Free Proposed Jury Instructions - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
SAMI ALMAKHADHI, Plaintiff, v. DELAWARE PARK LLC, Defendant.
: : : : No. 1:07-cv-00078-JJF : : : : : : : :

PLAINTIFF SAMI ALMAKHADHI AND DEFENDANT DELAWARE PARK, L.L.C.'S PROPOSED JURY INSTRUCTIONS

THE CONLEY FIRM Frank J. Conley, Esquire Pro hac vice 7715 Cheltenham Avenue, Suite 113 Philadelphia, PA 19118 [email protected] (215) 836-4789 Real World Law Glenn Brown, Esquire 916 N. Union St #2 Wilmington, DE 19805 (302) 225-8340 Attorneys for Plaintiff Sami Almakhadi Dated: February 4, 2008

POTTER ANDERSON & CORROON LLP Wendy K. Voss (#3142) Jennifer Wasson (#4933) Hercules Plaza ­ Sixth Floor 1313 N. Market Street P.O. Box 951 Wilmington, Delaware 19899 (302) 984-6000 [email protected] ­ Email [email protected] - Email Attorneys for Defendant Delaware Park, L.L.C.

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TABLE OF CONTENTS SECTION I: PRELIMINARY JURY INSTRUCTIONS ..............................................................1 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 INTRODUCTION ...................................................................................................1 THE PARTIES AND THEIR CONTENTIONS .....................................................1 DUTIES OF THE JURY .........................................................................................1 EVIDENCE..............................................................................................................3 DIRECT AND CIRCUMSTANTIAL EVIDENCE ...............................................8 CREDIBILITY OF WITNESSES - WEIGHING CONFLICTING TESTIMONY ........................................................................................................11 SUMMARY OF THE LAW ................................................................................12 BURDEN OF PROOF ...........................................................................................19 CONDUCT OF THE JURY ..................................................................................21 COURSE OF THE TRIAL ....................................................................................23

SECTION II: DELAWARE PARK'S PROPOSED JURY INSTRUCTIONS AT THE CLOSE OF EVIDENCE A. GENERAL INSTRUCTIONS ...........................................................................................25 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 INTRODUCTION .................................................................................................25 EVIDENCE DEFINED .........................................................................................27 DIRECT AND CIRCUMSTANTIAL EVIDENCE ..............................................28 CONSIDERATION OF EVIDENCE ....................................................................29 STATEMENTS OF COUNSEL ............................................................................30 CREDIBILITY OF WITNESSES .........................................................................31 DISCREPANCIES IN TESTIMONY ...................................................................35 BURDEN OF PROOF; PREPONDERANCE OF THE EVIDENCE...................37

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2.9 2.10 B.

ALL PERSONS EQUAL BEFORE THE LAW ­ INDIVIDUALS AND CORPORATIONS.................................................................................................39 ADMONITION REGARDING SYMPATHY ......................................................40

INSTRUCTIONS ON APPLICABLE LAW ....................................................................41 3.1 3.2 3.3 3.4 3.5 BUSINESS JUDGMENT .....................................................................................41 AT-WILL EMPLOYMENT ..................................................................................44 ADA CLAIM --INTRODUCTORY INSTRUCTION.........................................45 ADA ­ DISPARATE TREATMENT CLAIM......................................................46 ADA ­ DEFINITION OF DISABILITY...............................................................50 3.5.1. SUBSTANTIALLY LIMITING IMPAIRMENT .....................................50 3.5.2. "REGARDED AS" DISABLED .............................................................54 3.5.3. "RECORD OF" DISABILITY [If permitted by the Court]................56 3.6 ADA ­ NON-DISCRIMINATORY REASON/PRETEXT ..................................58 3.6.1 3.6.2 3.7 3.8 3.9 3.10 3.11 3.12 3.13 3.14 ADA -- REASONABLE ACCOMMODATION CLAIM .................62 ADA ­ DEFINITION OF "QUALIFIED INDIVIDUAL" ................65

TITLE VII ­ INTRODUCTORY INSTRUCTION ..............................................68 TITLE VII ­ DISPARATE TREATMENT ­ PRETEXT CLAIM ......................70 TITLE VII ­ RETALIATION CLAIM ................................................................76 TITLE VII ­ HOSTILE WORK ENVIRONMENT CLAIM [If permitted by the Court] .....................................................................82 TITLE VII ­ HOSTILE WORK ENVIRONMENT CLAIM ­ EMPLOYER'S AFFIRMATIVE DEFENSE [If claim permitted by the Court] ...........................86 FMLA ­ INTRODUCTORY INSTRUCTION .....................................................88 FMLA ­ EMPLOYER'S RIGHT TO PLACE EMPLOYEE ON LEAVE ..........91 FMLA ­ DISCRIMINATION CLAIM .................................................................93

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3.15 C.

FMLA ­ INTERFERENCE CLAIM [If permitted by the Court] .......................98

INSTRUCTIONS ON DAMAGES .................................................................................100 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.9 4.10 EFFECT OF INSTRUCTION AS TO DAMAGES ............................................100 COMPENSATORY DAMAGES ­ ADA AND TITLE VII CLAIMS ..............102 ADVISORY INSTRUCTION ON BACK PAY ­ ADA AND TITLE VII CLAIMS ..............................................................................................................108 ADVISORY INSTRUCTION ON FRONT PAY ­ ADA AND TITLE VII CLAIMS ..............................................................................................................112 PUNITIVE DAMAGES ­ ADA AND TITLE VII CLAIMS .............................116 NOMINAL DAMAGES ­ ADA AND TITLE VII CLAIMS ............................121 COMPENSATORY DAMAGES -- FMLA CLAIMS .......................................122 FMLA ­ NO RIGHT TO EMOTIONAL DISTRESS DAMAGES ...................128 FMLA ­ NO RIGHT TO PUNITIVE OR NOMINAL DAMAGES ..................129 MITIGATION OF DAMAGES...........................................................................130

D.

