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Montanez v. Missouri Basin Well Services, Inc.

United States District Court, M.D. Pennsylvania

August 28, 2017



          Matthew W. Brann, United States District Judge.

         Before the Court for disposition is Defendant Missouri Basin Well Services, Inc.'s Motion for Summary Judgment. In accordance with the reasoning set forth below, this Motion will be granted in its entirety.


         Plaintiff Marissa M. Montanez (“Ms. Montanez”) commenced this action on March 24, 2014 against Defendant Missouri Basin Well Services, Inc. (“MBWS”). In her original Complaint, Ms. Montanez alleged four claims of employment discrimination: (1) gender and national origin discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”); (2) age discrimination and retaliation under the Age Discrimination in Employment Act of 1967; (3) disability discrimination and retaliation under the Americans with Disabilities Act (“ADA”); and (4) age, gender, and disability discrimination under the Pennsylvania Human Relations Act.[1] MBWS thereafter filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and Ms. Montanez responded by filing an Amended Complaint as a matter of course.[2] MBWS renewed their Motion to Dismiss on July 28, 2014, and asked to dismiss the Amended Complaint in its entirety for failure to state a claim upon which relief can be granted.[3]

         On April 10, 2015, I issued a Memorandum Opinion and accompanying Order which partially granted MBWS's motion, and granted Ms. Montanez leave to file a second Amended Complaint correcting the outlined deficiencies.[4] Ms. Montanez subsequently filed an Amended Complaint limited to claims of (1) gender and national origin discrimination and retaliation in violation of Title VII; (2) disability discrimination and retaliation in violation of the ADA; and (3) discrimination and retaliation in violation of the Pennsylvania Human Relations Act.[5] MBWS thereafter answered, and the parties commenced factual discovery.[6]

         Following the completion of discovery, MBWS filed a Motion for Summary Judgment seeking the entry of final judgment in their favor on all claims.[7] This Motion has since been fully briefed, and is now ripe for disposition.[8]


         A. October 11, 2011 - November 22, 2011: Ms. Montanez's Employment at Missouri Well Basin Services Begins and She requests a Transfer to the Water Transport Division.

         On October 1, 2011, Plaintiff Marissa Montanez began working for Defendant MBWS as a “sand hauler” after it acquired her former employer, Old West Oilfield Services.[9] On November 22, 2011, Ms. Montanez requested a transfer to the Water Transport Division in Pennsylvania.[10] MBWS, however, did not employ drivers in the Water Transport Division in Pennsylvania.[11] Rather, all drivers within that division were non-employee independent contractors.[12] Ms.

         Montanez was advised that such a transfer was impossible.[13] She thereafter inquired about transfer to another division in another state.[14] Human Resources Manager of MBWS Sarah Boltz responded by email on November 23, 2011 with following message:

You can find a list of available and open positions by visiting our website, and clicking “Apply Online.” I've attached a Transfer Request Form, all transfer requests are reviewed by management for qualifications, experience, etc. and must receive executive approval.[15]

         The factual record contains no evidence that Ms. Montanez made such a transfer request and was subsequently denied.

         B. November 30, 2011: Ms. Montanez Makes An Internal Complaint of Workplace Harassment. Following An Investigation By Third Party Investigator Bernard E. Howard, Said Complaint Is Found to be Unsubstantiated.

         Thereafter, on November 30, 2011, Ms. Montanez made an internal complaint to Ms. Boltz that she was being subjected to a gender-based hostile working environment by Sand Coordinator Milton Drake (“Mr. Drake”) and Operations Manager Don Smith (“Mr. Smith”).[16] Upon receiving this internal complaint, two actions were taken. First, MBWS suspended Mr. Drake with pay pending an investigation.[17] Second, MBWS hired a third party, Bernard E. Howard (“Mr. Howard”), to investigate these claims.[18] During the course of this investigation, Mr. Howard interviewed Ms. Montanez; Jason Drake, son of Mr. Drake and a fellow sand pusher; Milton Drake; and Don Smith.[19]

