United States District Court, M.D. Pennsylvania
MARISSA M. MONTANEZ, Plaintiff,
MISSOURI BASIN WELL SERVICES, INC., Defendant.
Matthew W. Brann, United States District Judge.
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.
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
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. 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.
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. 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. MBWS thereafter answered, and the parties
commenced factual discovery.
the completion of discovery, MBWS filed a Motion for Summary
Judgment seeking the entry of final judgment in their favor
on all claims. This Motion has since been fully briefed,
and is now ripe for disposition.
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.
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. On November 22, 2011, Ms. Montanez
requested a transfer to the Water Transport Division in
Pennsylvania. MBWS, however, did not employ drivers in
the Water Transport Division in Pennsylvania. Rather, all
drivers within that division were non-employee independent
was advised that such a transfer was
impossible. She thereafter inquired about transfer
to another division in another state. 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, www.missouribasinwell.com 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.
factual record contains no evidence that Ms. Montanez made
such a transfer request and was subsequently denied.
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
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”). Upon receiving this internal
complaint, two actions were taken. First, MBWS suspended Mr.
Drake with pay pending an investigation. Second, MBWS
hired a third party, Bernard E. Howard (“Mr.
Howard”), to investigate these claims. 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.
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?” 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.” 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.” 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. 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.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” and Milton Drake were having a
derogatory conversation about her, and (2) initiate a
workers' compensation claim.
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.” 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
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
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.
Ms. Montanez alleges that she was told by another driver that
Milton Drake did not want a female on his site,
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:
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?
. . .
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?
examination of the factual record reveals no evidence of such
In December of 2011, Ms. Montanez Expressed Interest in a
Sand Coordinator Position. She Ultimately
Was Not Chosen For This Position.
about December 2011, Ms. Montanez inquired about transferring
to a Sand Coordinator position. She ultimately was not
selected for this position. Mr. Smith, in consultation
with Ms. Boltz, described the reasoning for this decision as
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.
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.
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
January 19, 2012, Ms. Montanez was dispatched to deliver sand
to the “Stubble” site for MBWS's
customer-Schlumberger. While the parties disagree as to the
root cause,  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
A. I had brake problems with the truck that night. They froze
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.
this lost time, a ticket was submitted to MBWS's
customer- Schlumberger-which charged for the above lost time
and mechanical problems.
act of charging a customer for lost time and time dealing
with mechanical issues is not permitted. Rather, a
customer may only be charged for delays which the customer
causes, which is called “detention
time.” Don Smith indicated in an email to Sarah
Boltz and Charles Steffan that he warned Ms. Montanez
concerning this billing practice.
the “Stubble” site incident, Ms. Montanez was
banned from working at all Schlumberger job sites,
and Sarah Boltz undertook an investigation to confirm the
findings of Schlumberger. This investigation confirmed
the conclusion of Schlumberger concerning improper
billing. 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.
Ms. Montanez Reveals That She Is Suffering From Multiple
Sclerosis And Requests Accommodations From MBWS.
Montanez suffers from multiple sclerosis, and has symptoms of
fatigue, intermittent hand numbness, and
tingling. 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. This request came as a result of
MBWS's change of policy from a requirement of single
chaining to double chaining of tires. Ms.
Montanez's doctor, Robert Fox, twice reported that Ms.
Montanez was able to perform this task. However, in a
March 24, 2012 letter to MBWS, Dr. Fox backtracked with the
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
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
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
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.
1, 2012, Ms. Montanez filed an EEOC complaint alleging
discrimination based on sex, national origin, retaliation,
age, and disability.Thereafter, on July 9, 2012, MBWS
attempted to accommodate Ms. Montanez by placing her in a
Field Safety Representative (“FSR”)
position. This placement required that MBWS send
Ms. Montanez to North Dakota for one week of
training. 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. Ms. Montanez avers that she was provided
incorrect information about where and when she needed to be
on a particular date. Specifically, in her deposition, Ms.
Montanez alleged the following:
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
So then I said, you know: Is there any reason why you're
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
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.
And then Don comes out, and he reiterates -- he says: In
either case, you must be tired. Go home.
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.
Ms. Montanez Resigns From Her Position As A Field Safety
Representative. She Formally Resigns From Employment by MBWS
In January 2013.
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
is no record that Ms. Montanez provided that additional
documentation. On January 9, 2014, MBWS received notice that
she had resigned her position.
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.” 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.”“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
defendant meets this standard when there is an absence of
evidence that rationally supports the plaintiff's
case.” “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.”
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.” 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.” “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.” “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.'” 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.
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.” “[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.”
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.” 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.”
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.'” 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.” On motion for summary
judgment, “[t]he court need consider only the cited
materials, but it may consider other materials in the
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.” “[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.” “If the evidence is merely
colorable . . . or is not significantly probative, summary
judgment may be granted.”
Ms. Montanez's Gender Discrimination and Retaliation
Claims Under Title
Title VII Gender Discrimination
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.” 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.” 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.
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
Prima Facie Case
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. 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.'” 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.” This determination is question of law to
be made by the court.
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.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.
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. 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. 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. This impossibility was
acknowledged by Ms. Montanez in an email to MBWS's Human
Resources Manager Sarah Boltz. 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,  the record is devoid of facts showing
that she pursued such a transfer, a position was available
for her, and she was subsequently denied.
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. 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. 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
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. 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. 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. 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. The Swain Court specifically
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.
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.
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. 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.' ” 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.” 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.
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. These arguments, however, fail to
establish an inference of discrimination.
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. “[W]hether a factor is relevant
for purposes of a similarly situated analysis must be
determined by the context of each case. “ 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 ...