INSTRUCTIONS ON DELIBERATION AND VERDICT............................................134 5.1 5.2 5.3 DELIBERATION AND VERDICT ....................................................................134 VERDICT FORM................................................................................................136 COURT HAS NO OPINION...............................................................................137

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SECTION I: PRELIMINARY JURY INSTRUCTIONS
1.1 INTRODUCTION [JOINT] Members of the jury: Now that you have been sworn, I am now going to give you some preliminary instructions to guide you in your participation in the trial. 1.2 THE PARTIES AND THEIR CONTENTIONS [JOINT] Before I begin with those instructions, however, allow me to give you an overview of who the parties are and what each contends. The parties in this case are the plaintiff, Sami Almakhadhi ("ALL-MACK-HOD-EE"), and the defendant, Delaware Park L.L.C., also referred to as "Delaware Park," Mr. Almakhadhi's former employer. In this case, the plaintiff, Mr. Almakhadhi, brings discrimination and retaliation claims against Delaware Park, which I will describe for you in a few minutes. Delaware Park denies that its conduct toward Mr. Almakhadhi was in any way wrongful and denies that any of its actions were motivated by discrimination or retaliation. If appropriate, you will be asked to determine the amount of money damages necessary to compensate Mr. Almakhadhi for any injuries you believe he sustained as a result of any unlawful conduct committed by Delaware Park. 1.3 DUTIES OF THE JURY [JOINT] So, let me begin with the general rules that will govern the discharge of your duties as jurors in this case. It will be your duty to find from the evidence what the facts are. You and you alone will be the judges of the facts. You will then have to apply those facts to the law as I explain it to you both during these preliminary instructions and at the close of the evidence. You must follow that 1

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law whether you agree with it or not. In addition to instructing you about the law, at the close of the evidence, I will provide you with instructions as to what the claims of the parties mean. Again, of course, you are bound by your oath as jurors to follow these and all the instructions that I give you, even if you personally disagree with them. All the instructions are important, and you should consider them together as a whole. Perform these duties fairly. Do not let any bias, sympathy, or prejudice that you may feel toward one side or the other influence your decision in any way. Also, do not let anything that I may say or do during the course of the trial influence you. Nothing that I may say or do is intended to indicate, or should be taken by you as indicating, what your verdict should be. As I have instructed, you are to consider only the evidence in the case. But in your consideration of the evidence, you are permitted to draw, from facts which you find have been proved, such reasonable inferences as seem justified in the light of your experience. Inferences are deductions or conclusions which reason and common sense lead the jury to draw from facts which have been established by the evidence in the case.

Authorities

Adapted from the Third Circuit's Model Civil Jury Instructions, Chapter 1, May 2007. Devitt & Blackmar, Federal Jury Practice and Instructions (Civil Cases), ¶ 72.04 (1987)

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1.4

EVIDENCE [PLAINTIFF'S PROPOSED INSTRUCTION] The evidence from which you will find the facts will consist of the testimony of

witnesses (the testimony of witnesses consist of the answers of the witnesses to questions posed by the attorneys or the court--you may not ask questions). Evidence will also consist of documents and other things received into the record as exhibits, and any facts that the lawyers agree to or stipulate to or that I may instruct you to find. Some of the testimony in this trial may be in Arabic, which will then be interpreted to English. The evidence you are to consider is only that provided through the official court interpreters. Although some of you may know Arabic, it is important that all jurors consider the same evidence. Therefore, you must accept the English interpretation provided by the official court interpreter. You must disregard any different meaning. Certain things are not evidence and must not be considered by you. I will list them for you now: 1. 2. 3. Statements, arguments, and questions by lawyers are not evidence. Objections to questions are not evidence. Testimony that the court has excluded or told you to disregard is not evidence and must not be considered. 4. Anything you may have seen or heard outside the courtroom is not evidence and must be disregarded. You are to decide the case solely on the evidence presented here in the courtroom. You should use your common sense in weighing the evidence. Consider it in light of

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your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion. There are rules that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence, and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. This simply means that the lawyer is requesting that I make a decision on a particular rule of evidence. You should not be influenced by the fact that an objection is made. Objections to questions are not evidence. Lawyers have an obligation to their clients to make objections when they believe that evidence being offered is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it. If the objection is sustained, ignore the question. If it is overruled, treat the answer like any other. If you are instructed that some item of evidence is received for a limited purpose only, you must follow that instruction. Also, certain testimony or other evidence may be ordered struck from the record and you will be instructed to disregard this evidence. Do not consider any testimony or other evidence that gets struck or excluded. Do not speculate about what a witness might have said or what an exhibit might have shown. As I have instructed, you are to consider only the evidence in the case. But in your consideration of the evidence, you are not limited to the bald statements of the witnesses. In other words, you are not limited to what you see and hear as the witnesses testify. You are permitted to draw, from facts that you find have been proved, such reasonable inferences as seem justified in the light of your experience.

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Inferences are deductions or conclusions that reason and common sense lead the jury to draw from facts which have been established by the evidence in the case.

Authorities

Adapted from the Third Circuit's Model Civil Jury Instructions, Chapter 1, May 2007; Devitt & Blackmar, Federal Jury Practice and Instructions, (Civil Cases), § 72.04 (1987.

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1.4

EVIDENCE [DEFENDANT'S PROPOSED INSTRUCTION] The evidence from which you will find the facts will consist of the testimony of

witnesses (the testimony of witnesses consist of the answers of the witnesses to questions posed by the attorneys or the court -- you may not ask questions). Evidence will also consist of documents and other things received into the record as exhibits, and any facts that the lawyers agree to or stipulate to or that I may instruct you to find. Certain things are not evidence and must not be considered by you. I will list them for you now: 1. 2. 3. Statements, arguments, and questions by lawyers are not evidence. Objections to questions are not evidence. Testimony that the court has excluded or told you to disregard is not evidence and must not be considered. 4. Anything you may have seen or heard outside the courtroom is not evidence and must be disregarded. You are to decide the case solely on the evidence presented here in the courtroom. You should use your common sense in weighing the evidence. Consider it in light of your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion. There are rules that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence, and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. This simply means that the lawyer is 6

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requesting that I make a decision on a particular rule of evidence. You should not be influenced by the fact that an objection is made. Objections to questions are not evidence. Lawyers have an obligation to their clients to make objections when they believe that evidence being offered is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it. If the objection is sustained, ignore the question. If it is overruled, treat the answer like any other. If you are instructed that some item of evidence is received for a limited purpose only, you must follow that instruction. Also, certain testimony or other evidence may be ordered struck from the record and you will be instructed to disregard this evidence. Do not consider any testimony or other evidence that gets struck or excluded. Do not speculate about what a witness might have said or what an exhibit might have shown.

