cannot create one under the Analyzing RA the factors articulated in statutory Therefore, construction. we will Ash, Cort v. U.S. 95 S.Ct. summary judgment affirm the on Antol’s (1975), agree L.Ed.2d 26 with VEVRA, claim non-monetary relief under and the district court private that there is no and we will reverse and remand Antol’s claim right of action under 38 U.S.C. 4214. monetary relief under VEVRA for the question jurisdic- district court to want “The crucial dismiss for Congress is whether right.” intended to create tion. such a American Fear, Tel. & Tel. Co. v. Cape MTV (3d Cir.1992).

864, 866 The statute is silent V. agency can be sued for failure comply own affirmative Although Antol cannot sue the veterans, for disabled nothing and there is in Agency VEVRA, nonetheless, he has a legislative history indicating that Con- remedy under the Rehabilitation Act of 1973. gress private right intended of action. The Rehabilitation statutory Act’s extensive

Antol asserts that if individuals, there no cause protects scheme regard disabled 4214(c) agency, status, then has less of veteran from VEVRA, no enforcement mechanism. Agency employers how- their requires imple and ever, specifically provides for the Office of plan. mentation of affirmative 29 Management’s oversight Personnel and re- §§ U.S.C. 794. Under 501 of the plans view of required the affirmative action Act, argues Antol under it: Agency failed to follow its affirmative action Act, The of Management plan, Office Personnel in shall violation of the and that responsible be for the review and violation duty evalua- constitutes a breach its to implementation tion of the reasonably this section accommodate individuals with dis agency and carry the activities each to argues that, abilities. Antol also generally in party Act, proceed Neither upon ground mentioned the Administrative this for review. This com- Procedure immunity much sovereign less its waiver of plex area of administrative law has not been relief, non-monetary and Antol did us, appellant sought briefed before nor has re- not Arguably, seek review under the APA. Therefore, Agency's view of the it. action under agency’s failing in to follow affirma- only because Antol seeks review under VEVRA veterans, tive action for disabled which it itself, private right he must show that a of action adopted, directly created and be could chal- exists. APA; however, lenged we hesitate to

1299 Donald, him, Employers 62 F.3d at 92. can discrimi- failing promote to disability. promote or hire legitimate him based on his their failure nated remedy if they individual can disabled employment discrimi- In the context inability perform required individual’s ADA, all nation, ADEA Title VII and job through function reasonable accommoda prohibit dis- serve the same —to tion, providing special equipment such employment against mem- in crimination making simple change job Therefore, structure. it fol- classes. bers of certain employer Where an can accommodate a dis proof methods manner lows that the burden, individual without undue abled stan- should inform the under one statute necessary to make accommodations refusal In the others as well.... dards under discriminatory. can become unreasonable and addition, routinely Title employ the courts Accessible See Americans Disabled Pub. burden-shifting pretext rules cases VII Skinner, (3d Transp. F.2d 1192 881 brought Act under the Rehabilitation (in banc). Cir.1989) seq., prohib- § 701 et which public em- States, Buckingham United F.2d ployment. (9th Cir.1993), relies, which Inc., Osteopathic, F.3d Newman v. GHS plaintiff sought a to an transfer available Cir.1995). 163, 157 (3d is filed “Whether suit position city pur- in another him to to allow Act or under under the Rehabilitation therapy. court held that sue AIDS Act, the substantive standards Disabilities accommodation, especially where the condi- determining liability are same.” Mc life-threatening, tion was was reasonable and Pa., Dep’t Donald v. Commonwealth necessary plaintiff order enable the Cir.1995). Welfare, F.3d Public performing job. The court em- continue his phasized plaintiff that the not seek anoth- did A Antol, however, job promotion. er or a did involving ease his as one miscasts position a different and did not need seek accommodation, citing following discus- qualify accommodation to him or enable him Postal Ser- sion Prewitt v. United States perform it. (5th Cir.1981): vice, 662 F.2d 292 by arguing Agency did not defend however, Preliminarily, observe we should Rather, unqualified. argued it Antol was requires section 501 him that the officer considered less agencies; of federal unlike part on the qualified than the for the trainee two of the Rehabilitation section 504 successful candidates. Accommodation re- Rights Act which Title of the Civil VII gards efforts that address the individual’s only usually require nondiscrimination.... job, ability perform not his entitlement agencies requires that federal [S]ection 501 reason, district court to it. For that just ac- do submit affirmative more analyze did not his case one appropriately duty plans “impose[s] —section duty involving the accommoda- reasonable their upon agencies structure federal tion. procedures programs as to ensure so handicapped afforded individuals are B. equal job assignment in both opportunity promotion.” Agency that the argues Antol also FDIC, Ryan v. (quoting Id. at 306 him. intentionally against In discriminated (D.C.Cir.1977)). 762, 763 case, prima Antol’s facie the response to legitimate non-dis Agency articulated allegations Antol’s center