         This internal complaint concerns the following factual scenario. On November 30, 2011, Ms. Montanez received a text message from Mr. Drake, a Sand Coordinator, which stated the following: “This pad is very difficult to maneuver in. Billy's site would probley (sic) be easier for you. Have you called Billy?”[20] Ms. Montanez responded to Mr. Drake, saying “That is a very interesting statement. Do you tell ur MALE drivers when the pad is difficult 2 manuever (sic) in? I will be sure to call.”[21] A follow-up text message from Mr. Drake stated “come try it. Nothing personal, just trying to make it easy on you, and Billy needs drivers, where I am good with the number I have.”[22] Once on the dump site, Ms. Montanez alleged that she was approached by Jason Drake, who asked her to “line jump” and offload her sand before others who had arrived at the site prior to her.[23] Later, when she fell on the job site, Mr. Drake brought her a first aid kit, but indicated that he did not have the proper paperwork for her concerning job site injuries.[24]Based on these circumstances, Ms. Montanez later reported to Don Smith that there were “two (2) things he needed to do”: (1) based on the allegations of co-worker, investigate why “Jeff”[25] and Milton Drake were having a derogatory conversation about her, and (2) initiate a workers' compensation claim.[26]

         Mr. Howard's investigation concluded on December 20, 2011 with a finding that “[t]here is insufficient evidence to support any claim of sexual bias toward the Complainant.”[27] The report compiled by the Investigator included the following additional factual findings:

3. MBI employees Milton E. DRAKE & Jason Douglas DRAKE performed their duties in a professional manner with regard to their conduct and contact with Complainant at the job site on 11/30/2011.
4. The Complainant voluntarily refused medical attention at the job site scene and again later at the MBI Offices in Williamsport, PA. She instead choose to drive five (5) hours to her home in Ohio. There she sought advice from a Nutritionist before going to a hospital. Her injuries were minor.
5. The limited number of printed copies of text messages supplied by the Complainant tend to support the position of MBI Supervisor Milton DRAKE rather than the Complainant. They do not support a claim of sexual bias.[28]

         While Ms. Montanez alleges that she was told by another driver that Milton Drake did not want a female on his site, [29] she nevertheless admitted during her deposition that she never heard him say anything derogatory about her or her gender. Ms. Montanez specifically stated the following:

Q. ...
Had you ever heard of Milton Drake making similar statements like that in the past, that he did not want a woman on certain job sites?
A. No.
. . .
Q. The comments that Milton Drake had made to Abe, that Abe had related to you that Milton did not want women on the pad site, did you hear Milton Drake say that?
A. No.[30]

         A full examination of the factual record reveals no evidence of such comments.[31]

         C. In December of 2011, Ms. Montanez Expressed Interest in a Sand Coordinator Position. She Ultimately Was Not Chosen For This Position.

         On or about December 2011, Ms. Montanez inquired about transferring to a Sand Coordinator position.[32] She ultimately was not selected for this position.[33] Mr. Smith, in consultation with Ms. Boltz, described the reasoning for this decision as follows:

Q. Do you recall the substance of the conversation?
A. I know that she -- I know -- actually it was asked if I thought she qualified to be a sand coordinator.
Q. Do you recall who asked that question?
A. I believe it was Sarah.
Q. Okay. And what was your answer?
A. At that -- at that time I had expressed a concern about her scheduling, her availability to work as much as the job required. That's a job where people generally work out there for multiple weeks at a time.[34]

         Indeed, in Mr. Howard's December 9, 2011 Investigative Report referenced above, Ms. Montanez herself was quoted as stating that “she is limited in the number of hours she is permitted to work per month.[35]

         D. Ms. Montanez Is Delayed in Reaching the “Stubble” Site of MBWS's Customer, Schlumberger, and A Ticket Charging Schlumberger for Lost Time and Mechanical Issues Is Improperly Submitted.

