Montanez v. Missouri Basin Well Services
Filing
52
MEMORANDUM (Order to follow as separate docket entry) re: 43 MOTION for Summary Judgment filed by Missouri Basin Well Services. Signed by Honorable Matthew W. Brann on 8/28/2017. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARISSA M. MONTANEZ,
Plaintiff,
v.
MISSOURI BASIN WELL
SERVICES, INC.,
Defendant.
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No. 4:14-CV-00553
(Judge Brann)
MEMORANDUM OPINION
AUGUST 28, 2017
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.
I.
INTRODUCTION
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”);
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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
1
ECF No. 1.
2
ECF Nos. 11 & 15.
3
ECF No. 16.
4
ECF Nos. 23 & 24.
5
ECF No. 25.
6
ECF No. 28.
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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
II.
FACTUAL BACKGROUND
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
7
ECF No. 43.
8
ECF Nos. 47 & 50.
9
Def.’s Statement of Undisputed Material Facts (“Def.’s SUMF”) (ECF No. 44) ¶ 2, at 1; Pl.’s
Answer to Def.’s Statement of Undisputed Material Facts (“Pl.’s Answer”) (ECF No. 51) ¶ 2,
at 2.
10
Def.’s SUMF ¶ 4, at 1; Pl.’s Answer ¶ 4, at 2. See also November 22, 2011 Email from
Marissa Montanez to Sara Boltz (ECF No. 50-9).
11
Def.’s SUMF ¶ 5, at 2; Pl.’s Answer ¶ 5, at 2.
12
Def.’s SUMF ¶ 6, at 2; Pl.’s Answer ¶ 6, at 2.
13
Def.’s SUMF ¶ 7, at 2; Pl.’s Answer ¶ 7, at 2; see also Dep. of Sarah Boltz (ECF No. 44-2) at
37:20–38:3.
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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, 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.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.
14
See November 23, 2011 Email Correspondence Between Sarah Boltz and Marissa Montanez
(ECF No. 44-1).
15
Id.
16
Def.’s SUMF ¶ 3, at 1; Pl.’s Answer ¶ 3, at 2. See also November 30, 2011 Email from
Marissa Montanez to Sarah Boltz (ECF No. 50-10).
17
Def.’s SUMF ¶ 8, at 2; Pl.’s Answer ¶ 8, at 2.
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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
18
Def.’s SUMF ¶ 9, at 2; Pl.’s Answer ¶ 9, at 2.
19
See Stathill Investigations Report by Bernard E. Howard (ECF No. 50-16).
20
See Stathill Investigations Report by Bernard E. Howard (ECF No. 50-16), at 2; see also
Dep. of Marissa Montanez (ECF No. 44-3) at 24:22–24.
21
Id.
22
Id.
23
Id.
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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 coworker, 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
24
Def.’s SUMF ¶¶ 13-14, at 3; Pl.’s Answer ¶¶ 13-14, at 3; see also Dep. of Marissa Montanez
(ECF No. 44-3) at 28:5-8; 16-25.
25
Jason Drake is referred to as “Jeff” by Ms. Montanez in Mr. Howard’s Investigative Report.
See ECF No. 50-16.
26
See Stathill Investigations Report by Bernard E. Howard (ECF No. 50-16), at 4.
27
See Stathill Investigations Report by Bernard E. Howard, Factual Findings, (ECF No. 50-16).
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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
28
Id.
29
Pl.’s Answer ¶ 16, at 3 (citing Dep. of Marissa Montanez (ECF No. 44-3), at 29:24–30:4).
30
Dep. of Marissa Montanez (ECF No. 44-3) at 31:7-10; 32:21-25.
31
See Dep. of Matthew Baker (ECF No. 44-6) at 12:19-22(stating that he never heard Milton
Drake make disparaging comments about Ms. Montanez); Dep. of Jason Drake (ECF No. 445) at 62:16–63:3 (stating that he does not recall anyone saying that Ms. Montanez could not
do her job because she was a woman or that she should be retaliated against because she
made a complaint); Dep. of Don Smith (ECF No. 44-7) at 23:6-11 (stating that he does not
recall any instance of Milton Drake making a negative comment about Ms. Montanez).
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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
32
Am. Compl. (ECF No. 25) ¶ 38, at 8.
33
Dep. of Sarah Boltz (ECF No. 44-2), at 38:23-24.
34
Dep. of Don Smith (ECF No. 44-7), at 16:14-23.
35
See Stathill Investigations Report by Bernard E. Howard (ECF No. 50-16), at 2.
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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
36
Def.’s SUMF ¶ 24, at 4; Pl.’s Answer ¶ 24, at 4.
37
While Ms. Montanez avers that she was given the incorrect directions to the site, MBWS
cites her deposition testimony to demonstrate that she was given the correct directions but
chose not to follow them because they would force her to make a 90 degree turn. See Def.’s
SUMF ¶ 26, at 4; Pl.’s Answer ¶ 26, at 4. See also Dep. of Marissa Montanez (ECF No. 443), at 49: 9-12 (“Q. I get it. Instead of making a 90-degree sharp turn, they had an easier
angle to make to get onto that road? A. Right.”).
38
Dep. of Marissa Montanez (ECF No. 44-3), at 51:11-24.
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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
39
Def.’s SUMF ¶ 29, at 5; Pl.’s Answer ¶ 29, at 5. Plaintiff alleges within her deposition that
co-worker Sanders added commentary to her ticket in order to “get her fired.” See Dep. of
Marissa Montanez (ECF No. 44-3), at 55:3–20. Assuming the veracity of this claim (as the
ticket is not included in the factual record), the significance of these modifications is limited
as there is no allegation that the detention time charged was changed. See id. at 57:20–58:12.
In any event, she made this claim to MBWS concerning Sanders and an independent
investigation revealed no evidence confirming this suspicion. See Investigative Report of
February 23, 2012 (ECF No. 50-20), at 16.
40
Def.’s SUMF ¶ 30, at 5; Pl.’s Answer ¶ 30, at 5.
41
Dep. of Matthew Baker (ECF No. 44-6) at 24:20–25:9; Dep. of Milton Drake (ECF No. 444) at 49:11-20; Dep. of Don Smith (ECF No. 44-7) at 41:7-13.