That selecting criminatory Antol not reason for not plan around action does an affirmative selecting preferred appli an case. the official accommodation that render it a reasonable college degree and felt that the with a accommodation refers to affirma cant Reasonable of candi experience the two successful employer the must take work tive efforts which job. qualified for the per made them employee that an can dates better order to ensure produce then to Antol job Mc The burden shifted form functions. See the essential 4) head;” pretext, rebutting “spasm evidence the that sufficient of the did not legitimate non-discriminatory Agency’s require college degree rea- a a and was trainee 5) selecting The district position; son. court characterized Antol’s that the official consisting merely stray changed justification selecting evidence as of a re- his for not An- single staffing mark and a personnel specialist violation of the affirmative tol after the plan. justification single pointed action It held that a out his for violation not se- plan lecting Accordingly, an affirmative action does not constitute Antol would not suffice. genuine find that a a violation of the Act. It fur- we the record reflects Rehabilitation that, although regarding fact opined ther issue material whether the the violation the Agency’s selecting asserted reason for not plan affirmative action is evidence of discrim- ination, pretext is a Antol for discrimination. produced insufficient evidence pretext Agency’s proffered to rebut Perskie, In Fuentes v. legitimate non-discriminatory reason. It Cir.1994), that, plaintiff we stated for a granted Agency’s therefore motion for prevail: summary judgment. We will reverse. plaintiffs when the defendant answers at prima legitimate,

We note the outset that we not and need facie case with non-dis- criminatory action, single do not consider whether a violation reasons for its Agency’s evidence, plan plaintiff point affirmative action must mandated some di- circumstantial, by rect or the Rehabilitation Act a viola- from which a fact- constitutes (1) stated, reasonably tion finder could supra, Act. As we VEV- either disbe- employer’s legitimate lieve the provide RA not articulated does action reasons; (2) or Agency comply believe that an failure to invidious 38 U.S.C. 4214(c)’s discriminatory likely mandatory reason was more affirmative action a Thus, motivating not plan. determinative cause of Antol cannot an al- transform employer’s action. leged per VEVRA violation into a se Rehabil- itation Act violation.7 require plaintiff do not We to adduce directly evidence contradicting the defen- Contrary adopted to the characterization proffered legitimate dant’s Id. reasons. by court, Agency and the district Antol’s merely single support evidence did not a consist In summary of Antol’s motion for plan opposition violation an affirmative action and a judgment and in to the stray motion, by remark testimony non-decisionmaker. Rath- by Antol submitted Mr. er, produced Hubbard, following personnel staffing evidence specialist for 1) pretext: Agency Agency its affir- special responsibility violated who has plan by action plan, indicating mative for disabled veterans the affirmative action that in failing provide truly non-competi- Antol a Antol’s case the violated its affirma- 2) that, interview; general, tive selecting plan8 by providing tive action the list of repeatedly officials implementa- resisted full selecting other candidates to the official be- 3) plan; non-competitive affirmative Antol’s fore interview. supervisor, providing official’s who was prema- addition the merit list process, turely, involved the selection provide uttered Personnel failed to the select- grossly epithets against distasteful ing required Antol re- official policy with the command garding his disability, referring him in support statement of affirmative action. produce recognize Antol did not evidence plan that the 8. We affirmative action violated its plan. provides preference issue for disabled indi- At issue is the affirmative alone, Standing viduals who are veterans. evi- VEVRA, required disabled veterans not the dence that the violated this in An- plan required by the Rehabilitation Act. The might tol’s case be sufficient defeat a dissent, however, would find that VEVRA ex- Nevertheless, judgment. motion for provides pressly private right of action and when combined with other evidence which incorporates the Rehabilitation Act's remedies doubt casts on the credence of the asserted rea- requiring agencies to include their VEVRAaffir- decision, employment son for the defendant's plan mative action disabled veterans in their discriminatory permissible. inference motive is plan Rehabilitation Act affirmative action for dis- abled individuals.

