UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________ 

 ) 

DORIAN VAN HORN, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civil Action No. 18-38 (RBW) 

 ) 

CARLOS DEL TORO, in his 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 official capacity as Secretary of the United States Department of the Navy, asserting 

claims of discrimination based upon her age, and retaliation, in violation of the Age 

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. Currently 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 Court concludes for the 

1 The plaintiff also brought a claim of hostile work environment based upon her age in violation of the ADEA. See 

Am. Compl. ¶¶ 48–51. However, on March 6, 2020, the Court granted the defendant’s Motion for Judgment on the 

Pleadings or, in the Alternative, for Summary Judgment, ECF No. 19, “to the extent it s[ought] to dismiss the 

plaintiff’s hostile work environment claim in Count One of the plaintiff’s Amended Complaint.” Order at 1 (Mar. 6, 

2020), ECF No. 45. Accordingly, the only remaining claims in this case are those alleging discrimination based 

upon the plaintiff’s age, and retaliation, in violation of the ADEA. 

2 In addition to the filings already identified, the Court considered the following submissions in rendering its

decision: (1) the Memorandum of Points and Authorities in Support of Defendant’s Motion for Summary Judgment 

(“Def.’s Mem.”), ECF No. 75; (2) the Defendant’s Statement of Material Facts as to Which There is No Genuine 

Dispute (“Def.’s Facts”), ECF No. 75-1; (3) the Defendant’s Motion for Summary Judgment and Memorandum in 

Support Errata (“Def.’s Errata”), ECF No. 76; (4) the Defendant’s Motion for Summary Judgment and 

Memorandum in Support Errata (“Def.’s 2d Errata”), ECF No. 77; (5) the Plaintiff’s Memorandum in Response to 

Defendant’s Motion for Summary Judgment (“Pl.’s Opp’n”), ECF No. 80; (6) the Plaintiff’s Response to

(continued . . .) 
2

following reasons that it must grant the defendant’s motion for summary judgment. 

I. BACKGROUND

A. Factual Background 

The plaintiff, Dorian Van Horn, “[i]n January[] 2012,” was employed “in the [Naval 

Criminal Investigative Services (‘]NCIS[’)] Criminal Investigations Directorate at NCIS 

Headquarters.”3 Def.’s Facts ¶ 3; see Pl.’s Facts at 2 ¶ 3. At that 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 Facts at 23 ¶ 33; see Def.’s Resp. to Pl.’s Facts ¶ 33. Furthermore, “[the p]laintiff 

was not . . . retirement eligible in January 2012[,]” Pl.’s Facts at 23 ¶ 34; see Def.’s Resp. to Pl.’s 

Facts ¶ 34, but “was eligible to retire 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 her employment, the plaintiff was “subject to the 

Agency’s Mobility Program[,]” Def.’s Facts ¶ 5; see Pl.’s Facts at 2 ¶ 5, which required 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 

throughout [her] career[,]” Def.’s Mot., Exhibit (“Ex.”) 4 (Special Agent Career Program) ¶ 13-

12(a), ECF No. 75-5 . On or about January 4, 2012, “Special Agent Matthew Lascell, [the 

p]laintiff’s direct supervisor, telephoned [the p]laintiff . . . to inform her that she was selected for 

the [Assistant Special Agent in Charge (‘]ASAC[’)] position in Naples, Italy.” Def.’s Facts at 2, 

¶ 13; see Pl.’s Facts at 6 ¶ 13. Following notification of her impending transfer to Naples, Italy, 

(. . . continued)

Defendant’s Statement of Material Facts and Statement of Material Facts in Dispute (“Pl.’s Facts”), ECF No. 80-1; 

(7) the Plaintiff’s Notice of Clarification (“Pl.’s Notice”), ECF No. 82; (8) the defendant’s Reply in Further Support 

of Defendant’s Motion for Summary Judgment (“Def.’s Reply”), ECF No. 83; and (9) the defendant’s Combined [1]

Reply to Plaintiff’s Responses to Defendant’s Statement of Material Facts and [2] Response to Plaintiff’s Statement 

of Disputed Material Facts (“Def.’s Resp. to Pl.’s Facts”), ECF No. 83-1. 

3 The NCIS Headquarters are located in Quantico, Virginia. See NCIS, Locations, 

https://www.ncis navy.mil/About-NCIS/Locations/ (last visited June 16, 2023).
3

“[the p]laintiff made several requests for reconsideration [of the transfer], including a request for 

reconsideration with Susan 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]laintiff had been selected for transfer to Naples, Italy[,] for an 

ASAC position, with a reporting date of June 2012.” Def.’s Facts ¶ 16; see Pl.’s Facts at 7 ¶ 16. 

Thereafter, on March 20, 2012, “[the p]laintiff made a request for reconsideration . . . addressed 

to Deputy Director Mark Ridley, based on her husband’s employment with the Department of 

Homeland Security[,]” Def.’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 reconsideration.” Def.’s Facts ¶ 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 retire in September 2012 and could not accept a transfer to fill the 

Naples, Italy vacancy.” 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 entirety of August and 

September 2012[,]” which he “initially approved[.]” Def.’s Facts ¶ 20; see Pl.’s Facts at 8 ¶ 20. 

On May 14, 2012, “[the p]laintiff [ ] made initial contact . . . with an Equal Employment 

Opportunity [(‘EEO’)] counselor regarding her January 5, 2012 selected transfer[,]” as well as 

other matters. Def.’s Facts ¶ 21; see Pl.’s Facts 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. According 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 Facts 

at 8–9 ¶ 23. “[The p]laintiff did not submit a Humanitarian/Hardship request and [even] if her 

March 20, 2012 request had been considered [a Humanitarian/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 Facts at 9 ¶ 25, regarding alleged age discrimination in the transfer decision, see Def.’s 

Mot., Ex. 9 (Email from Dorian Van Horn to Michelle Baker (July 18, 2012) (“July 18, 2012 

Email”)) at 1, ECF No. 75-10, and “[o]n or about July 24, 2012, [ ] Hogan received an e[]mail 

from the EEO [c]ounselor notifying him that [the p]laintiff [had] submitted an EEO 

complaint[,]” Def.’s Facts ¶ 27; see Pl.’s Facts at 10 ¶ 27. 

