UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) D ORIAN VAN HORN , ) ) Plaintiff , ) ) v. ) Civil Action No. 18-38 ( RBW ) ) CARLOS DEL TORO, in h is official ) capacity as Secretary, U.S. Department of ) the Navy , ) ) Defendant . ) )
MEMORANDUM OPINION The plaintiff , Dorian Van Horn , brings this civil action against the defendant , Carlos Del
Toro , in his offi cial capacity as S ecretary of the United States Department of the Navy , asserting claims of disc rimi nation based upon her age , and re taliation, in violation of the A ge Discrimination in Employment Act, 29 U.S.C. § 633a (the “ ADEA ” ). 1 See Amended Complaint (“ Am. Compl.” ) ¶¶ 46–47, 52–59, ECF No. 21-2. Curre ntly pending before the Court is the Defendant ’s Motion for Summary Judgment (“ Def .’s Mot.” or the “ defendant ’s motion ” ), ECF No. 75. Upon careful consideration of the parties’ submissions, 2 the Cour t conclude s for the

1 The plainti ff also brought a claim of hostile work environme nt based u pon her ag e in violatio n of the ADEA. See Am . Compl. ¶¶ 48

– 51. H ow ever, on Ma rch 6, 20 20, the Court gra nt ed th e defendant ’ s M o tion for Judgment on the Pl eading s o r, in the Alternative, for Summar y Judgment, ECF No . 19, “ to the extent it s [ough t] to dis mi ss the pla intiff’s hostile work environment claim in Co unt One of th e plaintiff ’s Amen de d C omplaint. ” Or de r at 1 (M ar. 6, 2020) , ECF No. 45. Ac cordingly, the o nly r emaining c laims in t his case ar e those alleging di scrimination based upon the p l aintiff ’ s age, an d r e taliation, i n violation of the AD EA

.
2 In a ddi tion to th e filing s a lready id ent ified , t he Cou rt c ons i der ed t he fo llowing subm iss ions in re nderi ng its deci sion: (1 ) th e Memor andum of Points and Authorities in Support of De f endant ’s M otion f or Summary Judgm ent (“ Def. ’ s Mem. ” ), ECF No. 75; (2) the De fe ndant ’ s Sta tement of Ma terial Fa c ts a s to W h ich There is No G enuine D ispute (“ Def .’ s Fact s” ), ECF No. 75

- 1; (3) the D efendant ’ s M otion for Summary Judgment and Memo randum in Su pp ort Erra t a (“ Def. ’ s Errata ” ), ECF No. 76; (4) the Defendant ’ s Mot ion for Su m ma ry Judgm e nt and Memoran dum in Support E rrata (“D ef. ’ s 2d Errata ” ), EC F No. 77; (5) the Pl aintiff ’s Memor andum in R e sponse to Defe ndant ’ s Motion for Sum mary Judgment ( “ Pl. ’ s O pp ’n” ), ECF No. 8 0; ( 6) the Plaintiff ’ s Response to (con ti nu e d . . .)2 foll owing reasons that it must grant the defendant ’s motion for summary judgment.
I. BACKGROUND
A. Factual Background The p laintiff , Dorian Van Horn, “ [i]n January[] 2012 ,” was employed “ in th e [Naval Criminal Investigative Ser vices ( ‘ ]NCIS [’) ] Cri m inal Inves tigat ions Directorate at NCIS Headquarters. ” 3 Def. ’ s Facts ¶ 3; see Pl. ’ s Facts at 2 ¶ 3 . At th at time , she was “over the age of [forty ,]” Def. ’ s Facts ¶ 3; see Pl. ’ s Facts at 2 ¶ 3, and specifically, she was “ [forty

- seven] years old [,] ” Pl. ’ s F acts at 23 ¶ 33; see Def. ’s Resp. to Pl.’ s Facts ¶ 33. Furthermore, “ [the p]laintiff
was not . . . re tirement eligible in January 2012[,]” Pl. ’ s Facts at 23 ¶ 34; see Def. ’s Resp. to Pl.’ s Facts ¶ 34, but “ was eligible t o re tire at the end of July 2012[,]” Pl. ’ s Facts at 23 ¶ 33; see Def. ’ s Resp. to Pl. ’ s Facts at 36 –37 ¶ 33. During h er employment, the plaintiff w as “subject to the Agency ’s Mobility Program [,] ” Def. ’ s Facts ¶ 5; see Pl. ’ s Facts at 2 ¶ 5, which requ ired her to “sign a Mobility Agreement, acknowledging [her] understanding that one or more overseas assignments and periodic transfers within [the contiguous United States] w[ould] be required througho ut [her] career[,] ” Def. ’s Mot., Exhibit (“ Ex. ” ) 4 (Special Agent Career Program) ¶ 13- 12(a), ECF No. 75-5 . On or abo ut January 4, 2012, “ Special Agent Matthew Lascell, [the p]laintiff ’s direct supervisor, telephoned [the p]laintiff . . . to inform her that sh e was selected for the [Assistant Special Agent in Charge (‘] ASAC [’ )] position in Na ples , I taly. ” Def. ’ s Fact s at 2, ¶ 13 ; see Pl. ’ s Facts at 6 ¶ 13. Following notification of her impending transfer to Naples, Italy, (.

. . continued) Defendant ’ s St ate ment of M ater ial Facts and Statem ent of Material F ac ts in Dis pute ( “ Pl .’ s Facts ” ), ECF No. 80

- 1; (7) t he Plaintiff ’ s Not ice of Clarification (“ Pl. ’ s N otice ” ), E CF No. 82; (8) the defendant ’ s R eply in Further Support of D efenda nt ’ s Motion for Summary Ju d gme nt ( “ Def. ’s R eply ” ), ECF No. 83; and (9 ) the defen dant ’ s C omb ined [1] Rep ly to Plaintiff ’ s Response s t o Defenda nt ’ s Statement of Material Fa ct s and [2] Response to P laintiff ’ s Statement of Di sputed M aterial F act s ( “D ef. ’s R esp. to Pl. ’s Facts ” ), E C F No. 83 -1.

3 The NC IS He ad quar ters are l ocated in Quanti co , Vir gini a. See NCIS, Loc ations , https://w ww .ncis navy.mil/About

- NCIS/Locat ions/ ( la st visi ted June 16 , 2023).3 “ [the p]la intiff made sever al requests for reconsideration [of the tr ansfer], including a request for reconsideration with Su san Raser , which [ ] Raser denied.” Def. ’ s Facts at 3, ¶ 14; see Pl. ’ s Facts at 6 –7 ¶ 14. “On January 5, 2012, [the] NCIS released a General Administration Notice formally announcing that [the p]l aintiff had been selected for transfer to Naples, Italy [,] for an ASAC position, with a reporting date of June 2012.” Def. ’ s Facts ¶ 16; s ee Pl. ’ s Facts at 7 ¶ 16. There after, on March 20, 2012, “ [the p]laintiff made a request for r econsideration . . . addressed to Deputy Director Mark Ridley, based on her husb and ’ s emp loy ment with th e Department of Homeland Security [,] ” D ef. ’ s Facts ¶ 17; see Pl. ’ s Facts at 7 ¶ 17, and on that same day,

