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Hogan v. Hayden

United States District Court, District of Columbia

September 11, 2019

PAULA SUZANNE HOGAN, Plaintiff,
v.
CARLA HAYDEN, Librarian of Congress Defendant.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE.

         Plaintiff Paula Suzanne Hogan, a former employee of the Library of Congress (the Library), brings this suit against Defendant, Carla Hayden, [1] Librarian of Congress, alleging gender discrimination, a hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1); and pay discrimination under the Equal Pay Act, 29 U.S.C. § 206(d)(1).

         Currently pending before the court is the Library's Motion for Summary Judgment. Def.'s Mot. Summ. J., ECF No. 20. For the reasons set forth below, the court will grant the motion.

         I. BACKGROUND

         The Library hired Hogan in 2004. See Def.'s St. of Material Facts As To Which There Is No. Dispute (Def.'s SOF), ECF No. 20-2 ¶ 1.[2] In 2012, Hogan began to manage the Library's Gershwin Prize for Popular Song (Gershwin Prize). Id. ¶¶ 17, 22. On August 6, 2015, the Library terminated Hogan from her position as Special Assistant to the Librarian. Id. ¶¶ 3, 84.

         Dr. James Billington, the Librarian of Congress during all relevant times in this case, appointed Robert Newlen to the position of Chief of Staff in December 2014. Id. ¶¶ 6-7. As Chief of Staff, Newlen oversaw six divisions within the Office of the Librarian. Id. ¶ 10. The parties dispute whether Newlen supervised Hogan and whether she reported to Newlen or Billington between December 2014 and her termination in August 2015. Pl.'s Resp. to Def.'s St. of Undisputed Fact (Pl.'s Resp. to Def.'s SOF), ECF No. 22-2 ¶ 9.

         Once Newlen became Chief of Staff, he met individually with all staff in the Office of the Librarian, including Hogan, to discuss their roles and responsibilities. Id. ¶ 30. Hogan first met with Newlen and the newly-appointed Deputy Librarian, David Mao, on January 20, 2015. Id. ¶¶ 34-36. The parties dispute the purpose of the January 20 meeting and whether Newlen attempted to learn about or discuss Hogan's role. Id. ¶ 37. On February 4, 2015, Newlen and Billington met with Hogan to inform her of the decision to relocate her office and the Gershwin Prize responsibilities from the Office of the Librarian to the Music Division, in the same building. Def.'s SOF ¶ 43. They also informed Hogan that she was receiving: (1) access to additional office space at the Library's facility in Culpeper, VA, (2) two additional work responsibilities beyond the Gershwin Prize, and (3) a “Time-Off and Special Achievement” award for her work on the 2014 Gershwin Prize. Id. ¶¶ 43-45; Pl.'s Resp. to Def.'s SOF ¶¶ 39, 41.

         On April 17, 2015, Hogan copied Tim Swift, CEO of Bounce, the production company that oversees the Gershwin Prize, on her e-mail to Newlen inquiring about funds for submitting the Gershwin Prize for consideration for an Emmy Award. Def.'s SOF ¶ 51. Newlen removed Swift from the e-mail chain and told Hogan to consult with the Office of the General Counsel (OGC) regarding funding. Id. ¶ 52. On April 22, 2015, Hogan again copied Swift on an e-mail to Newlen, along with two OGC attorneys and Billington's confidential assistant, stating that she believed funding was available for the Emmy nomination and that she had “great concerns about our way forward and our support for those entities who have supported the Library.” Id. ¶ 55. Newlen replied, once again removing Swift from the e-mail, asking Hogan for a budget for an Emmy nomination submission, along with a series of questions about the award. Id. ¶ 56. The parties dispute whether Hogan told Newlen that her name would be the only Library employee listed on the Emmy nomination and award. Pl.'s Resp. to Def.'s SOF ¶ 110.

         On the evening of April 24, Hogan entered the Congressional Relations Office (CRO) conference room to look for a congressional calendar. Def.'s SOF ¶¶ 57-59. The Library considers the CRO to be restricted space because it contains “sensitive files about Congressional members and their inquiries to the Library.” Pl.'s Resp. to Def.'s SOF ¶ 60. The parties dispute whether Hogan needed permission to be in the CRO after hours. Id. ¶ 61. Congressional Relations Specialist Brian Williams walked into the CRO conference room as Hogan was looking through a box of “briefing folders” prepared for new Members of Congress and their staff. Def.'s SOF ¶¶ 57, 59. When Williams and Kathleen Ott, Williams' supervisor and the CRO Director, met the following week, Williams told Ott that he had seen Hogan looking through files in the CRO conference room. Pl.'s Resp. to Def.'s SOF ¶ 62. Ott immediately reported the incident to Newlen because she believed Hogan engaged in inappropriate and unprofessional behavior. Def.'s SOF ¶ 64. Hogan claims that before entering the conference room she checked to see if Ott was in her office and that she had called Ott's office to ask for a calendar. Pl.'s Resp. to Def.'s SOF ¶ 63.