The plaintiff “did not report to Naples, Italy[,] for the ASAC position[,]” Def.’s Facts ¶ 

29; see Pl.’s Facts at 11–12 ¶ 29, and instead was sent “on a temporary duty assignment . . . in 

Norfolk, Virginia[,]” Def.’s Facts ¶ 30; see Pl.’s Facts at 12 ¶ 30. Once it was clear that the 

plaintiff would be temporarily reassigned, her supervisor at [the] NCIS Headquarters, Lascell, 

“cancelled [the p]laintiff’s leave requests[,]” Def.’s Facts ¶ 26; see Pl.’s Facts at 9–10 ¶ 26, and 

once she was reassigned, her “new supervisor at her temporary assigned duty assignment in 

Norfolk, Virginia, approved her previously cancelled leave requests.” Def.’s Facts ¶ 31; see Pl.’s 

Facts at 12 ¶ 31. “On October 17, 2012, [the] NCIS announced the selection of [the p]laintiff to 

[an] ASAC position in Great Lakes, Illinois, effective November 19, 2012[,]” Def.’s Facts ¶ 32; 

see Pl.’s Facts at 13 ¶ 32, and the plaintiff subsequently “retired effective October 31, 2012[,]

and never reported to the Great Lakes position.” Def.’s Facts ¶ 34; see Pl.’s Facts at 13 ¶ 34. 

B. Procedural Background 

On January 7, 2018, the plaintiff filed her Complaint in this case, see Complaint 
5

(“Compl.”) at 1, ECF No. 1, and on October 24, 2018, she filed a motion to amend her 

Complaint. see Plaintiff Dorian Van Horn’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 Order at 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 alternative for summary 

judgment, see Motion for Judgment on the Pleadings or, in the Alternative, for Summary

Judgment 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. The Court granted the motion “to the extent it 

s[ought] to dismiss the plaintiff’s hostile work environment claim in Count One of the plaintiff’s 

Amended Complaint” and denied the motion in all other respects. Id.; see supra note 1. 

Thereafter, the defendant filed his Answer to the Complaint on March 20, 2020, see Answer to 

Amended Complaint and Affirmative Defenses (“Answer”) at 1, ECF No. 46, and, after the 

parties unsuccessfully attempted to resolve the case via mediation, the Court held an initial 

scheduling conference on August 31, 2020, see Order at 1 (Sept. 1, 2020), ECF No. 53. After 

the parties concluded discovery on December 3, 2021, see Order at 1 (Nov. 2, 2021), ECF No. 

71, the defendant filed his motion for summary judgment on June 9, 2022, see Def.’s Mot. at 1, 

the plaintiff filed her opposition on July 25, 2022, see Pl.’s Opp’n at 1, and the defendant filed 

his reply on October 17, 2022, see Def.’s Reply at 1. 

II. STANDARD OF REVIEW

A court may grant a motion for summary judgment pursuant to Federal Rule of Civil 

Procedure 56 only if “there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is material if it ‘might 

affect the outcome of the suit under the governing law,’ and a dispute about a material fact is 
6

genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving 

party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986)). When ruling on a motion for summary judgment, “[t]he 

evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his 

[or her] favor.” Anderson, 477 U.S. at 255. “Credibility determinations, the weighing of the 

evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of 

a judge . . . ruling on a motion for summary judgment[.]” Id. The movant has the burden of 

demonstrating the absence of a genuine issue of material fact and that the non-moving party 

“fail[ed] to make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 322 (1986). 

In responding to a motion for summary judgment, the non-moving party “must do more 

than simply show that there is some metaphysical doubt as to the material facts.” Matsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the non-moving 

party “must set forth specific facts showing that there [are] genuine issue[s] for trial.” Anderson, 

477 U.S. at 248 (internal quotation marks omitted). “The mere existence of a scintilla of 

evidence in support of the [non-moving party’s] position . . . [is] insufficient” to withstand a 

motion for summary judgment; rather, “there must be [some] evidence on which the jury could 

reasonably find for the [non-movant].” Id. at 252. 

III. ANALYSIS

The defendant argues that he is entitled to summary judgment on both the plaintiff’s age 

discrimination and retaliation claims. See Def.’s Mot. at 1. Regarding the plaintiff’s 

discrimination claim, the defendant argues that the plaintiff “failed to timely [administratively] 
7

exhaust her claim” and, even if she had exhausted her administrative remedies, “the [defendant] 

had legitimate and non-discriminatory reasons for selecting [the p]laintiff” for a transfer, which 

the plaintiff “cannot show . . . were pretext for unlawful discrimination.” Def.’s Mem. at 19. 

Regarding the plaintiff’s retaliation claim, the defendant argues that “[the p]laintiff [cannot] 

demonstrate that the [defendant] retaliated against [her] after she engaged in EEO activity.” Id. 

