DALZELL, District Judge.
Plaintiff Sharyn Solomon ("Solomon") sues defendant School District of Philadelphia (the "District"), asserting claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., § 504 of the Rehabilitation Act ("§ 504"), 29 U.S.C. § 794, and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. § 955(a). Solomon alleges that the District failed to accommodate her "musculo-skeletal and neurological problems," Pl.'s Compl. ¶ 22, discriminated against her based on these problems, and then retaliated against her for seeking accommodations and filing a complaint with the EEOC.
The District filed a motion for summary judgment challenging Solomon's claims that has now been fully briefed.
Fed.R.Civ.P. 56(a) provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," and Rule 56(c) elaborates that "[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record ...; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." We will thus present the facts as to which the parties agree, pausing occasionally to note areas of factual disagreement.
Solomon began working at the District in the early 1970s, Def.'s Stmt. of Facts ("Def.'s Stmt.") ¶ A-1
In 2005, Gina Hubbard ("Hubbard") became principal of Greenberg. Def.'s Stmt. ¶ B-1; Pl.'s Resp. ¶ B-1. In October of 2007, the District notified Hubbard that a new autistic support program would begin
Hubbard testified that in initially identifying the classroom she considered guidelines for special education classrooms, the school's layout, the need to keep grades physically close to each other, the age of students in the program, and the need to avoid isolating special needs students from their peers. Def.'s Stmt. ¶ B-4; Pl.'s Resp. ¶ B-4. After considering several rooms and consulting a few teachers, Hubbard chose Room 213 to house the program. Def.'s Stmt. ¶¶ B-5 to B-6; Pl.'s Resp. ¶¶ B-5 to B-6.
According to Hubbard, Room 213 was the most desirable location for the new autistic program because it was large and was located near the kindergarten and first-grade classrooms. Furthermore, relocating Solomon's class would create the least disturbance for the school as a whole, since the class had fewer students than classes in the other rooms Hubbard considered. Def.'s Stmt. ¶ B-7 (citing Ex. C to Def.'s Stmt. ("Hubbard Dep.")
On October 9, 2007, Hubbard sent a memorandum to Solomon advising that her
By October 18, 2007, Solomon had not begun the process of preparing to transfer classrooms, and that day Hubbard sent her a second memorandum setting a deadline of October 31, 2007 for the completion of the move. Def.'s Stmt. ¶¶ C-3 to C-4; Pl.'s Resp. ¶¶ C-3 to C-4. Solomon never complied with Hubbard's requests to move and made no steps toward moving. Def.'s Stmt. ¶ C-5 (citing Solomon Dep. at 65-66).
On November 15, 2007, Solomon wrote a letter to Hubbard in which she summarized their discussions regarding the move and proposed three alternatives to moving her classroom from Room 213. Ex. N to Def.'s Stmt. Solomon recalled that
Id. at 017. Solomon added that "[i]f any of my above suggestions are not workable, I will move to the third floor lounge, as you have requested." Id. at 018.
As we discuss below, on October 9, 2007, Solomon had told Hubbard that she was having back problems, and by November 15, 2007 she had supplied the District with three doctor's notes limiting her activities. Though Solomon's letter explained that she needed custodians to help her with any move due to her back condition, she did not justify her request that her classroom remain Room 213 with any reference to her physical condition. Def.'s Stmt. ¶¶ H-3, H-6 to H-7; Pl.'s Resp. ¶¶ H-3, H-6 to H-7. Hubbard did not respond to Solomon's letter, Pl.'s Resp. at 25 (citing Solomon Dep. at 118-19), and Solomon's class was eventually moved from Room 213 to Room 311 in January of 2008 — in her absence. Def.'s Stmt. ¶ I-11; Pl.'s Resp. ¶ I-11.
