The opinion of the court was delivered by: Paul L. Friedman, United States District Judge
Plaintiff Yeda Baker, proceeding pro se, initially brought this action for unfair labor practices under the Federal Service Labor-Management Relations Act, 5 U.S.C. § 7101 et seq. She also alleged a deprivation of due process. In addition, Ms. Baker asserted that she was subjected to national origin and gender discrimination, sexual harassment, a hostile work environment, and retaliation. Defendants filed a motion to dismiss the complaint as to all claims and to dismiss Donald L. Scott as a defendant.
In response, plaintiff filed a "Request for Amendment," which included an opposition to defendants' motion to dismiss and a motion to amend her complaint to incorporate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Congressional Accountability Act of 1995, 2 U.S.C. § 1301 et seq., alleging discrimination on the basis of gender and national origin, sexual harassment in the form of a hostile work environment, and retaliation. She also moved for summary judgment against defendants. Defendants treated plaintiff's submission as both an amended complaint and an opposition to the motion to dismiss and renewed their motion to dismiss, incorporating by reference their earlier arguments. Defendants also asked the Court to hold in abeyance plaintiff's motion for summary judgment pending resolution of defendants' motion to dismiss.
Upon consideration of the parties' arguments and the entire record, the Court will treat defendants' motion to dismiss as a motion to dismiss the amended complaint and will grant the motion with respect to all claims except plaintiff's claim of sexual harassment in the form of a hostile work environment and her claim of retaliation. The Court also will grant defendants' motion to dismiss Donald L. Scott as a defendant and will deny plaintiff's motion for summary judgment as moot.
In October of 1992, the Library of Congress hired Yeda Baker as a GS-5 clerk in its Certification and Documents Section. See Plaintiff's Request for Amendment (hereinafter "Amended Complaint"), Appendix "Hearing," Hearing Officer's Report and Recommendations ("Hearing Report") at 2. In October 1995, plaintiff's supervisor, Charles Roberts, issued a counseling memorandum indicating his dissatisfaction with her job performance. See id. On March 10, 1997, Ms. Baker began requesting, through the Library's employee union, that she be transferred out of Certification and Documents to another service unit on account of relational problems with her co-workers. See Amended Complaint, Appendix "Union," Letter from Kenneth Mackie of March 10, 1997. The Library denied her request.
On June 3, 1997, Ms. Baker filed a formal complaint with the Library's Equal Employment Opportunity Complaints Office ("EEOCO") alleging sexual harassment in the form of a "hostile, intimidating, offensive work environment." See Defendants' Reply in Support of Motion to Dismiss at 3 and Appendix A, Exhibit A, Library of Congress Complaint of Discrimination by Yeda L. Baker, June 3, 1997 ("EEOC Complaint"). In her complaint, plaintiff cited disrespect, verbal insults and profanity, and made reference to two ambiguous incidents; she requested a transfer, a letter of admonition and $25,000. See id.
Two days later, on June 5, 1997, the Library issued a Proposed Adverse Action for Ms. Baker's termination. See Hearing Report at 2-3. The Library appointed a Reply Officer, Virginia Kass, to conduct an independent review of the matter. See id. at 3. The Reply Officer found that Ms. Baker worked in a hostile work environment and was the subject of sexual harassment and that the proposed termination was unwarranted. See Amended Complaint, Appendix "Reply Off," Memorandum from Virginia L. Kass of August 25, 1997 at 2 ("Reply Officer's Report"). The Reply Officer recommended that Ms. Baker be transferred, that her past performance ratings be modified to "satisfactory," and that she receive counseling from the Employee Assistance Office. See id. at 6.
On October 9, 1997, the Reply Officer's recommendations were rejected and Ms. Baker was terminated. See Hearing Report at 3. On October 30, 1997, the Library denied the union's request to postpone the termination decision, stating that several administrative remedies were available to plaintiff. See Amended Complaint, Appendix "Union," Memorandum from Marybeth Peters of October 30, 1997.
On January 7, 1998, the EEOCO notified Ms. Baker that her June 3, 1997 complaint "based on sexual harassment (hostile work environment)" had been accepted for formal processing and investigation. See Defendants' Reply in Support of Motion to Dismiss, Appendix A, Exhibit B, Letter from Welton B. Belsches, Acting Assistant Chief, EEOCO, to Yeda L. Baker, January 7, 1998 ("Belsches Letter"). Subsequently, in response to an EEOCO questionnaire, plaintiff submitted a letter detailing the basis of her allegations. See Amended Complaint, Appendix "EEOC," Questionnaire to Yeda L. Baker re: "ISSUE: Whether you were subjected to sexual harassment (hostile work environment) by a former fellow co-worker, which created an intimidating, hostile, and offensive work environment"; Letter from Yeda L. Baker to Jean Johnson, EEO Investigator, October 21, 1998 ("Questionnaire Response Letter").
In October 1998, Ms. Baker appealed her termination. See Hearing Report at 1. Pursuant to internal regulations, the Library appointed a Hearing Officer, Robert Perry, and conducted hearings on October 9, December 9, and December 10, 1998. See id. In his Report and Recommendations, the Hearing Officer found that plaintiff was the victim of sexual harassment in the form of a hostile work environment, that the Library wrongfully terminated her, that the refusal to transfer her was in direct conflict with the collective bargaining agreement, that the proffered reasons for her poor performance rating were contrived, and that the Library's failure to make available the Reply Officer's Report at the time of its issuance was a violation of Ms. Baker's due process rights. See id. at 4-9.*fn1 The Hearing Officer recommended reinstatement to an equivalent position in a different department with a retroactive within grade increase as well as compensation for lost wages and benefits. See id. at 9-10.
In accordance with Library regulations, the Library then appointed Deputy Librarian Donald Scott to render a final decision regarding Ms. Baker's termination. See Amended Complaint, Appendix "Hearing," Final Agency Decision. After reviewing the record, the Deputy Librarian determined that the evidence did not support the Hearing Officer's findings. See id. Specifically, he found that plaintiff had not been subjected to a hostile work environment "within the meaning of applicable federal law," that the Library was under no legal obligation to consider her requested transfer, and that Library regulations did not require that the Reply Officer's Report be included in the case file. See id. The Deputy Librarian also concluded that the record contained sufficient evidence to establish that Ms. Baker had failed to meet her job performance requirements. See id. Both plaintiff and her union requested that the Deputy Librarian reconsider his decision, but Mr. Scott informed them that Ms. Baker was not entitled to a review of this decision under Library regulations. See Amended Complaint, Appendix "Hearing," Letter from Yeda L. Baker of May 25, 1999; Letter from Kenneth Mackie of May 24, 1999; Letter from Donald L. Scott of June 10, 1999.
On August 3, 1999, Ms. Baker sought counseling from the Office of Compliance ("OC") pertaining to asserted violations of the Congressional Accountability Act ("CAA"). See Amended Complaint, Appendix "CCO," Letter from Yeda L. Baker of August 3, 1999. In her letter, plaintiff alleged that the Library had engaged in unfair labor practices, discriminated against her on account of her national origin and gender, subjected her to a hostile work environment, retaliated against her for filing an EEO complaint, and denied her due process. See id. Prior to receiving a response from the OC, plaintiff filed this action on September 9, 1999. On September 22, 1999, Ms. Baker received a right-to-sue notice from the OC advising her that she could either (1) file a formal ...