“ [Ridley] contacted [the p]laintiff to explain the decision to reassign her to Italy and denied her request for reconsideratio n.” Def. ’ s Fa ct s ¶ 18; see Pl. ’ s Facts at 7 ¶ 18.
On April 19, 2012 , the plaintiff “notified her first line supervisor, . . . Lascell, by e [] mail . . . that she intended to re tire in S eptember 2012 and cou ld not accept a transfer to fill the Naples, It aly vac ancy. ” Def. ’ s Facts ¶ 19; see Pl. ’ s Facts at 7 –8 ¶ 19. The plaintiff then “submitted a request to . . . Lascell for annual leave during almost the enti rety of August and September 2012[,]” which he “initially approved [.] ” Def. ’ s Fact s ¶ 20; s ee P l. ’ s Fact s at 8 ¶ 20.
On May 14, 2012, “ [the p]laintif f [ ] made initial contact . . . with an Equal Employment Opportunity [(‘ EEO ’ )] counsel or regarding her January 5, 2012 s elected trans fer[,] ” as well as oth er matters. Def. ’ s Facts ¶ 21; se e Pl. ’ s Fac ts at 8 ¶ 21; Def.’s Resp. to Pl. ’ s Facts ¶ 21.
“ Despite two [previous] denials of her reconsideration requests, on June 31, 2012, Deputy Assistant Direct John Hogan [ ] denied [another] . . . reconsideration request” submitted by the plaintiff. Def.’s Facts ¶ 22; see Pl. ’ s Facts at 8 ¶ 22. Ac cording to NCIS policy, “‘ where employees desire assignment to a specific location, whether it involves remaining in their current location or moving to a new duty location, there are two primary options available to them: 1)4 the transfer process, or [] 2) a Humanitarian/Hardship request.’” Def. ’ s Facts ¶ 23; see Pl. ’ s Fac ts at 8 –9 ¶ 23. “ [The p] laintiff did not submit a Humanitarian/Hardship re quest and [eve n] if her March 20, 2012 reques t had been considered [a Hu man itar ian/ Hardship] request, the reasons she outlined therein did not qualify for [that] exemption .” Def. ’ s Facts ¶ 24; see Pl. ’ s Facts at 9 ¶ 24. “On or around July 18, 20[1]2, [the p ]laintiff e []mailed her EEO counselor[,] ” Def. ’ s Facts ¶ 25;

see Pl .’ s F acts at 9 ¶ 25, re garding alleged age discrimination in the trans fer decision, see Def. ’ s Mot., Ex. 9 (Email from Dorian Van Horn to Michell e Baker (July 18, 2012) (“July 18, 2012 Email ”)) at 1, ECF No. 75-10, and “[o]n or about July 24, 2012, [ ] Hog an receiv ed an e[]mail from the EE O [c]ounselor notifying him that [the p] laintiff [had] submitted an EEO complaint[,]” Def. ’ s Facts ¶ 27; see Pl. ’ s Facts at 10 ¶ 27. Th e plaintiff “did not report to Naples, Italy[,] for the ASAC position[,]” Def. ’ s Fac ts ¶ 29; see Pl .’ s Facts at 11 –12 ¶ 29, and instead was sent “on a temporary duty assignment . . . in Norfolk, Virginia [,] ” Def. ’ s Fact s ¶ 30; see Pl. ’ s Facts at 12 ¶ 30. Once it wa s clear tha t the plaintiff w ould be temporarily reassign ed , her supervisor at [the] NCIS Headquarters, Lascell ,

“ cancelled [ the p ] laintiff ’ s leave requests [,] ” Def. ’ s Facts ¶ 26 ; see Pl. ’ s Fa cts at 9 –10 ¶ 26, and once she was reassigned, her “new supervisor at her temporary assigned duty assignment in
Nor folk, Virgini a, approved her previously cancelled leave requests .” Def. ’ s Facts ¶ 31; see Pl. ’ s Facts at 12 ¶ 31. “On October 17, 2012, [the] NCI S announced the selection of [the p] laintiff to [an] ASAC position in Great Lakes, Illinois, effective November 19, 2012[,]” D ef. ’ s F a cts ¶ 32;

see Pl. ’ s Facts at 13 ¶ 32, and the plaintiff subs equently “ retired effective October 31, 2012 [,] and never reported to the Great Lakes position.” Def. ’ s Facts ¶ 34; s ee Pl. ’ s Facts at 13 ¶ 34.
B. P rocedural Backg round
On January 7, 2018, the plai ntiff filed h e r C omplaint in this case , s ee Compl aint5 (“Compl.” ) at 1, ECF No. 1, and on October 24, 2018, she filed a motion to amend her
C omplain t. see Plaintiff Dorian V an Ho rn ’s Motion for Leave to File Amended Complaint at 1, ECF No. 21. The Court subsequently granted her motion and accepted her Amended Complaint as filed. See Orde r a t 2 (Dec. 18, 2018 ), ECF No. 27; Am. Compl. at 1. On October 4, 2018, the defendant filed a motion for judgment on the pleadings or, in the alter native f or s ummary judg ment , see Motion for Judgment on the Pleadings or, in the Alternative, for Summ ary Ju dgment at 1 , ECF No . 19, which the Court granted in part and denied in part on March 6, 2020.
See Order at 1 ( Mar. 6, 2020), ECF No. 45. T he Court grant ed the motion “to the extent it s[ought] to dismiss the plai ntiff’s hos tile work environment claim in Count One of the plaintiff’s Amended Complaint” and den ied the motion in all oth er respects

. Id. ; see supra note 1. Thereafter, the defendant filed his Answer to the Co mp laint on March 20, 2020, se e Answer to Amended Complaint and Affirmative Defenses ( “ Answer ”) at 1, ECF No. 46, and, after the
par ti es unsuccessfully atte mpted to resolve the case via me diation, the Court hel d an initial scheduling conference on August 31, 2020, see O rder at 1 ( Sept. 1, 2020), ECF No. 53. After the parties con cluded discovery on December 3, 20 21, see Order at 1 (Nov. 2, 2021), ECF No. 71, the defendant fi led his motion for summary judgment on June 9, 2022, see Def. ’s Mot. at 1, the plaint iff file d he r opposition on July 25, 2022, see Pl. ’ s Opp ’n at 1, and the defendant filed his reply on Octob er 17, 2022, see D ef .’s Reply at 1.
II. STANDARD OF REVIEW
A cour t may grant a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 only if “the re is n o genuine dispute as to any mate ria l fact and the movant is entitl ed to judgment as a matter o f law.” Fe d. R. Civ. P. 56(a). “A f act i s mate rial if it ‘ might affect t he outcome of the suit under the governing law, ’ and a dispute about a mater ial f act is6 gen uine ‘ if the evidence is such th at a reasonable jury could return a verdict f or th e nonmoving
par ty.’” St eele v. Schafer, 535 F.3d 689, 692 (D .C. Cir. 2008) (quoting Anderson v. Liberty Lob by, Inc., 477 U.S. 242, 248 (1986)). When ruling on a motion f or summar y judgment, “[t]he evidenc e of the non-movant is to be bel ie ved , and al l jus t ifiable infere nces are to b e drawn in h is [or her] fav or. ” And erso n, 477 U.S. at 255. “ Cred ibility determi nations, the weighing o f the evidence, and the draw ing of legi timate inf erence s fr om the facts are ju ry functions, not those of a judge . . . ruling on a motion fo r summ ary j udgm ent [.] ” Id. The movant ha s th e burden of d emonstrating th e abse nce of a genuin e issu e of material fac t and that the non-moving party
“f