Solomon testified that on October 9, 2007, she told Hubbard that she was having problems with her back. Pl.'s Resp. at 3 (citing Solomon Dep. at 79). Ten days later, the day after Hubbard's second memorandum to her, Solomon secured a note from her primary care physician, Dr. John Telegadis ("Dr. Telegadis"), stating that she "`should not do any lifting or bending'" because it "`may aggravate her current injury'". This was the first doctor's note mentioning that Solomon had any physical limitations and was also Solomon's first request for accommodations from the District.
Solomon testified that her lifting and carrying limitations left her unable to lift or carry items weighing more than five pounds, and that her bending limitation rendered her unable to bend in the course of daily activities. She admitted that her job as a teacher required her to bend and lift more than five pounds since the books and materials she used in teaching weighed more than this limit. Def.'s Stmt.
According to Solomon, on November 2, 2007, she met with Hubbard to discuss the proposed move and her medical condition. This meeting did not go well. Hubbard allegedly screamed at Solomon when she attempted to provide Hubbard with copies of Dr. Telegadis's notes, and refused to provide Solomon with any accommodation for her back problems.
On December 31, 2007, Dr. Telegadis issued a note stating that Solomon had been diagnosed with a lumbar disc protrusion
In January of 2008, Hubbard called Solomon on the telephone and asked what the District could do to help her physical condition. Def.'s Stmt. ¶ K-1 (citing Ex. Q to Def.'s Stmt.; Solomon Dep. at 17-19). According to Solomon, she explained that she would have her doctor write the District another letter about her needed accommodations. Solomon Dep. at 19-20. On January 22, 2008, Solomon forwarded Hubbard a letter from Dr. Telegadis explaining that she was still under his care for a lumbar disc protrusion and neural foraminal stenosis, and that "[d]ue to her condition [he] strongly recommend[ed] that she be placed on the first floor of the school
The parties agree that (1) Solomon was aware that there was an elevator at Greenberg, (2) other teachers used the elevator for medical reasons, (3) Solomon observed other teachers using the elevator, and (4) Solomon made no attempt to use the elevator. Def.'s Stmt. ¶¶ L-1, L-2 to L-5; Pl.'s Resp. ¶¶ L-1, L-2 to L-5. In her deposition, Solomon testified that Hubbard never mentioned the elevator to her, Solomon Dep. at 156, though she concedes that the elevator was offered as an accommodation "as it pertained to moving her classroom." Pl.'s Resp. ¶ L-5. Solomon also points to deposition testimony from Hubbard
Solomon Dep. at 132-33. But Solomon later admitted that use of the elevator required a key — though she did not know where she could have obtained such a key, id. at 134 — so that students could use the elevator "[o]nly with an adult. Not by themselves, they weren't permitted." Id. at 135.
The parties agree that Solomon took sick leave from November 13 or 14, 2007 until April of 2008, receiving her full salary and benefits during this time. Def.'s Stmt. ¶¶ M-1 to M-2; Pl.'s Resp. ¶¶ M-1 to M-2. From April 14, 2008 until April 15, 2009, Solomon began short-term disability leave, also known as "wage continuation," during which she received seventy-five percent of her salary and all benefits. Def.'s Stmt. ¶¶ M-3 to M-5; Pl.'s Resp. ¶¶ M-3 to M-5. Upon the lapse of her wage continuation in April of 2009, Solomon took a health sabbatical leave that lasted until April, 2010 and she received fifty percent of her salary and all benefits during this period. Def.'s Stmt. ¶¶ M-6 to M-8; Pl.'s Resp. ¶¶ M-6 to M-8. Solomon retired at the end of this sabbatical. Def.'s Stmt. ¶ M-9; Pl.'s Resp. ¶ M-9.