In response, the plaintiff argues that “there are material facts in dispute that preclude summary 

judgment in this case” and that “[the d]efendant engaged in discrimination and retaliation in 

violation of the ADEA by its forced transfers of [the p]laintiff and 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 plaintiff also argues that, as a preliminary matter, “[the d]efendant is precluded from seeking summary 

judgment as it previously sought summary judgment, which was denied in part.” Pl.’s Opp’n at 1. In support of this 

argument, the plaintiff asserts that the defendant’s motion “violates the law-of-the-case doctrine[,]” id. at 7, which

provides that “the same issue presented a second time in the same case in the same court should lead to the same 

result[,]” Aref v. Holder, 953 F. Supp. 2d 133, 143–44 (D.D.C. 2013). However, as the defendant correctly notes,

see Def.’s Reply at 1–2, consideration of the defendant’s motion does not violate the law-of-the-case doctrine 

because the Court’s denial in part of the defendant’s previous motion for judgment on the pleadings, or in the 

alternative, for summary judgment, see Order at 1 (Mar. 6, 2020), was not appealable. Under the law-of-the-case

doctrine, a “legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity 

to do so existed, becomes the law of the case for future stages of litigation, and the parties are deemed to have 

waived the right to challenge that decision at a later time.” Williamsburg Wax Museum, Inc. v. Historic Figures, 

Inc., 810 F.2d 243, 250 (D.C. Cir. 1987) (emphasis added). Thus, for purposes of this doctrine, a party cannot be 

said to have waived the right to challenge a decision unless that decision was appealable. See id. “A denial of a 

motion for summary judgment typically is not a final order, so it is not appealable[,]” Pub. Citizen v. U.S. Dist. 

Court for D.C., 486 F.3d 1342, 1343 (D.C. Cir. 2007), unless “it is accompanied by a final order disposing of all 

issues before the district court.” Id. (quoting Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d 688,

694 n.2 (9th Cir. 1992)). Here, the Court’s March 6, 2020 Order granting in part and denying in part the defendant’s 

prior motion did not “dispos[e] of all issues before the [ ] [C]ourt[,]” id. at 1345; see Order at 1 (Mar. 6, 2020), and 

therefore, the partial denial of the defendant’s prior motion for summary judgment was not appealable. See

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 296 (D.C. Cir. 2006) (“[A]s a general rule, [the D.C. 

Circuit] lack[s] jurisdiction to hear an appeal of a district court’s denial of summary judgment, partial or 

otherwise.”). Accordingly, the defendant’s motion does not implicate the law-of-the-case doctrine.
8

A. Whether the Plaintiff Has Timely Exhausted Her Administrative Remedies

The defendant argues as a preliminary matter that “[the p]laintiff utilized the EEO 

administrative process but failed to timely exhaust her ADEA discrimination/disparate treatment 

claim[,]” Def.’s Mem. at 21, in light of the fact that she “made initial contact with an EEO 

counselor on May 14, 2012[,]” more than forty-five days after the “NCIS’s notification of its 

employment decision” and the plaintiff’s “reasonable suspicion of discrimination[,]” both of 

which arose on or about January 5, 2012. Id. In response, the plaintiff argues that her 

“complaint of discriminatory acts to the NCIS EEO officer on or about May 14, 2012, [ ] was 

timely[,]” Pl.’s Opp’n at 12, because she did not develop a reasonable suspicion of 

discrimination until “early May 2012 by connecting the dots of discriminatory behavior[,]” id. at 

11, and “[t]h[e] [forty-five]-day limitation period is [only] ‘triggered [when] a complainant 

reasonably suspects discrimination[,]’” id. at 12 (quoting Fortune v. Holder, 767 F. Supp. 2d 

116, 118 (D.D.C. 2011)) (fifth alteration in original).

 In the context of a claim filed pursuant to the ADEA, a plaintiff “has two means of 

pursuing his [or her] age discrimination claim.” Chennareddy v. Bowsher, 935 F.2d 315, 318 

(D.C. Cir. 1991). “[A] federal employee has the option of bypassing the administrative process 

altogether and suing directly in federal court, subject to certain notice requirements[,]” Lawson 

v. Sessions, 271 F. Supp. 3d 119, 133 (D.D.C. 2017), or “[a]lternatively, an ADEA plaintiff 

‘may [opt to] invoke the [Equal Employment Opportunity Commission’s (‘]EEOC[’)]

administrative process, and then sue if dissatisfied with the results.’” id. (quoting Rann v. Chao, 

346 F.3d 192, 195 (D.C. Cir. 2003)). When proceeding 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 [forty-five] days of the 
9

effective date of the action.” 29 C.F.R. § 1614.105(a)(1). Although the timely exhaustion 

requirement in ADEA cases is not jurisdictional, see Menominee Indian Tribe of Wis. v. United 

States, 614 F.3d 519, 527 (D.C. Cir. 2010) (“[N]either Title VII nor the ADEA incorporates a 

jurisdictional exhaustion requirement.”), “[t]he D.C. Circuit has [ ] repeatedly recognized that 

[an] exhaustion defense ‘is similar to a statute of limitations.’” Achagzai v. Broad. Bd. of 

Governors, 170 F. Supp. 3d 164, 174 (D.D.C. 2016) (quoting In re James, 444 F.3d 643, 647 

(D.C. Cir. 2006)). And, “[a]s such, the [ ] ADEA exhaustion requirement[] [is] properly viewed 

as [an] affirmative defense[], and thus ‘the defendant bears the burden of pleading and 

proving’ the defense.” Achagzai, 170 F. Supp. 3d at 174 (quoting Bowden v. United States, 106 

F.3d 433, 437 (D.C. Cir. 1997)). 

 Here, “[o]n January 5, 2012, [the] NCIS released a General Administration Notice 

formally announcing that [the p]laintiff had been selected for transfer to Naples, Italy”—i.e., the 

first alleged adverse employment actions in this case—“with a reporting date of June 2012.” 

Def.’s Facts ¶ 16; see Pl.’s Facts at 7 ¶ 16. The plaintiff subsequently “made initial contact . . . 

with an [EEO] counselor regarding her January 5, 2012 selected transfer” on May 14, 2012. 