42
Def.’s SUMF ¶ 31, at 5; Pl.’s Answer ¶ 31, at 5. See also Email Chain from Don Smith to
Charles Steffan and Sarah Boltz (ECF No. 44-1).
43
Def.’s SUMF ¶ 32, at 5; Pl.’s Answer ¶ 32, at 5.
44
Def.’s SUMF ¶ 34, at 6; Pl.’s Answer ¶ 34, at 5.
45
Id.
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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
46
Def.’s SUMF ¶ ¶ 33, 35, at 6; Pl.’s Answer¶ ¶ 33, 35 at 5–6.
47
Am. Compl. (ECF No. 25) ¶¶22–23, at 6.
48
Def.’s SUMF ¶ 40, at 7; Pl.’s Answer ¶ 40, at 6.
49
See Dep. of Marissa Montanez (ECF No. 44-3) at 74:13–17.
50
Def.’s SUMF ¶¶ 45-46, at 7; Pl.’s Answer ¶¶ 45-46, at 7.
51
See Def.’s SUMF ¶ 47, at 7–8; Pl.’s Answer ¶¶ 47, at 7. See also March 14, 2012 Email from
Robert Fox, M.D. (ECF No. 44-1), at 6.
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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
52
Dep. of Sarah Boltz (ECF No. 44-2) at 48:2–10. See also September 26, 2012 Email from
Sarah Boltz to Marissa Montanez (ECF No.50-21)(“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.”).
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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
53
See September 26, 2012 Email from Sarah Boltz to Marissa Montanez (ECF No.50-21).
54
Def.’s SUMF ¶ 48, at 8; Pl.’s Answer ¶ 48, at 7.
55
Def.’s SUMF ¶ 49, at 8; Pl.’s Answer ¶ 49, at 7.
56
Def.’s SUMF ¶ 50, at 8; Pl.’s Answer ¶ 50, at 7.
57
Def.’s SUMF ¶ 51, at 8; Pl.’s Answer ¶ 51, at 7.
58
Def.’s SUMF ¶ 52, at 8; Pl.’s Answer ¶ 52, at 7.
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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
...
59
Dep. of Marissa Montanez (ECF No. 44-3), at 63:21–65:11.
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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
60
Id. at 65:21–23.
61
Id. at 65:24–66:2.
62
See September 26, 2012 Email from Sarah Boltz to Marissa Montanez (ECF No. 50-21).
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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
63
Def.’s SUMF ¶ 53, at 8; Pl.’s Answer ¶ 53, at 7.
64
Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
65
Fed. R. Civ. P. 56(a).
66
Clark v. Modern Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993) (Hutchinson, J.) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) and Celotex Corp., 477 U.S. at 322).
67
Clark, 9 F.3d at 326.
68
Id.
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“[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
69
Liberty Lobby, Inc., 477 U.S. at 252.
70
Id.
71
Id.
72
Id. (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S. 442, 447 (1871)).
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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
73
Celotex Corp., 477 U.S. at 323 (internal quotations omitted).
74
Id.
75
Liberty Lobby, Inc., 477 U.S. at 250.
76
Fed. R. Civ. P. 56(c)(1).
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“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
77
Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003) (Weis,
J.).
78
Fed. R. Civ. P. 56(e)(2).
79
Fed. R. Civ. P. 56(c)(3).
80
Liberty Lobby, Inc., 477 U.S. at 249.
81
Id.
82
Id. at 249–50 (internal citations omitted).
- 19 -
IV.
ANALYSIS
A.
Ms. Montanez’s Gender Discrimination and Retaliation Claims
Under Title VII83
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
83
I note that in Plaintiff’s Brief in Opposition to Defendant’s Motion for Summary Judgment,
she withdraws her Title VII discrimination claim to the extent it is based on national origin.
ECF No. 50, at 2 n. 1.
84
42 U.S.C. § 2000e 2(a)(1).
85
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973)).
86
Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999) (quoting McDonnell
Douglas, 411 U.S. at 802).
- 20 -
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
87
Id. at 410–11.
88
Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999) (quoting Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 577 (1978)).
89
Iadimarco v. Runyon, 190 F.3d 151, 161 (3d Cir. 1999).
90
Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003).
- 21 -
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
91
Pl.’s Br. in Opp. to Def.’s Mot. for Summ. J. (Pl.’s Br.) (ECF No. 50) at 5–7.
92
Id. at 6. See also November 22, 2011 Email to Sarah Boltz (ECF No. 50-9)(“Therefore, I am
currently inquiring into a transfer to the Water Transport division of Missouri Well Basin
Services within the Pennsylvania Area.”).
- 22 -
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
93
Def.’s Br. in Supp. of Mot. for Summ. J. (“Def.’s Br.”)(ECF No. 47) at 9–10.
94
See Dep. of Sarah Boltz (ECF No. 44-2) at 37:20-38:16 (Q. Did you transfer her to that
division? A. We do not have company water drivers. We only had independent contractors in
Pennsylvania. Q. So is it your testimony that there wasn’t a position for her at all? 6 A. In
Pennsylvania; yes.).
95
See Email Chain between Sarah Boltz and Marissa Montanez (ECF No. 44-1), at 1.
96
Id.
97
Pl.’s Br. at 6–7.
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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
98
Def.’s Br. at 10; see also Dep. of Don Smith (ECF No. 44-7), at 16:20-23.
99
See Stathill Investigations Report by Bernard E. Howard (ECF No. 50-16), at 2.
100
See Swain v. City of Vineland, 457 F.App’x. 107 (3d Cir. 2012).
101
Id. at 108.
- 24 -
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
102
Id. at 108–109.
103
Id. at 111.
104
Id. at 110.
- 25 -
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,
105
See Woods v. Salisbury Behavioral Health, Inc., 3 F.Supp.3d 238, 253 (M.D.Pa. March 12,
2014)(Caputo, J.)(granting summary judgment where plaintiff had failed to present any
objective evidence that a school coordinator position for which she was rejected was better
than her job as a special education teacher); Sutton v. City of Wilmington, Civil Action No.
12-CV-67, 2015 WL 4999593, at *4 (D.Del. Aug. 21, 2015)(granting summary judgment in
part because the defendant city’s failure to transfer to to a K-9 unit was not an adverse
employment action where the work hours, wage, and overtime opportunities available for a
K9 Handler nearly mirror those of his current position).
