United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 23-5169 September Term, 2023

FILED ON: JUNE 21, 2024 

DORIAN VAN HORN, 

APPELLANT

v. 

CARLOS DEL TORO, IN HIS OFFICIAL CAPACITY

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cv-38) 

Before: SRINIVASAN, Chief Judge, WILKINS and WALKER, Circuit Judges. 

J U D G M E N T

This appeal was considered on the record from the United States District Court for the 

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

the issues full consideration and has determined that they do not warrant a published opinion. See 

D.C. Cir. R. 36(d). It is hereby 

ORDERED AND ADJUDGED that the judgment of the district court be AFFIRMED in 

part and VACATED in part and that the case be REMANDED for further proceedings consistent 

with this judgment. 

I.

A.

Dorian Van Horn was employed at the Naval Criminal Investigative Service (NCIS) from 

1987 until late 2012. From 2002 onward, she worked in NCIS’s Washington, D.C. office. 

In January 2012, when Van Horn was 47 years old, she was assigned to a position in 

NCIS’s Naples, Italy office. She had not applied for the transfer and requested that it be 

reconsidered, citing the fact that her husband’s job required him to be in Washington, D.C. for the 

next two years. Accepting the Naples position thus would have forced her to live apart from her 
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husband and their children to be away from one parent during that time. Before receiving a formal 

response, Van Horn announced that she could not accept the Naples position because she planned 

to retire that September. 

Having declared her intention to retire in September, Van Horn requested leave for most 

of August and September. Her supervisor, Matthew Lascell, granted her request. Around that

time, Van Horn contacted an Equal Employment Opportunity (EEO) counselor, initiating the 

process to bring an age discrimination complaint challenging her transfer to Naples. 

John Hogan, NCIS’s Assistant Director of Human Resources, eventually denied Van 

Horn’s request for reconsideration of the Naples transfer. He left Van Horn with three options: 

(i) report to Naples, (ii) retire by July 31, 2012, or (iii) stay with NCIS and accept some other 

transfer because NCIS had already backfilled her current position in the District of Columbia. In 

late June, after Hogan rendered his decision, Lascell rescinded his approval of Van Horn’s August 

and September leave. He did so, on his telling, because he would no longer be Van Horn’s 

supervisor after the end of July.

Van Horn failed to report to Naples as required. NCIS thus assigned her to a temporary 

detail in Norfolk, Virginia. Van Horn’s Norfolk supervisor approved the leave she had previously 

requested, and Van Horn therefore took most of August and September off. Instead of retiring at 

the end of September, though, Van Horn returned to the agency. At that point, she was assigned 

to an opening in Great Lakes, Illinois. Rather than accept the Great Lakes transfer, Van Horn 

retired, effective October 31, 2012. 

B.

Van Horn filed this lawsuit in January 2018. Van Horn v. Del Toro, No. 18-cv-38, 2023 

WL 4156742, at *2 (D.D.C. June 23, 2023). The operative complaint asserts claims under the Age 

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., for (i) hostile work 

environment; (ii) disparate treatment based on the transfer to Naples; (iii) disparate treatment based 

on the transfer to Norfolk; (iv) disparate treatment based on the transfer to Great Lakes; (v) 

retaliation for filing an EEO complaint, with the retaliatory acts being the Norfolk and Great Lakes 

transfers and the temporary cancellation of her leave; and (vi) constructive discharge. The district 

court dismissed Van Horn’s hostile work environment claim at the pleading stage but otherwise 

allowed the case to proceed. Van Horn, 2023 WL 4156742, at *2.

Following discovery, the court granted summary judgment to NCIS on all remaining 

claims. Applying a line of our cases beginning with Brown v. Brody, 199 F.3d 446 (D.C. Cir. 

1999), the court held that a lateral transfer is not a cognizable adverse employment action under 

the ADEA unless accompanied by some other “objectively tangible harm” such as a diminution in 

pay or benefits. Van Horn, 2023 WL 4156742, at *6–7 (citation and internal quotation marks 

omitted). The court thought the Norfolk transfer fell short of that standard, despite Norfolk’s 
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location away from the District of Columbia and the fact that Van Horn described her Norfolk 

assignment as one in which she “was not given any meaningful work.” Van Horn Decl. ¶ 12, J.A. 

