                                                                                                                           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Precedential or Non-Precedential: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.
