# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT



## No. 23-5169 September Term, 2024

F ILED O N : O CTOBER 3, 2024

D ORIAN V AN H ORN

, A PPELLANT

v.

C ARLOS D EL T ORO

, IN HIS OFFICIAL CAPACITY
A PPELLEE

Appeal from the United States District Court

for the District of Columbia (No. 1:18-cv-38)

Before: S RINIVASAN

, Chief Judge , W ILKINS and W ALKER

, Circuit Judges

.

A M E N D E D J U D G M E N T

This appeal was considered on the record fro m the United States Di strict Court for the

District of Columbia and on the briefs and oral argument of the parties. The panel has accorded

the issues full consider ation and has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). It is hereby

ORDERED AND ADJUDGED that the judgment of the district court be AFFIRMED in part and VACATED in part and that the case be REMANDED for further proceedings consistent with this judgment.

I.

A.

Dorian Van Horn was employed at the Naval Criminal Investigative Service (NCIS) from 1987 until late 2012. From 2002 onward, she worked in NCIS’s Washington, D.C. office.

In January 2012, when Van Horn was 47 year s old, she was assigned to a position in NCIS’s Naples, Italy office. She had not applied for the tran sfer and requested that it be reconsidered, citing the fact that her husband’s job required him to be in Washington, D.C. for the next two years. Accepting the Naples position thus would have forced her to live apart from her2 husband and their children to be away from one parent during that time. Before receiving a formal response, Van Horn announced that she could no t accept the Naples position because she planned to retire that September.

Having declared her intention to retire in September, Van Horn requested leave for most of August and September. Her supervisor, Matthew Lascell, granted her request. Around that time, Van Horn contacted an Equal Employment O pportunity (EEO) couns elor, initiating the process to bring an age discrimination comp laint challenging her transfer to Naples.

John Hogan, NCIS’s Assistant Director of Human Resources, even tually denied Van Horn’s request for reconsideration of the Naples transfer. He left Van Horn with three options: (i) report to Naples, (ii) retire by July 31, 2012, or (iii) stay with NC IS and accept some other transfer because NCIS had already backfilled her cu rrent position in the District of Columbia. In late June, after Hogan rendered his decision, Las cell rescinded his approval of Van Horn’s August and September leave. He did so, on his tel ling, because he would no longer be Van Horn’s supervisor after the end of July.

Van Horn failed to report to Naples as required. NCIS t hus assigned her to a temporary detail in Norfolk, Virginia. Van Horn’s Norfolk supervisor approved the leave she had previously requested, and Van Horn therefore took most of A ugust and September off. Instead of retiring at the end of September, though, Van Horn returned to the agency. At that point, she was assigned to an opening in Great Lakes, Illinois. Rather than accept the Great Lakes transfer, Van Horn retired, effective October 31, 2012.

B.

Van Horn filed this lawsuit in January 2018. Van Horn v. Del Toro , No. 18-cv-38, 2023 WL 4156742, at *2 (D.D.C. June 23, 2023). The opera tive complaint asserts claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. , for (i) hostile work environment; (ii) disparate treatme nt based on the transfer to Naples ; (iii) disparate treatment based on the transfer to Norfolk; (iv) disparate treatme nt based on the transfer to Great Lakes; (v) retaliation for filing an EEO complaint, with the re taliatory acts being the Norfolk and Great Lakes transfers and the temporary cancellation of her leave; and (vi) constructive di scharge. The district

court dismissed Van Horn’s hostile work enviro nment claim at the pleading stage but otherwise allowed the case to proceed. Van Horn , 2023 WL 4156742, at *2.

Following discovery, the court granted summa ry judgment to NCIS on all remaining claims. Applying a line of our cases beginning with Brown v. Brody , 199 F.3d 446 (D.C. Cir. 1999), the court held that a late ral transfer is not a cognizabl e adverse employment action under the ADEA unless accompanied by some other “objectiv ely tangible harm” such as a diminution in pay or benefits. Van Horn , 2023 WL 4156742, at *6–7 (citation and internal quotation marks omitted). The court thought the Norfolk transfer fell short of that stan dard, despite Norfolk’s3 location away from the District of Columbia and the fact that Van Horn described her Norfolk assignment as one in which she “was not given a ny meaningful work.” Van Horn Decl. ¶ 12, J.A. 267; Van Horn , 2023 WL 4156742, at *7. And the court like wise rejected the Naples and Great Lakes transfer claims, reasoning that, because thos e transfers “never occurred,” Van Horn did not experience a “material employment disadvantage.” Van Horn , 2023 WL 4156742, at *6 (citation and internal quotation marks omitte d). According to the court, those conclusions required granting summary judgment to NCIS as to both Van Horn ’s discrimination clai ms and her retaliation

claims. Id.