267; Van Horn, 2023 WL 4156742, at *7. And the court likewise rejected the Naples and Great 

Lakes transfer claims, reasoning that, because those transfers “never occurred,” Van Horn did not 

experience a “material employment disadvantage.” Van Horn, 2023 WL 4156742, at *6 (citation 

and internal quotation marks omitted). According to the court, those conclusions required granting 

summary judgment to NCIS as to both Van Horn’s discrimination claims and her retaliation 

claims. Id.

The court next held that Van Horn’s alleged constructive discharge also was not an adverse 

employment action. That action, the court reasoned, was premised “upon the occurrence of 

multiple lateral transfers which do not constitute adverse employment actions themselves.” Id. at 

*8. The court added that “even if . . . the[] lateral transfers constituted adverse employment 

actions,” Van Horn still had not shown enough for a constructive discharge. Id.

Given the court’s various adverse-action determinations against Van Horn, her retaliation 

claim remained live only to the extent that it was predicated on the temporary cancellation of her

leave, an action that the court had yet to address. The court granted summary judgment to NCIS 

on that claim as well. In the court’s judgment, there was no evidence that Lascell was aware of 

Van Horn’s EEO activity at the time he cancelled her leave, so his action could not be understood 

as retaliation for that activity. Id. at *9–10. This appeal followed.

II.

A.

The parties agree that the district court applied the wrong adverse-action standard to Van 

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

199 F.3d 446 (D.C. Cir. 1999), line of decisions. In Chambers v. District of Columbia, 35 F.4th 

870, 873–82 (D.C. Cir. 2022) (en banc), however, our en banc court overruled Brown and held 

that Title VII does not require a plaintiff to demonstrate that she suffered objectively tangible harm 

to sustain a discrimination claim related to a forced transfer. Instead, we held, a plaintiff need only 

show that her employer discriminated against her with respect to the “terms, conditions, or 

privileges” of her employment. Id. at 875. Chambers held specifically that a “job transfer” 

satisfies that standard. Id. at 874. 

The Supreme Court then considered the same issue in Muldrow v. City of St. Louis, 144 S. 

Ct. 967 (2024). Muldrow clarified that Title VII requires an employee to show only that a job 

transfer “brought about some ‘disadvantageous’ change in an employment term or condition.” Id.

at 974 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). But, the Court 

emphasized, “[w]hat the transferee does not have to show . . . is that the harm incurred was 

significant”—“[o]r serious, or substantial, or any other similar adjective.” Id. (citation and internal 
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quotation marks omitted). Muldrow recognized that “[m]any forced transfers” will clear that bar. 

Id.

All three transfers at issue here constitute adverse employment actions under Muldrow. An 

employee who is forced to take an unwanted transfer to a new job in another state or across the 

world suffers a “disadvantageous change” to a term or condition of her employment. Muldrow, 

144 S. Ct. at 974 (citation and internal quotation marks omitted). And Van Horn also avers that 

she was not given any meaningful work to do in Norfolk. That, too, is a cognizable harm within 

the scope of Muldrow. 

It is of no consequence that Muldrow was a private-sector Title VII case whereas this is a 

federal-sector ADEA case. We have always interpreted Title VII and the ADEA identically as far 

as adverse actions go, and we have likewise always treated the private-sector and federal-sector 

provisions of those statutes alike in that respect. See George v. Leavitt, 407 F.3d 405, 410–11 

(D.C. Cir. 2005); Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008); Miller v. Clinton, 

687 F.3d 1332, 1336–37 (D.C. Cir. 2012). Understandably, no one asks us to do otherwise here.

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

were never effectuated. As Singletary v. Howard University, 939 F.3d 287, 300 (D.C. Cir. 2019), 

recognized, an adverse employment action becomes cognizable when the employer provides 

notice of the action to the employee, “regardless of whether the employer follows through.” See 

also Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (“The proper focus is upon the time of the 

discriminatory acts, not upon the time at which the consequences of the acts became most painful.”