         On January 19, 2012, Ms. Montanez was dispatched to deliver sand to the “Stubble” site for MBWS's customer-Schlumberger.[36] While the parties disagree as to the root cause, [37] Ms. Montanez was delayed in arriving at the Stubble site. In her deposition, Ms. Montanez stated the following concerning the cause:

Q. Okay. So from midnight to 10:00 a.m., that's ten hours. What occurs in that ten-hour period?
A. I was calling Will trying to get directions.
Q. Okay. Were you having any mechanical troubles with the truck?
A. I had brake problems with the truck that night. They froze up.
Q. Tell me about the brake problems. Do you remember what time that happened?
A. It happened right after Will called me; and for about an hour, it took me to get my brakes unstuck.[38]

         Following this lost time, a ticket was submitted to MBWS's customer- Schlumberger-which charged for the above lost time and mechanical problems.[39]

         This act of charging a customer for lost time and time dealing with mechanical issues is not permitted.[40] Rather, a customer may only be charged for delays which the customer causes, which is called “detention time.”[41] Don Smith indicated in an email to Sarah Boltz and Charles Steffan that he warned Ms. Montanez concerning this billing practice.[42]

         Following the “Stubble” site incident, Ms. Montanez was banned from working at all Schlumberger job sites, [43] and Sarah Boltz undertook an investigation to confirm the findings of Schlumberger.[44] This investigation confirmed the conclusion of Schlumberger concerning improper billing.[45] Thereafter, because Schlumberger was MBWS's only customer in Pennsylvania and no other position was available, Ms. Montanez was placed on administrative suspension by MBWS.[46]

         E. Ms. Montanez Reveals That She Is Suffering From Multiple Sclerosis And Requests Accommodations From MBWS.

         Ms. Montanez suffers from multiple sclerosis, and has symptoms of fatigue, intermittent hand numbness, and tingling.[47] On January 19, 2012, Ms. Montanez requested an accommodation from MBWS-to be permitted to use regular snow chains when driving rather than double chains.[48] This request came as a result of MBWS's change of policy from a requirement of single chaining to double chaining of tires.[49] Ms. Montanez's doctor, Robert Fox, twice reported that Ms. Montanez was able to perform this task.[50] However, in a March 24, 2012 letter to MBWS, Dr. Fox backtracked with the following language:

She is able to operate a commercial motor vehicle with the following restrictions: no heavy lifting (greater than 75 pounds) and no double chaining of truck tires.[51]

         Sarah Boltz, a Human Resources employee for MBWS, stated the following concerning Ms. Montanez's continued employment in the wake of this email from Dr. Fox and the need for more information to determine Ms. Montanez's ability to safely work as a truck driver:

Q. Was it an indefinite suspension?
A. Until we received the information that we needed ---.
Q. And what ---?
A. --- and verification.
Q. And what information was that that you needed?
A. There were, as I mentioned previously, some inconsistencies that we wanted to clear up or get more information on.[52]

         Ms. Montanez did not produce this information. Indeed in an email from Sarah Boltz to Ms. Montanez sent months later on September 26, 2012, Ms. Boltz stated the following concerning the need for additional information and the potential for Ms. Montanez to be placed in an alternative position:

You state there is a misunderstanding but that you will not be able to provide additional information until December 2012. I assume you are referring to what your medical provider described as “transient episodes of visual blurring” and “a black hole” that requires you to pull your vehicle over to the side of the road and sleep for about one hour. As I stated in my e-mail, this creates a serious safety issue. However, we will wait to receive more information from your provider before making a final determination on whether you can be asked to drive while on the job.[53]

         F. Ms. Montanez Files A Complaint With the EEOC in June 2012. She Is Subsequently Given A Job As A Field Safety Representative On July 9, 2012.

