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Antol v. Perry

May 7, 1996






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

Before: NYGAARD, ALITO and SAROKIN, Circuit Judges

NYGAARD, Circuit Judge.

Argued October 31, 1995

Filed May 7, 1996)

Kenneth C. Antol sued the Defense Logistics Agency of the Department of Defense, alleging gender discrimination under Title VII, 42 U.S.C. Section(s) 2000e-16(a), disability discrimination under the Rehabilitation Act of 1973, 29 U.S.C. Section(s) 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. *fn1 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.


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. *fn2

Antol initiated informal counseling 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.


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).


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; *fn3 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 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, ...

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