(cleaned up)); Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1177 (10th Cir. 2011) 

(Gorsuch, J.) (“[A] claim accrues when the disputed employment practice—the demotion, transfer, 

firing, refusal to hire, or the like—is first announced to the plaintiff.”). Accordingly, the Naples 

and Great Lakes transfers were adverse employment actions on announcement, no matter that Van 

Horn never went to Naples and retired rather than relocate to Great Lakes. 

Because the transfers Van Horn challenges are adverse actions under the ADEA, we vacate 

the district court’s grant of summary judgment to NCIS on Van Horn’s discrimination claims and 

remand for the district court to consider the second step of the analysis: whether those adverse 

actions were motivated by unlawful age discrimination. 

B.

The district court’s application of the wrong adverse-action standard to the transfers also 

led it to err in holding that there was no basis for Van Horn’s constructive discharge claim. As 

explained, the transfers were adverse actions. So on remand, the district court must assess whether 

the transfers were motivated by unlawful discrimination before it can determine whether they can 

serve as a predicate for the constructive discharge claim. To be sure, the court also stated in passing 

that Van Horn could not make out a constructive discharge claim even assuming the transfers were
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adverse actions. Van Horn, 2023 WL 4156742, at *8. But the court did not elaborate on that 

statement, and the court cited in support of it, among other decisions, Forkkio v. Powell, 306 F.3d 

1127, 1130–31 (D.C. Cir. 2002), which turned on the application of the now-abrogated Brown

standard. We thus cannot discern the basis for the court’s conclusion that Van Horn could not 

make out a constructive discharge claim even if the transfers were adverse actions. That 

conclusion, moreover, is far from self-evident: as we have explained, “an illegal reassignment, if 

it produces sufficient hardship and causes an unwilling resignation, can support [a constructive 

discharge] claim.” Frazier v. Merit Sys. Prot. Bd., 672 F.2d 150, 159 n.29 (D.C. Cir. 1982).

C.

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

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

that it must be the kind of action that could “dissuade[] a reasonable worker from making or 

supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 

68 (2006) (internal quotation marks omitted); cf. Muldrow, 144 S. Ct. at 976 (adverse-action 

standard for retaliation claims differs from standard for discrimination claims). Both transfers 

meet that standard: a transfer to a different state, even if temporary, is not a “[m]inor” or “trivial” 

burden, Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013) (citations and internal quotation 

marks omitted), or so a reasonable jury could conclude, particularly given Van Horn’s family 

situation. We therefore vacate the district court’s grant of summary judgment to NCIS on Van 

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

D.

Finally, while we otherwise set aside the district court’s grant of summary judgment to 

NCIS, we affirm the grant of summary judgment to NCIS as to Van Horn’s retaliation claim insofar 

as it is predicated on the temporary cancellation of her leave. Lascell cancelled Van Horn’s leave 

on June 28, 2012, and his testimony is that he did not become aware of Van Horn’s EEO activity 

until “late July or early August.” Lascell Decl. p. 2, J.A. 604. While Van Horn contends that 

Lascell spoke to Hogan before cancelling her leave and that Hogan “had awareness of” her EEO 

complaint, Van Horn Reply Br. 11, Hogan avers that he did not become aware of Van Horn’s EEO 

activity until July 24—after Lascell cancelled Van Horn’s leave, Hogan Decl. ¶ 26, J.A. 530–31. 

Van Horn cites no evidence to the contrary. As a result, there is no genuine factual dispute that 

neither Lascell nor Hogan was aware of Van Horn’s protected activity when Lascell cancelled her

leave. And without knowledge that Van Horn had engaged in protected activity, Lascell could not 

have retaliated against her for that activity. See Talavera v. Shah, 638 F.3d 303, 313 (D.C. Cir. 

2011); Hairston v. Vance-Cooks, 773 F.3d 266, 275 (D.C. Cir. 2014).

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

directed to withhold issuance of the mandate until seven days after resolution of any timely petition 

for rehearing or rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41.
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Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk 

BY: /s/

Daniel J. Reidy

Deputy Clerk