         On June 1, 2012, Ms. Montanez filed an EEOC complaint alleging discrimination based on sex, national origin, retaliation, age, and disability.[54]Thereafter, on July 9, 2012, MBWS attempted to accommodate Ms. Montanez by placing her in a Field Safety Representative (“FSR”) position.[55] This placement required that MBWS send Ms. Montanez to North Dakota for one week of training.[56] On July 25, 2012, after less than three weeks on the job, Ms. Montanez requested a leave of absence, following what she avers was retaliatory conduct by another FSR-Vincent Zales.[57] Ms. Montanez avers that she was provided incorrect information about where and when she needed to be on a particular date.[58] Specifically, in her deposition, Ms. Montanez alleged the following:

A. ...
I asked Vince about -- I had a vehicle that was supposed to be issued to me, and I was -- I had taken my personal vehicle up to Morris, which is where the office was at the time. The MBI vehicle that was issued to me was still up in Morris, and I had to -- we had to work out a way to get the vehicle from Morris to West Virginia so I could use it when I was doing my job as a field safety rep.
And I asked - - so Vince made a -- he sent me a schedule one day, and then we made arrangements for me to pick up the vehicle in Wheeling.
So I pick up the vehicle -- or I pick up the rental and drive to Morris and then get to Morris, drop off the rental vehicle, and pick up the FSR vehicle, which was supposed to be left for me in Williamsport, drive it back and go home.
The next day I'm scheduled to work. So I show up at the truck stop, and I'm waiting for Vince; and he never shows up.
So then I said, you know: Is there any reason why you're not here?
And he's, like: Where are you at?
I said: I'm at the TA. Was I supposed to meet you-- I wasn't sure if I was supposed to meet him at the car rental place. He's like: What are you doing there? You were supposed to stay in Morris.
And I said: You didn't tell me I was supposed to stay in Morris.
So him and Don come out, and Vince is yelling at me; and he wanted a copy of my ticket. And I was like, well, I'm not giving you --because he was telling me that I had violated Federal Motor Carriers Safety Rules by driving. Because even though it was a pickup truck, he was saying this pickup truck was regulated by PHMSA rules and you can't drive more than 14 hours without taking a ten-hour break.[59]
And then Don comes out, and he reiterates -- he says: In either case, you must be tired. Go home.[60]

         Based on this incident alone, Ms. Montanez came to the conclusion that she was not going to be permitted to do this job and requested a leave of absence, stating specifically:

A. . . .
So I went home, but I -- at that point, I just realized that they weren't going to allow me to do my job as an FSR.
Q. Okay.[61]

         G. Ms. Montanez Resigns From Her Position As A Field Safety Representative. She Formally Resigns From Employment by MBWS In January 2013.

         Following Ms. Montanez's departure as FSR, she remained an employee with MBWS as they awaited supplemental documentation concerning her ability to perform the essential functions as a truck driver. Indeed, in the previously referenced email from Sarah Boltz to Ms. Montanez on September 26, 2012, Ms. Boltz wrote the following:

At this point, without a non-driving position available, we will need to keep you on leave until we receive the additional information from you and your provider.[62]

         There is no record that Ms. Montanez provided that additional documentation. On January 9, 2014, MBWS received notice that she had resigned her position.[63]

         III. LAW

         “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.”[64] Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[65]“Facts that could alter the outcome are ‘material facts, ' and disputes are ‘genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.”[66]

         “A defendant meets this standard when there is an absence of evidence that rationally supports the plaintiff's case.”[67] “A plaintiff, on the other hand, must point to admissible evidence that would be sufficient to show all elements of a prima facie case under applicable substantive law.”[68]

         “[T]he inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.”[69] Thus, “[i]f the defendant in a run-of-the-mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.”[70] “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”[71] “The judge's inquiry, therefore, unavoidably asks . . . ‘whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.'”[72] Summary judgment therefore is “where the rubber meets the road” for a plaintiff, as the evidentiary record at trial, by rule, will typically never surpass that which was compiled during the course of discovery.

