United States District Court, District of Columbia
S. CHUTKAN UNITED STATES DISTRICT JUDGE.
Paula Suzanne Hogan, a former employee of the Library of
Congress (the Library), brings this suit against Defendant,
Carla Hayden,  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).
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.
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. 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.
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.
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.
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.
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.
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.
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.”).
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.
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.
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.
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.
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
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.
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.
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.”).
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.
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)).
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).
Title VII Gender Discrimination Claim
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.
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 ...