                                                 NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                 No. 13-3423
                                _____________

                              CANDICE RONEY,
                                      Appellant

                                       v.

                    ALLEGHENY INTERMEDIATE UNIT
                           _____________

               On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                        District Court No. 2-12-cv-00832
              District Judge: The Honorable Terrence F. McVerry

               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                May 13, 2014

         Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges

                             (Filed: June 11, 2014)
                           _____________________

                                  OPINION
                           _____________________

SMITH, Circuit Judge.

      Candice Roney appeals from an order of the United States District Court for

the Western District of Pennsylvania granting summary judgment in favor of her

former employer, Allegheny Intermediate Unit (AIU), on her claim of pregnancy
discrimination under 42 U.S.C. § 2000e-2(a)(1), as amended by 42 U.S.C.

§ 2000e(k). The District Court exercised jurisdiction under 28 U.S.C. § 1331. We

exercise final order jurisdiction under 28 U.S.C. § 1291. Our review of an order

granting summary judgment is plenary. Equal Emp’t Opportunity Comm’n v. GEO

Grp., Inc., 616 F.3d 265, 270 (3d Cir. 2010). For the reasons set forth below, we

will reverse and remand for further proceedings.

      In September 2010, AIU provisionally hired Roney for 90 days as a personal

care assistant (PCA) in one of its elementary schools. Her employment was

provisional because she had yet to obtain the required child abuse clearance from

the Commonwealth of Pennsylvania. Because the student she was assisting left the

school district shortly after her employment commenced, Roney was transferred to

Sunrise School.     There, she worked as a day-to-day substitute.        Principal

McDonough offered Roney the opportunity to work in a Multiple Disabilities

Student (MDS) class, but Roney, who had just learned she was pregnant again after

a miscarriage, explained that she could not lift because of her pregnancy. As a

result, Roney continued to work as a day-to-day substitute.

      In December, shortly before the expiration of the 90-day provisional period,

management asked Roney to produce the required child abuse clearance. Because

she had failed to apply for the clearance, Roney promptly pursued obtaining this

credential. In the meantime, on December 16, 2010, Michael Brinkos, AIU’s

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Director of Human Resources, informed Roney by letter that her employment was

terminated because she lacked the required clearance. The letter advised Roney

that if she received her “clearance in the near future and are interested in working

with the AIU, you may re-apply for a position.”

      The Commonwealth of Pennsylvania issued Roney’s child abuse clearance

on December 17, 2010, and she received it shortly thereafter. In any event, on

December 29, 2010, Roney contacted Kate Mitchell, a Human Resources

specialist, to advise that she had obtained her clearance and wanted to re-apply for

a position. Mitchell directed Roney to contact Principal McDonough. Roney

followed through, but was advised her position was no longer available.

McDonough noted that an MDS position was open. Roney expressed an interest,

but noted that her pregnancy precluded lifting. In her reply, Roney asked if there

were any other positions available. She copied her e-mail to Victoria Dunlop,

another HR specialist. Although there were several open PCA positions in January

2011, Roney never received any response from AIU.

      Thereafter, Roney filed a complaint asserting a pregnancy discrimination

claim under Title VII. An amended complaint alleged claims based on both her

termination and AIU’s failure to rehire her. The District Court granted AIU’s

motion for summary judgment on the basis that she had failed to demonstrate that

AIU’s reasons for its actions were a pretext. Roney appealed, challenging only the

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grant of summary judgment on her failure to rehire claim.

      Roney asserts that the District Court applied the wrong standard in granting

AIU’s summary judgment motion. In her view, the Court failed to draw all

reasonable inferences in her favor. See Roth v. Norfalco LLC, 651 F.3d 367, 373-

74 (3d Cir. 2011) (acknowledging that our review of an order granting summary

judgment requires considering the “evidence in the light most favorable to the

nonmovant and draw[ing] all reasonable inferences in that party’s favor”).

      Roney may defeat AIU’s summary judgment motion by “discrediting the

proffered reasons” for failing to hire her. Fuentes v. Perskie, 32 F.3d 759, 764 (3d

Cir. 1994).    “To discredit the employer’s proffered reason,” Roney “must

demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of credence, and hence

infer that the employer did not act for the asserted non-discriminatory reasons.” Id.

at 765 (internal quotation marks and citations omitted).        We have carefully

examined the record and conclude that Roney has cast sufficient doubt on AIU’s

proffered reasons. Her claim should survive summary judgment.

      We acknowledge that AIU’s position that Roney failed to apply for an open

and available position is, on its face, a legitimate, nondiscriminatory reason. But

the record shows that Roney did in fact “apply.” Consistent with her termination

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letter, Roney contacted Mitchell about reapplying for a position. Mitchell advised

Roney that “[i]f there are open positions, and you are interested, an email to

[Principal McDonough] and Victoria Dunlop would be enough for an application

since you have a file with us.”   After speaking with Principal McDonough, Roney

replied, copying Dunlop, noting her inability to perform an MDS position because

of her pregnancy and asking if there were any other positions available. According

to Mitchell’s instruction, this was sufficient to constitute an application.

      Indeed, our review of the deposition testimony of Principal McDonough,

Brinkos, and the HR specialists Dunlop and Mitchell reveals that each of these

individuals tacitly acknowledged that Roney had expressed an interest in any other

open position. And each of these individuals disclaimed any responsibility or

involvement in the decision not to rehire her. Principal McDonough, Dunlop, and

Mitchell were each aware that Roney was pregnant.              Principal McDonough

indicated it was HR’s responsibility to advise who could fill any empty positions in

the school. Mitchell testified that Principal McDonough and Dunlop would have

worked together to staff the positions. Dunlop, however, denied knowing why

Roney was not rehired. Although the reason initially proffered was that Roney had

not applied, Brinkos affirmed he had no idea why Roney wasn’t rehired. Yet he

went on to explain that Roney was not rehired because the AIU did not actually

have a copy of her child abuse clearance and that “[i]f [he] had it in hand, [AIU]

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would have considered rehiring her.”           This is a classic Fuentes v. Perskie

inconsistency. Roney has adduced sufficient inconsistencies and contradictions to

discredit AIU’s proffered reason for its failure to rehire her.

      This is a close case. Nonetheless, drawing all reasonable inferences in

Roney’s favor, we are compelled to reverse the judgment of the District Court and

remand for further proceedings. Whether Roney will be able to prove at trial that

her pregnancy was a determinative factor in AIU’s decision is best left to a jury to

resolve.




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