106
Pl.’s Br. at 5.
107
Jones v. Southeastern Pa. Trans. Auth., 796 F.3d 323, 326 (3d Cir. 2015) (quoting Storey v.
Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004)).
108
Id.
- 26 -
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
109
Seeney v. Elwin, Inc., 409 F. App’x. 570, 574 (3d Cir. 2011)(holding that “a three-day
suspension without pay may be considered an adverse employment action” for the purpose of
a Title VII disparate treatment claim).
110
Pl.’s Br. at 5.
111
See Houston v. Easton Area Sch. Dist., 355 F.Appx. 651, 654 (3d Cir. 2009) (citation
omitted).
112
Id.
- 27 -
supervisor, possess a similar disciplinary record, and engage in the same type of
misconduct as the plaintiff.”113 “Whether a comparator is truly similarly-situated
to the plaintiff is an issue of law.”114
Here, within the context of this case, the Court cannot find that Milton Drake
is a proper comparator sufficient to raise an inference that Montanez’s suspension
without pay was the result of discriminatory animus. I first note that there are no
facts demonstrating that Drake, a sand coordinator, and Montanez, a driver,
occupied the same or a similar position.115 In fact, it is averred that Drake directed
Montanez while she was at his site of supervision.116 Second, the conduct
underlying each employee’s suspension is significantly different, and Ms.
Montanez has adduced no evidence demonstrating that she shared a disciplinary
record similar to Drake.117 In Drake’s circumstance, he was suspended pending an
internal investigation of harassment against Montanez. Montanez, however, was
113
Opsatnik v. Norfolk Southern Corp., 335 F.Appx. 220, 223 (3d Cir. 2009).
114
Moore v. Shinseki, 487 F.App’x. 697, 698 (3d Cir. 2012) (citation omitted).
115
Martin v. Pachulski, Stang, Ziehl, Young & Jones, P. C., 551 F.Supp.2d 322, 329 n. 2 (D.Del.
2008) (employees who did not hold the same positions were not comparably situated).
116
Dep. of Milton Drake (ECF No. 44-4) at 8:18-24; see also Dep. of Jason Drake (ECF No. 445) at 14:16-15:10 (explaining the role of sand coordinators in telling drivers that they needed
another load of sand and where said load was needed).
117
See Popko v. Penn State Milton S. Hershey Medical Center, Civil Action No. 13-CV-1845,
2017 WL 1078158, at *8 (M.D.Pa. Mar. 22, 2017)(Kane, J.) (finding that that proposed
comparators were not similarly situated where they lacked similar pre disciplinary records).
- 28 -
suspended pending an investigation into her alleged improper billing of detention
time against MBWS sole client in Pennsylvania—Schlumberger.118
Similarly, I do not find that the facts and circumstances leading up to Ms.
Montanez’s suspension give rise to an inference of discrimination. First, while Ms.
Montanez testified that she heard from others that Milton Drake expressed that he
did not want females on the site, she admitted in her deposition that she had never
heard any comments firsthand.119 Furthermore, examination of the deposition
testimony of other employees reveals no evidentiary support for that contention.120
Second, while Ms. Montanez avers that a co-worker,Will Sanders, falsified her
time sheets at the Stubble site, I note that he did not make the ultimate
determination concerning her suspension, nor is there evidence which meets the
requirements for the imposition of cat’s paw liability, as advanced by Ms.
Montanez.
The subordinate bias, or “cat’s paw,” theory states that an employer can be
held liable for discrimination when a non-biased decision-maker is influenced by a
118
See Opsatnik, 335 F. App’x. at 223 (“while ‘similarly situated’ does not mean identically
situated, purported comparators must have committed offenses of ‘comparable seriousness'”).
119
Dep. of Marissa Montanez (ECF No. 44-3) at 31:7-10; 32:21-25.
120
See Dep. of Matthew Baker (ECF No. 44-6) at 12:19-22 (stating that he never heard Milton
Drake make disparaging comments about Ms. Montanez); Dep. of Jason Drake (ECF No. 445) at 62:16–63:3 (stating that he does not recall anyone saying that Ms. Montanez could not
do her job because she was a woman or that she should be retaliated against because she
made a complaint); Dep. of Don Smith (ECF No. 44-7) at 23:6-11 (stating that he does not
recall any instance of Milton Drake making a negative comment about Ms. Montanez).
- 29 -
biased managerial employee.121 However, when an employee alleges that a nonsupervisory employee motivated by discriminatory animus influenced a nonbiased decision-maker, liability can still attach to the employer if certain conditions
are met. In Burlington v. News Corporation, the Honorable R. Barclay Surrick
found that a plaintiff “can establish a genuine issue of material fact on a cat’s paw
theory of liability if he establishes that one or more of his nonsupervisory
coworkers: (1) performed an act motivated by discriminatory animus; (2) the act
was intended by the coworker to cause an adverse employment action; (3) that act
is a proximate cause of the ultimate employment action, (Citation omitted); and
either (a) defendants acted negligently by allowing the co-worker’s acts to achieve
their desired effect though they knew (or reasonably should have known) of the
discriminatory motivation, (citation omitted); or (b) the coworker was aided in
accomplishing the adverse employment action by the existence of the agency
relation.”122
In the instant matter, Ms. Montanez fails to offer evidence establishing
liability based on co-worker bias. First, I note that, while Ms. Montanez has now
alleged that Sanders altered123 her ticket at the “Stubble” site by adding notes, and
121
See McKenna v. City of Philadelphia, 649 F.3d 171 (3d Cir. 2011).
122
55 F. Supp.3d 723, 738-39 (E.D.Pa. 2014).
123
I further question the significance of the alleged “notes” which Sanders placed on the ticket,
given that there is no allegation that he altered the hours to be charged to Schlumberger. See
Dep. of Marissa Montanez (ECF No. 44-3) at 57:20-58:12.
