In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-3113

KIMBERLY A. MORELAND,

Plaintiff-Appellant,

v.

KIRSTJEN M. NIELSEN, Secretary,

Department of Homeland Security

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 12-CV-1125 — Nancy Joseph, Magistrate Judge.

____________________

ARGUED AUGUST 7, 2018 — DECIDED AUGUST 15, 2018

____________________

Before KANNE, SCUDDER, and ST. EVE, Circuit Judges.

PER CURIAM. Kimberly 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.
2 No. 17-3113

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. 

I

Kimberly 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. 

Moreland, 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. 

While 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. Mo-
No. 17-3113 3

reland 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 the hearing.

Moreland 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.

II

Moreland 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 
4 No. 17-3113

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. 

Moreland 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.

Yet 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 
No. 17-3113 5

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 Ramsey 

thus were not “treated more favorably [than Moreland] by the 

same decisionmaker,” they are not comparable. Coleman, 

667 F.3d at 848 (citation omitted). As a result, Moreland did 

not supply evidence of a prima facie case of retaliation. 

See Madlock, 885 F.3d at 472.

Moreland’s case has another fatal defect. The Department 

correctly observes that, even if Moreland had presented a 

prima facie case of retaliation, she cannot survive summary 

judgment if the agency provided an unrebutted and legitimate reason for its actions. See id. The agency argues that it 

legitimately deployed the other two witnesses (but not Moreland) because it was following a reasonable interpretation 

of its own uncontested regulations.

The agency relied on 29 C.F.R. § 1614.605 in declining to 

deploy Moreland. Section (b) of this provision states: “If the 

complainant is an employee of the agency, he or she shall 
6 No. 17-3113

have a reasonable amount of official time, if otherwise on duty, 

to prepare the complaint and to respond to agency and EEOC 

requests for information” (emphasis added). The agency observes that Moreland was not “on duty” or “in a pay status” 

at the time of the hearing. By contrast, the agency argues that 

it deployed Maach before she was called to testify, so the regulations supported keeping her in pay status. As mentioned 

earlier, Moreland disputes that Maach was in pay status already, and in any case the agency concedes that it deployed 

Ramsey solely for the purpose of providing testimony. But 

another regulation allowed for that deployment. Under 

29 C.F.R. § 1614.605(f), “[w]itnesses who are Federal employees, regardless of their tour of duty ... shall be in a duty status 

when their presence is authorized or required by Commission 

or agency officials in connection with a complaint.” The 

agency “required” Maach and Ramsey to testify, so it permissibly deployed them (and not Moreland) under these regulations. 

Once the agency provided a legitimate reason for its actions, Moreland had to supply evidence of pretext. See Madlock, 885 F.3d at 472. Because she does not argue that the regulations are invalid, she had to furnish evidence that the 

agency’s interpretation was not just wrong but dishonest. 

See Monroe v. Ind. Dep't of Transp., 871 F.3d 495, 505 (7th Cir. 

2017); Boss v. Castro, 816 F.3d 910, 917 (7th Cir. 2016). She believes that the agency could have interpreted its regulations 

to allow her deployment and did not in order to punish her 

for pursuing her claim. But no evidence suggests that the 

agency’s interpretation was unreasonable, let alone a 

“phony” or insincere basis for its decisions. Milliman v. Cty. of 

McHenry, 893 F.3d 422, 433 (7th Cir. 2018). Moreland cites to 
No. 17-3113 7

a Comptroller General opinion, but that decision is about paying expenses to a witness, not a party, to a discrimination matter, and the case decided which of two agencies should pay 

the expenses, not whether the witness was eligible for compensation at all. John Booth, 66 Comp. Gen. 310 (March 12, 

1990). She also points to a directive stating that a federal 

agency must ensure “the appearance and travel arrangements 

to the hearing site of approved witnesses.” U.S. EQUAL EMP.

OPPORTUNITY COMM’N, EEO-MGMT. DIRECTIVE 110, CHAPTER 7

(Feb. 24, 2011) (emphasis added). But Moreland did not present any admissible evidence that she was approved or

needed to be approved. See id. Thus no evidence suggests that 

the agency did not “honestly believe[] the reason it has offered”—its interpretation of its regulations. Monroe, 871 F.3d 

at 505.

III

Because Moreland did not suffer an adverse action and

she failed to rebut the Department’s legitimate and nondiscriminatory reason for not deploying her, we AFFIRM the district court’s judgment.