Def.’s Facts ¶ 21; see Pl.’s Facts at 8 ¶ 21; Def.’s Resp. to Pl.’s Facts ¶ 21. Although the 

defendant correctly notes that the plaintiff “delayed her contact with the EEO office until five 

months” after the notice of her transfer was issued, Def.’s Mem. at 21, the date of the notice is 

not the relevant date for purposes of calculating whether the plaintiff met the timely exhaustion 

requirements under the ADEA. Rather, “the pertinent date for determining the timeliness of [the 

plaintiff’s] EEO contact is . . . the effective date of the personnel action challenged, and not the 

date on which [the plaintiff] became aware of what that personnel action would be.” Felder v. 

Johanns, 595 F. Supp. 2d 46, 62 (D.D.C. 2009) (emphasis in original); see 29 C.F.R. § 
10

1614.105(a)(1) (“An aggrieved person must initiate contact with a[n EEO c]ounselor[,] . . . in the 

case of personnel action, within [forty-five] days of the effective date of the action.”); see also

Felder, 595 F. Supp. 2d at 62 (“[S]everal [other members of this Court] have reasoned that as the 

plain language of the regulations indicates, the [forty-five]-day filing period begins to run from 

the effective date of the [personnel] action, not from notice of that action.”). Thus, the plaintiff’s 

forty-five-day time limit to initiate contact with an EEO counselor began not on January 5, 2012, 

when notice of her impending transfer was issued, but instead in June 2012, the effective date of 

her transfer. See Def.’s Facts ¶ 16; see Pl.’s Facts at 7 ¶ 16. In other words, “[t]he fact that the 

plaintiff[] had notice of the [personnel action] in [January 2012] has no bearing on this timeliness 

analysis because it is not until the effective date of the personnel action that the [forty-five]-day

window opened.” James v. England, 332 F. Supp. 2d 239, 246 (D.D.C. 2009). Accordingly, the 

Court concludes that the defendant has failed to meet his burden to show that the plaintiff failed 

to timely exhaust her administrative remedies.5

B. Whether the Plaintiff Has Provided Sufficient Evidence of Discrimination or 

Retaliation 

 Having concluded that the defendant has not met his burden to show that the plaintiff 

failed to timely exhaust her administrative remedies, the Court will now address whether the 

plaintiff has provided sufficient evidence of discrimination or retaliation. The defendant argues

5 The Court notes that the plaintiff’s argument that “[t]h[e] [forty-five]-day limitation period is [only] ‘triggered 

[when] a complainant reasonably suspects discrimination[,]’” Pl.’s Opp’n at 12 (quoting Fortune, 767 F. Supp. 2d at 

118), misconstrues the case law that she cites in support of this contention. “[N]otice or knowledge of 

discriminatory motivation is not a prerequisite for a cause of action to accrue. . . . On the contrary, it is knowledge of 

the adverse employment decision itself that triggers the running of the statute of limitations.” Fortune, 767 F. Supp. 

2d at 122 (quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 558 (10th Cir. 1994)). Thus, the fact that the parties dispute 

the date on which the plaintiff reasonably suspected discrimination is immaterial because the relevant date for 

purposes of the forty-five-day requirement was the effective date of the plaintiff’s transfer, i.e. June 2012. See id. at 

122–23 (ultimately concluding that relevant date for purposes of the plaintiff’s timely exhaustion requirement was 

his termination, not the date on which he became aware of potential discriminatory motive).
11

that he “has established legitimate, non-discriminatory reasons 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 legitimate non-discriminatory bases[,]” id. 

at 31. In response, the plaintiff argues that because she and other employees experienced 

“differing treatment” based upon their age, Pl.’s Opp’n at 17, “[the d]efendant has a pattern of 

seeking out older agents for involuntary transfers[,]” id. at 18, and “the transfers and other acts in 

violation of NCIS policies and procedures demonstrate unlawful actions in violation of the 

ADEA[,]” id. Thus, the plaintiff contends that “there is sufficient [ ] evidence that demonstrates 

[that the p]laintiff [ ] was subjected to pretextual actions by [the] NCIS’s involuntary transfers 

and other acts.” Id. For the following reasons, the Court concludes that it must dismiss both the 

plaintiff’s discrimination and retaliation claims. 

When a plaintiff brings a claim of discrimination or retaliation under the ADEA and 

relies on circumstantial evidence to establish an alleged unlawful employment action, as the 

plaintiff does here, see generally Pl.’s Opp’n, the Court analyzes the claim under the three-part 

burden-shifting framework of McDonnell Douglas Corp. v. Green. See Jackson v. Gonzales, 

496 F.3d 703, 706 (D.C. Cir. 2007) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

802–05 (1973)); Chappell-Johnson v. Powell, 440 F.3d 484, 487 (D.C. Cir. 2006) (“The 

McDonnell Douglas framework applies to both Title VII and ADEA claims.”). Under the 

McDonnell Douglas framework, the plaintiff bears the initial burden of establishing her prima

facie case of discrimination or retaliation. See 411 U.S. at 802; Walker v. Johnson, 798 F.3d 

1085, 1091 (D.C. Cir. 2015); see also Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). 

“If the plaintiff establishes a prima facie case, a presumption then arises that the employer 

unlawfully discriminated [or retaliated] against the employee[,]” and “[t]o rebut this 
12

presumption, the employer must articulate a legitimate, non-discriminatory [or non-retaliatory] 

reason for its action.” Lewis v. District of Columbia, 653 F. Supp. 2d 64, 72 (D.D.C. 2009) 

(citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). 