Authorities

Adapted from the Third Circuit's Model Civil Jury Instructions, Chapter 1, May 2007.

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1.5

DIRECT AND CIRCUMSTANTIAL EVIDENCE [PLAINTIFF'S PROPOSED INSTRUCTION] There are two kinds of evidence: direct and circumstantial. An example of direct

evidence is when a witness testifies about something that the witness knows through his own senses ­ something the witness has seen, felt, touched, or heard. Circumstantial evidence is proof of facts from which you may infer or conclude that other facts exist. As a general rule, the law makes no distinction between these two types of evidence, but simply requires that you find facts from all the evidence in the case, whether direct or circumstantial or a combination of the two. This is a discrimination case. In cases of this sort, there is rarely direct evidence of discriminatory intent. In most such cases "specific intent to discriminate will not be demonstrated by `smoking gun' evidence." This is because there will seldom be eyewitness testimony as to the employer's mental process. As a consequence, there is no requirement that Mr. Almakhahi submit direct evidence of discrimination. This is because discrimination is often subtle, because employers who discriminate may leave no written records revealing the forbidden motive and may communicate it orally to no one. Thus, you must assess the evidence carefully and thoroughly in order to determine whether you believe that discrimination was a motivating factor in this case. Do not be concerned about whether evidence is "direct evidence" or "circumstantial evidence." You should consider and weigh all of the evidence that is presented to you. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion.

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Authorities

Adapted from the Third Circuit's Model Civil Jury Instructions, Chapter 1, May 2007; Reeves v. Sanderson Products, Inc., 530 U.S. 133, 141 (2000); U.S. Postal Service v. Aikens, 460 U.S. 711, 717 (1983)..

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1.5

DIRECT AND CIRCUMSTANTIAL EVIDENCE [DEFENDANT'S PROPOSED INSTRUCTION] There are two kinds of evidence: direct and circumstantial. An example of direct

evidence is when a witness testifies about something that the witness knows through his own senses ­ something the witness has seen, felt, touched, or heard. Circumstantial evidence is proof of facts from which you may infer or conclude that other facts exist. As a general rule, the law makes no distinction between these two types of evidence, but simply requires that you find facts from all the evidence in the case, whether direct or circumstantial or a combination of the two. Do not be concerned about whether evidence is "direct evidence" or "circumstantial evidence." You should consider and weigh all of the evidence that is presented to you. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion.

Authorities

Adapted from the Third Circuit's Model Civil Jury Instructions, Chapter 1, May 2007.

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1.6

CREDIBILITY OF WITNESSES - WEIGHING CONFLICTING TESTIMONY [JOINT] In deciding what the facts are, you may have to decide what testimony you believe and

what testimony you do not believe. You are the sole judges of the credibility of the witnesses. "Credibility" means whether a witness is worthy of belief. You may believe everything a witness says or only part of it or none of it. In deciding what to believe, you may consider a number of factors, including the following: (1) the opportunity and ability of the witness to see or hear or know the things the

witness testifies to; (2) (3) (4) or prejudice; (5) whether the witness is contradicted by anything the witness said or wrote before the quality of the witness's understanding and memory; the witness's manner while testifying; whether the witness has an interest in the outcome of the case or any motive, bias,

trial or by other evidence; (6) how reasonable the witness's testimony is when considered in light of other

evidence that you believe; (7) any other factors that bear on believability.

The weight of the evidence as to a fact does not depend on the number of witnesses who testify in support of that fact.

Authorities

Adapted from the Third Circuit's Model Civil Jury Instructions, Chapter 1, May 2007. 11

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1.7

SUMMARY OF THE LAW [PLAINTIFF'S PROPOSED INSTRUCTION] I will give you detailed instructions on the law at the end of the case, and those

instructions will control your deliberation and decision. But in order to help you follow the evidence, I will now give you a brief summary of the claims Mr. Almakhadhi is alleging against Delaware Park: In this case Mr. Almakhadhi makes claims based on several federal laws. The first of these is known as the Americans with Disabilities Act, which will be referred to in these instructions as the ADA. The purpose of the ADA is to eliminate employment discrimination against persons with disabilities. The ADA makes it unlawful for an employer to discriminate against an employee because the person is disabled, is perceived as having, or regarded as having, a disability, as well as those who have been misclassified as having disabilities. Under the ADA, an employer may not discriminate against an employee in the terms or conditions of his employment on the basis of a disability. In order to prove that he has a disability under the ADA, Mr. Almakhadhi must show that he had a physical impairment, or a record of a physical impairment, or was regarded by Defendant as having a physical impairment that substantially limited his ability to perform one or more of her major life activities. Major life activities are those activities that are of central importance to most people's daily lives. In determining whether an individual is substantially limited in a major life activity, the following factors should be considered: the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long-term impact of the impairment. . 12