- 30 -
therefore effectively imputed his discriminatory animus to MBWS, the factual
record indicates that she failed to dispute her billing time immediately following
her suspension despite being given that opportunity. Specifically, in her
comprehensive email of January 23, 2012 concerning the Stubble site incidence,
Ms. Montanez focused her allegations on having been given “incorrect” directions,
and essentially conceded that she sought payment for the time she was lost.124
Indeed, in this email, Ms. Montanez wrote the following:
After I unloaded, George Sullenberger signed my paperwork but only
allowed for detention time I had spent at the truck stop. My belief
is that George Sullenberger, Will Sanders, and Ed Metzinger were
equally responsible for my having been lost for an exorbitant amount
of time, due to their failure to communicate, and having given me the
WRONG directions. To penalize me by refusing to pay is a
violation of OSHA wage requirements and Ethics. George
Sullenberger suggested I call Don Smith.125
Second, even accepting both the veracity of Ms. Montanez’s otherwise
unsupported allegations and Mr. Sanders’ reputed discriminatory animus,126 I
nevertheless note the absence of facts demonstrating that defendant acted
negligently by allowing the co-worker’s acts to achieve their desired effect though
124
See January 23, 2012 Email from Marissa Montanez to Sarah Boltz (ECF No. 50-18).
125
Id. (emphasis added).
126
Federal Rule of Civil Procedure 56(c)(1) states that in order for the nonmovant to establish a
genuine dispute of material fact she must “cit[e] to particular parts of materials in the record”
or “showing that the materials cited [by the movant] do not establish absence or presence of a
genuine dispute.” A nonmoving party, therefore, “may not simply sit back and rest on
the allegations in its complaint.” Corneal v. Jackson Twp., 313 F.Supp.2d 457, 464 (M.D.Pa.
2003), aff'd, 94 F.App’x. 76 (3d Cir. 2004).
- 31 -
they knew (or reasonably should have known) of the discriminatory motivation, or
that the coworker was aided in accomplishing the adverse employment action by
the existence of the agency relation. Specifically, following the “Stubble” site
incident, MBWS conducted an internal investigation to confirm the conclusion of
customer Schlumberger that Ms. Montanez improperly billed them.127
Furthermore, I note that following the “Stubble” site incident, MBWS again
hired a private investigator to conduct a second investigation into allegations of
harassment by Sanders, including an allegation by Ms. Montanez that she overhead
from another employee that Sanders said he got her fired from Schlumberger
sites.128 Following interviews with five individuals, that private investigator again
found insufficient evidence to support Ms. Montanez’s claims against Sanders.129
Given these investigations, the factual record therefore lacks any evidence that
Sanders’ discriminatory animus, if it existed, proximately caused the adverse
employment action suffered.
b.
Legitimate, Non-discriminatory Reason and Pretext
Even assuming arguendo that Montanez were successful in adducing a
prima facie case of gender discrimination under Title VII, MBWS has nevertheless
proffered legitimate non-discriminatory reasons for each of the alleged adverse
127
Def.’s SUMF ¶ 34, at 6; Pl.’s Answer ¶ 34, at 5.
128
See Investigative Report of Bernard Howard (ECF No. 50-20) at 10.
129
See Investigative Report of Bernard Howard (ECF No. 50-20) at 16.
- 32 -
employment actions. At the outset, I note that a defendant’s burden at this stage of
the McDonnell Douglas framework is “‘relatively light,’ and the employer need
only ‘introduc[e] evidence which, taken as true, would permit the conclusion that
there was a nondiscriminatory reason for the unfavorable employment decision.’
”130
Here, MBWS asserts the following nondiscriminatory reasons for the
alleged adverse employment actions suffered by Ms. Montanez. First, concerning
their alleged failure to transfer Montanez to the Water Transport Division, MBWS
avers that it did not employ such drivers in Pennsylvania. Rather, as previously
explained, it only retained non-employee independent contractors in that
division.131 Second, MBWS states that it did not transfer Montanez to the Sand
Coordinator position because she was not qualified for this position. MBWS
specifically argues that this position requires its occupant to regularly visit oil sites
which included the Schlumberger site to which Montanez was banned.132 Third,
and finally, MBWS submits that Montanez’s administrative suspension without
pay was warranted given that she incorrectly billed their client Schlumberger for
detention time incurred during the “Stubble” site incident.133
130
Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006) (citing Fuentes v. Perskie, 32 F.3d
759, 763 (3d Cir. 1994)).
131
Def.’s Br. at 13.
132
Id. at 14.
133
Id. at 14.
- 33 -
Because “the defendant need not prove that the articulated reason actually
motivated its conduct” at this stage of litigation,134 I find that MBWS has met its
burden of production at this stage of the framework. The burden therefore shifts
back to the plaintiff to show, by a preponderance of the evidence, that this reason is
pretextual.135 Our Court of Appeals has explicitly instructed district courts who are
disposing of a summary judgment motion in the employment discrimination setting
as follows:
[T]o defeat summary judgment when the defendant answers the
plaintiff’s prima facie case with legitimate, non-discriminatory
reasons for its action, the plaintiff must point to some evidence,
direct or circumstantial, from which a factfinder could
reasonably either (1) disbelieve the employer’s articulated
legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action. In other words,
. . . a plaintiff who has made out a prima facie case may defeat
a motion for summary judgment by either (i) discrediting the
proffered reasons, either circumstantially or directly, or
(ii) adducing evidence, whether circumstantial or direct, that
discrimination was more likely than not a motivating or
determinative cause of the adverse employment action.
[T]o avoid summary judgment, the plaintiff’s evidence
rebutting the employer’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 (that is, the proffered reason is a pretext).
134
Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d Cir. 2003).
135
Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015).
- 34 -
To discredit the employer’s proffered reason, however, the
plaintiff cannot simply show that the employer’s decision was
wrong or mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent. Rather, the
non-moving plaintiff 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. While
this standard places a difficult burden on the plaintiff, it arises
from an inherent tension between the goal of all discrimination
law and our society’s commitment to free decision-making by
the private sector in economic affairs.136
Based on the above direction, I find that the summary judgment record
contains no evidence from which a reasonable jury could conclude that MBWS’s
stated reasons for Montanez’s suspension was simply a pretext for discrimination.
In her brief in opposition to the instant Motion for Summary Judgment, Ms.
Montanez avers that much of the evidence adduced to satisfy the prima facie of
gender discrimination overlaps with the pretext analysis.137 Specifically, Ms.