1301 menting as personnel that commitment evidence of dis- also testified that Hubbard criminatory intent. implement the efforts to actively resisted plan the plan, and action affirmative In order the motion for to defeat ever, non-competitive judgment, Antol also offered evidence of dis- rarely, if resulted criminatory supervisor, Mr. animus: Smith’s Agency’s hiring aof disabled veteran. Gomez, “spasm Antol as head.” referred to to rules is evidence to adhere its own failure Antol’s affidavit averred that Antol had be- Colgan v. discriminatory Fish intent. See epithet. come accustomed to the Character- (3d 1407, Co., 1422-23 935 F.2d er Scientific remark,” it the izing “stray as district court Cir.) denied, (in banc), 941, 112 U.S. cert. 502 weight. it court afforded little district (1991). 379, 116 330 L.Ed.2d S.Ct. appropriately did not consider this demean- ing probative remark evidence. Because VII, the Title Ninth In the context of correspondence relating to sent has stated that “evidence Circuit process selection submitted Antol’s employer violated own affirmative action its Smith, to application through Gomez and Go- question may to the of dis plan be relevant Smith, application mez discussed Antol’s v. criminatory Police intent.” Gonzales stray much a mere it was more than remark. (9th Jose, 758, Cal., F.2d 761 901 Dep’t. San in and Gomez’involvement influence on Cir.1990); also v. Madison Metro. see Yatvin decisionmaking process was as su Smith’s (7th Dist., 412, 415-416 840 F.2d Cir. School per pervisor. is not a case where the This (violation 1988) voluntary affirmative of a making “was son the statement outside plan might help support a claim of action chain of who had the author decision-makers discrimination); Craik v. Minnesota State ity plaintiff.” to hire and fire v. Gomez (8th Bd., 465, University 472 Services, Inc., 731 F.2d Cir. Allegheny 71 F.3d Health (3d 1984) (“evidence Cir.1995); v. employer has failed to 1085 see also Ezold Block, Solis-Cohen, Wolf, Schorr up voluntary] [a live Cir.1992) (six (3d F.2d 546-47 comments of discrimina plan question is relevant to the years made over five before decision intent”). tory But see Liao Tennessee working employer issue individual not (11th Valley Authority, at time of was too remote to show decision Cir.1989) (failure give preference under independently that unlawful discrimination voluntary plan sup cannot affirmative reason), likely proffered cert. de more discrimination), allegation of cert. de port —nied, -, 88, 126 U.S. S.Ct. nied, 1078, 110 S.Ct. 494 U.S. (1993). Evidence that an individ L.Ed.2d (1990). The circumstances of L.Ed.2d process, such as ual involved in the selection affirmative the failure follow the supervisor, the decisionmaker’s referred Here, plan bear on its relevance. crux of enough often for An- “spasm Antol as head” Agency’s affirmative action is an had tol to state that he become accustomed opportunity it, applicant’s enhanced selec supports inference of discrimination. Township Susquehanna Police through See Wilson v. non-competitive consideration. (3d 126, 128-30 Cir. Department, 55 F.3d Although Agency granted Antol an initial 1995) (statement supervi by decisionmaker’s interview, separate official’s supervi no would be woman sor “there knowledge of merit candidates eviscerat anything if to do with it” was sor he had non-competitive plan’s core ed the benefit: remark); stray v. West see also Lockhart Agency’s failure to follow consideration. The (3d inghouse Corp., 879 F.2d Credit Antol’s case and more its own Cir.1989) (“When major company executive by selecting general active resistance officials corporate speaks, ‘everybody listens’ implementation to its is relevant Fed. hierarchy.”), grounds on other overruled Smith, 401 as to the select R.Evid. Westinghouse recognized by Starceski rejected Antol, fairly ing official who consid 1089, 1099 Corp., n. 10 Cir. Elec. jury candidacy. Antol’s A ered reasonable 1995). case, In a credited “evidence recent could consider failure take of a age-related or bias the form animus seriously person commitment to disabled plaintiff by stated to” the comment made him. to terminate imple- involved the decision veterans and active resistance Inc., Indus., revealing Waldron SL 56 F.3d 502 cedures and a evidence hostile at (3d Cir.1995). We that: mosphere pretext. held to find See Glass v. Co., Philadelphia may Elec. F.3d 194-195

the comment be entitled to some (3d Cir.1994); Josey R. Hollings weight jury, when John considered al- (3d Corp. standing worth 996 F.2d 639-641 though likely on its own it would Cir. 1993). age-related be insufficient demonstrate words, animus. other the comment is recognize proof a [W]e of discrimina- irrelevant, especially coupled not when tory atmosphere may in prov- be relevant [plaintiffs] with discrimi- other evidence of ing pretext since such does evidence tend .... nation employer’s to add color decision- Moreover, Gomez,

