# Kenneth C. Antol v. William J. Perry, Secretary Department of Defense, (Defense Logistics Agency) > Court of Appeals for the Third Circuit · May 7, 1996 · 82 F.3d 1291 URL: https://www.frixlaw.com/law-library/cases/9489116 ## Case - **Full name:** Kenneth C. ANTOL, Appellant, v. William J. PERRY, Secretary Department of Defense, (Defense Logistics Agency) - **Court:** Court of Appeals for the Third Circuit - **Decided:** May 7, 1996 - **Citations:** 82 F.3d 1291; 5 Am. Disabilities Cas. (BNA) 769; 70 Fair Empl. Prac. Cas. (BNA) 993; 1996 U.S. App. LEXIS 10455; 1996 WL 227741 - **Precedential status:** Published - **Opinion:** Concurring in part by Sarokin - **Judges:** Nygaard, Alito, Sarokin - **Cited by:** 295 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9489116 ## How later opinions describe it (automated extraction) - concluding that employee did not exhaust ' Indeed, the EEOC’s “Charge of Discrimination” form directs claimants to check all appropriate boxes indicating the basis for discrimination. Plaintiff in his charge checked “Retaliation” and “Disability,” but did not check “Age.” (Doc… - finding that a district court has jurisdiction over additional claims if “the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom” - finding that the frequent use of employee’s degrading nickname, along with evidence of its effect on the employee, constituted “much more than a mere stray remark” and provided evidence of discrimination - concluding that the “gravamen” of the plaintiff’s EEOC charge was for “disability discrimination” and therefore, “[n]either the EEOC nor the agency were put on notice of a gender discrimination claim” - explaining that Title VII exhaustion will be excused for allegations raised in court that are within the scope of EEOC complaint or would have grown from an investigation of the complaint ## Opinion text SAROKIN, Circuit Judge, concurring in part and dissenting in part. I join the Court’s opinion as to Parts I, II, III, IV.A, and V. However, because I believe that VEVRA does create a private cause of action, I dissent from Part IV.B and C. I do not agree that Congress would require federal agencies to implement affirmative action plans designed to 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 ease 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, at 1297. 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, at 1297; 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, at 1297, 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, at 1297, because the statutory scheme is straightforward. Therefore, as I think the court correctly concluded in Blizzard , I would hold that “Plaintiffs 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.” 876 F.Supp. at 98 . For this reason, I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9489116. Public record. Not legal advice.