Furthermore, “where an employee has suffered an adverse employment action and an 

employer has asserted a legitimate, non-discriminatory [or non-retaliatory] reason for the

decision, the district court need not—and should not—decide whether the plaintiff actually made 

out a prima facie case under McDonnell Douglas.” Brady v. Office of the Sergeant at Arms, 

U.S. House of Representatives, 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in original). In 

other words, if the defendant provides legitimate, non-discriminatory, and non-retaliatory

reasons for the adverse employment action at issue, “the question whether [the plaintiff] actually 

made out a prima facie case is ‘no longer relevant’ and thus ‘disappear[s]’ and ‘drops out of the 

picture.’” Brady, 520 F.3d at 493 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510, 

511 (1993)). The plaintiff must then prove that the defendant’s proffered reason was a pretext 

for discrimination or retaliation, see McDonnell Douglas, 411 U.S. at 805, and produce 

“sufficient evidence for a reasonable jury to find that the employer’s asserted non[-

]discriminatory [or non-retaliatory] [ ] reason was not the actual reason and that the employer 

intentionally discriminated [or retaliated] [ ] against the employee[,]” Walker, 798 F.3d at 1092 

(internal quotation marks omitted). 

Here, the plaintiff alleges one adverse employment action that relates solely to her 

discrimination claim—namely, her transfer to the GS-14 ASAC position in Naples, Italy, see

Def.’s Facts ¶16; Pl.’s Facts at 7 ¶ 16; Def.’s Mot., Ex. 23 (Agent Transfer Matter – Senior 

Management Assignments (GS-14)) at 2, ECF No. 75-24, one adverse employment action that 

relates solely to her retaliation claim—namely, the cancellation of her leave requests for August 
13

and September 2012, see Def.’s Facts ¶¶ 20, 26; Pl.’s Facts at 8–10 ¶¶ 20, 26, and three adverse 

employment actions that relate to both her discrimination and retaliation claims—namely, her 

temporary transfer to a position in Norfolk, Virginia, see Def.’s Facts ¶ 30; Pl.’s Facts at 12 ¶ 30; 

her transfer to a GS-14 ASAC position in Great Lakes, Illinois, see Def.’s Facts ¶¶ 32–33; Pl.’s 

Facts at 13 ¶¶ 32–33; and her retirement, which she alleges amounted to her constructive 

discharge, see Def.’s Facts ¶ 34; Pl.’s Facts at 13 ¶ 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 temporary transfer to Norfolk, Virginia; (3) the plaintiff’s alleged constructive 

discharge claim; and (4) the cancellation of the plaintiff’s leave requests. 

1. The Plaintiff’s Transfers to Naples, Italy, and Great Lakes, Illinois

First, regarding the plaintiff’s transfers to Naples Italy, see Def.’s Facts ¶ 16; Pl.’s Facts 

at 7 ¶ 16, and later to Great Lakes, Illinois, see Def.’s Facts ¶ 32; Pl.’s Facts at 13 ¶ 32, the 

plaintiff argues that “there are numerous material issues of fact in dispute concerning the age 

discriminatory reasons behind the forced transfers of [the p]laintiff in 2012[,]” Pl.’s Opp’n at 14. 

Specifically, the plaintiff contends that she was “forced [to] transfer[] to . . . Great Lakes, 

Ill[inois,] for retaliatory reasons following her EEO activity at [the] NCIS.” Id. at 7. However,

for the following reasons, the Court concludes that neither of these transfers constitutes a 

cognizable adverse employment action for purposes of the plaintiff’s discrimination and 

retaliation claims. 

 “An adverse employment action is a significant change in employment status, such as 

hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a 

decision causing significant change in benefits.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C. 
14

Cir. 2009) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)). “A ‘lateral 

transfer’—that is, a transfer involving ‘no diminution in pay and benefits’—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 Geleta v. Gray, 645 F.3d 408, 411 (D.C. Cir. 2011)). 

However, where there is merely an “attempt . . . to transfer [the plaintiff] to a [different 

position],” but “the transfer never occur[s,] . . . [the plaintiff] suffer[s] no adverse action as the 

result of the attempt.” Glenn 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 never takes effect, it “result[s]

in no materially adverse consequences . . . such that a reasonable trier of fact could find 

objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002).

 Here, “[o]n January 5, 2012, [the] NCIS released a General Administration Notice 

formally announcing that [the p]laintiff had been selected for transfer to Naples, Italy[,] for an 

ASAC position, with a reporting date of June 2012.” Def.’s Facts ¶ 16; see Pl.’s Facts at 7 ¶ 16. 

However, the plaintiff’s transfer never actually occurred because she “did not report to Naples, 

Italy[,] for the ASAC position[,]” Def.’s Facts ¶ 29; see Pl.’s Facts at 11–12 ¶ 29, and instead 

was sent “on a temporary duty assignment . . . in Norfolk, Virginia[,]” Def.’s Facts ¶ 30; see Pl.’s 

Facts at 12 ¶ 30. Similarly, although “[o]n October 17, 2012, [the] NCIS announced the 

selection of [the p]laintiff to [an] ASAC position in Great Lakes, Illinois, effective November 19, 

2012[,]” Def.’s Facts ¶ 32; see Pl.’s Facts at 13 ¶ 32, the plaintiff “retired effective October 31, 

2012 and [thus] never reported to the Great Lakes position[,]” Def.’s Facts ¶ 34; see Pl.’s Facts at 

13 ¶ 34. Therefore, because these transfers never occurred, these “employment decision[s] do[]

not rise to the level of [ ] actionable adverse action[s]” because they produced no “tangible 

change in the duties or working conditions constituting a material employment disadvantage.” 
15

Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (internal quotation marks omitted). 

Thus, even assuming that the defendant has alleged legitimate, non-discriminatory, and nonretaliatory reasons for these transfers, the Court need not conduct an analysis regarding pretext as 

to these two transfers because the plaintiff has failed to allege sufficient facts to show that they 

constitute adverse employment actions. See Brady, 520 F.3d at 494 (“[W]here an employee has 

suffered an adverse employment action and an employer has asserted a legitimate, nondiscriminatory reason for the decision, the district court need not—and should not—decide 

whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” (first 

emphasis added)). Accordingly, the Court must grant the defendant’s motion as to plaintiff’s 

allegations concerning her June 2012 transfer to Naples, Italy, and her October 2012 transfer to 

Great Lakes, Illinois. 