ail [ed] to m a ke a sho wing sufficient to esta blis h the existence of an elemen t e sse ntial to t hat
p arty ’ s case, an d on wh ich that party will bear th e bu rd en of proof at trial.” Ce lotex Corp. v.
Catret t, 477 U.S. 317, 322 (1986). In respond ing to a motion for su mmary j udgment, the non-moving party “must do more than simply show that t her e is some metap hysical doubt a s t o th e material facts.” Matsu sh ita
El ec. In dus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the non-moving
par ty “mu st se t forth s p ecific facts showing that there [a re] genuine issue[s] for trial.” Anderson,
477 U. S. at 2 48 (interna l quotation marks omitted ) . “The mere existenc e of a scintilla of evi de nce in support of the [non-moving party’ s] posi tion . . . [is] insuffi c ient” to wi thstand a motion for su mm ar y judgm ent ; rath er, “there must be [som e] evidence on which the jury could

re as onably f ind f or the [non-mov ant].” Id. at 252.
III. ANALYSIS The defendant argues that he is entitled to summary judgment on both th e plai ntiff’ s age dis crimination and re taliation claims . S ee Def. ’ s Mot. at 1. Regarding the plaintiff’ s discrimination cla im, the defendant argues that the plaintiff “ failed to timely [ad ministratively]7 exhaust her claim ” and, even if she had exhausted her ad ministrative re medies, “the [defendan t] had legitimate an d non-discriminatory reasons for s electi ng [the p]laintiff” for a transfer, which the plaintiff “cannot show . . . were pre te xt for un lawful discrimination. ” Def. ’ s Mem. at 1 9. Regar ding the plaint iff ’ s retaliati on claim, the defendant argues that “[the p]laintiff [cannot] demonstrate that the [defendant] re taliate d against [her] a ft er she engaged in EEO activity. ” Id.
In response, the plaintiff argues that “ there are material facts in di sp u te tha t pr eclude summary judgment in this case” and that “[the d]efendant engaged in discrimination and re taliation in viol at ion of the ADEA by its forced transfers of [the p]laintiff an d constructive discharge on account of age and retaliation. ” 4 Pl. ’ s Opp’n at 2. The Court will first address whether the plaintiff has timely exhausted her administrative remedies , before the turning to the merits of the plaintiff ’ s discrimination and retaliation claims

.

4 The pl aintiff als o argues that, a s a pr elimi nary m atter, “[t he d]e fendant is pr eclu ded from seeking summ ary jud gment as it previ ously sou ght summary judgment, wh ich was denied in part. ” Pl. ’ s Opp ’ n at 1. In support of this argument, th e plaintif f asserts that the defenda nt’ s moti on “ violate s the l aw - of

- the

- case d octrin e[,] ” id. at 7, w hich provides that “t he same issue presented a seco nd time in the same case in the sa me court should le ad to the same result[,] ” Aref v. Holde r , 953 F. Su pp. 2d 133 , 143

– 44 (D.D.C . 2013). Ho wever, a s the defen da nt co rrectl y notes, s ee Def .’ s Reply at 1– 2, con sideration of th e defendant ’ s motion does not v iol ate the law

- of

- the

- ca se doctrin e because the Co ur t’ s denial in part of the defen d ant ’ s p revious motion for judgment on the pl ead ings, or in the a lternative , f or su mmary judgment, see Or der at 1 ( Ma r . 6, 202 0) , was not appea lable. Under t he law

- of

- the -c ase doctrine, a “ legal deci sion ma de at one stage of litigation, unchall enged in a subseque nt appeal wh en the op p ortunity to do so existed , beco mes th e law of th e cas e for future st a ges of litigatio n, and the parties are deeme d to have waived the right to cha llenge that decision at a later time. ” William sb urg Wa x Museum, Inc . v. H i stori c Figure s, Inc. , 810 F.2d 243, 250 (D .C. Cir. 1987) (emp h asis add ed). Thus, f or pu rposes of this d octrin e, a party ca nnot be said to have waiv ed the right to c hal leng e a de cis ion unless that decision wa s ap pealable. See id. “A de nial of a m otio n for summa r y judgme nt typically is no t a fi nal order , so it is not ap pe a lable [,] ” Pu b . Citizen v. U.S. Dist. C ou rt for D.C. , 486 F.3d 1342, 1343 (D.C. Cir. 200 7), un less “ it is accompanied by a fi nal orde r di sposin g of al l issues before the distri ct cou rt .” I d. (quoting J ones - Hamilt on Co. v. Beaz er Materials & Servs., Inc. , 973 F.2d 688, 694 n.2 ( 9th Cir. 19 92)). H er e, the Cour t’ s M arc h 6, 202 0 Or der granting in part an d deny in g in part the defendant ’ s prior motion d id not “ disp os [ e] of all issue s before th e [ ] [C]ourt [,] ” id. at 13 45 ; see Or der at 1 (M a r. 6, 20 20), and the refor e, the p art ia l denial of the defendant ’ s pr io r motion for summary judg ment was not appeal ab le . S ee Chaplaincy of Full Gospel Churches v. E ngl and , 454 F.3d 2 90, 2 96 (D.C. C ir. 2006) ( “ [A]s a ge neral rule, [t he D.C. Circu it] la ck [s] jurisdic tion to hea r an a pp e al o f a di strict court ’ s denial of summary judgment, parti al or oth erwise. ” ). Accordingly , the defendant ’s motion does not implicate t he law

- of -t

he

- case doct rine.8 A. Wh ether the Plaintiff H as Timely Exhausted Her Admi n istrative Remedies The defendant argues as a preliminary matter that “[the p] laintiff utilized the E EO administrative process but failed to timely exhaust her ADEA discrimination/disparate treatment claim [,]” Def. ’ s Mem. at 21 , in light of the fa ct that s he “ made initial contact with an EE O counselor on May 14, 2012 [,] ” more than forty -five da ys after the “ NCIS’s notification of its employment deci si on” and the plaintiff ’ s “reasonable suspicion of discrimination [,] ” both of which arose on or about January 5, 2012. Id. In response, the p lainti ff argu es that her

“ complaint of discriminatory acts to the NCIS EEO officer on or about May 14, 2012, [ ] wa s timely [,] ” Pl. ’ s Opp ’n at 12, because she did not develop a reaso nable suspicion of discriminatio n until “ early Ma y 2012 by connecting the dots of d iscrim inatory behav ior [,] ” id. at 11, an d “ [t]h[e] [forty

- five] -day limitation period is [only] ‘ triggered [when] a complainant reasonably suspects discrimination [,] ’” id. at 1 2 (quoting Fortune v. Holder, 767 F. Supp. 2d 116, 118 (D.D.C. 2011) ) ( fifth alt eratio n in or iginal).
I n the context of a cl aim filed pursuant to the ADEA , a plaintiff “ has two means of pursuing his [or her] age discrimination claim.” Chennareddy v. Bows her , 935 F.2d 315, 318 (D.C. Cir. 1991). “ [A] federal employee has the option of bypassing the admini strative process altogether and suing directly in federal c ourt, subject to certain notice re quirements [,] ” Lawson v. Sessions, 271 F. Supp. 3d 119, 133 ( D. D.C. 2017), or “ [a] lternati vely, an ADEA plai ntiff ‘may [opt to] invoke the [Equal Employment Opp ortunity Commission ’s (‘] EE OC [’ )] administra tive process, and then sue if dissatisfied with the res ults .’” id. (quoting Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003)). When proceedin g under the second option, an employee

