On August 15, 2018, the 7th Circuit affirmed an order of summary judgment in favor of the U.S. Department of Homeland Security in a lawsuit in which a FEMA Disaster Assistance employee alleged that the Department retaliated against her for filing a discrimination grievance by not reimbursing her for the time and expenses that she incurred when she testified at the hearing of her earlier discrimination charge. Moreland v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security, No. 17-3113 (7th Cir. 8/15/2018). The 7th Circuit affirmed the district court's judgment on the grounds that the plaintiff failed to provide evidence that she suffered a materially adverse employment action, and did not rebut the agency's legitimate, non-retaliatory reason for not reimbursing her.
The plaintiff contended that the agency's decision to not deploy her for the hearing, which resulted in her non-reimbursement, was in retaliation for her previous discrimination grievance. To establish a triable claim of retaliation under Title VII, a plaintiff must present evidence that her employer took a materially adverse employment action against her. The 7th Circuit concluded that the agency did nothing adverse to the plaintiff since she was on reserve status before and after the hearing, and the other two agency witnesses in attendance at the hearing, who were reimbursed for their testimony-related travel, were not similarly situated to the plaintiff. The other witnesses were not managed by the same supervisor as the plaintiff, and a different decision-maker made the decision to deploy them. Moreover, the agency provided a legitimate, non-retaliatory reason for its actions--that it deployed the other two witnesses, but not the plaintiff, pursuant to its own regulations. And the plaintiff failed to establish pretext.