Throughout these leaves, Solomon was obliged to submit doctors' notes to support her need for leave. These notes stated that she was physically unable to return to work, reiterated her limitations on lifting, bending, carrying, and stair-climbing, and explained that she needed a first floor classroom. Def.'s Stmt. ¶¶ M-10 to M-11;
On August 28, 2008, Solomon filed a discrimination charge with the EEOC. Def.'s Stmt. ¶ N-1; Pl.'s Resp. ¶ N-1. Solomon's charge identified age and disability as alleged bases of discrimination, but did not present any retaliation charge. Def.'s Stmt. ¶¶ N-2 to N-3; Pl.'s Resp. ¶¶ N-2 to N-3. The charge did suggest that "the Respondent subjected her to discrimination by ... harassing her in connection with said accommodation requests." Ex. Z to Def.'s Stmt.
On a motion for summary judgment, "[t]he moving party first must show that no genuine issue of material fact exists," Adderly v. Ferrier, 419 Fed.Appx. 135, 136 (3d Cir.2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), whereupon "[t]he burden then shifts to the non-moving party to set forth specific facts demonstrating a genuine issue for trial." Id. "`A disputed fact is "material" if it would affect the outcome of the suit as determined by the substantive law,'" J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 925 (3d Cir.2011) (quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir.1992)), while a factual dispute is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.... The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be [significantly probative] evidence on which the jury could reasonably find for the plaintiff." Bialko v. Quaker Oats Co., 434 Fed.Appx. 139, 141 n. 4 (3d Cir.2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (bracketed material in original). We "draw all reasonable inferences in favor of the nonmoving party, and [we] may not make credibility determinations or weigh the evidence." Eisenberry v. Shaw Bros., 421 Fed.Appx. 239, 241 (3d Cir.2011) (quotation marks omitted).
As the District challenges each of Solomon's claims, we will consider the arguments respecting them in turn. Before examining these arguments, we will first clarify the nature of the claims Solomon advances.
As we have already noted, Solomon asserts claims under the ADA, § 504, and
Under Count III, asserting discrimination under the ADA and Section 504, id. ¶ 102, Solomon alleges that
Though Solomon advances her ADA claims for failure to accommodate under two distinct counts, caselaw from our Court of Appeals suggests that these claims may be consolidated. 42 U.S.C. § 12112(a) provides that "[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." Our Court of Appeals has explained, quoting § 12112(b)(5)(A), that "[a]n employer discriminates against a qualified individual when it does `not mak[e] reasonable accommodations to the known physical or mental limitations of the individual unless the [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the [employer].'" Gaul v. Lucent Tech. Inc., 134 F.3d 576, 579 (3d Cir. 1998) (brackets in original). See also Colwell v. Rite Aid Corp., 602 F.3d 495, 504-05 (3d Cir.2010) (noting that "[u]nder the ADA, an employer discriminates against an employee by not making reasonable accommodations" under certain circumstances) (internal quotation marks omitted); Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 186 (3d Cir.2009) (describing elements a plaintiff must prove "for a covered entity to be found liable for discrimination on the basis of failure to accommodate"); Pagonakis v. Express LLC, 315 Fed.Appx. 425, 430 n. 4 (3d Cir.2009) ("[Plaintiff's] ADA discrimination claim may nonetheless proceed on her failure to accommodate theory.").
As this jurisprudence demonstrates, a claim that an employer failed to accommodate an employee's disability is best viewed not as an independent claim under the ADA, but as a theory that may support a discrimination claim, with disparate treatment representing another possible theory. Given that Count III more comprehensively alleges Solomon's entitlement
Our Court of Appeals has also noted that "[i]n light of the similarities between the integration provisions of the ADA and RA [Rehabilitation Act] and their implementing regulations, we construe and apply them in a consistent manner." Pa. Protection & Advocacy, Inc. v. Pa. Dep't of Pub. Welfare, 402 F.3d 374, 379 n. 3 (3d Cir.2005). Similarly, since Pennsylvania courts "generally interpret the PHRA in accord with its federal counterparts," Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir.1996), "analysis of an ADA claim applies equally to a PHRA claim", Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999). In addition to her claims under the ADA in Counts I and III, Solomon asserts claims for (1) failure to accommodate under § 504 and the PHRA in Counts I and II, and (2) discrimination under § 504 and the PHRA in Counts III and IV, respectively. Given the manner in which a discrimination claim under the ADA subsumes any claim for failure to accommodate, and the similarities between the ADA, the PHRA, and § 504,
As we have already noted, Solomon identifies five distinct bases on which the District allegedly discriminated against her in violation of the ADA, the PHRA, and § 504. These five grounds appear predicated upon two different theories. Under her failure to accommodate theory, Solomon alleges that the District (1) failed to accommodate her disability, (2) refused to engage in a good faith interactive process to identify a reasonable accommodation, and (3) refused to allow her to return to work unless she could do so without accommodations. Under her disparate treatment theory, Solomon alleges that due to her disability the District (1) transferred her to a third floor room knowing the move would aggravate her disability and keep her from performing her duties, and (2) attacked her reputation and character.