Id. the slur used making processes and to influences compared “suggestion” to the in Waldron respect behind the actions taken with plaintiff weight younger, that the lose to look plaintiff. the individual clearly disability-related demonstrates ani- Ezold, (internal quotations 983 at 546 omit- mus. ted). Regardless of whether Gomez re ever Smith, peated the slur to it is evidence of the reject- The now asserts that Smith atmosphere and context which Smith made preferred ed Antol he college because a employment decision. The factfinder evidence, however, graduate. is There may regarding likewise consider the evidence selecting changed original jus- officer his resistance to affirmative as evidence of rejecting tification for Antol after Hubbard atmosphere in which the made justification. problems alerted him to with his its employment decisions. See Brewer v. just It is unclear from the record what that Quaker Refining Corp., State Oil 72 F.3d justification original was. 326, 333 Cir.1995) (evidence employer’s Agency required provide Smith is “culture” circumstantial of dis evidence justification explaining his letter failure to crimination); Ezold, (citing 983 F.2d at 545 Gallo, personnel support select Antol. Ms. Univ., Roebuck v. Drexel specialist, sample justification him a sent let- (3d Cir.1988) (although temporally remote completed ter. After Smith had the inter- standing suffice, statements alone would not process, view spoke Hubbard with Smith re- they support finding of discrimination when garding his concerns original with Smith’s evidence)). with combined other justification Antol, passing in light over proof typi- Circumstantial of discrimination the fact that was a trainee. cally unflattering testimony includes about Smith, Hubbard testified he talked employer’s history prac- and work justification

tices—evidence him which other kinds of and let know that may unfairly fly prejudice jury cases well wouldn’t told him he has to be persuasive describing most why defendant. In discrimination he is eases, however, background selecting such evidence the individuals based on their education, may jury’s experience, knowledge be critical for the assessment of job, letter, given employer likely was more and he reviewed the but I say. not to acted from an did not tell him what to have unlawful motive. justifi- Hubbard told Smith write a second Ford, Inc., Estes v. Dick Smith cation letter. From this evidence factfin- (8th 1097, 1103 Cir.1988). atmosphere der could disbelieve the reasons relevant to whether defendant’s asserted le now articulates for not Antol. A gitimate non-discriminatory were reasons might reasonably factfinder infer that pretextual and relevant to the ultimate issue justification pretext now asserted is a for the intentionally whether defendant discrimi true reason Smith did select Antol. plaintiff. nated against personnel specialist Where the own