“ must initiate contact with a [n EEO c] ounselor within [forty

- five] days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within [for ty

- five] days of the9 effective date of the a ction .” 29 C.F.R. § 1614.105 (a) (1) . Although the timely exhaustion requirement in ADEA cases is not jurisdicti onal, s ee Menominee Indian Tribe of Wis. v. United
St ates , 614 F.3d 519, 527 (D.C. Ci r. 2010) (“[N]e ither Title VII nor the ADEA inco rpo rates a jurisdictional ex haustion require ment. ” ), “ [t] he D .C. Circuit ha s [ ] repeatedly recognized that [an] exhaustion defens e ‘ is similar to a statute of limitations .’” Achagzai v. Broad. Bd. of
Govern ors , 170 F. Supp. 3d 164, 174 (D.D.C. 2016) (quoting In re J ames , 444 F.3d 643, 647 (D. C. Cir. 2006)). And, “ [a] s such, the [ ] ADEA exhaustion requirement [] [is] properly view ed

as [a n] affirmative defense [] , and thus ‘t he defendant bears the b urden of pleading and proving’ the defense .” Ac hagzai , 170 F. Supp. 3d at 174 (quoting Bowden v. United States, 106 F.3d 433, 437 (D. C. Cir. 1997)).
H er e, “ [o] n January 5, 2012, [the] NCIS re leased a General Administration Notice formal ly announcing that [the p]l aintiff had been sel e cted for transfer to Naples, Italy ”— i. e. , the first a ll ege d adverse employment action s in this case —“w ith a reporting date of June 2012.”
D ef. ’ s Facts ¶ 16; s ee P l. ’ s Fa cts at 7 ¶ 16. The plain tiff subsequently “made initial contact . .

. with an [EEO] counsel or regarding her January 5, 2012 s elected transfer ” on May 14, 2012. Def. ’ s Facts ¶ 21; see Pl .’ s Facts at 8 ¶ 21; Def.’s Resp. to Pl. ’ s Fact s ¶ 21. Altho ugh the defendan t correctly notes that the plaintiff “ delayed her contact wi th t he EEO offi c e until five months” after the notice of h er transfer was is s ued , Def. ’ s Mem. at 21, the date of t he no tice is not the relevant date for purp oses of cal culating whe ther the plainti ff met the timely exhaustion requirem ents under the ADEA. R athe r, “ the per t inent date for determining the timelines s of [the plaintiff ’s] EEO contact is

. . . the effective date of the personnel action challenged, and not the date on which [the pla inti ff] became aware of what that personnel action would be.” Fe lder v. Johanns, 595 F. Supp. 2d 46, 62 (D.D.C. 2009) (emp ha sis in original); see 29 C.F.R. §10 1614.105(a)(1) (“ An aggriev ed person must initiate contact with a [n EEO c] ounselor[,] . . . in th e

ca se of personnel action, within [forty

- five] d ays of the effective date of the ac tion.”) ; see also Felder , 595 F. Supp. 2d at 62 (“ [S] everal [o ther member s of this Court] have reasone d that a s the plain language of the regulations indicates, the [fort y- fiv e] -day filing period begins to run from the effective date of the [personnel] action, not from notice of that action.” ). Thus, the plaintif f’s forty

- fiv e- day time limit to init iate co ntact with an EEO counselor began not on January 5, 2012, wh en notice of her impend i ng transfer w as issued, but instead in June 2012 , the effective date of her transfer. See Def. ’ s Facts ¶ 16 ; s ee Pl. ’ s Facts at 7 ¶ 16 . In o ther wor ds, “ [t] he fact that the plaintiff [] had notice of the [personnel action] in [ Ja n uary 2012] has no bearing on this timeliness analysis because it is not until the effective date of the personnel action that the [fort y- five ]- day window opened.” J ames v. England, 332 F. Supp. 2d 239, 246 (D.D.C . 2009). Accordingly, the
Cour t concludes that the defendant has f ailed to meet his bur den to show that the plaintiff failed to timely exhaust her administrative remedies. 5
B. Wh ether the Pl aintiff Has Provided Suffic ient Evidence of D iscrim ination or Re taliation Having concluded that the defenda n t has not met his burden to show that the plaint iff failed to timely exhaust her administrative remedies, the Court will n ow address wh ether the
p lainti ff has provided suf ficient evidence o f disc rimination or retaliation

. The defendant argues

5 Th e Court not es that th e plai ntiff ’ s argument that “[t]h [e] [f orty

- fiv e]

- day limi tation pe riod is [o nly] ‘ triggered [when] a complainant reasonably suspects discrimination [,] ’” Pl .’ s Opp’n at 12 (quoting F ortun e , 767 F. Supp. 2d at 118 ) , mi s con strues the c ase law that she cit es in support of this co ntent ion

. “[N ]otice or knowledge of discriminator y m otivation is not a prerequisi te for a cause of action to a ccrue
. . . . O n the c ontrary, it is knowledge of the adverse employmen t decision itself that trigger s the runn ing of the statute of limit ation s.” Fortun e , 76 7 F. Supp. 2d at 1 22 (qu oting Hulsey v. Kmart, Inc. , 43 F.3 d 555, 558 ( 10th Cir. 1994)). Th us, th e fact that the parti es disput e the date on which th e plaintiff reason ably su spe cted discrimination is immater ial becaus e the rel ev ant d ate for purposes of t h e forty

- fi ve - day requirement was the eff ective date of the plaintiff ’ s transfer, i.e. June 2012. See id. at 122

– 23 (ul timately concluding that rel evant date for purpos es of th e plaintif f’ s timely e xhaustion re quirement wa s h is termina tion, not the da te on which he b ecame awa re of potential d isc riminat ory motive).11 that he “ha s established legitimate, non

- discriminatory rea sons for” the adverse actions at issue in this case, Def. ’ s Mem. at 28, and “ [the p] laintiff has entirely failed to offer any evidence that could cast material doubt upon [the d]efendant’s legitim ate non -disc riminatory bases[ ,]” id.
at 31. In response, the plaintiff a rgues that because she and other empl oyees experienced

“ differing t reatme nt” ba sed upon the ir age, Pl. ’s Opp’n at 17, “ [th e d] e fendant has a pattern of seeking out older agents for involuntary tr ansfers [,]” id. at 18, and “ the transfers and ot her acts in violation of NCIS policies and procedures demonstrate unlawful actions in vi olati on of the
A DEA [,] ” id. Thus, the plaintiff contends that “ there is sufficient [ ] evidence that demonstrate s [ that the p] laintiff [ ] was subj ected to pr etextual actions by [the] NCIS’s involuntary transfe rs and other acts.” Id. For the following re asons, the Court concludes that it must dismiss both t he
p laintif f’ s discrimination and retaliation c laims

. When a plaintiff brings a c laim of discrimination or retalia tion under t he ADEA and

re lies on cir cumstan t ial ev idence to es ta bli sh an alleged unl awf ul employmen t ac tion, as th e plaintiff does here, se e gene rally Pl. ’s Opp ’n, the Court anal y zes the claim under the three

- part burden- shifting framewor k o f McDonnell D ouglas Corp. v . Green

. See Jac kson v. Gonzale s, 496 F. 3d 703, 706 (D.C. Ci r. 2007) (c i ti ng McD onne ll Doug las C orp. v. Green , 411 U.S. 792, 802–05 (1973)); Chappell-Johnson v. Powell , 440 F.3d 484, 487 (D.C. Ci r. 2006) (“ Th e McDonnell Douglas fr amework appl ies to both Title VII and ADEA claims. ”). Un der th e McDonnell Douglas framework, the pl aintiff bears the initial bur den of establi shing h er prima facie case of discrimination or re taliati on. See 411 U.S. at 802; Walker v. Johnson, 798 F.3d 1085, 1091 (D.C. C ir. 2015); see also Holcomb v . Powell , 433 F.3d 889, 895 (D.C. Cir. 2006).