Our Court of Appeals has "recognized two types of disparate treatment employment discrimination actions — `pretext' and `mixed-motive' — and have applied different standards of causation depending on the type of case the plaintiff presented." Watson v. Se. Pa. Transp. Auth., 207 F.3d 207, 214 (3d Cir.2000) (Alito, J.). Discrimination claims based upon a failure to accommodate, in contrast, appear susceptible to only one type of analysis, in which "[t]he plaintiff must make a prima facie showing that reasonable accommodation is possible. If the plaintiff is able to meet these burdens, the defendant then bears the burden of proving, as an affirmative defense, that the accommodations requested by the plaintiff are unreasonable, or would cause an undue hardship on the employer." Shiring v. Runyon, 90 F.3d 827, 831. (3d Cir.1996).
Solomon argues that her "failure to accommodate claim (including the claim that the District failed to engage in good faith in the interactive process) and constructive discharge claims are subject to the direct evidence analysis," Pl.'s Mem. in Resp. to Def.'s Mot. Summ. J. ("Pl.'s Mem.") at 16, which we take merely to mean that these claims are subject to the analysis set forth in Shiring. Solomon also asserts that "[t]he only intentional claim the Defendant has raised which is subject to the pretext analysis is the classroom transfer issue," id. at 17 n. 22. Presumably, Solomon here means we should refer to her disparate treatment claims and suggests that her claim that the District attacked her reputation and character because of her disability should be examined under a mixed-motive analysis.
With respect to Solomon's claims that the District failed to accommodate her disability, the District argues that (1) Solomon refused "the reasonable accommodations available to her, including a working elevator" and "the assistance of building engineering to move her items," Def.'s Mem. in Supp. of Mot. Summ. J. ("Def.'s Mem.") at 7; (2) it was Solomon who "stalled the interactive process and failed to engage the School District in a good faith dialogue as required under the ADA," id. at 9; and (3) "Plaintiff's claim that she was `forced' to retire because of a failure to accommodate is self-serving and unsupported by the record," since "[t]he record demonstrates that Plaintiff suffered no adverse employment action." Id. at 7.
On the first point, Solomon responds that "Hubbard never offered the elevator as an accommodation," Pl.'s Mem. at 9, and "[t]he District never offered to accommodate any restrictions she would still have once the classroom move was completed." Id. at 7. As for the interactive process, Solomon argues that "Defendant never invited Ms. Solomon to participate in a meeting of any kind to discuss her accommodation request in an effort to ascertain how her physical limitations could be accommodated in the workplace, either in her original assignment at Greenberg or any other location," and "Hubbard never responded to [Solomon's January 22, 2008] communication" in which she "set forth her accommodation request." Id. Finally, Solomon asserts that "it is clear that failure to provide accommodation is an adverse action for purposes of intentional discrimination claims." Id. at 4 n. 2.