The court next held that Van Horn’s alleged constructive discharge al so was not an adverse employment action. That acti on, the court reasoned, was premis ed “upon the occurrence of multiple lateral transfers which do not constitu te adverse employment ac tions themselves.” Id. at *8. The court added that “even if . . . the[] lateral transfers consti tuted adverse employment actions,” Van Horn still had not show n enough for a constructive discharge. Id.

Given the court’s various adverse-action determ inations against Van Horn, her retaliation claim remained live only to the extent that it was predicated on the tempor ary cancellation of her leave, an action that the court had yet to addre ss. The court granted summary judgment to NCIS on that claim as well. In the court’s judgment, there was no evidence that Lascell was aware of Van Horn’s EEO activity at the t ime he cancelled her leave, so his action could not be understood as retaliation for that activity. Id. at *9–10. This appeal followed.

II.

A.

The parties agree that the dist rict court applied the wrong ad verse-action standard to Van

Horn’s discrete discrimination claims. Th e district court, as noted, relied on our Brown v. Brody

, 199 F.3d 446 (D.C. Cir. 1999), li ne of decisions. In Chambers v. District of Columbia , 35 F.4th 870, 873–82 (D.C. Cir. 2022) (en banc), howev er, our en banc court overruled Brown and held that Title VII does not require a pl aintiff to demonstrate that she su ffered objectively tangible harm

to sustain a discrimination claim related to a forced transfer. Instead, we hel d, a plaintiff need only show that her employer discri minated against her with respect to the “terms, conditions, or privileges” of her employment. Id. at 875. Chambers held specifically that a “job transfer”

satisfies that standard. Id. at 874.

The Supreme Court then cons idered the same issue in Muldrow v. City of St. Louis , 144 S. Ct. 967 (2024). Muldrow clarified that Title VII requires an employee to show only that a job transfer “brought about some ‘disadvantageous’ change in an employment term or condition.” Id. at 974 (quoting Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 80 (1998)). But, the Court emphasized, “[w]hat the transferee does not have to show . . . is that the harm incurred was significant”—“[o]r serious, or substantia l, or any other similar adjective.” Id. (citation and internal4 quotation marks omitted). Muldrow recognized that “[m]any forced tran sfers” will clea r that bar.

Id.

All three transfers at issue here cons titute adverse employ ment actions under Muldrow . An employee who is forced to take an unwanted tran sfer to a new job in another state or across the world suffers a “disadvantageous change” to a term or condition of her employment. Muldrow

, 144 S. Ct. at 974 (citation and inte rnal quotation marks omitted). And Van Horn also avers that she was not given any meaningful work to do in Norfolk. That, too, is a cognizable harm within the scope of Muldrow

.

We recognize that Muldrow was a private-sector Title VII case whereas this is a federalsector ADEA case. But NCIS conceded at oral argument that Van Horn’s transfers were viable personnel actions under the ADEA, and we agree. Oral Arg. 12:25–12:50.

Nor does it matter to the adverse-action analysis that the Naples and Great Lakes transfers

were never effectuated. As Singletary v. Howard University , 939 F.3d 287, 300 (D.C. Cir. 2019), recognized, an adverse employme nt action becomes cognizable when the employer provides notice of the action to the empl oyee, “regardless of whether the employer follows through.” See

also Del. State Coll. v. Ricks , 449 U.S. 250, 258 (1980) (“The prope r focus is upon the time of the discriminatory acts, not upon the t ime at which the consequences of the acts became most painful.” (cleaned up)); Almond v. Unified Sch. Dist. No. 501 , 665 F.3d 1174, 1177 (10th Cir. 2011) (Gorsuch, J.) (“[A] claim accrues when the disput ed employment practice —the demotion, transfer, firing, refusal to hire, or the like— is first announced to the plaintiff.”). Acco rdingly, the Naples

and Great Lakes transfers were adverse employment actions on announcement, no matter that Van Horn never went to Naples and retired ra ther than relocate to Great Lakes.