“ If t he plaintiff establishes a prima facie case , a presumption th en arises that the employer unlawfully di scriminated [or retaliated] against the employee [,] ” and “ [t] o reb ut this12 presu mption, the employer must articulat e a legitimate, non- discriminatory [or n on- retal iatory] reason for its action. ” L ewis v. Distri ct of Columbia, 653 F. Supp. 2d 64, 7 2 (D.D. C. 2009) ( citing Tex. D ep ’ t of Cmty. Affairs v. Burd ine, 450 U.S. 248, 254 (1981)).
Furt hermore, “ where an employee ha s s uffered an adverse employment acti on and an employer has asserted a legitimate, non

- discri minat ory [or non- retaliatory] reason for the decision, the district court need not—and should not— decide whether t h e plaintiff actually made out a prima f acie case un der McDonnell Douglas

. ” Br ady v. Off ice o f the Se rgean t at Arms, U.S. House of Representati ves , 520 F.3d 490, 494 (D. C. Cir. 2008) (e mp hasis in original). In other words, i f the defendant pro vid es legiti mate , non- discriminatory , and non

- retaliatory

re as on s for th e ad ve r se employment acti on at issue, “ the question whether [the plaintiff] actua lly made out a pr im a facie case is ‘no longe r relev ant’ and thus ‘dis appear [s] ’ and ‘drops out of the
p icture. ’” Br ady , 520 F.3d at 493 (quoting St. Mary ’ s H onor Ctr . v. Hicks, 509 U.S. 502, 510,
511 (1 993) ). The plaintiff must then prove tha t t he defendant ’s proffered re ason was a pre text for dis cr imination or retaliation , see McDonnell Douglas, 411 U.S. at 805, and produ ce

“ sufficient e vi den ce f or a re asonabl e j ury to find t hat th e employer ’ s ass erted non[- ]di scriminatory [or non- retaliatory] [ ] re ason was not the actual r eas on and tha t th e emp lo yer inte ntionally discrimina ted [ or retaliated] [ ] again st the emplo y ee [,] ” Walker , 798 F .3d at 1092 ( inte rna l quo tat ion marks omi tte d).
H ere, the plaint iff alle ges one adv e rse employment action that relates solel y to her discrimination claim

— namely , h er transfer to the GS -14 ASAC position in Naples, It aly , see Def. ’ s Fac ts ¶16 ; Pl. ’ s Facts at 7 ¶ 16; Def.’ s Mot., Ex . 23 (Agent T ransfer M atter – Senior Manage ment Assignments (GS

- 14)) at 2 , E CF No . 75-24, on e advers e employment action that relates solely to her retaliation claim

— namely, the cancellat ion of her leave requests for August13 and September 2012, see Def. ’ s Facts ¶¶ 20, 26; Pl. ’ s Facts at 8–10 ¶¶ 20 , 2 6, and three adverse employment actions that relate to both her discrimination and re taliation claims —na mely, her temporary tr ansfer to a position in Norfolk, Virginia , see De f. ’ s Facts ¶ 30; Pl. ’ s Fact s at 12 ¶ 30; her transfer to a GS -14 ASAC position in Great Lakes, Illinois, see Def. ’ s Fac ts ¶¶ 32–33; Pl. ’ s Facts at 13 ¶¶ 32–33; and her retirement, wh ich she alleges amounted to her const ructive dischar g e, see Def. ’ s Fac ts ¶ 34; Pl. ’ s Facts at 1 3 ¶ 34. See generally Pl.’s Opp’n at 14–22. The Court will address the plaintiff’s allegations as to each of these discrete alleged adverse employment actions in turn : (1) the plaintiff ’ s transfers to Naples, Italy, and Great Lakes Illinois; (2) the plaintiff ’ s temp orary tra nsfer to Norfolk, Virginia; (3 ) the pla intiff ’ s alleged constructive discharge claim ; and (4) the cancellation of the plaintiff ’ s leave requests

. 1. The Plaintiff ’s T ransfers to Naples, It aly, and Gr eat Lakes, Ill inois First, r egarding the plaint iff ’ s transfe rs to Naples Italy, see Def. ’ s Fac ts ¶ 16; P l. ’ s Fa cts
at 7 ¶ 16, and late r to Great Lakes, Illinois, see Def. ’ s Facts ¶ 32; Pl. ’ s Fa cts at 13 ¶ 32, the plaintiff argues that “ there are numero us ma terial issues of fact in dispute concerning the age discr im inat ory reasons behind the forced transfers of [ the p] laintiff in 2012 [,] ” Pl. ’ s Opp ’ n at 14.
S pecifically, the plaintiff contends that she was “ forced [to] transfer[] to . . . Grea t Lakes, Ill[inois ,] for ret aliatory re asons following her EEO activity at [the] NCIS .” Id. at 7. Howeve r, for the following reasons, the Court concludes that nei ther of these transfers cons titutes a cognizable advers e employmen t action for purposes of the plain tiff ’ s discrimination a nd retaliation claims.
“ An adverse employment action is a signifi cant chang e in employment status, such as
hirin g, firing, fa ili ng to promo te, reassignment wit h significantly different responsibil itie s, or a decision causing significant change in benefits.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C.14 Cir. 2009) (quoting T aylo r v . Small , 350 F.3d 1286, 1293 (D.C. Cir. 2003)). “A ‘lateral
tr ansfer’

— that is, a t ransfer involving ‘no diminution in p ay a nd be nefits ’— may [, in certain situations,] qualify as a materially adverse employment action [.]” Mamantov v. Jackson, 898 F. Supp. 2d 121, 128 (D.D.C. 2012) (quoting G eleta v. Gray , 6 45 F .3d 408, 411 (D.C. Cir. 201 1))

. However , w here there is merely an “ attem pt . . . to transfer [the plaintiff] to a [different position ], ” but “the transfer never occ ur[s ,] . . . [the plai nt iff] suffer[s] no adver se action as the