As our Court of Appeals has explained, "[a] plaintiff presents a prima facie case of discrimination under the ADA by demonstrating: (1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination." Gaul, 134 F.3d at 580. "Adverse employment decisions in this context include refusing to make reasonable accommodations for a plaintiff's disabilities," where "reasonable accommodation" include "`the employer's reasonable efforts to assist the employee and to communicate with the employee in good faith,' Mengine v. Runyon, 114 F.3d 415, 416 (3d Cir.1997), under what has been
Our Court of Appeals has stressed, however, that "where a plaintiff cannot demonstrate reasonable accommodation, the employer's lack of investigation into reasonable accommodation is unimportant." Donahue v. Consol. Rail Corp., 224 F.3d 226, 233 (3d Cir.2000) (Alito, J.) (internal quotation marks omitted). The Court of Appeals for the Sixth Circuit has also noted that "an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided," Hankins v. The Gap, Inc., 84 F.3d 797, 800-01 (6th Cir. 1996), inasmuch as "the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide." 29 C.F.R. Pt. 1630, App. § 1630.9(a).
Coupling this jurisprudence with that quoted above from Shiring, the contours of claims for failure to accommodate or engage in an interactive process become clear. A plaintiff alleging discrimination under the ADA based on these grounds must show that (1) she is disabled, (2) she is qualified, and (3) her employer (i) refused to provide her with a proposed reasonable accommodation, or (ii) failed to engage in an interactive process after she requested an accommodation, though a reasonable accommodation was possible. The employer must then show that the proposed accommodation was not reasonable or would have caused it undue hardship, or that the employer proposed a reasonable accommodation that the plaintiff rejected. In light of this legal framework, we can reject each of the District's challenges to Solomon's discrimination claim based upon a failure to accommodate theory.
Taking Solomon's first claim that the District failed to provide her with a reasonable accommodation, the District argues that (1) it "made a good faith attempt to offer an accommodation in the form of building engineering services to assist with the move," Defs.' Mem. at 10; (2) "[d]uring this litigation, and for the very first time, Plaintiff testified that she required an accommodation in the form of an `assistant' to help lift and carry books for her," but "this accommodation would have been unreasonable, unfeasible and not required under the ADA," id. at 11; and (3) "Plaintiff's suggested accommodation [of assigning her to a first floor classroom] was not the only alternative as the evidence demonstrates that the school had a working elevator," id. at 13, the use of which would have been "a reasonable accommodation for Plaintiff's stated limitation of climbing stairs." Id. at 14.
Solomon responds that (1) "[t]here is no evidence whatsoever that Ms. Hubbard ever offered building engineering services to Ms. Solomon for any purpose once the move was completed," Pl.'s Mem. at 8 n. 9; (2) "Plaintiff never asked for a personal assistant," id.; and (3) "Hubbard never offered the elevator as an accommodation." Id. at 9. On this third point, the District replies that "the reasonable accommodation was the elevator, which was open, obvious and known." Def.'s Reply at 3.
As noted, a plaintiff asserting such a failure to accommodate claim must show,
It is plain that there is an issue of fact at this point precluding us from concluding that either of these proposals in fact would have reasonably accommodated Solomon. A jury could readily conclude that building services could not have helped Solomon ferry her materials each period from the second floor to the third-floor classroom to which the District had assigned her, and that Solomon's difficulty carrying items would have precluded her from moving these materials between floors herself — even with the use of the elevator. Moreover, the District has presented no evidence demonstrating that it proposed the daily use of building services as an ongoing accommodation of Solomon's alleged disability,
The District cites Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir.1999), for the proposition that "there may be some situations in which the reasonable accommodation is so obvious that a solution may be developed without either party consciously participating in an interactive process". Here we cannot conclude that a key-operated elevator — to which Solomon did not have the key that may have addressed her stair-climbing restriction but not her bending, lifting, or carrying limitations — constituted a reasonable accommodation.
Finally, the District suggests that its alleged refusal to allow Solomon to return to work unless she could do so without an accommodation did not constitute an adverse employment action.
