Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—D.D.C.: NCIS agent’s age bias claim over Italy transfer advances on remand but other transfer claims fail, (Jul 17, 2026)

By Kathleen Kapusta, J.D.

The employee alleged that the Navy discriminated against her by involuntarily transferring her from a position at NCIS headquarters in Washington, D.C., to a position in Naples, Italy, shortly before she was eligible to retire.

On remand from the D.C. Circuit, a federal court in the District of Columbia found a former Naval Criminal Investigative Services (NCIS) employee sufficiently established that her employer’s stated reasons for transferring her from D.C. headquarters to a position in Naples, Italy, several months before she was eligible for retirement, were pretext for age discrimination. She failed, however, to show pretext as to her subsequent temporary assignment to Norfolk, Virginia, or her transfer to Illinois or that she was constructively discharged, said the court, granting in part and denying in part her employer’s summary judgment motion (Van Horn v. Cao, No. 18-38 (RBW) (D.D.C. July 16, 2026)).

The employee, who began working for NCIS as a special agent in 1987, became eligible for retirement at the end of July 2012 when she would have 25 years of service. Pursuant to NCIS’s mobility program, all new hires in the special agent career field must sign a mobility agreement acknowledging they understand one or more overseas assignments and periodic transfers within the continental United States will be required throughout their career.

Naples position. In January 2012, while the employee was working in the Criminal Investigations Directorate at NCIS Headquarters in Washington, D.C., agency executives met to discuss a vacant Assistant Special Agent in Charge (ASAC) position in Naples, Italy. Although five special agents, ranging in age from 41 to 53, had voluntarily bid on the vacancy, the agency determined that they were not the best fit for the position.

Time in place list. NCIS then consulted the “time in place” list, which shows how long employees have remained in a particular geographic area, for a qualified candidate. The list does not show an employee’s age or retirement eligibility date, but it does indicate an employee’s mandatory retirement date.

Although the employee was fifth on the list, the agency determined that the individuals ahead of her were not suitable for the transfer for various reasons including that one was within two years of mandatory retirement, another had been selected during the same cycle to transfer to a position in Hawaii, and another had been selected to transfer to a Northwest Field Office position. According to NCIS, the employee was ultimately selected based on, among other things, her experience as a criminal investigator and supervisor, her employment in a GS-14 leadership position, and her lengthy tenure, which exceeded that of any of the bidders.

Retirement. The employee was informed in January that she had been selected for the transfer and directed to report to Naples in June, one month before she would have been eligible to retire. After her requests for reconsideration were denied, she told her supervisor she intended to retire in September, and she refused to report to Naples. She was then given a temporary duty assignment in Norfolk, Virginia, and, in October, she was selected to fill an ASAC position in Illinois effective in November. Rather than report to that position, she retired effective October 31.

Procedural history. The employee then sued under the ADEA for age discrimination and retaliation and the court, in a June 2023 order, granted summary judgment to her employer. On appeal, the D.C. Circuit, noting that her transfers to Naples, Norfolk, and Illinois constituted adverse employment actions under Muldrow v. City of St. Louis, reversed in part and remanded for a determination of whether the transfers were motivated by unlawful age discrimination; if so, whether they could serve as predicates for her constructive discharge claim; and whether the Norfolk and Illinois transfers were retaliatory.

Naples transfer. Because the agency did not contest that the employee established a prima facie case and it advanced nondiscriminatory reasons for the Naples transfer, the court, on remand, turned to whether she established sufficient evidence of pretext. While the employee pointed to seven purportedly disputed fact issues to show the agency’s proffered reasons were pretextual, the court found a genuine issue of material fact as to only one—whether the agency deviated from NCIS policy in selecting her for the Naples position.

Under NCIS’s mobility program, to which the parties agreed the employee was subject, employees serving in a headquarters assignment for less than two years are not subject to an unrequested move. According to the employee, her February 2011 promotion from a GS-13 special agent position in D.C. to a GS-14 special agent position in the same location was the start of a new “headquarters assignment” for purposes of the mobility program and thus she had been serving in a headquarters assignment for less than two years when she was involuntarily transferred.

For its part, NCIS countered that her last permanent change of station occurred in 2002 and thus when she was selected for the transfer, she had served in a headquarters assignment for NCIS for 10 years. Although it submitted an affidavit from the HR assistant director in support of this interpretation, the court found a fact issue as to whether the employer deviated from NCIS policy in selecting the employee for the Naples position. Accordingly, it denied summary judgment on her claim premised on the Naples transfer.

Norfolk assignment. In support of its decision to temporarily assign the employee to Norfolk after she refused to report to Naples, the agency argued that she could not continue her headquarters assignment because a different employee had already assumed that position and the Norfolk position was the only open GS-14 position. The employee, however, pointed to comments by the person to whom she reported in Norfolk that he was told he needed to “take one for the team” and he “did not think it was a prudent idea” to temporarily assign her to his staff. But neither of these comments, said the court, suggested the employee was assigned to Norfolk because of her age.

And while the employee also claimed she was not given any meaningful work in Norfolk and the temporary transfer was to “a do-nothing position,” the record showed that while it took several days to get the IT systems to work, after that she was able to integrate into the staff and “was a team player in all tasks she was assigned.” Thus, the court granted summary judgment against her claim premised on this transfer.

Illinois transfer. As to her Illinois transfer, the agency asserted that she had indicated she would retire in September 2012 but once September 2012 passed and she had not retired, she was the only Special Agent without a validated billet within the NCIS and thus when a vacancy arose in Illinois, she was selected for the position over two bidders. While the employee pointed to comments by another NCIS employee—who allegedly been told it was time for him to retire—that “the timing of her selection and official transfer to Great Lakes, [Illinois] appears imprudent,” this statement had no connection to her age. Finding insufficient evidence of pretext, the court granted summary judgment against this claim as well.

Constructive discharge. Turning to the employee’s claim the forced transfers “constructively terminat[ed] her employment because of and/or based on her age, when she was forced to resign her position,” the court pointed out that it had already found the transfers to Norfolk and Illinois were not motivated by unlawful age discrimination and thus they could not serve as a predicate for her constructive discharge claim. As to her selection for the Naples vacancy, the court found she failed to show she was subjected to a workplace so intolerable it drove her into an involuntary retirement.

The number of bidders who actively sought to transfer to Naples, the court observed, suggested that the position was desirable to at least some employees. Moreover, when she refused the assignment, she was told she could bid on other positions she found more desirable as long as they required a permanent change of station move. And while NCIS announced GS-14 vacancies in Hawaii, headquarters, and San Diego, she did not bid on any of these vacancies but instead retired. Accordingly, the court granted summary judgment against this claim as well.

The case is No. 18-38 (RBW).

Judge: Walton, R.

Attorneys: Neil L. Henrichsen (Henrichsen Law Group) for Dorian Van Horn. William Thanhauser, U.S. Department of Justice, for Hung Cao.

Cases: AgeDiscrimination Discrimination Retaliation PublicEmployees DistrictofColumbiaNews