A justification factfinder can use re fault evidence found with the and vealing pro- justification, prompts changes inconsistencies statements a fact- justification with for the as less remand instructions district the final finder could view jurisdiction. court to dismiss it for lack worthy of credence. Although summary we denial of affirm the position job for the in- announcement Antol, judgment in find that favor of we the applicants either qualified must dicated that , by granting summary district court erred years expe- degree three college have a or judgment Agency disability Antol’s the fields, excluding specified certain rience in claim, therefore discrimination and we re- support experience. clerical technical cause for the district verse remand the on his qualified for the based remaining disability court the consider candidates, experience; one of the successful discrimination claim. Davis, not. Yet the official Ms. did substantially experience Antol’s considered ALITO, Judge, concurring: Circuit A of Ms. Davis. factfinder inferior to that court, I join opinion I but the of the wish inconsistent, question, could Smith’s sub- clarify my understanding signifi- the jective Agency the when deemed evaluation Agency’s cance of the violation of its Vietnam college equivalent Antol’s to a experience Readjustment Era Veterans Assistance Act purposes, degree qualification (VEVRA), § affirmative ac- experience Davis’ insuffi- deemed Ms. alone plan. tion We reverse the decision the position. qualify cient to her for the pro- court for further district and remand pre- produced sufficient evidence of ceedings respect with to Antol’s claim that reasonably could text from a factfinder which Agency intentionally discriminated combination, In infer discrimination. disability. him against of his In because Agency procedures, the deci- failure to follow claim, Antol order to on this must succeed affirma- sionmakers’ active resistance (putting question prove that aside to Antol as plan, tive action the references accommodation) Agency gave reasonable “spasm by super- head” the decisionmaker’s it him less treatment than would favorable visor, justification of the and the labile nature given applicant without a have identical decision, permit employment for the a find- Community disability. College Southeastern Therefore, ing pretext. Agency failed Davis, v. U.S. 99 S.Ct. judgment as a to show that it was entitled (1979).1 L.Ed.2d 980 The VEVRA affirma- disability matter Antol’s of law on discrimina- give plan required the tive action claim, and we will reverse the district Antol more treatment either favorable Although this court on this issue. evidence (a) disability applicant an identical without discrimination, permits an inference (b) applicant identical Therefore, result is no means mandated. coverage. did not fall within VEVRA’s who will the denial Antol’s cross- we affirm agree I of the that evidence While summary judgment. motion for affirmative action violation of VEVRA of relevance set meets the low standard VI. out in Fed.R.Evid. this evidence seems probative value sum, very to have little judgment affirm the to me discrimi- proving intentional gender for the on the However, even non-monetary Antol. without claim the claim for nation and on 4214(c). evidence, proof in § that the I think relief under 38 U.S.C. Because summary judg- record is sufficient to defeat VEVRA not contain waiver of sover- does under the standard eign money suit ment for immunity from Antol’s Perskie, 4214(c), 32 F.3d v. damages we will contained Fuentes under reverse (3d Cir.1994)2, different judgment on this or the somewhat entering order claim and rehearing granted in banc in a court Although is couched a claim 2. Our has Antol's claim Act, presents question case Section 501 of Rehabilitation See Sheridan E.I. equivalent standard is correct. of a 196, claim. See Fuentes it is Co., (3d Straw, Dupont 74 F.3d 1459 Spence de Nemours and 198-201 Cir. 1996). 1995). Cir. 501(b) See, adopted standards other circuits. under section Act.”). Tools, e.g., Rhodes v. Guiberson Oil Cir.1996) (in (5th banc). 989 Accordingly, “enlarge no there is need to in ‘beyond the waiver the Rehabilitation Act ” SAROKIN, concurring Judge, in Circuit language requires,’ what the of statute part dissenting part. in and 1297; Majority Opinion, and no at there was Congress provide private a need cause I, II, join opinion I Parts as to Court’s part person of action of VEVRA since a III, IV.A, However, I and be- V. because aggrieved under is at the VEVRA same time private lieve that does a VEVRA create 501(b), aggrieved under section and since action, cause dissent I from Part IV.B and 505(a)(1) “section of the Rehabilitation Act C. aggrieved provides individuals I agree Congress do not would re- 501(b) Act, can section seek redress quire agencies implement affirma- federal Blizzard, through private right of action.” designed plans protect tive action em- F.Supp. at 98. There was also no need ployees discrimination, give then from but Congress to “include VEVRA a section employees adequate agen- no recourse if adopting rights or remedies of the Reha- cy employees plan violated and denied Act,” Majority Opinion, bilitation at very protect procedures designed those 505(a)(1)plainly applies section since to a 501 my My position upon them. is based under- plan, merely of which the 403 is standing statutory designed of the scheme subpart. “heap There is no need to infer- by Congress understanding similar to upon inference,” Majority Opinion, —an at ence reported that of the one federal case that is statutory because the scheme Dalton, precisely point, Blizzard v. 876 straightforward. (E.D.Va.1995). F.Supp. 95 stat- The court’s Therefore, correctly as I think the court utory analysis ease convinces me as Blizzard, I concluded would hold that Congress a matter of law that not enact did allegation “Plaintiffs he suffered dis- legislative tiger. toothless por- under the disabled veterans crimination 501(b) tion of the ‘Section Plan’ him allows deciding relationship issue is be- rights 501(b). access and remedies contained tween section 403 section Section 403(a)(c) Rights VII of Title the Civil Act at states: F.Supp. 2000e-16.” U.S.C. at 98. For agency government] Each [of federal reason, I dissent. 'plan shall include in its affirmative placement, hiring, advance- handicapped ment individuals such 501(b) agency required section (29 U.S.C. 791(b)), separate specification plans HANAUER, Plaintiff-Appellee, L. James promote carry ... out such affirma- respect tive action veter- with disabled

ans in Secretary order to achieve the of this REICH, Labor, B. Robert Defendant-Appellant. section. added). No. 95-2499. 4214(c) (emphasis 403(a) Appeals, United States plain Court language does more Fourth Circuit. “merely mentioning the Rehabilitation Majority

Act.” Opinion, at 1297. It makes Argued March 1996. respect to disabled veterans a 6,May Decided 501(b) part agency’s plan. of the See Bliz- zard, (“[A]ffirmative F.Supp.

protection compris- for disabled veterans ... part

es Department of [Defense]’s

Case Details

Case Name: Kenneth C. Antol v. William J. Perry, Secretary Department of Defense, (Defense Logistics Agency)

Court Name: Court of Appeals for the Third Circuit

Date Published: May 7, 1996

Citation: 82 F.3d 1291

Docket Number: 95-3254

Court Abbreviation: 3rd Cir.