Labor & Employment Law Daily Reimbursing supervisors, but not complaining FEMA worker, for testimony-related travel was not retaliatory adverse action
Monday, August 20, 2018

Reimbursing supervisors, but not complaining FEMA worker, for testimony-related travel was not retaliatory adverse action

By Joy P. Waltemath, J.D.

FEMA’s decision to reimburse two supervisors for their testimony before an ALJ at a hearing on a FEMA worker’s Title VII discrimination charge against the agency, while it refused to “deploy” the disaster assistance worker herself so that she would receive pay for her time and reimbursement for travel expenses (from Texas to Wisconsin) to testify against the agency, was not an adverse action that would support her retaliation claim, the Seventh Circuit concluded. The disaster assistance worker was an intermittent worker, paid only when deployed; the hearing occurred while she was not deployed but was an unpaid “reservist.” Although one of the supervisors who testified also had been on reserve status and was deployed solely to testify, and presumably was paid, the appeals court noted that it was the ALJ’s decision, not the agency’s, to schedule the hearing in Wisconsin, forcing the worker to incur financial costs to attend. Moreover, the agency’s more favorable payment of the supervisors’ time and expenses was not a basis to infer retaliation because the supervisors were not similarly situated. Finally, the agency reasonably relied on its interpretation of regulations to justify its payment of expenses to the supervisors, and the worker could not show pretext (Moreland v. Nielsen, August 15, 2018, per curiam).

No adverse action. In the appeals court’s view, there simply was no adverse action: The worker conceded that she was on reserve status before she attended her hearing in Wisconsin, and she remained in that status afterward. The agency did nothing adverse to her, and the fact she incurred financial costs to attend her hearing was 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,” said the court.

Not similarly situated. That DHS reimbursed its two agency witnesses, but not her, for testimony-related travel, was also not enough to infer retaliation based on the agency’s more favorable treatment of allegedly similarly situated, non-complaining workers. DHS did not treat the worker worse than any similar employee, explained the court. First, the two were the worker’s supervisors, so the same individual clearly did not manage them all. Second, different decisionmakers made the decisions as to whether or not they would be deployed to testify. The agency attorney defending the case decided to deploy the supervisors, but the head of the Office of Equal Rights decided not to deploy the worker. Without evidence of similar comparators, the worker did not present evidence of a prima facie case of retaliation.

No pretext. Also, even if she had presented a prima facie case, the agency provided an unrebutted and legitimate reason for its actions—its reasonable interpretation of its own uncontested regulations allowing it to deploy and pay for the two supervisors to attend the hearing. The agency relied on 29 C.F.R. § 1614.605, which says that “If the complainant is an employee of the agency, he or she shall 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.” But the worker was not “on duty” or “in a pay status” at the time of the hearing. The agency conceded that it deployed at least one, and possibly both supervisors 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” the supervisors to testify, so it permissibly deployed them; the fact that it did not “require” the complaining worker to testify did not make its actions retaliatory.

To show pretext, the worker needed evidence that the agency’s interpretation was not just wrong but dishonest. That she argued the agency could have interpreted its regulations to allow her deployment and did not in order to punish her for pursuing her claim did not make the agency’s interpretation or its regulations unreasonable, “let alone a ‘phony’ or insincere basis for its decisions,” concluded the court. As such, it affirmed summary judgment against the worker’s retaliation claims.

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