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Delaware Park denies that it took any action against Mr. Almakhadhi on the basis of any alleged disability. Further, Delaware Park asserts that Mr. Almakhadhi was not a disabled individual under the ADA while he was employed by Delaware Park because he did not have a physical impairment that substantially limited any of his major life activities and Delaware Park did not regard him as being disabled. Mr. Almakhadhi also makes several claims under a Federal Civil Rights statute commonly known as "Title VII" that prohibits employers from discriminating against an employee in the terms and conditions of employment because of, among other things, the employee's race or national origin. This statute also prohibits an employer from retaliating against an employee after he or she has taken steps seeking to enforce his or her legal rights, such as making a discrimination complaint. Mr. Almakhadhi also makes a claim under Delaware State law that Delaware Park retaliated against him for filing a worker's compensation claim. In this case, Mr. Almakhadhi claims that Delaware Park failed to promote him, failed to give him a light duty assignment, and terminated his employment based on his race and national origin. He also alleges that these actions were retaliatory because he made complaints of discrimination and filed a worker's compensation claim. Delaware Park denies that it discriminated or retaliated against Mr. Almakhadhi in any way. Mr. Almakhadhi also has made a claim under the Family and Medical Leave Act (or FMLA). The FMLA grants eligible employees the right to take up to 12 weeks of leave during a 12 month period for various reasons, including a serious health condition that makes the employee unable to perform the functions of his job. 13

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The FMLA also prohibits an employer from interfering with or discriminating against an employee because of his exercise of the right to a period of unpaid leave. Specifically, Mr. Almakhadhi claims that after he took FMLA leave, Delaware Park retaliated against him by not promoting him, by not giving him a light duty assignment, and by terminating his employment, and that Delaware Park did so because he took the leave. Delaware Park denies that its actions were related in any way to Mr. Almakhadhi's taking FMLA leave. If permitted by the Court: Mr. Almakhadhi also claims that Delaware Park denied

him FMLA leave to which he was entitled. Delaware Park claims that Mr. Almakhadhi had already used all of his FMLA leave when he was terminated from employment. If permitted by the Court: [Mr. Almakhadhi also makes claims under the Federal Civil Rights statutes that prohibit employers from discriminating against their employees in the terms and conditions of their employment because of the employee's race and/or national origin. More specifically, Mr. Almakhadhi claims that he was subjected to a hostile or abusive work environment because of racial harassment and harassment on account of his national origin, which are forms of prohibited employment discrimination. A work environment is hostile or abusive because of racial or national origin harassment if the Plaintiff was subjected to offensive acts or statements based on race or national origin and such acts or statements were unwelcome and had not been invited or solicited, directly or indirectly, by the Plaintiffs' own acts or statements. Mr. Almakhadhi claims that the statements and actions of several supervisors, including Karlyn Dixon and Stacey Suhr, created a hostile work environment and that their actions were based on his race and national origin. Delaware Park denies that Ms. Dixon or Ms. Suhr's actions were in any way wrongful and denies that either was motivated in any way by Mr. Almakhadhi's race or national origin. 14

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Authorities

Adapted from the Third Circuit's Model Civil Jury Instructions, Chapter 1, May 2007 Source: 42 U.S.C. §12112, EEOC Technical Assistance Manual on Title I of ADA; School Board of Nassau County v. Arline, 480 U.S. 273 (1987); Williams v. Phila. Housing Auth., 2004 U.S. App. LEXIS 18151, n.6; Van Zande v. State of Wisconsin, 44 F.3d 538 (7th Cir. 1995); 29 U.S.C. §2601(b)(1) and (b)(2); Sabbrese v. Lowe's Home Centers, Inc., 320 F. Supp. 2d 311, 321 (W.D.Pa. 2004).

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1.7

SUMMARY OF THE LAW [DEFENDANT'S PROPOSED INSTRUCTION] I will give you detailed instructions on the law at the end of the case, and those

instructions will control your deliberation and decision. But in order to help you follow the evidence, I will now give you a brief summary of the claims Mr. Almakhadhi is alleging against Delaware Park: In this case Mr. Almakhadhi makes claims based on several federal laws. The first of these is known as the Americans with Disabilities Act, which will be referred to in these instructions as the ADA. Under the ADA, an employer may not discriminate against an employee in the terms or conditions of his employment on the basis of a disability. "Disability" is a defined term with a special meaning under the ADA and I will instruct you on the meaning of that term at the conclusion of the case. Mr. Almakhadhi's claims under the ADA are that Delaware Park failed to promote him, denied him a light duty assignment, and terminated him from employment because of his alleged disability. Delaware Park denies that it took any action against Mr. Almakhadhi on the basis of any alleged disability. Further, Delaware Park asserts that Mr. Almakhadhi was not a disabled individual under the ADA while he was employed by Delaware Park because he did not have a physical impairment that substantially limited any of his major life activities and Delaware Park did not regard him as being disabled. Mr. Almakhadhi also makes several claims under a Federal Civil Rights statute, commonly known as "Title VII", that prohibits employers from discriminating against an employee in the terms and conditions of employment because of, among other things, the 16

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employee's race or national origin. This statute also prohibits an employer from retaliating against an employee after he or she has engaged in an activity protected under the statute, such as making a discrimination complaint. In this case, Mr. Almakhadhi claims that Delaware Park failed to promote him, failed to give him a light duty assignment, denied him a bonus, and terminated his employment based on his race and national origin. He also alleges that these actions were retaliatory because he made a complaint of discrimination. Delaware Park denies that it discriminated or retaliated against Mr. Almakhadhi in any way. Mr. Almakhadhi also has made a claim under the Family and Medical Leave Act (or FMLA), a Federal statute that prohibits an employer from interfering with or discriminating against an employee because of his exercise of the right to a period of unpaid leave for one of the following reasons: because of the employee's own serious health condition; where necessary to care for a family member with a serious health condition; because of the birth of a son or daughter; or because of the placement of a son or daughter with the employee for adoption or foster care. Specifically, Mr. Almakhadhi claims that after he took FMLA leave, Delaware Park discriminated against him by not promoting him, by not giving him a light duty assignment, and by terminating his employment, and that Delaware Park did so because he took the leave. Delaware Park denies that its actions were related in any way to Mr. Almakhadhi's taking FMLA leave.

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If permitted by the Court: [Mr. Almakhadhi also claims that Delaware Park denied him FMLA leave to which he was entitled. Delaware Park claims that Mr. Almakhadhi had already used all of the FMLA leave to which he was entitled when he was terminated from employment.] If permitted by the Court: [Finally, Mr. Almakhadhi claims that Delaware Park

subjected him to a hostile work environment that was the result of harassment on the basis of his race and national origin. Delaware Park denies that Mr. Almakhadhi was subjected to

harassment or any wrongful act motivated by his race or national origin.]