Montanez argues that pretext is shown through (1) Milton Drake’s more favorable
disciplinary treatment, (2) Milton Drake’s comment referring to Montanez as “little
136
Fuentes v. Perskie, 32 F.3d 759, 764–65 (3d Cir. 1994) (Becker, C.J.) (internal citations and
quotations omitted) (emphasis in original).
137
See Doe v. C.A.R.S. Prot. Plus, Inc.,527 F.3d 358, 370 (3d Cir. 2008) (“[T]he prima
facie case and pretext inquiries often overlap. As our jurisprudence recognizes, evidence
supporting the prima facie case is often helpful in the pretext stage, and nothing about
the McDonnell Douglas formula requires us to ration the evidence between one stage or the
other.”).
- 35 -
lady,” and (3) MBWS’ failure to offer her a job in the Water Transport Division of
North Dakota, or Don Smith’s failure to recommend her for the Sand Coordinator
position.138
These allegations cannot satisfy either of the above Fuentes prongs. First,
concerning Montanez’s advancement of Milton Drake as a similarly situated
employee who was subject to more favorable discipline, I note that this argument
was previously rejected as a matter of law during my analysis of Ms. Montanez’s
prima facie case. Second, even when accepting the veracity of Montanez ‘s
allegation that Drake called her “little lady,” I note that “[s]tray remarks by nondecisionmakers or by decisionmakers unrelated to the decision process are rarely
given great weight, particularly if they were made temporally remote from the date
of decision.”139 In considering whether they are probative of discrimination, the
following factors are applicable: “(1) the relationship of the speaker to the
employee and within the corporate hierarchy; (2) the temporal proximity of the
statement to the adverse employment decision; and (3) the purpose and content of
the statement.”140 Here, this stray remark by Milton Drake fails to demonstrate
pretext because the developed factual record demonstrates that he was a non-
138
Pl.’s Br. at 17.
139
Fuentes, 32 F.3d at 767 (quoting Ezold, 983 F.2d at 545).
140
Parker v. Verizon Pennsylvania, Inc., 309 F.App’x. 551, 559 (3d Cir. 2009)(citing Ryder v.
Westinghouse Elec. Corp., 128 F.3d 128, 133 (3d Cir. 1997)).
- 36 -
decision maker concerning Montanez’s employment or prospective transfer and
exercised, at most, indirect authority over her in his position as a Sand Coordinator
while she was unloading at his site.141 Furthermore, Ms. Montanez has not placed
this single comment within a temporal proximity to an alleged adverse
employment action.
Third, concerning MBWS’s failure to offer her a job in the Water Transport
Division of North Dakota and Don Smith’s failure to recommend her for the Sand
Coordinator position, I note an utter paucity of evidence either “(i) discrediting the
proffered reasons, either circumstantially or directly, or (ii) adducing evidence,
whether circumstantial or direct, that discrimination was more likely than not a
motivating or determinative cause of the adverse employment action.142 I
specifically note that the undisputed facts indicate that (1) MBWS did not employ
water transport drivers in Pennsylvania and there is no evidence indicating that
Montanez pursued such a position in another state and was denied,143 and (2) Ms.
141
Dep. of Milton Drake (ECF No. 44-4) at 8:18-24; see also Dep. of Jason Drake (ECF No. 445) at 14:16-15:10 (explaining the limited role of sand coordinators in telling drivers that they
needed another load of sand and where said load was needed).
142
Fuentes, 32 F.3d at 764–65.
143
See Email from Human Resources Manager Sarah Boltz to Montanez (ECF No. 44-1)(“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.”).
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Montanez was not recommended for a Sand Coordinator position because she was
unqualified.144
In sum, the undisputed facts indicate that Montanez has failed to establish
both a prima facie case of discrimination and adduce any evidence that MBWS’s
legitimate, nondiscriminatory reasons are pretext. I therefore find that no genuine
dispute as to material fact precluding summary judgment in favor of MBWS on
Montanez’s gender discrimination claim.
2.
Title VII Retaliation
Section 704(a) of Title VII forbids an employer from discriminating against
an employee “because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation . . . under this subchapter.”145 In
Burlington Northern and Santa Fe Ry. Co. v. White, the Supreme Court of the
United States discussed the different purpose and language of the anti-retaliation
provisions of Title VII of the Civil Rights Act of 1964.146 Specifically, the Court
explained that, while the anti-discrimination provision “seeks to prevent injury to
144
See Dep. of Don Smith (ECF No. 44-7), at 16:20-23 (expressing that a Sand Coordinator
typically works on site for multiple weeks at a time); see also Investigative Report (ECF No.
50-16) (noting that Montanez expressed that she is a part time employee limited in the
number of hours she can work).
145
42 U.S.C. § 2000e-3(a).
146
Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 61–63 (2006).
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individuals based on who they are, i.e., their status,” the anti-retaliation provision
“seeks to prevent harm to individuals based on what they do, i.e., their conduct.”147
a.
Prima Facie Case
In order to establish a prima facie case of retaliation under Title VII, a
plaintiff must demonstrate that (1) she was engaged in protected activity; (2) she
suffered an adverse employment action subsequent to or contemporaneously with
such activity; and (3) there is a causal link between the protected activity and the
adverse activity.148 Importantly, a plaintiff must prove but-for causation; that is, he
or she must demonstrate “that the unlawful retaliation would not have occurred in
the absence of the alleged wrongful action or actions of the employer.”149 Finally,
as with discrimination claims, if a plaintiff establishes a prima facie case of
retaliation, “‘the burden shifts to the employer to advance a legitimate, nonretaliatory reason’ for its conduct and, if it does so, ‘the plaintiff must be able to
convince the factfinder both that the employer’s proffered explanation was false,
and that retaliation was the real reason for the adverse employment action.’”150
“To survive a motion for summary judgment in the employer’s favor, a plaintiff
147
Id. at 63.
148
See Woodson v. Scott Paper Co., 109 F.3d, 913, 920 (3d Cir. 1997).
149
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
150
Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006)(quoting Krouse v. Am.
Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997)).
