The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
Doratha Klugel, a former employee of the Smithsonian Institute ("Smithsonian"), brings this action against Lawrence M. Small, in his official capacity as the Secretary of the Smithsonian, alleging claims of sex and disability discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Rehabilitation Act of 1973, 29 U.S.C. § 720 et seq. ("Rehabilitation Act"), as well as tort causes of action for invasion of privacy and defamation. Klugel also asserts the tort causes of action against two Smithsonian employees. Before the court is defendants' motion to dismiss or, in the alternative, for summary judgment, and to substitute the United States as the sole defendant for Klugel's tort claims [# 9]. Upon consideration of the motion and the record of this case, the court grants the motion in part and denies it in part.
Klugel was employed at the Smithsonian's Education Research Center ("Research Center") as an education specialist until she resigned on May 12, 2005. According to Klugel, beginning in December 2004, she experienced several incidents of discrimination, retaliation, and other wrongful conduct on her job that created a work environment so hostile that she was forced to resign.
It appears that Klugel's difficulties at the Smithsonian began in December 2004 when she became the subject of an investigation by the Smithsonian Inspector General regarding allegations that she improperly used official travel to have liaisons with her husband. According to Klugel, the allegations were false and during the course of the investigation, Gerald Roy, a Special Agent with the Smithsonian's Office of the Inspector, and Tuck Hines, the Acting Director of the Research Center, made comments and asked her questions about her sexuality that were defamatory, invaded her privacy, and constituted sex discrimination.
Sometime between December 14, 2004 and January 12, 2005, Klugel told her supervisor, Mark Haddon, that she had been subjected to sex discrimination during the Inspector General's investigation. Haddon did not respond appropriately to what Klugel told him and Klugel reported her conversation with Haddon to Ross Simmons, a Director of the Research Center, who allegedly told her that no action would be necessary on her discrimination complaint and that she was "one step away from being a marked employee" due to her protest.
On January 20, 2005 and February 22, 2005, Klugel was asked about medical leave she had taken due to a broken arm.*fn1 According to Klugel, these questions were improper because they were motivated by a perception that she was disabled. On February 22, 2005 she informed Robert Gallagher, a Research Center Administration officer, that she believed the inquiries into her medical leave constituted disability discrimination and that she had retained counsel to protect her rights. Thereafter, in March and April 2005, the Smithsonian reduced her job duties. Klugel charges that these reductions in her job duties constituted retaliation for her discrimination complaints.
On April 12, 2005, Klugel was referred to a mandatory Employee Assistance Program ("EAP") because, Klugel charges, there was a rumor that she suffered from a mental impairment. According to Klugel, the referral constituted disability discrimination, and on April 18, 2005, her attorney wrote to Gallagher objecting to the referral. Thereafter, on May 2, 2005, Klugel was placed on a "progress report." Klugel charges that this action was retaliatory and not justified by any deficiency in the performance of her work.
Klugel's complaint sets forth the following causes of action: (1) the Smithsonian violated Title VII by subjecting her to disparate treatment based on sex and creating a hostile work environment during the December 2004 Inspector General investigation; (2) the Smithsonian violated the Rehabilitation Act by asking Ms. Klugel questions about her medical leave; (3) the Smithsonian violated the Rehabilitation Act by referring her to an EAP; (4) the Smithsonian violated Title VII and the Rehabilitation Act by retaliating against her for complaining about discrimination; (5) the Smithsonian violated Title VII and the Rehabilitation Act by constructively discharging her on May 12, 2005; (6) the Smithsonian and the individual defendants invaded her privacy during the December 2004 Inspector General investigation by asking her unreasonable questions about her husband and her sexuality; and (7) the Smithsonian and the individual defendants defamed her by making statements about her husband, sexuality, and mental condition.*fn2
Defendants move to dismiss Klugel's Title VII and Rehabilitation Act claims or, in the alternative, for summary judgment on the grounds that she did not exhaust her administrative remedies. With respect to Klugel's tort claims, defendants move to substitute the United States as the sole defendant and then to dismiss those claims because the United Sates is shielded from suit by its sovereign immunity.
The parties have submitted matters outside the pleadings that are not excluded by the court. Therefore, the court shall treat the motion as one for summary judgment under Fed. R. Civ. P. 56. Carroll v. England, 321 F.Supp. 2d 58, 67 n.4 (D.D.C. 2004); Polk v. Dist. of Columbia, 121 F.Supp. 2d 56, 60 (D.D.C. 2000).
Pursuant to Fed. R. Civ. P.56, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party's "initial responsibility" consists of "informing the [trial] 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, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted).
If the moving party meets its burden, the burden then shifts to the non-moving party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To meet its burden, the non-moving party must show that "'the evidence is such that a reasonable jury could return a verdict'" in its favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (quoting Anderson, 477 U.S. at 248). Such evidence must consist of more than mere unsupported allegations or denials and must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e).
If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249-50. In considering a summary judgment motion, the "evidence of the non-movant is to be believed, and all ...