Kimberly A. Moreland, Plaintiff-Appellant,
Kirstjen M. Nielsen, Secretary, Department of Homeland Security Defendant-Appellee.
August 7, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 12-CV-1125 - Nancy Joseph,
Kanne, Scudder, and St. Eve, Circuit Judges.
Moreland appeals the entry of summary judgment in her suit
under Title VII against the Department of Homeland Security.
The Department did not pay for her time and expenses when she
testified at a hearing on an earlier discrimination charge,
but it did reimburse two employees who testified for the
Department. Moreland contends that the Department's
decision not to pay her was retaliatory. We affirm the
district court's judgment because Moreland failed to
provide evidence that she suffered an adverse action, and in
any case she did not rebut the Department's legitimate
reason for not reimbursing her.
Moreland worked as a Disaster Assistance Employee for the
Federal Emergency Management Agency. Because the agency uses
these employees to respond to events declared disasters by
the president, their work is intermittent. They are paid only
for hours worked when they are "deployed." When
they are not deployed, they are called "reservists"
and are not paid.
who lives in Texas, filed a charge and requested a hearing
against the Department of Homeland Security (the agency's
parent department) alleging that the agency discriminated
against her in 2009. That charge concerned a previous
deployment, and the specifics are not relevant to this
appeal. The administrative law judge scheduled her hearing to
be held in Wisconsin. Moreland, who was on reserve status,
asked her agency to deploy her to Wisconsin so that she would
receive pay for her time and reimbursement for her travel
expenses to attend and testify against the Department. After
consulting with the director of the agency's Office of
Equal Rights, an agency attorney told Moreland that the
agency had declined to deploy her to the hearing.
on reserve status, Moreland attended and testified at her
hearing, which was held in March 2011. The agency required
that two of her supervisors testify at the hearing, so it
deployed them and paid for their time and expenses. Moreland
later learned that the agency had deployed these supervisors.
One of the witnesses, Sandra Ramsey, was on reserve status,
and the agency deployed her solely to testify. The parties
dispute whether the agency also deployed Lorelei Maach solely
to testify. We adopt Moreland's version of the dispute
and assume that both witnesses were placed in pay status for
responded by raising the claim that she presents in this
appeal. She contended that the agency's decision not to
deploy her for the hearing was retaliation for her previous
discrimination grievance. An earlier appeal to this court
allowed this new claim to proceed. Moreland v.
Johnson, 806 F.3d 961, 965 (7th Cir. 2015). On remand to
the district court, the Department moved for summary
judgment. It argued that Moreland could not prevail because
she had not suffered an adverse action and the Department had
proffered unrebutted and non-discriminatory reasons for its
deployment decision. The district judge granted the motion,
largely agreeing with the Department.
first argues that the district court erred in ruling that she
did not provide evidence of an adverse action. To establish a
triable prima facie case of retaliation under Title VII, 42
U.S.C. § 2000e et seq., Moreland must supply
evidence that her employer took a materially adverse action
against her. See Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 67 (2006). Moreland disagrees with
this principle because, she says, the phrase "adverse
action" does not appear in the text of Title VII; only
"unlawful employment practice" does. But this
court's longstanding interpretation of the statute is
that in a suit alleging unlawful retaliation, an
"unlawful employment practice" means that the
employer has taken an adverse action against the employee.
See 42 U.S.C. § 2000e-3(a), Lord v. High
Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir.
2016), cert. denied, 137 S.Ct. 1115 (2017). This
interpretation is controlling, and Moreland provides no
compelling reason to depart from that precedent. Santos
v. United States, 461 F.3d 886, 891 (7th Cir. 2006). To
survive summary judgment, Moreland had to furnish evidence
that the agency took an adverse action against her.
concedes that she was on reserve status before she attended
her hearing, and she remained in that status afterward. In
that sense, the agency did nothing adverse to her. Moreland
replies that she suffered an adverse action relative to two
agency witnesses because the Department reimbursed them, but
not her, for testimony-related travel. By comparing herself
to her two supervisors, Moreland is invoking an element of
the "indirect" method of proving retaliation that
allows a court to infer retaliation if an employer treats
similarly situated, non-complaining workers more favorably
than the plaintiff. See Madlock v. WEC Energy Group,
Inc., 885 F.3d 465, 472 (7th Cir. 2018). But that method
still requires that Moreland show that her employer took an
adverse action against her, and she has not. Moreland
incurred financial costs to attend her hearing because the
administrative law judge, not the agency, scheduled it in
Wisconsin. A reasonable jury could not find that her employer
inflicted those costs on her.
even if we assume that Moreland suffered an adverse action, a
jury could not infer retaliation because the agency did not
treat Moreland worse than any similar employee. To
be similarly situated, co-workers must be "directly
comparable to the plaintiff in all material aspects, [though]
they need not be identical in every conceivable way."
Coleman v. Donahoe,667 F.3d 835, 846 (7th Cir.
2012) (internal quotation marks and citation omitted). Courts
commonly ask whether the employees "dealt with the same
supervisor." Patterson v. Avery Dennison Corp.,
281 F.3d 676, 680 (7th Cir. 2002). Moreland asserts that
Maach and Ramsey were comparable to her because the same
agency employed them. But that is not sufficient, for two
reasons. First, Maach and Ramsey were Moreland's
supervisors, so the same person necessarily did not manage
them all. Second, different decisionmakers made the
deployment decisions. The agency attorney defending the case
decided to deploy Maach and Ramsey, whereas the head of the
Office of Equal Rights decided not to deploy Moreland (though
the decision was communicated to Moreland through the agency
attorney). Because Maach and ...