         “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”[73] “[R]egardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.”[74]

         Where the movant properly supports his motion, the nonmoving party, to avoid summary judgment, must answer by setting forth “genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”[75] For movants and nonmovants alike, the assertion “that a fact cannot be or is genuinely disputed” must be supported by: (i) “citing to particular parts of materials in the record” that go beyond “mere allegations”; (ii) “showing that the materials cited do not establish the absence or presence of a genuine dispute”; or (iii) “showing . . . that an adverse party cannot produce admissible evidence to support the fact.”[76]

         “When opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must ‘identify those facts of record which would contradict the facts identified by the movant.'”[77] Moreover, “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion.”[78] On motion for summary judgment, “[t]he court need consider only the cited materials, but it may consider other materials in the record.”[79]

         “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”[80] “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.”[81] “If the evidence is merely colorable . . . or is not significantly probative, summary judgment may be granted.”[82]

         IV. ANALYSIS

         A. Ms. Montanez's Gender Discrimination and Retaliation Claims Under Title VII[83]

         1. Title VII Gender Discrimination

         Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., provides that “[i]t shall be an unlawful employment practice . . . to discriminate against any individual . . . because of . . . sex.”[84] The United States Supreme Court has “established an allocation of the burden of production and an order for the presentation of proof in Title VII discriminatory-treatment cases.”[85] That analysis proceeds as follows:

First, the plaintiff must establish a prima facie case of discrimination. If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee's rejection.” (citation omitted). Finally, should the defendant carry this burden, the plaintiff then must have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.[86]

         MBWS contends that it is entitled to summary judgment on Ms. Montanez's gender discrimination claim because there is no genuine dispute as to material fact at any stage of the above delineated McDonnell-Douglas framework. I agree.

         a. Prima Facie Case

         First, MBWS argues that Ms. Montanez has failed to adduce evidence establishing a prima facie case of gender discrimination. Although the elements of a prima facie case “depend on the facts of the particular case, ” a plaintiff in a Title VII discrimination case must generally demonstrate that: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she suffered from some form of adverse employment action; and (4) those actions were taken under circumstances that give rise to an inference of unlawful discrimination.[87] In this analysis, the focus “is always whether the employer is treating ‘some people less favorably than others because of their race, color, religion, sex, or national origin.'”[88] Therefore, the plaintiff must produce “sufficient evidence to allow a fact finder to conclude that the employer is treating some people less favorably than others based upon a trait that is protected under Title VII.”[89] This determination is question of law to be made by the court.[90]

         Here, while it is undisputed that Ms. Montanez's identity as a woman satisfies the first element of the prima facie case-membership in a protected class, the parties disagree over whether there remains a genuine dispute of material fact concerning the other three elements. In her brief in opposition to MBWS's motion for summary judgment, Ms. Montanez alleges that she has presented sufficient evidence creating a genuine dispute as to material fact based on the following adverse employment actions: (1) MBWS's failure to transfer her to transfer her to its Water Transport division; (3) MBWS's failure to transfer to the Sand Coordinator Position; (3) MBWS's failure to pay her for detention time resulting from what she avers was sabotage in form of incorrect directions; and (4) MBWS's placement of her on “administrative leave” without pay on January 22, 2012.[91]However, even when viewing the evidence in the light most favorable, each of these events fail as a matter of law to satisfy a prima facie case.

         Ms. Montanez first alleges that she was subjected to an adverse employment action as a result of gender discrimination when she requested and was denied a transfer to MBWS's Water Transport Division in Pennsylvania on November 22, 2011.[92] MBWS, in turn, argues that this denial fails to constitute an adverse employment action because it is does employ drivers in this division within Pennsylvania.[93] Viewing the evidence in the light most favorable to Ms. Montanez, I find that this denial fails to constitute an adverse employment action for two specific reasons. First, review of the factual record reveals that, although Ms. Montanez was denied such a transfer, MBWS did not employ water drivers in Pennsylvania, and any in-state transfer was therefore impossible.[94] This impossibility was acknowledged by Ms. Montanez in an email to MBWS's Human Resources Manager Sarah Boltz.[95] Second, while there is evidence that MBWS employed such drivers in North Dakota and that Ms. Montanez expressly inquired as to the possibility of such a transfer, [96] the record is devoid of facts showing that she pursued such a transfer, a position was available for her, and she was subsequently denied.