r esult of the attempt. ” Gl enn v. Williams , No. 98- cv -1278 (CKK), 2006 WL 401816, at *29 (D .D.C . Feb . 21, 2006). In other words, where a personnel action ne ver takes effect, it “ result[ s] in no mate ria lly advers e consequences . . . such that a reasonab le t ri er of fact co uld fin d objec tively t angible harm.” Forkkio v. Powell , 306 F.3d 1127, 113 1 (D. C. Cir. 2002 ).
H ere, “[o]n January 5, 2012, [the] NCIS released a General Administration Notice formally announcing that [t he p]l aintiff had been selected for t ra nsfer to Naples, It aly [,] for an ASAC pos ition, with a reporting date of June 2012.” De f. ’ s Facts ¶ 16; s ee Pl .’ s Facts at 7 ¶ 16. However, the plaintiff ’ s transfer never actually occurred because she “did no t report to N aples, Italy[,] for the ASAC po s iti on[,]” Def. ’ s Fa cts ¶ 2 9; see Pl. ’ s Fa cts at 11–12 ¶ 29, and instead
was sent “on a te mporary d uty assignment . . . in Norfolk, Virginia [,] ” Def. ’ s Facts ¶ 30; see Pl. ’ s Facts at 12 ¶ 30. Sim il ar ly, although “ [o] n Octob er 17, 2012, [the] NCIS announced the selec tion of [t h e p] laintiff to [an] ASAC p osition in Great Lakes, Illinois, effecti ve Novem ber 19,
2012 [,] ” D ef. ’ s Facts ¶ 32; see Pl. ’ s Facts at 13 ¶ 32, the plaintiff “ retired effective Oc tober 31, 2012 and [thus] ne ver reported to the Great Lakes pos it ion[,]” Def. ’ s Fa ct s ¶ 34; see Pl. ’ s F acts at 13 ¶ 34. Therefore, because these tra ns fers never o ccurred, t hese “ employment decision [s] do [] not rise to the level of [ ] actionable ad verse action [s] ” because t hey produced no “tangible change in the duti es or working cond it ions constituting a mater ial employment disadvantage.”15 Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (internal quotation marks o mitted ). Thus, even assuming that the defendant has alleged legitimate , non-d iscriminato ry, and nonretaliatory reasons for the se t ransfe rs, t he Court n eed not conduct an an a lysis regar ding pre text as to these two transfer s because the plaintif f has failed to allege sufficient facts to show that they constitute adver se employment act ions. See Br ady , 520 F.3d at 494 (“[ W] here an employe e has suffe red an a dv erse employment act ion and an e mployer has asserted a legitimate, no ndiscrimi natory reaso n for the decision, the district court need not—and should not— decide whet he r the plaintiff actually m a de o ut a prima facie case under McDonnell Douglas

. ” ( first

em ph asis added)). Acco rdingly, the Court must grant the defendant’ s motion as to plaintiff ’ s allegations concerning her June 2012 transfer to Naples, Italy, and her Oc to ber 2012 transfer to
Great Lake s, Illinois.
2. The Plain tiff ’s Tempora ry Transfer to Norf olk, V irginia Second, regarding the plaintiff ’ s temporary tr ansfer t o Norfolk, Virginia, following her failure to report to the ASAC pos ition in Naples , Italy, see D ef .’ s Facts ¶¶ 29–30; see Pl. ’ s F acts
at 11–12 ¶¶ 29–30 , the plaintiff all eges t h at s he “ was se nt for temporary assigned duty by [the] NCIS without request to Norfolk, Virginia, w here [she] was not given any meaningful work by [the] NCIS, [and] was statio ned to s it in a co nference room as there was no office for h e r, ” Pl. ’ s Opp ’n at 18. 6 However, the Court concludes that th is transfer als o does not amount to an adverse employment action for purposes o f the plai ntiff ’ s clai ms.

6 The pl aintiff also alleges that t hi s was a GS

- 13 positio n, “ which downgraded [her] from GS

- 14. ” Pl. ’ s Op p’ n at 18. Howeve r, this is c learly con t roverted b y the record

— nam ely , th e Noti ce of Pe r son nel Act ion rega r ding the plaintif f’s retirement , filed whi le she was stationed in Norfolk, V irginia , w hich indicate s that sh e remained at the GS

- 14 pay grade at tha t time. S ee D ef. ’ s Mot., Ex

. 24 (Notice of Personn el Action (Oct. 31, 20 12 ) ) at 1, ECF N o. 75

- 25 ( indicatin g “ 14 ” under “ Gra de or Level ” ). Therefore, th e re is no genuine dispute of m at erial fact as to the plaintiff ’ s GS

- 14 pay grade during her assignment in Norf ol k, Virginia

.16 As noted earlier, “ [a] n employment decision does not rise to the level of an act ionable adverse action . . . unl ess there is a tangible change in the duti es or working conditions
const ituting a m aterial employment disadvantage.” Stewart , 275 F.3d at 1134 (internal quotation marks om itted) . And, “ [a] ‘l ateral transfer’

. . . may qualify as a materially adverse empl oym ent action if it ‘result[ s] in mater i al ly adverse consequence s affectin g th e te r ms, c onditions, or privileges of the plaintiff ’s employment.’” Mamantov, 898 F. Supp. 2d at 128 (quoting Gele ta , 645 F.3d at 411). However , “a temporary or ‘ lateral tr ans fer or the denial thereof , without

mo re , does not constitute an adverse emp loyme nt ac tion .’” Singleton v. Potter, 402 F. Supp. 2d 12, 39 (D.D.C. 2005) (quoting Stewart , 275 F.3d at 1135). “T ransfers to . . . less desirable[] locations ‘without more[, ] do not const itute adverse e mployment ac ti ons [,] ” Douglas v. D.C. Hous. Auth., 981 F. Su pp. 2d 78, 89 (D.D.C. 2013) (quoting Ndondji v. InterP ark Inc. , 768 F. Supp. 2d 263, 282 (D.D .C. 2011)), but a transfer w hich results in “a reduction in responsibiliti es [, ]” Loya v. Sebelius , 840 F. Supp. 2d 245, 256 (D.D.C. 2012), “ significantly diff erent responsibili ties, ” Taylor, 350 F.3d at 1293, o r “othe rwise affect [s] a term or conditio n of [the plainti ff ’ s] employment [,] ” Le e v. Mabus, 955 F. Supp. 2d 33, 47 (D.D.C. 2013) , may amount to an adverse empl oym ent action. Moreover, “the plai ntif f ca r ries the burden of establishing . . . [that he or] she suff ered a cognizable adverse employme nt ac tion[.]” Wheeler v.
G eorget own Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir. 2016). Here, the plai ntiff descr i bes her te mporary transfer to Norfolk, Vir ginia, as “ a do -nothing position [, ]” Pl. ’ s Opp ’n at 21, to w hich she was transferred “ despite the f act that the re was no work for [h er]

. . . , she was not given any m ea ningful work by [the] NC IS to perform w hile [there ], [and she ] was stationed to sit i n a conf erence room as there was no office for her, which

was unusua l, ” id. at 21–22. Although a transfer which results in “a reducti on in17 responsibilities [,] ” Loya, 840 F. Supp. 2d at 256, may amount to an adverse emplo yment action,

a “ temporary red uc tion [in wo rk] is insufficient to con stitute an adverse employment ac tion[,] . . . particularly where . . . th e alleged re duction had no effect on [the plaintiff ’ s] pay or benefi ts [,]” Ng v. Lahood, 952 F. Supp. 2d 85, 96 (D.D.C. 2013) (emphasis adde d). In this case , the plaintif f’ s assignment in Norfolk, Virginia, was a lateral transfer , see supra note 6 (describing the fact that , when th e plaintiff was transf erred to Nor folk, Virginia, she was transf erred at th e same pay grade, i.e. , laterally), and a tem porary assignment, only lasting approximately four months from soon af t er June 30, 2012, to her retirem ent in Octo ber 2012. S ee Def. ’ s F acts ¶ 30 (stating th at the plaintiff wa s transferred to Norfolk, V irgin ia, after she did not report to her ASA C positio n in Naples, Italy) ; Pl. ’ s Facts at 12 ¶ 30 ; Def. ’ s Mot. , Ex. 7 (Declaration of John A. Hogan (“Hogan D ecl. ” )) ¶ 27, ECF No. 75- 8 (s peci fyi ng t hat the plain tiff “did not repor t as required to the Naples, Italy ASAC position on June 30, 2012” ); Def. ’ s Fa ct s ¶ 32 (“ On October 17, 2012, [the] NCIS announced the sele cti on of [the p] laintiff to [an] AS AC positio n in Great
L akes , Illinois, effec tive Nove mber 19, 2012.” ); id. ¶ 34 ( sta ting that the plaintiff “ re tired effe ctive October 31, 20 12 ” ); see also Pl. ’ s Facts a t 13 ¶¶ 32, 34. Thus, even if the plaintiff proved that her work was reduced while she was in N orfolk ,

see Pl. ’ s Opp ’ n at 18–19, 21, thi s reduct ion was “ins ufficient to co n sti tute an adverse
emp loyment ac tio n [.] ” Ng , 952 F. Supp. 2d at 96 (finding a plaintiff ’s reduction in work did no t constitute an adverse employment action where th e plaintiff wa s given a “ sixty