2. The Plaintiff’s Temporary Transfer to Norfolk, Virginia

 Second, regarding the plaintiff’s temporary transfer to Norfolk, Virginia, following her 

failure to report to the ASAC position in Naples, Italy, see Def.’s Facts ¶¶ 29–30; see Pl.’s Facts 

at 11–12 ¶¶ 29–30, the plaintiff alleges that she “was sent for temporary assigned duty by [the] 

NCIS without request to Norfolk, Virginia, where [she] was not given any meaningful work by 

[the] NCIS, [and] was stationed to sit in a conference room as there was no office for her,” Pl.’s 

Opp’n at 18.6

 However, the Court concludes that this transfer also does not amount to an 

adverse employment action for purposes of the plaintiff’s claims.

6 The plaintiff also alleges that this was a GS-13 position, “which downgraded [her] from GS-14.” Pl.’s Opp’n 

at 18. However, this is clearly controverted by the record—namely, the Notice of Personnel Action regarding the 

plaintiff’s retirement, filed while she was stationed in Norfolk, Virginia, which indicates that she remained at the 

GS-14 pay grade at that time. See Def.’s Mot., Ex. 24 (Notice of Personnel Action (Oct. 31, 2012)) at 1, ECF 

No. 75-25 (indicating “14” under “Grade or Level”). Therefore, there is no genuine dispute of material fact as to the 

plaintiff’s GS-14 pay grade during her assignment in Norfolk, Virginia. 
16

 As noted earlier, “[a]n employment decision does not rise to the level of an actionable 

adverse action . . . unless there is a tangible change in the duties or working conditions 

constituting a material employment disadvantage.” Stewart, 275 F.3d at 1134 (internal quotation 

marks omitted). And, “[a] ‘lateral transfer’ . . . may qualify as a materially adverse employment 

action if it ‘result[s] in materially adverse consequences affecting the terms, conditions, or 

privileges of the plaintiff’s employment.’” Mamantov, 898 F. Supp. 2d at 128 (quoting Geleta, 

645 F.3d at 411). However, “a temporary or ‘lateral transfer or the denial thereof, without 

more, does not constitute an adverse employment action.’” Singleton v. Potter, 402 F. Supp. 2d 

12, 39 (D.D.C. 2005) (quoting Stewart, 275 F.3d at 1135). “Transfers to . . . less desirable[] 

locations ‘without more[,] do not constitute adverse employment actions[,]” Douglas v. D.C. 

Hous. Auth., 981 F. Supp. 2d 78, 89 (D.D.C. 2013) (quoting Ndondji v. InterPark Inc., 768 F. 

Supp. 2d 263, 282 (D.D.C. 2011)), but a transfer which results in “a reduction in 

responsibilities[,]” Loya v. Sebelius, 840 F. Supp. 2d 245, 256 (D.D.C. 2012), “significantly

different responsibilities,” Taylor, 350 F.3d at 1293, or “otherwise affect[s] a term or condition 

of [the plaintiff’s] employment[,]” Lee v. Mabus, 955 F. Supp. 2d 33, 47 (D.D.C. 2013), may

amount to an adverse employment action. Moreover, “the plaintiff carries the burden of 

establishing . . . [that he or] she suffered a cognizable adverse employment action[.]” Wheeler v. 

Georgetown Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir. 2016). 

Here, the plaintiff describes her temporary transfer to Norfolk, Virginia, as “a do-nothing 

position[,]” Pl.’s Opp’n at 21, to which she was transferred “despite the fact that there was no 

work for [her] . . . , she was not given any meaningful work by [the] NCIS to perform while 

[there], [and she] was stationed to sit in a conference room as there was no office for her, which 

was unusual,” id. at 21–22. Although a transfer which results in “a reduction in 
17

responsibilities[,]” Loya, 840 F. Supp. 2d at 256, may amount to an adverse employment action, 

a “temporary reduction [in work] is insufficient to constitute an adverse employment action[,] . . 

. particularly where . . . the alleged reduction had no effect on [the plaintiff’s] pay or benefits[,]” 

Ng v. Lahood, 952 F. Supp. 2d 85, 96 (D.D.C. 2013) (emphasis added). In this case, the 

plaintiff’s assignment in Norfolk, Virginia, was a lateral transfer, see supra note 6 (describing the 

fact that, when the plaintiff was transferred to Norfolk, Virginia, she was transferred at the same 

pay grade, i.e., laterally), and a temporary assignment, only lasting approximately four months 

from soon after June 30, 2012, to her retirement in October 2012. See Def.’s Facts ¶ 30 (stating 

that the plaintiff was transferred to Norfolk, Virginia, after she did not report to her ASAC 

position in Naples, Italy); Pl.’s Facts at 12 ¶ 30; Def.’s Mot., Ex. 7 (Declaration of John A. 

Hogan (“Hogan Decl.”)) ¶ 27, ECF No. 75-8 (specifying that the plaintiff “did not report as 

required to the Naples, Italy ASAC position on June 30, 2012”); Def.’s Facts ¶ 32 (“On October 

17, 2012, [the] NCIS announced the selection of [the p]laintiff to [an] ASAC position in Great 

Lakes, Illinois, effective November 19, 2012.”); id. ¶ 34 (stating that the plaintiff “retired 

effective October 31, 2012”); see also Pl.’s Facts at 13 ¶¶ 32, 34. 

