                                                         NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 09-1154
                                    _____________

                                   AMY KRIEBEL,
                                                      Appellant

                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                       United States Department of Justice,
                           Federal Bureau of Prisons,
                         USP Allenwood, Pennsylvania
                                 _____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                         D.C. Civil Action No. 4:07-cv-00012
                              (Honorable Malcolm Muir)
                                   _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a),
                                  March 26, 2010

   Before: RENDELL and FUENTES, Circuit Judges, and KUGLER,* District Judge.

                             (Opinion Filed: April 6, 2010)


                              OPINION OF THE COURT


FUENTES, Circuit Judge:


      *
        The Honorable Robert B. Kugler, United States District Judge for the District of
New Jersey, sitting by designation.
       This is an employment discrimination case brought by a Bureau of Prisons

(“BOP”) employee against her employer, Attorney General Eric H. Holder, Jr. (the

“Attorney General”). Appellant Amy Kriebel asserts claims pursuant to Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Rehabilitation Act, 29

U.S.C. § 701 et seq., alleging that she was discriminated against on the basis of (1) sex

and (2) her association with her disabled child. The District Court granted the Attorney

General’s motion for summary judgment, finding that Kriebel failed to show that the

explanation for the Attorney General’s employment decisions was a pretext for unlawful

discrimination. We will affirm.

                                             I.

       We write primarily for the parties, and so we set forth only the facts and history

that are relevant to our conclusion. Kriebel is an employee of the United States

Penitentiary in Allenwood, Pennsylvania (“USP Allenwood”). Her husband works the

night shift at USP Allenwood. The Kriebels have a severely disabled son. After having

worked in multiple positions at the prison, Kriebel became an SIS Tech (in the Special

Investigative Supervisor’s office) in 2003. However, due to budget cuts, the SIS office

was downsized in 2004, and Kriebel’s position was cut; she was transferred back to her

prior position of Education Tech but allowed to keep her GS-8 salary grade. After this

transfer, her supervisor in the SIS office, Special Investigations Agent Matthews (“SIA

Matthews”), gave her an above-average evaluation; Matthews highlighted, among other



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things, Kriebel’s utility in the field of intelligence gathering and investigation.

       In October 2005, the DOJ human resources office issued a memorandum to all

prison wardens notifying them of an increase in SIS staff effective December 25, 2005.

The memorandum stated that for prisons that had had one SIS Tech displaced by

reassignment, such as USP Allenwood, “the [reassigned] employee should be returned to

the position.” (App. 237a.) Kriebel was not, at first, notified of this memorandum.

Nelson Alleman, an Allenwood human resources employee, informed Matthews that the

warden would be speaking to Kriebel about her interest in returning to her old SIS

position. Matthews, in turn, informed Alleman that he did not want just “another Tech,”

but instead wanted someone who could do investigative work, which he felt Kriebel was

unable to do. (Id. at 242a.) Matthews also said that he had intended to post the position

as an “evening watch” position (i.e., evening shift), which Kriebel had refused to work

(due to the need to care for her disabled son); Matthews wanted to use the new position

“to monitor gang and other illicit activity occurring during the evening and on the

weekends.” (Id. at 160a.)

       Kriebel learned of the new SIS position and the October 2005 memo, and on

December 19, 2005, she informed the warden that she would accept the SIS position. She

reiterated this point in an email to Alleman, but she clarified that she would only accept

the position if she could keep her 8:00 a.m. - 4:00 p.m. shift. On January 6, 2006, the

warden formally offered Kriebel the SIS position but stated that the job required



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“irregular” work hours that “include evenings and/or weekends.” (Id. at 246a.) By this

time, Kriebel had commenced EEO proceedings which had led to an unsuccessful

mediation; the SIS position was kept open during this time. In November 2006, Kriebel

informed the warden by letter that she could not work the evening and weekend hours he

had identified (Tuesday-Thursday evenings, Friday day shift, and Saturday evening), and

declined the position. The position was offered to Larry Hicks, a male parent of a non-

disabled child. Hicks’s time/attendance records show that, since accepting the SIS Tech

position, he has worked some evenings (approximately 13% of shifts) and worked at least

one weekend day about half of the weeks.