Authorities

Adapted from the Third Circuit's Model Civil Jury Instructions, Chapter 1, May 2007.

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1.8

BURDEN OF PROOF [PLAINTIFF'S PROPOSED INSTRUCTION] This is a civil case. Here, Mr. Almakhadhi has the burden of proving his case by what is

called a preponderance of the evidence. That means the Mr. Almakhadhi has to produce evidence which, considered in light of all the facts, leads you to believe that what Mr. Almakhadhi claims is more likely true than not. To put it differently, if you were to put Mr. Almakhadhi's and Delaware Park's evidence on opposite sides of a scale, you should find in Mr. Almakhadhi's favor if the evidence supporting his claims would make the scale tip on his side even to the slightest degreeIf Mr. Almakhadhi fails to meet this burden, the verdict must be for Delaware Park. Mr. Almakhadhi must also prove his damages by a preponderance of the evidence. In determining whether any fact has been proven by a preponderance of the evidence, you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them. On certain issues, called affirmative defenses, Delaware Park has the burden of proving the elements of the defense by a preponderance of the evidence. I will instruct you on the facts that will be necessary for you to make a finding on this affirmative defense. An affirmative defense is proven if you find, after considering all the evidence in the case, that Delaware Park has succeeded in proving that the required facts are more likely so than not so.

Authorities

Adapted from the Third Circuit's Model Civil Jury Instructions, Chapter 1, May 2007. 19

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1.8

BURDEN OF PROOF [DEFENDANT'S PROPOSED INSTRUCTION] This is a civil case. Here, Mr. Almakhadhi has the burden of proving his case by what is

called a preponderance of the evidence. That means the Mr. Almakhadhi has to produce evidence which, considered in light of all the facts, leads you to believe that what Mr. Almakhadhi claims is more likely true than not. To put it differently, if you were to put Mr. Almakhadhi's and Delaware Park's evidence on opposite sides of a scale, the evidence supporting Mr. Almakhadhi would have to make the scale tip somewhat on his side. If Mr. Almakhadhi fails to meet this burden, the verdict must be for Delaware Park. Mr. Almakhadhi must also prove his damages by a preponderance of the evidence. In determining whether any fact has been proven by a preponderance of the evidence, you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them. On certain issues, called affirmative defenses, Delaware Park has the burden of proving the elements of the defense by a preponderance of the evidence. I will instruct you on the facts that will be necessary for you to make a finding on this affirmative defense. An affirmative defense is proven if you find, after considering all the evidence in the case, that Delaware Park has succeeded in proving that the required facts are more likely so than not so. Those of you who have sat on criminal cases will have heard of proof beyond a reasonable doubt. That requirement does not apply to a civil case. Authorities Adapted from the Third Circuit's Model Civil Jury Instructions, Chapter 1, May 2007. 20

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1.9

CONDUCT OF THE JURY [JOINT] Now, a few words about your conduct as jurors. First, I instruct you that during the trial you are not to discuss the case with anyone or

permit anyone to discuss it with you. Until you retire to the jury room at the end of the case to deliberate on your verdict, you simply are not to talk about this case. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk with you nor you with them. In this way, any unwarranted and unnecessary suspicion about your fairness can be avoided. If anyone should try to talk to you about it, bring it to the court's attention promptly. Second, do not read or listen to anything pertaining to this case in any way. Third, do not try to do any research or make any investigation about the case on your own. Finally, do not form any opinion until all the evidence is in. Keep an open mind until you start your deliberations at the end of the case. During the trial, I will permit you to take notes. A word of caution is in order. There is always a tendency to attach undue importance to matters that one has written down. Some testimony that is considered unimportant at the time presented, and thus not written down, takes on greater importance later in the trial in light of all the evidence presented. Therefore, you are instructed that your notes are only a tool to aid your own individual memory and you should not compare your notes with other jurors in determining the content of any testimony or in evaluating the importance of any evidence. Your notes are not evidence, and are by no means a complete outline of the proceedings or a list of the highlights of the trial. Above all, your memory should be your greatest asset when it comes time to deliberate and render a decision in 21

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this case. So, if you do take notes, leave them in your seat at the end of the day, and my Deputy will collect them and return them to your seat the next day. And, remember that they are for your own personal use.

Authorities

Adapted from the Third Circuit's Model Civil Jury Instructions, Chapter 1, May 2007.

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1.10

COURSE OF THE TRIAL [PLAINTIFF'S PROPOSED INSTRUCTION] This trial will proceed in the following manner: (1) (2) These preliminary instructions to you. Opening statements, which are intended to explain to you what each side intends to prove and are offered to help you follow the evidence. The lawyers are not required to make opening statements at this time or they may defer this opening until it is their turn to present evidence. What is said in opening statements is not evidence, but is simply an outline to help you understand what each party expects the evidence to show. (3) The presentation of the evidence which will include live witnesses, as well as documents and things. (4) (5) My final instructions on the law to you. The closing arguments of the lawyers which will be offered to help you make your determination. evidence. (6) Finally, your deliberations, where you will evaluate and discuss the evidence among yourselves and determine the outcome of the case. Please keep in mind that evidence is often introduced somewhat piecemeal. So, as the As with opening statements, closing statements are not

evidence comes in, you as jurors need to keep an open mind.

Authorities

Adapted from the Third Circuit's Model Civil Jury Instructions, Chapter 1, May 2007. 23

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1.10

COURSE OF THE TRIAL [DEFENDANT'S PROPOSED INSTRUCTION] This trial will proceed in the following manner: (1) (7) These preliminary instructions to you. Opening statements, which are intended to explain to you what each side intends to prove and are offered to help you follow the evidence. The lawyers are not required to make opening statements at this time or they may defer this opening until it is their turn to present evidence. What is said in opening statements is not evidence, but is simply an outline to help you understand what each party expects the evidence to show. (8) The presentation of the evidence which will include live witnesses and may also include previously recorded testimony, as well as documents and things. (9) (10) My final instructions on the law to you. The closing arguments of the lawyers which will be offered to help you make your determination. evidence. (11) Finally, your deliberations, where you will evaluate and discuss the evidence among yourselves and determine the outcome of the case. Please keep in mind that evidence is often introduced somewhat piecemeal. So, as the As with opening statements, closing statements are not

evidence comes in, you as jurors need to keep an open mind.