- day ass ignment” and as se rted that “ there was little if any work waiting for him upon his arrival”). Acco rdingly, the Court must grant the defendant’ s motion as to the plaintiff ’s allegations co ncerning her temporary transfer to Norfolk, V irginia.18 3. The Plainti ff’s Al l eged Constructive Discharg e Claim
Thi rd , regarding the p laintiff ’ s allege d cons tructive disc harge , she argues that she can show her retir ement amount ed to a constructive disc harge because she “was subjected to

mu ltiple discriminatory forced transfers that uprooted h er life an d creat ed an intolerabl e workplace.” Pl. ’s Opp ’n at 18–19. However, the Court concludes that the plaintiff has not met her burden to establish that she was constructively discharged. “A constructive dis charge can serve as an adverse [employmen t] actio n.” Hill v. Gray , 28 F. Su pp. 3d 47, 60 (D.D.C. 2014). Howev e r, “ [a] n employee’ s resign ati on or ret irement is
pres umed to be voluntary and not an adverse action, unless the e mployee overc omes the presumption by showing that the resignation or retirement was involuntary, and ther ef ore qualifies as a constructive dis c harge. ” Id. at 61. “T he tes t for con s tructive disch arge is an

o bject ive one: whe ther a reasonable person in the employee’ s p osition would have felt c ompelled to resign under the circu mstances. ” Aliotta v . Bair, 614 F. 3d 556, 566 (D.C. Cir. 2010). And, “[ t]o establish . . . constru ctive dis charge, [a] pla intiff must estab lish that th e employer deliberately made wo rking conditions intolerable and drove [him or ] her into an involuntary resignation [or retir ement] .” Down ey v. Isaac, 622 F. Supp. 1125, 1132 (D.D.C. 1985), aff ’d, 794 F.2d 753 (D.C. Cir. 1986). Moreover, “ [c] o nstructive d ischarge [ ] requires a f inding of discrimin ation and the exis tence of certain ‘ aggravating factors. ’” Mungin v. Katten Muchin & Zavis , 116 F.3d 1549, 1558 (D.C . Cir. 1997) (quoting Clark v. Marsh, 665 F.2d 1168, 1174 (D.C. Cir. 1981) (co nclu ding that “ a continuous pattern of dis crimin atory treatme nt encompassing deprivation of opportunities for promotion, lateral transfer, and increased educational training, existing over a period of several years” con stituted sufficient “aggr avating fac t ors ” sufficient t o support a finding of co nstruc tive discharge) ).19 Here , the pl aintiff “ retired effective October 31, 20 12 [,] ” Def. ’s F acts at 5, ¶ 34; s ee Pl. ’ s Facts at 13 ¶ 34, and alleg es that this amounted to “invol untary retireme nt[,]” Pl. ’ s Op p’n at 19, due to “ multiple d iscriminatory forced transfers [,]” id. at 18 –19. 7 Howev er, as the Court has previously noted, se e supra Section III.B.2, “ [t] ransfers to . . . less de sirable[] lo cations ‘without more[,] do not constitute adverse employme nt actions [,] ’ ” Dou glas , 981 F. Supp. 2d a t 89 (quoting Ndondji, 768 F. Supp. 2d at 282). Thu s, i t follows that an allegation of constructive discharge, founded upon the occurrence of mu ltiple later al trans fers which do not const itute adve rse em ployment actions themselves, see Pl. ’ s Opp ’n at 19 (“ He r e, the material f acts in dispute demonstra te tha t [the p] laintiff was subjected to fo rced transfers three [ ] times, when [the d] efendant was aware [that the p] laintiff lived in th e Washington, DC area and had [a] spouse working on a fellowship in Was hington, DC.” ), would also not amount to an adv erse employment action. See Dou glas , 981 F. Supp. 2d a t 89. Furthermore, even if the Court concluded that these lateral tran sfe rs constituted adv erse employment actio ns, the plaintiff has not all eged sufficient fact s to demonstrate a wo rkpla c e so “ intolera ble” as to “dr[ i] ve her into an in volunta ry [ re tirement ,]” Downey , 622 F. Supp. at 1132. Compare, e.g., Pl. ’ s Opp ’n at 18–20 ( asserting th e plai ntiff ’ s retirement am ounted to a constructive discharge based only upon her multi ple late ra l tra n sfers), with C la rk , 665 F.2d at 1173 (concluding that the pla intiff ’ s ret irement

7 The pla intiff a ls o ma kes a c ursory reference to the defendan t’s “c reat [i on] of an intolerable workplace .” Pl. ’ s Opp ’ n at 19

. However, to the extent that the plaintiff alleges that , on ce t e mporarily transferred to Norfolk , Virgin ia, she w as “ left . . . with no work . . . [and] stationed to sit in a conference room as there was no office for her, ” id. , the Court concludes that these alleged conditions are not so intolerable th at they would “c ause a reasonab le person in t he [plainti ff ]’ s position . . . [to] fe[e l] c ompelled to resign under t he circumstances [,] ” Al iotta , 614 F.3d at 566

. This is because , as the Court has previously noted, see supra Section III.B.2, a “ temporary red uc tion [in wo rk] is insufficient to con stitute an adv erse employment ac tion[,] . . . particularly where . . . th e alleged re duction had no effect on [the plaintiff ’ s] pay or benefi ts [ ,] ” Ng , 952 F. Supp . 2 d at 96

. Thus, just as the Court concludes that these working conditions at the plaintiff ’ s Norfolk, Vi rginia assignment do not rise to the lev el of an adverse empl oyment action, see supra Section III.B.2, the Court also concludes that these conditions do not amount to an “ intolerable workplace [,] ” Pl. ’ s Opp ’ n at 19, sufficient to bolster her assertion that her re tirement constituted a constructive disch arge , see Al iotta , 614 F.3d at 566

.20 amounted to a constructive discharge where there existed “ a continuous pattern of discriminatory
tr e atment encompassing deprivat ion of opportunities for promotion, later al tr a nsfer, and inc re ased educational training, exist ing ove r a pe riod of several years”) ; see also Fork kio, 306 F.3d at 1131 (contrasting “[p]urely subjective injuries, such as dissat isfaction with a reassignment, ” which “ are not ad verse actions[,] ” with “‘reassignment w ith significantly different re spon sibilities , or . . . a significant change in benefits[,]’” which “ generally indicate[] an adverse action ” (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (third alterat ion in original)).
T herefore, th e plaintiff has not “overcom e[] the pre su mption

. . . that [her ] . . . retirem ent

was [] voluntary [,] ” Hill , 28 F. Supp. 3d at 60, and the Cour t con cludes that she has fai led to adequately allege constructive discharge as an ad verse employment action in this case. Accordingly, the Court must grant the defendant ’ s motion as to plaintiff ’ s constructive discharge allegation s.