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must produce some evidence from which a jury could reasonably reach these
conclusions.”151
Conceding that Montanez’s internal complaint of harassment constitutes a
protected activity under the above framework, Defendant MBWS nevertheless
contests that Montanez fails to establish a materially adverse employment action.152
It specifically avers that alleged materially adverse actions of (1) not being
transferred to the Water Transport division; (2) having her paperwork in December
2011 “unnecessarily and unreasonably delayed”; (3) being “given the wrong and/or
incomplete directions” to the “Stubble” site on January 18, 2012; (4) being falsely
accused as insubordinate by her supervisor Vince Zales while she was in the
position as field safety representative; and (5) not being permitted to return to a
position as truck driver or field safety representative in late 2012/early 2013 each
fail as a matter of law to satisfy a prima facie case of retaliation under Title VII.153
I agree.
“The scope of the anti-retaliation provision, unlike the substantive provision,
is not limited to discriminatory actions that affect the terms and conditions of
employment.”154 Consequently, “a plaintiff claiming retaliation under Title VII
151
Id. (citing Fuentes, 32 F.3d at 764).
152
Def.’s Br. at 18.
153
Id.
154
Burlington Northern, 548 U.S. at 67.
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must show that a reasonable employee would have found the alleged retaliatory
actions ‘materially adverse’ in that they well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.”155 “In evaluating
whether actions are materially adverse, we must remain mindful that ‘it is
important to separate significant from trivial harms’ because ‘[a]n employee’s
decision to report discriminatory behavior cannot immunize that employee from
those petty slights or minor annoyances that often take place at work and that all
employees experience.’ ”156
Here, Montanez’s allegations that (1) her paperwork in December 2011was
“unnecessarily and unreasonably delayed,” and (2) she was falsely accused of
being insubordinate by her supervisor Vince Zales while she was in the position as
field safety representative fail to meet that threshold of materially adverse actions.
These actions amount to no more than everyday difficulties which an employee
must attend to in the ordinary course of her employment.
In Burton v. Pennsylvania State Police, the Honorable Sylvia H. Rambo of
this Court granted defendant’s motion for summary judgment, finding that several
small actions, including a temporary reassignment, a threat of termination, a
reprimand, and an allegation of a failure to fully investigate an internal
155
Moore, 461 F.3d at 341.
156
Id. at 346 (citing Burlington, 548 U.S. at 68).
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discrimination claim did not constitute adverse action.157 While it is true that
actions which are not materially adverse by themselves can be materially adverse
when considered together,158 I do not find that this threshold has been met in the
instant action based on the factual record. Quite simply, no reasonable jury could
determine that such miniscule actions, even taken together, are materially adverse
such that they would dissuade a reasonable worker from making or supporting a
charge of discrimination.159
Similarly, I find that neither (1) MBWS’s “failure” to transfer Montanez to
the Water Transport division, nor (2) her not being permitted to return to a position
as truck driver or field safety representative in late 2012/early 2013 can satisfy a
prima facie case of retaliation. First, while a failure to transfer can constitute a
materially adverse employment action, I again note, as above, that MBWS did not
employ such drivers in Pennsylvania, and that there is no factual evidence that Ms.
157
990 F.Supp.2d 478, 510 (M.D.Pa. 2014).
158
See Brennan v. Norton, 350 F.3d 399, 422 n. 17 (3d Cir.2003) (“The cumulative impact of
retaliatory acts may become actionable even though the actions would be de minimus if
considered in isolation.”).
159
See, e.g., Jackson v. Hoopes Turf Farm, Civil Action No. 12-CV-01719, 2015 WL 1548876,
at *7 (M.D.Pa. Apr. 7, 2015)(Brann, J.)(finding that alleged retaliatory acts of (1) not being
paid for four hours of waiting time when her truck broke down; (2) having her shift cancelled
without her knowledge so that she had already driven into work; (3) not being notified when
she was granted time off; (4) not receiving a hotel room like two other drivers on a trip; (5)
not being given a letter of recommendation from Mr. Hoopes; (6) being assigned a truck on
one trip with a pump that kept freezing; and (7) learning that she had not been called into
work when five trucks were working at a site, taken together, were not materially adverse
actions); Shingara v. Skiles, Civil Action No. 04-CV-0621, 2007 WL 210800, at *7 (M.D.Pa.
Jan. 24, 2007)(Conner, J.)(finding that “ineffectual communications,” equivalent to oral
reprimands, do rise to the level of actionable retaliation).
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Montanez subsequently applied for and was rejected for an out of state position.160
Second, there is no evidence that Ms. Montanez’s requests for a truck driver or
field safety representative position were affirmatively denied by MBWS. Rather,
the factual record indicates that Montanez’s employment ended rather slowly, as
she failed to abide by MBWS’s requests for documentation concerning her ability
to work with a reasonable accommodation.161
Finally, Ms. Montanez cannot establish a prima facie case of retaliation
under Title VII based on the “Stubble” site incident and her subsequent suspension
without pay. I find that failure to be based on a lack of causal connection—the
third prong of the prima facie case. A plaintiff satisfies this prong by adducing
evidence demonstrating a causal link between the protected activity and the
adverse employment action suffered.162 This link may be shown by evidence of an
“unusually suggestive” temporal proximity between the protected activity and the
adverse action.163 In the absence of such suggestive temporal proximity, however,
a plaintiff may nevertheless raise an inference of causation by pointing to evidence
160
Def.’s Br. at 13.
161
See September 26, 2012 Email from Sarah Boltz to Marissa Montanez (ECF No.50-21)(“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.”).
162
Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006).
163
Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001); Jalil v. Avdel Corp., 873 F.2d
701, 708 (3d Cir. 1989)).
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of intervening antagonistic conduct or animus, inconsistencies in the employer’s
rationale, or other record evidence which implies retaliatory motive.164
In Blakney v. City of Philadelphia, the Honorable Thomas M. Hardiman,
writing for our Court of Appeals, summarized the law in this circuit on the issue of
temporal proximity:
We have found that a temporal proximity of two days is
unusually suggestive of causation, see Jalil v. Avdel Corp., 873
F.2d 701, 708 (3d Cir. 1989) (reversing summary judgment for
the defendant when plaintiff was fired two days after his
employer received notice of his EEOC complaint), but have
held that a temporal proximity greater than ten days requires
supplementary evidence of retaliatory motive, see Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000)
(finding that “where the temporal proximity is not so close as to
be unduly suggestive,” the appropriate test is “timing plus other
evidence”); see also Williams v. Phila. Hous. Auth. Police
Dep’t, 380 F.3d 751, 760 (3d Cir. 2004) (two months is not
unusually suggestive); LeBoon v. Lancaster Jewish Cmty. Ctr.
Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) (three months is not
unusually suggestive).165
Therefore, “[u]nusually suggestive temporal proximity is typically measured
in terms of days and weeks.”166
In the instant matter, Ms. Montanez made an internal complaint of
harassment on November 30, 2011. Therefore, because the “Stubble” site
incident and subsequent suspension occurred on January 19, 2012, a passage
164
LeBoon v. Lancaster Jewish Community Center Ass’n, 503 F.3d 217, 232 (3d Cir. 2007).
165
559 Fed. App’x 183, 186 (3d Cir. 2014) (Hardiman, J.).
166
Hileman v. Penelec/FirstEnergy Corporation, Civil Action No. 14-CV-1771, 2017 WL
2778562, at *10 (M.D.Pa. June 27, 2017)(Conner, C.J.).
- 44 -
of fifty (50) days, or approximately a month and a half, had elapsed since
that date. In Smith v. ABF Freight Systems, the Honorable Christopher C.
Conner of this Court granted summary judgment in favor of a defendant on a
Title VII retaliation claim by finding that a span of a one and a half months
between the protected activity and the adverse employment action taken
against plaintiff was “not so unduly suggestive as to give rise to an inference
of causation.”167 This finding has since been followed by other courts
elsewhere within this circuit.168 I will join that chorus.
In the absence of unusually suggestive temporal proximity, the Court
must now look to the broader factual record to determine whether a “pattern
of antagonism” combines with timing to substantiate an inference of
causation.169 “Where the time between the protected activity and adverse
action is not so close as to be unusually suggestive of a causal connection
standing alone, courts may look to the intervening period for demonstrative
proof, such as actual antagonistic conduct or animus against the
employee, (citation omitted), or other types of circumstantial evidence, such
167
Civil Action No. 04-CV-2231, 2007 WL 3231969, at *11 (M.D.Pa. Oct. 29, 2007).
168
See, e.g., Thompson v. Kellogg USA, Inc., Civil Action No. 12-CV-0258, 2014 WL
11398142, at *11 (M.D.Pa. Aug. 4, 2014), adopted by 2014 WL 11398142 (M.D.Pa. Sept.
29, 2014), affirmed by 619 F.App’x. 141 (3d Cir. 2015); Hileman, 2017 WL 2778562, at *10;
Roseberry v. City of Philadelphia, Civil Action No. 14-CV-2814, 2016 WL 826825, at *14
(E.D.Pa. Mar. 3, 2016).
169
LeBoon, 503 F.3d at 232.
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as inconsistent reasons given by the employer for terminating the employee
or the employer's treatment of other employees, that give rise to an inference
of causation when considered as a whole.”170 Here, Ms. Montanez attempts
to satisfy this “pattern of antagonism” through the cat’s paw theory liability
and thus the alleged discriminatory animus of co-worker Will Sanders.
Having previously addressed the failures of this argument in disposing of her
gender discrimination claim, I will not rehash that reasoning here. This
argument is unavailing.171
Based on the foregoing, I find that the undisputed facts indicate that Ms.
Montanez has failed to establish a prima facie case of Title VII retaliation.172 As
170
Marra v. Philadelphia Housing Authority, 497 F.3d 286, 302 (3d Cir. 2007).
171
Furthermore, while not entirely clear, Ms. Montanez appears to intimate a retaliation claim
based on her filing of an EEOC complaint. However, this filing was made on June 1, 2012,
and the factual record indicates that MBWS actually placed Ms. Montanez in the position of
Field Safety Representation on July 9, 2012. Dep. of Marissa Montanez (ECF No. 44-3), at
61:24–62:4. She left that position after merely three weeks and any subsequent failure by
MBWS to actively place her in a position cannot support a retaliation claim. As previously
explained throughout, no materially adverse action occurred as any return to MBWS was
delayed by Ms. Montanez’s failure to provide supplemental paperwork concerning her
medical condition. Dep. of Sarah Boltz (ECF No. 44-2) at 48:2–10. See also September 26,
2012 Email from Sarah Boltz to Marissa Montanez (ECF No.50-21)(“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.”).
172
Even if Ms. Montanez were successful in satisfying a prima facie case of retaliation, I
nevertheless note that it would not satisfy her burden of persuasion. At step three of
the McDonnell Douglas framework, Ms. Montanez must prove that her protected activity
was the but-for cause of her supension. See University of Texas Southwestern Medical Center
v. Nassar, 133 S. Ct. 2517, 2533 (2013)(“Title VII retaliation claims must be proved
according to traditional principles of but-for causation, not the lessened causation test stated
in § 2000e–2(m)”). Ms. Montanez could not meet this burden as the evidence unequivocally
establishes that her suspension was the result of submitting a falsified a timesheet.
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such, I therefore find that summary judgment in favor of MBWS on Ms.
Montanez’s retaliation claim is appropriate.
B.
Montanez’s Disability Discrimination Claim Under the ADA173
The ADA prohibits discrimination “against a qualified individual on the
basis of disability in regard to job application procedures, the hiring, advancement,
or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.”174 When the plaintiff’s allegations of
intentional discrimination are supported only by circumstantial evidence, the Court
must follow the above delineated McDonnell-Douglas175 burden-shifting
framework. Tracking this case through this framework reveals that Ms.
Montanez’s claim cannot make it past the required prima facie case of disability
discrimination, and, in any event, would fail at every step thereafter.
A prima facie case of disability discrimination – the first step of the
McDonnell-Douglas framework – requires that plaintiff establish (1) that she is
disabled within the meaning of the ADA, (2) that she is otherwise qualified for the
job, with or without reasonable accommodations, and (3) that she was subjected to
an adverse employment decision as a result of discrimination.176 Here, Ms.
173
I note that in Plaintiff’s Brief in Opposition to Defendant’s Motion for Summary Judgment,
she withdraws her ADA retaliation claim. ECF No. 50, at 2 n. 1.
174
42 U.S.C. § 12112(a).
175
411 U.S. 792, 802–804 (1973).
176
Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010).
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Montanez alleges that she was discriminated against as a result of having multiple
sclerosis. This claim fails, however, because Ms. Montanez has set forth no
evidence demonstrating that she is otherwise qualified for her position, with or
without reasonable accommodations, or that she was subjected to an adverse
employment decision as a result of discrimination.