         Ms. Montanez also avers that she was subject to an adverse employment action as a result of her gender when her requested transfer to a Sand Coordinator position was denied in December 2011.[97] MBWS, while conceding that Ms. Montanez was considered and rejected for this position, argues that Montanez failed to establish a prima facie of gender discrimination because again there is no evidence that she was qualified for this position which would require her to live at the oil site for weeks at a time.[98] This lack of qualification was confirmed in Mr. Howard's December 9, 2011 Investigative Report referenced above where Ms. Montanez was herself quoted as stating that “she is limited in the number of hours she is permitted to work per month.[99]

         Furthermore, qualifications aside, there nevertheless remains an independent obstacle preventing the satisfaction of a prima facie case based on either MBWS's failure to transfer Ms. Montanez to the water transport division or the sand coordinator position. In cases where an employee seeks a transfer to a new position within the same organization, courts require that the employee demonstrate that the transfer sought would have resulted in a promotion, i.e., that the position was objectively better than his or her current position.[100] In Swain v. City of Vineland, the United States Court of Appeals for the Third Circuit affirmed a district court's issuance of summary judgment in favor of the defendant where the plaintiff had failed to produce any evidence that he suffered an adverse employment action.[101] In that case, the plaintiff, a sergeant in the defendant's police department, alleged that he had twice been rejected for transfer to a newly reinstated K-9 unit due to his age.[102] On appeal, the Third Circuit affirmed the grant of summary judgment by concluding that the plaintiff failed to produce any evidence that he suffered an adverse employment action when he was not selected to be a dog handler.[103] The Swain Court specifically reasoned that

While Swain alleges that the K-9 unit is a “specialized endeavor” with opportunities for career advancement and overtime, (citation omitted), he does not contend that his salary, benefits, or prestige would have changed, or assert any specific denial of overtime. Even if the responsibilities of a K-9 sergeant are “significantly different” than those of a street crimes sergeant, (citation omitted), there is no indication that these different responsibilities are objectively better (e.g., more prestigious or less burdensome). In other words, this is not a case where the transfer that was denied would, in effect, have been a promotion. Indeed, Swain relies only upon his subjective preference for the K-9 position, which is insufficient to establish an adverse employment action.[104]

         Here, even if the denial of Ms. Montanez's request to transfer to the nonexistent Water Transport Division in Pennsylvania or to a Sand Coordinator position could be construed as an adverse employment action, there are no facts from which a reasonable jury could conclude that her salary, benefits, or prestige would have changed, or overtime would be turned down based on this denial of transfer.[105]

         Montanez next avers that she has adduced evidence satisfying a prima facie case of gender discrimination based on the “Stubble site” incident and her subsequent placement on administrative suspension without pay on January 22, 2012.[106] As noted throughout, an adverse employment action in the discrimination context is an action that is “ ‘serious enough to alter the employee's compensation, terms, conditions, or privileges of employment.' ”[107] In the context of an administrative suspension, the Third Circuit held in Jones v. Southeastern Pennsylvania Transportation Authority that “[a] paid suspension pending an investigation of an employee's alleged wrongdoing does not fall under any of the forms of adverse action mentioned by Title VII's substantive provision.”[108] Suspensions without pay, as averred in the instant action, however, qualify as adverse employment actions for purposes of satisfying a prima facie case under a substantive discrimination claim.[109]

         Ms. Montanez nevertheless fails to put forward evidence showing that this action was taken under circumstances that give rise to an inference of unlawful discrimination-the fourth prong of a prima facie case. To satisfy this element, Montanez alleges that (1) Milton Drake, a male co-employee, was treated more favorably than her when, following her internal complaints of harassment, he was suspended with pay pending an investigation, and (2) the facts and circumstances leading up to her suspension give rise to an inference of discrimination.[110] These arguments, however, fail to establish an inference of discrimination.

         First, to compare her treatment to that of employees outside her protected class, Ms. Montanez must show that she and the comparator employee are similarly situated in all relevant respects.[111] “[W]hether a factor is relevant for purposes of a similarly situated analysis must be determined by the context of each case. “[112] For example, in disciplinary cases, “in order for an co-employee to be an appropriate comparator she should hold a similar position, report to the same supervisor, possess a similar disciplinary record, and engage in the same ...

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