         Because Hogan had copied Swift on internal e-mail chains and entered the CRO conference room after hours, Newlen sought access to Hogan's e-mail account on April 27, 2019 to determine whether she was engaging in other misconduct. Def.'s SOF ¶¶ 68-69. Newlen requested access to Hogan's e-mails pursuant to Library of Congress Regulation (LCR) 1621, which authorizes the Library to access and monitor an employee's use of her government computer in several instances, including if management believes the employee has engaged in misconduct. Id. ¶ 66; Pl.'s Resp. to Def.'s SOF ¶ 65. The parties dispute whether the Library was required to notify Hogan that her e-mails were being monitored and whether Library employees have an expectation of privacy with respect to their e-mail communications, Pl.'s Resp. to Def.'s SOF ¶¶ 65, 73, but it is undisputed that Library employees are notified by a security banner each time they log onto their computer stating that their e-mails are subject to monitoring and review by Library management. Def.'s SOF ¶ 67.

         While Newlen waited for approval to access Hogan's e-mails, he met with Hogan on April 28, 2015. The parties dispute the purpose of the meeting, but it is undisputed that during the meeting, Newlen instructed Hogan to stop copying Swift on internal Library communications. Id. ¶ 94. Both Newlen and Hogan allege the other party engaged in hostile behavior during this meeting. Pl.'s Op. Summ. J., ECF No. 22-5, Ex. 22 at 14 (Hogan's Answers to Interrog.) (“Mr. Newlen raised his voice, criticized me, and called me a liar. . . . Mr. Newlen raised his voice and said, ‘You think everything is about you - stop being so emotional. You are the worst, most unprofessional employee I have seen in 40 years, I feel embarrassed for you.' The meeting ended when he yelled for me to get out of his office.”); Notice of Proposed Adverse Action, ECF No. 22-6, Ex. 50 at 4 (“During our meeting [Hogan] continued to interrupt me as I was talking and became increasingly agitated and disrespectful in deportment towards me. Specifically, [Hogan's] face turned red, [she] pointed [her] finger at me, began moving forward in [her] chair and became very loud and agitated.”).

         The Library's Information Technology Security Group approved Newlen's request, and he received access to Hogan's e-mails on April 29, 2015. Id. ¶ 70. After Newlen began his review, he asked the OGC to complete the review to determine whether there were other acts of misconduct. Id. ¶ 71.

         The same day he received access to Hogan's emails, Newlen issued Hogan an “Administrative Leave and Notice of Intent” memorandum, which placed her on administrative leave while the Library investigated whether she engaged in misconduct. Pl.'s Op. Summ. J., Ex. 47. While the parties dispute whether Hogan could remain on administrative leave indefinitely, Newlen issued Hogan a telework status memorandum on May 8, 2015, converting her administrative leave status to telework status. Pl.'s Resp. to Def.'s SOF ¶ 77.

         The Library alleges the search of Hogan's e-mails revealed several instances of inappropriate conduct, insubordination, and ethical violations. Def.'s SOF ¶ 78. It claims the emails showed that Hogan allegedly violated Library of Congress Regulation (LCR) 2023-5, Gifts, Entertainment and Favors, which bars employees from soliciting or accepting any gift, including entertainment, from a person who has, or is seeking to obtain, contractual or other business or financial relations with the Library. Id. ¶ 93. At Hogan's urging, the Library had formally contracted with Swift's company in May 2014 to produce the Gershwin Prize. Id. ¶¶ 23, 85-87. From 2013 through 2015, Hogan accepted tickets from Swift to the Grammys and MusiCares awards shows and solicited a Grammys ticket for her sister. Id. ¶¶ 23, 85-93. The parties dispute whether Hogan received approval to attend the shows. Pl.'s Resp. to Def.'s SOF ¶¶ 89, 92. The e-mails also revealed that Hogan forwarded four internal Library e-mails to Swift immediately after Newlen instructed her to stop copying Swift on internal e-mails, Def.'s SOF ¶ 96, including one e-mail that said the following: “Just to keep you up to date. Since they get upset when I CC you, I did not want to take a chance that they would check my e-mail for a BCC so here you go.” See ECF No. 20-9, Ex. 55 (Hogan Email). Hogan also sent several e-mails to longstanding Library donors, artists, contractors, and partners between February and April 2015, complaining about Newlen and the Library, in violation of Library of Congress Regulations 2023-2, Conduct in Official Positions, and 2023-1, Personal Conduct and Personal Activities of the Staff of the Library of Congress: Purpose, Policy, and General Standards. Def.'s SOF ¶¶ 97-107. Hogan also e-mailed a Library partner on March 27, 2015, stating she would be “happy to go around the new leadership and appeal directly to the Librarian.” Id. ¶¶ 102, 111. Finally, the e-mails showed that Hogan continued to pursue the Emmy nomination with contractors despite Newlen's concerns about the cost, id. ¶ 113, although the parties dispute whether Newlen directed Hogan to stop working on the submission. Pl's Resp. to Def.'s SOF ¶ 114.

