D'Antonio v. Napolitano, No. 1:2011cv01295 - Document 33 (E.D. Va. 2012)
Court Description: MEMORANDUM OPINION re: 13 Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment. Signed by District Judge Anthony J Trenga on 05/04/2012. (kbro)
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division MICHELLE D'ANTONIO, Plaintiff, Civil Action No. 1:1 l-cv-1295 (AJT/TRJ) v. JANET NAPOLITANO, Defendant. MEMORANDUM OPINION This employment discrimination case is before the Court on a Motion to Dismiss or, in the Alternative, for Summary Judgment, pursuantto Fed. R. Civ. P. 12(b)(6) and 56(c), filed on behalfof Defendant Janet Napolitano ("Defendant" or "the Secretary"). Specifically, the Defendant contends that the Complaint should be dismissed for failure to comply with administrative exhaustion requirements because Plaintiff Michelle D'Antonio ("Plaintiff' or "D"Antonio") failed to timely seek Equal Employment Opportunity ("EEO") counseling regarding her non-selection for a Federal Air Marshal ("FAM") position for which she allegedly applied in September 2004. Alternatively, the Defendant contends that summary judgment should be granted in the Defendant's favor because the Plaintiff has failed to establish a prima facie case of sex discrimination because she is unable to demonstrate that she was treated differently than male applicants for the FAM position to which she allegedly applied. Plaintiff asserts that equitable tolling should apply and that she timely initiated EEO counseling within 45 days of her suspecting she had been discriminated against on the basis of sex. Plaintiff also contends
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