Authorities

Adapted from the Third Circuit's Model Civil Jury Instructions, Chapter 1, May 2007. 24

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SECTION II: PROPOSED JURY INSTRUCTIONS AT THE CLOSE OF EVIDENCE
A. 2.1 GENERAL INSTRUCTIONS INTRODUCTION [JOINT] Members of the jury, now it is time for me to instruct you about the law that you must follow in deciding this case. Each of you has been provided a copy of these instructions. You may read along as I deliver them if you prefer, however, I would encourage you to focus your attention on me while the instructions are being read. You will be able to take your copies with you into your deliberations and refer to them at that time, if necessary. I will start by explaining your duties and the general rules that apply in every civil case. Then I will explain the positions of the parties and the law that you will apply in this case. Finally, I will explain the rules that you must follow during your deliberations in the jury room, and the possible verdicts that you may return. Please listen very carefully to everything I say. Members of the jury, it is important that you bear in mind the distinction between your duties and my duties. You have two main duties as jurors. The first one is to decide what the facts are from the evidence that you saw and heard here in court. You are the sole judges of the facts. It is your judgment, and your judgment alone, to determine what the facts are, and nothing I have said or done during this trial was meant to influence your decisions about the facts in any way. Your second duty is to take the law that I give you, apply it to the facts, and decide if, by 25

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a preponderance of the evidence, Delaware Park is liable. Now, as far as my duty is concerned, I have the duty of advising you about the law that you should apply to the facts as you find them. You are not to consider whether the principles I state to you are sound or whether they accord with your own views about policy. You are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them. You must accept them despite how you feel about their wisdom. This includes the instructions that I gave you before and during the trial, and these instructions. All the instructions are important, and you should consider them together as a whole. Perform these duties fairly. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way. Authorities Uniform Jury Instructions in the United States District Court for the District of Delaware.

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2.2

EVIDENCE DEFINED [JOINT] You must make your decision based only on the evidence that you saw and heard here in

court. Do not let rumors, suspicions, or anything else that you may have seen or heard outside of court influence your decision in any way. The evidence in this case includes only what the witnesses said while they were testifying under oath, the exhibits that I allowed into evidence, and the stipulations to which the lawyers agreed. Nothing else is evidence. The lawyers' statements and arguments are not evidence. The arguments of the lawyers are offered solely as an aid to help you in your determination of the facts. Their questions and objections are not evidence. My legal rulings are not evidence. My comments and questions are not evidence. During the trial I may have not let you hear the answers to some of the questions the lawyers asked. I may also have ruled that you could not see some of the exhibits that the lawyers wanted you to see. You must completely ignore all of these things. Do not speculate about what a witness might have said or what an exhibit might have shown. These things are not evidence, and you are bound by your oath not to let them influence your decision in any way. Make your decision based only on the evidence, as I have defined it here, and nothing else. Authorities Uniform Jury Instructions in the United States District Court for the District of Delaware.

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2.3

DIRECT AND CIRCUMSTANTIAL EVIDENCE [JOINT] You have heard the terms direct evidence and circumstantial evidence. Direct evidence is evidence like the testimony of an eyewitness which, if you believe it,

directly proves a fact. If a witness testified that she saw it raining outside, and you believed her, that would be direct evidence that it was raining. Circumstantial evidence is a chain of circumstances that indirectly proves a fact. If someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining. It is your job to decide how much weight to give the direct and circumstantial evidence. The law makes no distinction between the weight that you should give to either one, nor does it say that one is any better evidence than the other. You should consider all the evidence, both direct and circumstantial, and give it whatever weight you believe it deserves.

Authorities

Uniform Jury Instructions in the United States District Court for the District of Delaware.

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2.4

CONSIDERATION OF EVIDENCE [JOINT] You should use your common sense in weighing the evidence. Consider it in light of

your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion.

Authorities

Uniform Jury Instructions in the United States District Court for the District of Delaware.

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2.5

STATEMENTS OF COUNSEL [JOINT] A further word about statements and arguments of counsel. The attorneys' statements

and arguments are not evidence. Instead, their statements and arguments are intended to help you review the evidence presented. If you remember the evidence differently from the attorneys, you should rely on your own recollection.

Authorities

Adapted from Uniform Jury Instructions in the United States District Court for the District of Delaware.

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2.6

CREDIBILITY OF WITNESSES [PLAINTIFF'S PROPOSED INSTRUCTION] You are the sole judges of each witness's credibility. You should consider each witness'

means of knowledge; strength of memory; opportunity to observe; how reasonable or unreasonable the testimony is; whether it is consistent or inconsistent; whether it has been contradicted; the witness' biases, prejudices, or interests; the witness' manner or demeanor on the witness stand; and all circumstances that, according to the evidence, could affect the credibility of the testimony. It is your duty and privilege to believe the testimony that, in your judgment, is most believable and disregard any testimony that, in your judgment, is not believable. In determining the weight to give the testimony of a witness, you should ask yourself whether there is evidence tending to prove that the witness testified falsely about some important fact, or, whether there was evidence that at some other time the witness said or did something, or failed to say or do something that was different from the testimony he or she gave at trial. You have the right to distrust such witness' testimony in other particulars and you may reject all or some of the testimony of that witness or give it such credibility as you may think it deserves. You should remember that a simple mistake by a witness does not necessarily mean that the witness was not telling the truth. People may tend to forget some things or remember other things inaccurately. If a witness had made a misstatement, you must consider whether it was simply an innocent lapse of memory or an intentional falsehood, and that may depend upon whether it concerns an important fact or an unimportant detail. If you find that any witness willfully or corruptly testified falsely under oath, you have a right to distrust the witness' testimony in other particulars, and may therefore disregard all of that 31

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witness' testimony as untruthful. You are not required to do so, but you may. You may also accept as true only those portions of the witness' testimony which you believe, and disregard the rest. Authorities Adapted from Uniform Jury Instructions in the United States District Court for the District of Delaware; LAUB'S TRIAL GUIDE, § 586.1(2).