Because the transfers Van Horn challenges ar e adverse actions under the ADEA, we vacate the district court’s grant of su mmary judgment to NCIS on Van Ho rn’s discrimination claims and

remand for the district court to consider the sec ond step of the analysis: whether those adverse actions were motivated by unl awful age discrimination.

B.

The district court’s applicati on of the wrong adverse-action sta ndard to the transfers also led it to err in holding that ther e was no basis for Van Horn’s cons tructive discharge claim. As explained, the transfers were adve rse actions. So on remand, the di strict court must assess whether the transfers were motivated by un lawful discrimination before it can determine whether they can serve as a predicate for the constructive discharge cla im. To be sure, the court also stated in passing

that Van Horn could not make out a constructive discharge claim even assuming the transfers were

adverse actions. Van Horn , 2023 WL 4156742, at *8. But the co urt did not elaborate on that statement, and the court cited in support of it, am ong other decisions, Forkkio v. Powell , 306 F.3d 1127, 1130–31 (D.C. Cir. 2002), which turned on the application of the now-abrogated Brown5 standard. We thus cannot discern the basis for the court’s conclusion that Van Horn could not make out a constructive discharge claim even if the transfers were adverse actions. That conclusion, moreover, is far from se lf-evident: as we have explai ned, “an illegal re assignment, if it produces sufficient hardship and causes an unwilling resignation, can support [a constructive discharge] claim.” Frazier v. Merit Sys. Prot. Bd. , 672 F.2d 150, 159 n.29 (D.C. Cir. 1982).

C.

The Norfolk and Great Lakes transfers also cons titute adverse actions for purposes of Van

Horn’s retaliation claims. An adverse action in a re taliation case must be “materially adverse,” in

that it must be the kind of action that coul d “dissuade[] a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 68 (2006) (internal quotation marks omitted); cf. Muldrow , 144 S. Ct. at 976 (adverse-action

standard for retaliation claims differs from standa rd for discrimination claims). Both transfers meet that standard: a transfer to a different state, even if temporary, is not a “[m]inor” or “trivial” burden, Bridgeforth v. Jewell , 721 F.3d 661, 663 (D.C. Cir. 2013) (c itations and internal quotation marks omitted), or so a reasonable jury could c onclude, particularly given Van Horn’s family

situation. We therefore vacate the district cour t’s grant of summary j udgment to NCIS on Van

Horn’s retaliation claims as based on th e Norfolk and Great Lakes transfers.

D.

Finally, while we otherwise set aside the dist rict court’s grant of summary judgment to NCIS, we affirm the grant of su mmary judgment to NCIS as to Va n Horn’s retaliati on claim insofar as it is predicated on the temporary cancellation of her leave. Lascell cancelled Van Horn’s leave on June 28, 2012, and his testimony is that he did not become awar e of Van Horn’s EEO activity until “late July or early August. ” Lascell Decl. p. 2, J.A. 604. While Van Horn contends that Lascell spoke to Hogan before cancelling her leav e and that Hogan “had awareness of” her EEO complaint, Van Horn Reply Br. 11, Hogan avers that he did not become aware of Van Horn’s EEO activity until July 24—after Lasc ell cancelled Van Horn’s leave, Hogan Decl. ¶ 26, J.A. 530–31. Van Horn cites no evidence to the contrary. As a result, there is no genuine factual dispute that neither Lascell nor Hogan was aware of Van Horn’s protected activity when Lascell cancelled her leave. And without knowledge th at Van Horn had engaged in prot ected activity, Lascell could not have retaliated against her for that activity. See Talavera v. Shah , 638 F.3d 303, 313 (D.C. Cir. 2011); Hairston v. Vance-Cooks , 773 F.3d 266, 275 (D.C. Cir. 2014).

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is

directed to withhold issuance of the mandate until seven days after resolution of any timely petition for rehearing or re hearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41.6 Per Curiam

FOR THE COURT: Mark J. Langer, Clerk

BY: /s/ Daniel J. Reidy Deputy Clerk