With respect to Solomon's disparate treatment claims, the District contends
In pretext cases, "[a] plaintiff presents a prima facie case of discrimination under the ADA by demonstrating: (1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination." Gaul, 134 F.3d at 580. Once a plaintiff has established a prima facie case,
Majewski v. Fischi, 372 Fed.Appx. 300, 304 (3d Cir.2010) (internal quotation marks, brackets, and ellipses omitted).
The District thus appears to concede, for the purposes of its motion, that Solomon has made out her prima facie case
42 U.S.C. § 12203(a) provides, regarding retaliation, that "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." In Solomon's complaint, she alleges that the District
Pl.'s Compl. ¶ 108.
Among other arguments, the District asserts that Solomon (1) "has not exhausted her administrative remedies with respect to her retaliation claims under the ADA and PHRA." Def.'s Mem. at 20, (2) "cannot demonstrate that she suffered an adverse employment action," id., and (3) "cannot demonstrate a causal connection between any protected activity and the District's actions." Id. at 21.
We begin by noting that our Court of Appeals has explained that a "failure to accommodate theory ... cannot be characterized as a retaliation claim under the ADA. The claim is a direct discrimination claim based on alleged failures to fulfill the affirmative duties prescribed by the ADA, not a claim based on alleged actions prohibited by the ADA." Pagonakis, 315 Fed.Appx. at 431 (citations omitted). Solomon appears merely to have
With respect to Solomon's fifth ground — that the District attacked her reputation and character — we start with the District's first argument, that Solomon failed to include any retaliation claim in her EEOC charge. Solomon argues that a district court may assume jurisdiction over additional charges "`if they are reasonably within the scope of the complainant's original charges and if reasonable investigation by the EEOC would have encompassed the new claims.'" Pl.'s Mem. at 17 (quoting Howze v. Johnes & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir.1984)). As already noted, Solomon included in her EEOC charge the allegation that "the Respondent subjected her to discrimination by ... harassing her in connection with said accommodation requests." Ex. Z to Def.'s Stmt. On the basis of this allegation, we conclude that Solomon's retaliation claim was within the scope of the EEOC charge to the extent that it rests on the District's alleged attacks on her reputation.
We turn to the District's second argument, that Solomon has not demonstrated any adverse employment action. Our Court of Appeals explained in Krouse v. American Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir.1997) (citations omitted), that
Thus, an element of Solomon's prima facie case of retaliation is that the District subjected her to an adverse action after her protected conduct. Solomon fails to point to any evidence in the record that suggests that Hubbard or anyone else at the District attacked her reputation or character.
Finally, we turn to Solomon's fourth basis for her claim, that the District transferred her knowing that the move would exacerbate her disability. The District argues that "[t]he decision to move Plaintiff's class from room 213 to room 311 occurred before she complained of any physical limitations." Def.'s Mem. at 22. As we have already explained, while Solomon has presented evidence suggesting that these events actually happened on the same day, it is nonetheless true that Solomon has presented no evidence suggesting that she engaged in the specified protected activity — i.e., requesting accommodations or filing a charge with the EEOC — before this
And now, this 12th day of March, 2012, upon consideration of plaintiff Sharyn Solomon's ("Solomon's") complaint (docket entry #1), defendant School District of Philadelphia's (the "District's") motion for summary judgment (docket entry # 26), Solomon's response in opposition thereto (docket entry # 28), and the District's reply in support of its motion (docket entry # 32), and upon the analysis set forth in the accompanying Memorandum, it is hereby ORDERED that:
1. The District's motion for summary judgment (docket entry # 26) is GRANTED IN PART;
2. Counts I, II, V, and VI of Solomon's complaint (docket entry # 1) are DISMISSED;
3. By noon on March 19, 2012, the parties shall FILE a joint submission in accordance with the attached Standing Order, along with proposed jury instructions and verdict forms, and motions in limine;
4. By noon on March 21, 2012, the parties shall RESPOND to any motions in limine filed along with the joint submission; and
5. Trial, not to exceed two days for each side's presentation of evidence, shall COMMENCE at 9:30 a.m. on March 26, 2012 in Courtroom 15B.