         Newlen met with Ashley Wang, Team Leader for Employee Relations Team in the Office of Workforce Management, who concluded Hogan's removal was justified based on the “totality of the misconduct.” Def.'s SOF ¶ 80. On May 11, 2015, Wang was instructed to start working on the Notice of Proposed Adverse Action to terminate Hogan. Id. ¶ 81.

         On June 10, 2015, Newlen issued Hogan a Notice of Proposed Action to terminate her employment. Id. ¶¶ 78, 82; ECF No. 22-6, Ex. 50. The Notice listed eight reasons for Newlen's recommendation that she be terminated: (1) entering the CRO conference room after hours; (2) sending multiple inappropriate e-mails to donors, artists, contractors, and partners between February and April 2015; (3) engaging in inappropriate conduct during the April 28, 2015 meeting; (4) using her position for private gain related to the Emmy submission; (5) lacking candor in the March 27, 2105 e-mails; (6) violating the Library's ethical rules by accepting and soliciting tickets from a contractor; (7) questioning Newlen's decision-making to subordinate employees and an outside contractor in an April 17, 2015 e-mail; and (8) forwarding an internal Library e-mail to Swift after Newlen instructed Hogan to not copy contractors on internal communications. Pl's Resp. to Def.'s SOF ¶ 79.

         The Notice of Proposed Action advised Hogan that she could reply directly to Mao, and Hogan submitted her reply around July 8, 2015. Def.'s SOF ¶¶ 82, 83; Notice of Proposed Adverse Action at 2. Mao upheld the decision to terminate Hogan and sent her the Library's final termination decision on August 6, 2015. Def.'s SOF 84; Mao Letter to Hogan, ECF No. 20-4, Ex. 47.

         Hogan filed this suit on June 29, 2016 alleging gender discrimination (Count I), retaliation (Count III), and a hostile work environment in violation of Title VII (Count IV); age discrimination in violation of the ADEA (Count II); and pay discrimination in violation of the EPA (Count V). The Library filed a motion to dismiss Hogan's EPA claim (Count V), ECF No. 11, which Hogan did not oppose, and which the court granted on December 22, 2016.

         The Library has now moved for summary judgment on Hogan's claims for gender discrimination (Count I), retaliation (Count III), hostile work environment (Count IV), and age discrimination (Count II). Hogan opposes summary judgment only on the gender discrimination (Count I) and hostile work environment (Count IV) claims. Because Hogan fails to address the Library's age discrimination (Count II) and retaliation (Count III) claims in her opposition to summary judgment, the court treats both as conceded and will grant summary judgment to the Library on these claims. See Hopkins v. Women's Div., Gen. Bd. of Glob. Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997)); see also Hajjar-Nejad v. George Wash. Univ., 37 F.Supp.3d 90, 128 (D.D.C. 2014) (“A Plaintiff is not entitled to rely on the allegations in h[er] Complaint to create a genuine issue of material fact at the summary judgment stage.”).

         II. LEGAL STANDARD

         Summary judgment is appropriate where there is no disputed genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A dispute is “genuine” only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” only if it is capable of affecting the outcome of the litigation. Id. In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). At the summary judgment stage, credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Anderson, 477 U.S. at 255.

         The moving party bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . .' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323 (quoting Fed.R.Civ.P. 56(c)).

         The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials, and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp, 477 U.S. at 324. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249 - 50 (citations omitted).

         III. ANALYSIS

         A. Title VII Gender Discrimination Claim

         Hogan alleges the Library-specifically, Newlen-discriminated against her because of her gender. Title VII prohibits an employer from discriminating against its employees in hiring decisions, compensation, terms, conditions, or privileges of employment on the basis of an individual's sex. 42 U.S.C. § 2000e-2(a)(1).

         Title VII discrimination claims are analyzed under the familiar burden-shifting framework of McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). See Young v. United Parcel Service, Inc., 135 S.Ct. 1338 (2015) (applying the McDonnell Douglas framework in a Title VII case). Under this framework, the plaintiff has the initial burden of proving a prima facie case of discrimination. Id. If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Id. at 253. If the employer proffers such ...


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