Horn v. Carlos Del Toro

1

DORIAN VAN HORN, Plaintiff, v. CARLOS DEL TORO, in his official capacity as Secretary, U.S. Department of the Navy, Defendant.

Civil Action No. 18-38 (RBW)

United States District Court, District of Columbia

June 23, 2023

MEMORANDUM OPINION

REGGIE B. WALTON, UNITED STATES DISTRICT JUDGE.

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 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 ¶ 2 ¶ 3. At that time, she was “over the age of [forty,]” Def.'s Facts ¶ 3; see Pl.'s Facts ¶ 2 ¶ 3, and specifically, she was “[forty-seven] years old[,]” Pl.'s Facts ¶ 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 ¶ 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 ¶ 23 ¶ 33; see Def.'s Resp. to Pl.'s Facts ¶ 36-37 ¶ 33. During her employment, the plaintiff was “subject to the Agency's Mobility Program[,]” Def.'s Facts ¶ 5; see Pl.'s Facts ¶ 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 ¶ 2, ¶ 13; see Pl.'s Facts ¶ 6 ¶ 13. Following notification of her impending transfer to Naples, Italy, “[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 ¶ 3, ¶ 14; see Pl.'s Facts ¶ 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 ¶ 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 ¶ 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 ¶ 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 ¶ 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 ¶ 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 ¶ 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 ¶ 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) the transfer process, or[] 2) a Humanitarian/Hardship request.'” Def.'s Facts ¶ 23; see Pl.'s Facts ¶ 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 ¶ 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 ¶ 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 ¶ 10 ¶ 27.

The plaintiff “did not report to Naples, Italy[,] for the ASAC position[,]” Def.'s Facts ¶ 29; see Pl.'s Facts ¶ 11-12 ¶ 29, and instead was sent “on a temporary duty assignment . . . in Norfolk, Virginia[,]” Def.'s Facts ¶ 30; see Pl.'s Facts ¶ 12 ¶ 30. Once it was clear that the plaintiff would be temporarily reassigned, her supervisor at [the] NCIS Headquarters, Lascell, “cancelled [the plaintiff's leave requests[,]” Def.'s Facts ¶ 26; see Pl.'s Facts ¶ 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 ¶ 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 ¶ 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 ¶ 13 ¶ 34.

B. Procedural Background

On January 7, 2018, the plaintiff filed her Complaint in this case, see Complaint (“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 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).

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