 Thus, even if the plaintiff proved that her work was reduced while she was in Norfolk, 

see Pl.’s Opp’n at 18–19, 21, this reduction was “insufficient to constitute an adverse 

employment action[.]” Ng, 952 F. Supp. 2d at 96 (finding a plaintiff’s reduction in work did not 

constitute an adverse employment action where the plaintiff was given a “sixty-day assignment” 

and asserted that “there was little if any work waiting for him upon his arrival”). Accordingly, 

the Court must grant the defendant’s motion as to the plaintiff’s allegations concerning her 

temporary transfer to Norfolk, Virginia.
18

3. The Plaintiff’s Alleged Constructive Discharge Claim

Third, regarding the plaintiff’s alleged constructive discharge, she argues that she can 

show her retirement amounted to a constructive discharge because she “was subjected to 

multiple discriminatory forced transfers that uprooted her life and created an intolerable 

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 discharge can serve as an adverse [employment] action.” Hill v. Gray, 

28 F. Supp. 3d 47, 60 (D.D.C. 2014). However, “[a]n employee’s resignation or retirement is 

presumed to be voluntary and not an adverse action, unless the employee overcomes the 

presumption by showing that the resignation or retirement was involuntary, and therefore 

qualifies as a constructive discharge.” Id. at 61. “The test for constructive discharge is an 

objective one: whether a reasonable person in the employee’s position would have felt compelled 

to resign under the circumstances.” Aliotta v. Bair, 614 F.3d 556, 566 (D.C. Cir. 2010). And, 

“[t]o establish . . . constructive discharge, [a] plaintiff must establish that the employer 

deliberately made working conditions intolerable and drove [him or] her into an involuntary 

resignation [or retirement].” Downey v. Isaac, 622 F. Supp. 1125, 1132 (D.D.C. 1985), aff’d, 

794 F.2d 753 (D.C. Cir. 1986). Moreover, “[c]onstructive discharge [ ] requires a finding of 

discrimination and the existence 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) (concluding that “a continuous pattern of discriminatory treatment 

encompassing deprivation of opportunities for promotion, lateral transfer, and increased 

educational training, existing over a period of several years” constituted sufficient “aggravating

factors” sufficient to support a finding of constructive discharge)).
19

Here, the plaintiff “retired effective October 31, 2012[,]” Def.’s Facts at 5, ¶ 34; see Pl.’s 

Facts at 13 ¶ 34, and alleges that this amounted to “involuntary retirement[,]” Pl.’s Opp’n at 19, 

due to “multiple discriminatory forced transfers[,]” id. at 18–19.7 However, as the Court has 

previously noted, see supra Section III.B.2, “[t]ransfers to . . . less desirable[] locations ‘without 

more[,] do not constitute adverse employment actions[,]’” Douglas, 981 F. Supp. 2d at 89 

(quoting Ndondji, 768 F. Supp. 2d at 282). Thus, it follows that an allegation of constructive 

discharge, founded upon the occurrence of multiple lateral transfers which do not constitute 

adverse employment actions themselves, see Pl.’s Opp’n at 19 (“Here, the material facts in 

dispute demonstrate that [the p]laintiff was subjected to forced transfers three [ ] times, when 

[the d]efendant was aware [that the p]laintiff lived in the Washington, DC area and had [a] 

spouse working on a fellowship in Washington, DC.”), would also not amount to an adverse 

employment action. See Douglas, 981 F. Supp. 2d at 89. Furthermore, even if the Court 

concluded that these lateral transfers constituted adverse employment actions, the plaintiff has 

not alleged sufficient facts to demonstrate a workplace so “intolerable” as to “dr[i]ve her into an 

involuntary [retirement,]” Downey, 622 F. Supp. at 1132. Compare, e.g., Pl.’s Opp’n at 18–20 

(asserting the plaintiff’s retirement amounted to a constructive discharge based only upon her 

multiple lateral transfers), with Clark, 665 F.2d at 1173 (concluding that the plaintiff’s retirement 

7 The plaintiff also makes a cursory reference to the defendant’s “creat[ion] of an intolerable workplace.” Pl.’s 

Opp’n at 19. However, to the extent that the plaintiff alleges that, once temporarily transferred to Norfolk, Virginia, 

she was “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 that they would “cause a reasonable person in 

the [plaintiff]’s position . . . [to] fe[el] compelled to resign under the circumstances[,]” Aliotta, 614 F.3d at 566. 

This is because, as the Court has previously noted, see supra Section III.B.2, a “temporary reduction [in work] is

insufficient to constitute an adverse employment action[,] . . . particularly where . . . the alleged reduction had no 

effect on [the plaintiff’s] pay or benefits[,]” Ng, 952 F. Supp. 2d at 96. Thus, just as the Court concludes that these 

working conditions at the plaintiff’s Norfolk, Virginia assignment do not rise to the level of an adverse employment 

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 retirement constituted a constructive 

discharge, see Aliotta, 614 F.3d at 566. 
20

amounted to a constructive discharge where there existed “a continuous pattern of discriminatory 

treatment encompassing deprivation of opportunities for promotion, lateral transfer, and 

increased educational training, existing over a period of several years”); see also Forkkio, 306 

F.3d at 1131 (contrasting “[p]urely subjective injuries, such as dissatisfaction with a 

reassignment,” which “are not adverse actions[,]” with “‘reassignment with significantly 

different responsibilities, 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 

alteration in original)). 

Therefore, the plaintiff has not “overcome[] the presumption . . . that [her] . . . retirement 

was []voluntary[,]” Hill, 28 F. Supp. 3d at 60, and the Court concludes that she has failed to 

adequately allege constructive discharge as an adverse employment action in this case. 

Accordingly, the Court must grant the defendant’s motion as to plaintiff’s constructive discharge 

allegations. 

4. The Cancellation of the Plaintiff’s Leave Requests

Finally, regarding the plaintiff’s cancelled leave requests, see Def.’s Facts ¶ 26; Pl.’s 

Facts at 9–10 ¶ 26, she argues that “[the d]efendant’s management representatives . . . cancelled 

[the p]laintiff’s leave when [she] complained to the NCIS EEO office about discrimination[,]” 

Pl.’s Opp’n at 7, and thus, that these cancelled leave requests were retaliatory, see id. For the 

following reasons, the Court concludes that the plaintiff has failed to allege a prima facie case of 

retaliation based upon her cancelled leave requests. 