      Kriebel sued, asserting claims pursuant to Title VII (sex and sex-plus

discrimination) and the Rehabilitation Act (discrimination on account of Kriebel’s

association with a disabled person, see Doe v. County of Centre, PA, 242 F.3d 437, 446-

47 (3d Cir. 2001)). The District Court granted the Attorney General’s motion for

summary judgment, and Kriebel timely appealed.

                                           II.

      The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and

1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review a grant of

summary judgment de novo, and thus apply the same standard as that used by the District

Court.” American Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 580-81 (3d Cir.

2009). Summary judgment is appropriate only where there are no genuine issues of


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material fact and where the movant shows that it is entitled to judgment as a matter of

law. See Fed. R. Civ. P. 56(c).

       Kriebel’s employment discrimination claims are analyzed under the familiar

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 793-94 (1973), and its progeny. See Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir.

2007). Under that framework, in order to prove that the Attorney General’s employment

decisions were the product of discrimination, Kriebel would first have to establish a

prima facie case by the preponderance of the evidence. See, e.g., Makky v. Chertoff, 541

F.3d 205, 214 (3d Cir. 2008). “If a plaintiff establishes a prima facie case of

discrimination, then an inference of discriminatory motive arises and the burden shifts to

the defendant to articulate a legitimate, non-discriminatory reason for the adverse

employment action.” Id. (citation omitted). Finally, if the Attorney General offers such a

non-discriminatory explanation for the conduct in question, the burden would shift back

to Kriebel to prove that the explanation is a pretext for discrimination. See id.

       The only issue presented on appeal is whether the District Court correctly

concluded, at the third stage of this analysis, that Kriebel failed to prove that the Attorney

General’s explanation for the employment decision was a pretext for unlawful

discrimination. In order to prevail, Kriebel was required to show “such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in [each of] the

employer’s proffered legitimate reasons for its action that a reasonable factfinder could



                                             -5-
rationally find them unworthy of credence, and hence infer that the employer did not act

for the asserted non-discriminatory reasons.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d

Cir. 1994).

       We agree with the District Court that Kriebel has not demonstrated that each of the

Attorney General’s explanations for the employment actions at issue herein is a pretext

for unlawful discrimination. The Attorney General sought to justify the employment

decision on two grounds: first, Matthews wanted someone with intelligence and

investigative experience to fill the SIS Tech position, and, second, he wanted someone

who could work evenings and weekends to monitor gang activity during that time. We

concur with Kriebel that the first of these justifications is unavailing—Kriebel received a

positive evaluation from Matthews with respect to her intelligence and investigative

skills, which, in the absence of a more persuasive non-discriminatory explanation for the

employment decision, might be sufficient to raise a jury question.

       However, “to avoid summary judgment, [Kriebel’s] evidence rebutting the

[Attorney General’s] proffered legitimate reasons must allow a factfinder reasonably to

infer that each of the employer’s proffered non-discriminatory reasons was either a post

hoc fabrication or otherwise did not actually motivate the employment action.” Id. at 764

(internal citation omitted, emphasis in original). We conclude that Kriebel’s evidence is

insufficient to undermine the Attorney General’s second non-discriminatory basis for the

employment action—i.e., the need for an SIS Tech who could work weekend and evening



                                            -6-
hours. Kriebel points to the fact that the October 2005 memorandum was not disclosed to

her as evidence of an impermissible motive, but the failure to inform Kriebel of the

memorandum does not render implausible the Attorney General’s stated need concerning

the hours of the SIS Tech, which Kriebel made clear she would not work. And while

Kriebel makes much of the fact that Hicks, to whom the SIS Tech position was ultimately

offered, did not work all weekends and all evenings, his shifts certainly included many

weekends and evenings, which is consistent with the warden’s description of the position

in his January 6, 2006 memorandum to Kriebel. Kriebel’s own statements to Alleman

make clear that such hours were out of the question for her.

       In sum, we conclude that Kriebel failed to adduce sufficient evidence to

undermine “each of the employer’s proffered non-discriminatory reasons” for its

employment action, and we will therefore affirm the judgment of the District Court. Id.

(emphasis in original).

                                           III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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