4. The Cance ll ation o f the P l aintiff ’ s Le av e Re q uests Finally, regarding the plaintiff ’s cance ll ed leave re quests, see Def. ’ s Facts ¶ 26; Pl. ’ s Fa cts at 9 –10 ¶ 26, she argues t hat “[the d]e fe ndant’ s management representatives . . . cancelled [t he p]laintiff ’ s leave when [she] co mplain ed to the NCIS EEO off ice about discrimination [, ]” Pl. ’ s Opp ’n at 7, and thus, that t hese cancelled leave re quests were retaliatory , see id. For the following rea sons, the Court concludes that the plaintiff has failed to alleg e a prima facie case of retaliation based upon her cancelled leave requests.
As the Court has previous ly noted, see supra Section III.B , once a defe n dant provid es a le gitimate , non- retaliatory r eas on for the ad ve r se emp lo yment act ion at issue, “ th e question whether [the pl aintiff] actually m ade out a pr im a facie case is ‘no longer relevant’ and thus21 ‘disa ppear [s] ’ and ‘drops out of the pi cture [,] ’” Br ad y, 520 F.3d at 493 (quoting St. Mary ’ s Honor Ctr. , 509 U.S. at 510, 511). The pla intif f must then prove tha t t he defendant’ s proffered

re ason was a pre text for retaliation , see McDonnel l Douglas, 411 U.S. at 805, and produ ce

“ sufficie nt evi den ce f or a re asonable jury to find that th e e mployer’ s ass erted no n[- re taliatory] [ ]

re ason wa s not the actual r eas on and tha t th e employer int entionally [r etaliated] [ ] again st the employee [,] ” Walker , 798 F.3d at 1092 ( inte rna l quota tion marks o mitte d). However, this Cir cuit has ruled that a court “ ca n resolv e th at question in favor of the employer ba sed either upon the employ ee ’ s f ailure to reb ut its explanation or upon the employee’s failure to pr ove an ele m ent of [his or ] her [pri ma facie] case [.]” Bay l or v . Powell, 847 F. App’x 7, 8 (D .C. Cir. 2021) (quoting Taylor v. Sol is , 571 F.3d 1313, 1320 n.* (D.C. Cir. 2009)).
To e sta bli sh a prima facie case of retaliation , “ [the] plaintiff must show: 1) that [he or she ] engaged in a statutorily protected activ ity; 2) that the employer took an adverse perso nnel
act ion; and 3) tha t a causal connection existed between the two.” Mit ch ell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985). R egar ding the third component, “[ a] plainti ff c an estab lish [a] causal con ne ction . . . ‘by showing that the employer had knowledge of the employee’s pro tect ed activity, and that the adverse personnel actio n took place shortly after that activity [,] ’” Moran v. U.S. Capitol Police Bd., 887 F. Supp. 2d 23, 35 (D.D.C. 2012) (quoting M itchell , 759 F.2d
at 86), i .e. , the “‘knowledge’ and ‘ timing ’ require ments .” Id. Fu rthermore, “ [t] o fulfill the knowledg e requ irement, the official responsible for ordering the employee’ s adverse
emp loyment action must have known about the protected ac tivity. ” Id. ; see Clark Cnty. Sch

. Di st. v. Br eeden , 532 U.S. 268, 273 (2001) (concluding that the plaintiff had not estab lished a prima facie case of retaliation where “ there [was] no indication that ” the official who fo rmal ly22 propo sed the plai n tiff ’ s ad verse employment action “knew about [the plaint iff ’s p rotected activi ty ]” ).
He re, the defendant has provided a legi timate, non-r etaliatory r eason for the plaintiff’ s cancelled leave reque st s— spec ifically, that “upon the advice of Hum an Resources , Special Agent Lascell cancelled [the p] laintif f’s leave requ ests because he w ould no long er serve as her supervisor during the period of the annual leave request for August and September 2012 [,] ” in light of th e plaintiff ’s impending transfer to Norfolk, Virginia. Def. ’ s M em. at 15 –16. And , the plaintiff has fa il ed to allege any facts sh owing that Lascell

— the relevant d ecisionma ker for purposes of the cancellation of the plaintiff ’ s leave reque sts, s ee Def. ’ s Facts ¶¶ 20, 26; Pl. ’ s Facts a t 8 –10 ¶¶ 20, 26—knew of the plaintiff ’ s EEO activity at t he time when he ca ncelled the plaintiff ’s leave requ ests

. See generally Pl. ’ s Facts ; Pl. ’ s Opp ’n. Rat her, the only official identified as being aware of the plaintiff ’ s EEO activity during th e relevant time period was
De puty Assistan t Director Jo hn Hogan, see D ef. ’ s Facts ¶ 27; Pl. ’ s Fa c ts at 10 ¶ 27 ; see generally Pl. ’ s Facts; Pl. ’s Opp ’n, who is not alleged as having played any role in the cancell ation of the plaintiff ’ s leave reques ts, s ee Def. ’ s Facts ¶¶ 20, 26; Pl. ’s Facts at 8 –10 ¶¶ 20, 26; see ge nerally Pl. ’ s F acts; Pl. ’s Opp’n. Th us , there are no facts upon wh ich a factfinder cou ld conclude t hat “ the official responsible for ordering the [cancellation of the p la intiff ’ s l eave requests ] must have known about [her ] protected activity. ” Moran , 887 F. Supp. 2d at 35. T heref ore, because the plaintiff has not alleged facts which “fulfill the knowledg e requirement [,] ” Moran , 887 F. Supp. 2d at 35, of a prima facie case of retaliation, the Court must grant the defendant’ s m otion as to the plainti ff ’ s allegations concern ing the cancellation of her le ave requests

. See Bay lor, 847 F. App ’x at 8 (noting that a cou rt “ can resolv e [t he th ird step in the McDonnell Douglas burden-23 shifting analysis] i n favor o f the employer bas ed either upon the employ ee ’ s f ailure to reb ut its explanation [for the adverse employment action] or upon the employee’s failure to pr ove an ele m ent of [his or ] her [pri ma facie] case ”) (quoting Taylor, 571 F.3d at 1320 n.*)). And , because the plaint iff has failed to allege facts from which a reasonable j ury cou ld conclude tha t she s uff er ed adverse employment actions as a result of her transfers, or as the result of a

con structive disc harge, s ee Br ady , 520 F.3d at 494 ( treating the question of whether a p laintiff has suffered a n adverse employment action a s a thre shold issue)— which , combined with the plaintiff ’s c ancelled leave requests , form the basis for the plaintiff ’ s discri mination and retaliation claims —the Court concludes that it must grant the defe ndant’ s mo tion a s to all of t he plaintiff ’ s remainin g claims.
IV. C ONCLUSI ON
Fo r the foregoing re aso ns, the Court concludes t hat it must g rant the defendant ’ s motion for summary judgm ent

. S O ORD ERED this 23rd day of June, 2023. 8

REGGIE B. WALTO N United States Dis trict Ju dge

8 The Cou rt will c ontemporaneousl y iss u e a n Or der con s iste nt with t h is Memorandum Opin i on.