 As the Court has previously noted, see supra Section III.B, once a defendant provides a 

legitimate, non-retaliatory reason for the adverse employment action at issue, “the question 

whether [the plaintiff] actually made out a prima facie case is ‘no longer relevant’ and thus 
21

‘disappear[s]’ and ‘drops out of the picture[,]’” Brady, 520 F.3d at 493 (quoting St. Mary’s 

Honor Ctr., 509 U.S. at 510, 511). The plaintiff must then prove that the defendant’s proffered 

reason was a pretext for retaliation, see McDonnell Douglas, 411 U.S. at 805, and produce 

“sufficient evidence for a reasonable jury to find that the employer’s asserted non[-retaliatory] [ ] 

reason was not the actual reason and that the employer intentionally [retaliated] [ ] against the 

employee[,]” Walker, 798 F.3d at 1092 (internal quotation marks omitted). However, this

Circuit has ruled that a court “can resolve that question in favor of the employer based either 

upon the employee’s failure to rebut its explanation or upon the employee’s failure to prove an

element of [his or] her [prima facie] case[.]” Baylor v. Powell, 847 F. App’x 7, 8 (D.C. Cir. 

2021) (quoting Taylor v. Solis, 571 F.3d 1313, 1320 n.* (D.C. Cir. 2009)). 

To establish a prima facie case of retaliation, “[the] plaintiff must show: 1) that [he or 

she] engaged in a statutorily protected activity; 2) that the employer took an adverse personnel 

action; and 3) that a causal connection existed between the two.” Mitchell v. Baldridge, 759 

F.2d 80, 86 (D.C. Cir. 1985). Regarding the third component, “[a] plaintiff can establish [a]

causal connection . . . ‘by showing that the employer had knowledge of the employee’s protected 

activity, and that the adverse personnel action took place shortly after that activity[,]’” Moran v. 

U.S. Capitol Police Bd., 887 F. Supp. 2d 23, 35 (D.D.C. 2012) (quoting Mitchell, 759 F.2d 

at 86), i.e., the “‘knowledge’ and ‘timing’ requirements.” Id. Furthermore, “[t]o fulfill the 

knowledge requirement, the official responsible for ordering the employee’s adverse 

employment action must have known about the protected activity.” Id.; see Clark Cnty. Sch. 

Dist. v. Breeden, 532 U.S. 268, 273 (2001) (concluding that the plaintiff had not established a 

prima facie case of retaliation where “there [was] no indication that” the official who formally 
22

proposed the plaintiff’s adverse employment action “knew about [the plaintiff’s protected 

activity]”).

Here, the defendant has provided a legitimate, non-retaliatory reason for the plaintiff’s 

cancelled leave requests—specifically, that “upon the advice of Human Resources, Special 

Agent Lascell cancelled [the p]laintiff’s leave requests because he would no longer serve as her 

supervisor during the period of the annual leave request for August and September 2012[,]” in 

light of the plaintiff’s impending transfer to Norfolk, Virginia. Def.’s Mem. at 15–16. And, the 

plaintiff has failed to allege any facts showing that Lascell—the relevant decisionmaker for 

purposes of the cancellation of the plaintiff’s leave requests, see Def.’s Facts ¶¶ 20, 26; Pl.’s 

Facts at 8–10 ¶¶ 20, 26—knew of the plaintiff’s EEO activity at the time when he cancelled the 

plaintiff’s leave requests. See generally Pl.’s Facts; Pl.’s Opp’n. Rather, the only official 

identified as being aware of the plaintiff’s EEO activity during the relevant time period was 

Deputy Assistant Director John Hogan, see Def.’s Facts ¶ 27; Pl.’s Facts at 10 ¶ 27; see generally

Pl.’s Facts; Pl.’s Opp’n, who is not alleged as having played any role in the cancellation of the 

plaintiff’s leave requests, see Def.’s Facts ¶¶ 20, 26; Pl.’s Facts at 8–10 ¶¶ 20, 26; see generally

Pl.’s Facts; Pl.’s Opp’n. 

Thus, there are no facts upon which a factfinder could conclude that “the official 

responsible for ordering the [cancellation of the plaintiff’s leave requests] must have known 

about [her] protected activity.” Moran, 887 F. Supp. 2d at 35. Therefore, because the plaintiff 

has not alleged facts which “fulfill the knowledge requirement[,]” Moran, 887 F. Supp. 2d at 35, 

of a prima facie case of retaliation, the Court must grant the defendant’s motion as to the 

plaintiff’s allegations concerning the cancellation of her leave requests. See Baylor, 847 F. 

App’x at 8 (noting that a court “can resolve [the third step in the McDonnell Douglas burden-
23

shifting analysis] in favor of the employer based either upon the employee’s failure to rebut its 

explanation [for the adverse employment action] or upon the employee’s failure to prove an

element of [his or] her [prima facie] case”) (quoting Taylor, 571 F.3d at 1320 n.*)). And, 

because the plaintiff has failed to allege facts from which a reasonable jury could conclude that 

she suffered adverse employment actions as a result of her transfers, or as the result of a 

constructive discharge, see Brady, 520 F.3d at 494 (treating the question of whether a plaintiff 

has suffered an adverse employment action as a threshold issue)—which, combined with the 

plaintiff’s cancelled leave requests, form the basis for the plaintiff’s discrimination and 

retaliation claims—the Court concludes that it must grant the defendant’s motion as to all of the 

plaintiff’s remaining claims.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that it must grant the defendant’s motion 

for summary judgment. 

SO ORDERED this 23rd day of June, 2023.8 

 

 REGGIE B. WALTON 

 United States District Judge 

8 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.