First, Ms. Montanez cannot establish that she was qualified for the positon in
question—trucker—with a reasonable accommodation. The ADA defines a
“qualified individual with a disability” as:
an individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment positions that individual holds or desires.177
Here, MBWS specifically avers that there are no disputed facts from which a
reasonable jury could find that her accommodation—using single instead of double
chains on her tires— was reasonable. I agree. Specifically, I note that MBWS had
a policy for all truck drivers requiring them to double chain their tires in slippery
conditions and that Ms. Montanez was aware of this policy.178 As double chaining
the tires of her truck was made an essential function of her position by
modification of MBWS policy, Ms. Montanez’s inability to perform that task with
or without a reasonable accommodation would render her unqualified for the
177
42 U.S.C. § 12111(8).
178
Dep. of Marissa Montanez (ECF No. 44-3) at 74:6–20.
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position.179 Furthermore, even assuming that Ms. Montanez were entitled to the
protections of the ADA, I note that MBWS reassigned Ms. Montanez to be a Field
Safety Representative as a reasonable accommodation due to her inability to
double chain as a trucker.180 Therefore, because a “reasonable accommodation”
includes “reassignment to a vacant position,”181 this fact stands as an added
obstacle to her ability to establish a prima facie case of disability discrimination.
Second, even if Ms. Montanez were to establish that she was qualified for
the trucker position with or without a reasonable accommodation, she has
nevertheless failed to adduce evidence showing that she was subject to an adverse
employment action or that this adverse employment action was a result of a
disability. ADA “[p]laintiffs must prove that they were treated differently based
on the protected characteristic, namely the existence of their disability.”182 This
requires a showing that the disability “played a role in the employer’s
decisionmaking process and that it had a determinative effect on the outcome of
that process.”183 Here, Ms. Montanez has failed to make that showing.
179
See, e.g., Moore v. Cvs Rx Services, 142 F.Supp.3d 321, 337 (M.D.Pa. 2015)(Brann, J.), aff’d
by 660 F.App’x. 149 (3d. Cir. 2016)(finding that a plaintiff was not qualified to be for the
position in question (piece picker), with or without a reasonable accommodation, where she
could not lift over her head or climb—essential functions of the job).
180
Dep. of Sarah Boltz (ECF No. 44-2) at 33:16–21.
181
Williams v. Philadelphia Housing Authority Police Dept., 380 F.3d 751, 768 (3d Cir.
2004)(quoting 42 U.S.C. § 12111(9)(B)).
182
CG v. Pennsylvania Dep’t of Educ., 734 F.3d 229, 236 (3d Cir. 2013).
183
New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 301 n.4 (3d Cir. 2007).
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First, at the time Ms. Montanez requested this accommodation, she was
already on administrative leave stemming from the incident at the “Stubble” site,
and can therefore not allege her disability influenced that determination. Second,
and as noted above, MBWS accommodated Ms. Montanez’s alleged inability to
double chain her tires by assigning her to a position as a Field Safety
Representative.184 It was Ms. Montanez who quit that job after three weeks
because of an incident that she alleged was the result of sex-based discrimination
and retaliation, and not disability-based discrimination.185 Third, following Ms.
Montanez’s decision to leave the FSR position, there is no evidence that she was
subject to further adverse action. Rather, as explained by Ms. Boltz, a Human
Resources employee for MBWS, Ms. Montanez effectively quit her position while
MBWS was awaiting information concerning her need for a reasonable
accommodation. Ms. Boltz specifically stated the following:
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?
184
Dep. of Sarah Boltz (ECF No. 44-2) at 33:16–21.
185
Dep. of Marissa Montanez (ECF No. 44-3) at 63:5–66:15.
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A. There were, as I mentioned previously, some inconsistencies that
we wanted to clear up or get more information on.186
In fact, during this process and up until the time of her resignation, Ms. Montanez
remained an employee of MBWS.187
Ms. Montanez has failed to allege facts from which a reasonable juror could
find she was discriminated against due to a disability. Specifically, due to her
inability to allege facts demonstrating her qualifications and that she otherwise
suffered an adverse employment action, I find that Ms. Montanez has failed to
satisfy a prima facie188 case of disparate treatment. Summary judgment will be
entered in favor of MBWS on this claim.
C.
Montanez’s Discrimination and Retaliation Claim Under the
Pennsylvania Human Relations Act
Finally, Defendant argues that Ms. Montanez’s claims under the PHRA must
be dismissed along with those under Title VII and the ADA. Plaintiff of course
resists that outcome arguing that genuine disputes of material fact precluding
186
Dep. of Sarah Boltz (ECF No. 44-2) at 48:2–10. See also September 26, 2012 Email from
Sarah Boltz to Marissa Montanez (ECF No.50-21)(“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.”).
187
Id. at 48:20-22.
188
I further note that, in the event Ms. Montanez were successful in alleging a prima facie case
of disability discrimination, there is no evidence from which a reasonable juror could either
disbelieve MBWS’s proffered legitimate, non-discriminatory reasons, or believe that
invidious discrimination motivated their actions. Indeed, full review of the factual record
indicates that MBWS had previously accommodated Ms. Montanez by supplying her an
inverter for a refrigerator within her truck to keep medication cold. See Dep. of Don Smith
(ECF No. 44-7) at 10:15–23.
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summary judgment on her other claims foreclose that outcome here. Having
previously found each of Ms. Montanez’s claims insufficient for presentation to a
jury, I agree with MBWS. Ms. Montanez’s claims under the PHRA for
discrimination and retaliation, coextensive with those under Title VII and the
ADA, will therefore be dismissed.189
V.
CONCLUSION
Based on the above reasoning, Defendant Missouri Basin Well Services’
Motion for Summary Judgment will be granted in its entirety. The Clerk of Court
is directed to close this case.
An appropriate Order follows.
BY THE COURT
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
189
See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996)(noting that claims under the
PHRA are interpreted coextensively with Title VII claims); Macfarlan v. Ivy Hill SNF, LLC,
675 F.3d 266, 274 (3d Cir. 2012) (noting that the Rehab Act, ADA, and PHRA are to be
interpreted consistently, and with the same standard for determination of liability).
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