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2.6

CREDIBILITY OF WITNESSES [DEFENDANT'S PROPOSED INSTRUCTION] You are the sole judges of each witness's credibility. You should consider each witness'

means of knowledge; strength of memory; opportunity to observe; how reasonable or unreasonable the testimony is; whether it is consistent or inconsistent; whether it has been contradicted; the witness' biases, prejudices, or interests; the witness' manner or demeanor on the witness stand; and all circumstances that, according to the evidence, could affect the credibility of the testimony. It is your duty and privilege to believe the testimony that, in your judgment, is most believable and disregard any testimony that, in your judgment, is not believable. In determining the weight to give the testimony of a witness, you should ask yourself whether there is evidence tending to prove that the witness testified falsely about some important fact, or, whether there was evidence that at some other time the witness said or did something, or failed to say or do something that was different from the testimony he or she gave at trial. You have the right to distrust such witness' testimony in other particulars and you may reject all or some of the testimony of that witness or give it such credibility as you may think it deserves. You should remember that a simple mistake by a witness does not necessarily mean that the witness was not telling the truth. People may tend to forget some things or remember other things inaccurately. If a witness had made a misstatement, you must consider whether it was simply an innocent lapse of memory or an intentional falsehood, and that may depend upon whether it concerns an important fact or an unimportant detail. This instruction applies to all witnesses.

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Authorities

Adapted from Uniform Jury Instructions in the United States District Court for the District of Delaware.

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2.7

DISCREPANCIES IN TESTIMONY [JOINT] You are the sole judges of the credibility of the witnesses and the weight their testimony

deserves. You may be guided by the appearance and conduct of the witness, or by the manner in which the witness testifies or by the character of the testimony given, or by the evidence contrary to the testimony. You should carefully examine all the testimony given, the circumstances under which each witness has testified, and every matter in evidence tending to show whether a witness is worthy of belief. Consider each witness' intelligence, motive and state of mind, and demeanor or manner while testifying. Consider the witness' ability to observe the matters as to which the witness has testified, and whether the witness impresses you as having an accurate recollection of these matters. Also, consider any relation each witness may have with either side of the case, the manner in which each witness might be affected by the verdict, and the extent to which the testimony of each witness is either supported or contradicted by the other evidence in the case. Inconsistencies or discrepancies in the testimony of a witness, or between the testimony of different witnesses may or may not cause you to discredit such testimony. Two or more persons seeing an event may see or hear it differently. In weighing the effect of a discrepancy, always consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from an innocent error or intentional falsehood.

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After making your own judgment, you will give the testimony of each witness such weight, if any, that you may think it deserves. In short, you may accept or reject the testimony of any witness, in whole or in part.

Authorities

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, § 105.01 (5th ed. 2001).

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2.8

BURDEN OF PROOF; PREPONDERANCE OF THE EVIDENCE [PLAINTIFF'S PROPOSED INSTUCTION] This is a civil case. Here, Mr. Almakhadhi has the burden of proving his case by what is

called a preponderance of the evidence. That means the Mr. Almakhadhi has to produce evidence which, considered in light of all the facts, leads you to believe that what Mr. Almakhadhi claims is more likely true than not. To put it differently, if you were to put Mr. Almakhadhi's and Delaware Park's evidence on opposite sides of a scale, you should find in Mr. Almakhadhi's favor if the evidence supporting his claims would make the scale tip on his side even to the slightest degree. If Mr. Almakhadhi fails to meet this burden, the verdict must be for Delaware Park. Mr. Almakhadhi must also prove his damages by a preponderance of the evidence. The preponderance of the evidence does not depend on the number of witnesses or the number of exhibits used. If the evidence as to a particular element or issue is evenly balanced, the party has not proved the element by a preponderance of the evidence and you must find against that party. In determining whether any fact has been proven by a preponderance of the evidence, you may consider the testimony of all witnesses, regardless of who called them and all exhibits received in evidence regardless of who produced them. Those of you who are familiar with criminal cases will have heard the term proof beyond a reasonable doubt. That burden does not apply in a civil case and you should therefore put it out of your mind in considering whether or not Mr. Almakhadhi has met his burden of proof on various issues. Authorities Adapted from Uniform Jury Instructions in the United States District Court for the District of Delaware. 37

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2.8

BURDEN OF PROOF; PREPONDERANCE OF THE EVIDENCE [DEFENDANT'S PROPOSED INSTRUCTION] This is a civil case. Mr. Almakhadhi has the burden of providing his claims and damages

by what is called a preponderance of the evidence. Proof by a preponderance of the evidence means proof that something is more likely true than not. It means that certain evidence, when compared to the evidence opposed to it, has the more convincing force and makes you believe that something is more likely true than not. To put it differently, if you were to put Mr. Almakhadhi's and Delaware Park's evidence on opposite sides of a scale, the evidence supporting Mr. Almakhadhi would have to make the scale tip somewhat on his side. If Mr. Almakhadhi fails to meet this burden, the verdict must be for Delaware Park. Mr. Almakhadhi must also prove his damages by a preponderance of the evidence. The preponderance of the evidence does not depend on the number of witnesses or the number of exhibits used. If the evidence as to a particular element or issue is evenly balanced, the party has not proved the element by a preponderance of the evidence and you must find against that party. In determining whether any fact has been proven by a preponderance of the evidence, you may consider the testimony of all witnesses, regardless of who called them and all exhibits received in evidence regardless of who produced them. Those of you who are familiar with criminal cases will have heard the term proof beyond a reasonable doubt. That burden does not apply in a civil case and you should therefore put it out of your mind in considering whether or not Mr. Almakhadhi has met his burden of proof on various issues. Authorities Adapted from Uniform Jury Instructions in the United States District Court for the District of Delaware. 38

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2.9

ALL PERSONS EQUAL BEFORE THE LAW ­ INDIVIDUALS AND CORPORATIONS [JOINT] The case should be considered and decided by you as a dispute between persons of equal

standing in the community, of equal worth, and holding the same or similar stations in life. All persons stand equal before the law and are to be treated as equals. As you know, Delaware Park is a corporation. A corporation is entitled to the same fair trial as a private individual. All persons, including corporations, large or small, stand equal before the law, and are to be treated as equals in a court of justice. Therefore, you may not judge a corporation more harshly, or treat a corporation differently, than you would any other single individual.

Authorities

Adapted from O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, §§ 103.11 & 103.12 (5th ed. 2001).

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2.10

ADMONITION REGARDING SYMPATHY [JOINT] Under your oath as jurors you are not to be swayed by sympathy. You should be guided

solely by the evidence presented during the trial, without regard to the consequences of your decision. You have been chosen to try the issues of fact and reach a verdict on the basis of the evidence or lack of evidence. If you let sympathy interfere with your clear thinking there is a significant risk that you will not arrive at a just verdict. All parties to a civil lawsuit are entitled to a fair trial. You must make a fair and impartial decision so that you will arrive at the just verdict.

Authorities

4 L. Sand, et. al., Modern Federal Jury Instructions, ¶ 71-10.

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B. 3.1

INSTRUCTIONS ON APPLICABLE LAW BUSINESS JUDGMENT [PLAINTIFF'S PROPOSED INSTRUCTION] Employment discrimination laws are not intended to be a vehicle for judicial second-

guessing of business decisions; nor are they intended to transform the courts into personnel managers. An employer is entitled to make its own policy and business judgment, and may therefore, take an adverse employment action against an employee for reasons that the employer considers to be in its best interests. An employer is entitled to make its own subjective personnel decisions, however misguided they may appear to you, and can take an adverse employment action against an employee for any non-discriminatory and non-retaliatory reason, good or bad, fair or unfair, and you may not second-guess that decision or permit any sympathy for the employee to lead you to substitute your own judgment for that of Delaware Park, even though you personally may not favor the decision or would have made a different decision under the circumstances. Therefore, you should not find that an adverse employment action decision is unlawful just because you may disagree with Delaware Park's stated reasons, or because you believe that the decision was mistaken, harsh or unreasonable. You must also consider whether or not Defendants' stated reasons for their actions are false, that is, a pretext for discrimination. In employment law, a reason becomes a pretext when it is not the real reason for the Defendant's action. Evidence of inconsistencies, contradictions, weaknesses, implausibility, or incoherencies in the employer's stated reason for its actions may demonstrate pretext. If you find that Defendants' explanations are a pretext, you may, but are not required to, conclude that Defendant, in making up a false explanation for its actions, is trying to conceal the 41

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true discriminatory reason. Thus, if you determine that the reasons articulated by Delaware Park to explain the actions in question were not the actual reasons, you would be authorized but not required to conclude that discrimination more likely than not was a motivating factor in Delaware Park's actions. Authorities Adapted from McNamara & Southerland, Federal Employment Jury Instructions, § 1:1130 (2005). See, e.g., Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991) ("Barring discrimination, a company has the right to make business judgments on employee status, particularly when the decision involves subjective factors deemed essential to certain position."); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 332 (3d Cir. 1995) ("[W]e do not sit as a super-personnel department that reexamines an entity's business decisions."); Fuentes v. Perksie, 32 F.3d 759, 765 (3d Cir. 1994) ("To discredit the employer's proffered reason [as pretextual], the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent."); Reeves v. Sanderson Products, Inc., 530 U.S. 133, 146-47 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993); Palmer v. Board of Regents, 208 F.3d 969 (11th Cir. 2000); Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1998); Howard v. BP Oil Co, Inc., 32 F.3d 520, 526 (11th Cir. 1994); Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994).

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3.1

BUSINESS JUDGMENT [DEFENDANT'S PROPOSED INSTRUCTION] Employment discrimination laws are not intended to be a vehicle for judicial second-

guessing of business decisions; nor are they intended to transform the courts into personnel managers. An employer is entitled to make its own policy and business judgment, and may therefore, take an adverse employment action against an employee for reasons that the employer considers to be in its best interests. So long as it does not act for an illegal purpose, an employer is entitled to make its own subjective personnel decisions, however misguided they may appear to you, and can take an adverse employment action against an employee for any nondiscriminatory and non-retaliatory reason, good or bad, fair or unfair, and you may not secondguess that decision or permit any sympathy for the employee to lead you to substitute your own judgment for that of Delaware Park, even though you personally may not favor the decision or would have made a different decision under the circumstances. Therefore, you should not find that an adverse employment action decision is unlawful just because you might have made a different decision, or because you believe that the decision was mistaken, harsh or unreasonable. Authorities Adapted from McNamara & Southerland, Federal Employment Jury Instructions, § 1:1130 (2005). See, e.g., Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991) ("Barring discrimination, a company has the right to make business judgments on employee status, particularly when the decision involves subjective factors deemed essential to certain position."); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 332 (3d Cir. 1995) ("[W]e do not sit as a super-personnel department that reexamines an entity's business decisions."); Fuentes v. Perksie, 32 F.3d 759, 765 (3d Cir. 1994) ("To discredit the employer's proffered reason [as pretextual], the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.").

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3.2

AT-WILL EMPLOYMENT [JOINT] At all times, the employment relationship between Mr. Almakhadhi and Delaware Park

was an "at will" employment relationship. That means that Mr. Almakhadhi's employment was of no set duration, and either he or Delaware Park was free to end their employment relationship at any time, with or without notice, and with or without cause, as long as Delaware Park's reason for terminating Mr. Almakhadhi's employment was not based on discrimination or retaliation.

Authorities

See Merrill v. Crothall-American, Inc., 606 A.2d 96, 101-103 (Del. 1992) ("[A]n employer has wide latitude in deciding how it conducts its business including employment undertakings....Employer