Free Answering Brief in Opposition - 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. 07-78-JJF JURY TRIAL DEMANDED

ANSWERING BRIEF IN OPPOSITION TO DELAWARE PARK, L.L.C.'S MOTION FOR SUMMARY JUDGMENT

Frank J. Conley, Esquire THE CONLEY FIRM 7715 Crittenden Street, Suite 113 Philadelphia, PA 19118 (215) 836-4789 [email protected] Glenn Brown, Esquire Bar No. 4669 Real World Law 916 N. Union St #2 Wilmington, DE 19805 (302) 225-8340 [email protected] Attorneys for Plaintiff Sami Almakhadhi Date: 14 December 2007

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TABLE OF CONTENTS Table of Citations ____________________________________________________ iii I. II. III. A. 1. 2. 3. 4. 5. 6. B. 1. 2. Statement of the Nature and Stage of the Proceeding _________________ 1 Summary of Argument ___________________________________________ 5 Counter Statement of the Facts ____________________________________ 6 Undisputed Basic Facts ________________________________________ Mr. Almakhadhi's Background and Work History _________________ Mr. Almakhadhi's Efforts to Advance ____________________________ Mr. Almakhadhi's Complaints of Discrimination __________________ Mr. Almakhadhi's Work Injury __________________________________ Mr. Almakhadhi's Use of FMLA _________________________________ Delaware Park's Termination of Mr. Almakhadhi's Employment_____ 6 6 7 8 8 9 9

Disputed Material Facts_________________________________________ 10 Delaware Park's Discrimination Against Mr. Almakhadhi__________ 10 Delaware Park's Retaliation Against Mr. Almakhadhi Because of his Complaints about Discrimination and Because of his Application for Worker's Compensation Benefits _______________________________ 13 Argument ______________________________________________________ 21

IV. A.

Summary Judgment is Inappropriate where, as here, the Employer's Intent is at Issue _____________________________________________ 22 1. Delaware Park is not entitled to summary judgment on Mr. Almakhadhi's ADA claims_____________________________________ 24 a. Mr. Almakhadhi is disabled within the meaning of the ADA. ____ 25 i. Mr. Almakhadhi's back injury limits one or more of his major life activities. ________________________________________________ 25 ii. Mr. Almakhadhi has a record of an impairment. ______________ 27 iii. Delaware Park regarded Mr. Almakhadhi as disabled. ________ 28 2. Delaware Park is not entitled to summary judgment on Mr. Almakhadhi's Title VII claims __________________________________ 29 a. Mr. Almakhadhi has shown direct and circumstantial evidence of race and national origin discrimination.________________________ 31 b. Mr. Almakhadhi has shown direct and circumstantial evidence of a hostile work environment____________________________________ 32 c. Mr. Almakhadhi has shown direct and circumstantial evidence of retaliation _________________________________________________ 34 3. Delaware Park is not entitled to summary judgment on Mr. Almakhadhi's Worker's Compensation Retaliation Claim __________ 35 4. Delaware Park is not entitled to summary judgment on Mr. Almakhadhi's FMLA claims____________________________________ 37 Conclusion ______________________________________________________ 39

V.

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TABLE OF CITATIONS Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) _______________________ 22 Averbach v. Rival Mfg. Co., 879 F.2d 1196 (3d Cir. 1989) ____________________ 3 Bates v. Jean, 745 F.2d 1146 (7th Cir. 1984)_________________________________ 2 Birl v. Estelle, 660 F.2d 592 (5th Cir. 1981) _________________________________ 2 Bragdon v. Abbott, 524 U.S. 624 (1998)___________________________________ 26 Cardenas v. Dorel Juvenile Group, Inc., 2006 U.S. Dist. LEXIS 37465 (D. Kan. 2006) _______________________________________________________________ 7 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ______________________________ 22 Collins v. Sload, 212 Fed. Appx. 136 (3d Cir. 2007)_________________________ 30 Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499 (7th Cir. 1998). _____________ 27 Deane v. Pocono Med. Ctr., 142 F.3d 138 (3d Cir. 1998)__________________ 24, 28 Desert Palace, inc. v. Costa, 539 U.S. 90 (2003) ____________________________ 23 Emory v. AstraZeneca Pharms. LP, 401 F.3d 174 (3d Cir. 2005) ______________ 26 Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378 (3d Cir. 2004)__________________ 26 Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219 (2d Cir. 1994) ___________________________________________________________ 22, 23 Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313 (3d Cir. 2000)_________ 22 Harris v. Forklift Sys., 510 U.S. 17 (1993) _________________________________ 33 Hickman v. Taylor, 329 U.S. 495 (1947) ___________________________________ 3 Jensen v. Potter, 435 F.3d 444, (3d Cir. 2006) ______________________________ 33 Jones v. School Dist. of Phila., 198 F.3d 403 (3d Cir. 1999)___________________ 30 Kunin v. Sears Roebuck & Co., 175 F.3d 289 (3d Cir. 1999) __________________ 32 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) _______ 22 Mayle v. Felix, 545 U.S. 644 (2005)_______________________________________ 36 Medical Protective Co. v. Watkins, 198 F.3d 100 (3d Cir. 1999) ______________ 22
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Mondzelewski v. Pathmark Stores, 162 F.3d 778 (3d Cir. 1998) ______________ 25 Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002) ________________ 38 Sarullo v. United States Postal Serv., 352 F.3d 789 (3d Cir. 2003) _____________ 30 Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535 (3d Cir 2006) _______________________________________________________ 30 Sherrod v. Phila. Gas Works, 57 Fed. Appx. 68 (3d Cir. 2003) _______________ 33 Stewart v. Rutgers, The State University, 120 F.3d 426 (3d Cir. 1997) _________ 23 Taylor v. Pathmark Stores, Inc., 177 F.3d 180 (3d Cir. 1999) _________________ 29 Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) _________________ 30 Traguth v. Zuck, 710 F.2d 90 (2d Cir. 1983) ________________________________ 2 U.S. v. Procter & Gamble Co., 356 U.S. 677 (1958) __________________________ 3 Verdin v. Weeks Marine, Inc., 124 Fed. Appx. 92 (3d Cir. 2005)______________ 32 Webner v. Titan Distributing, Inc., 267 F.3d 828 (8th Cir. 2001) ______________ 26 West v. Phila. Elec. Co., 45 F.3d 744 (3d Cir. 1995) _________________________ 33 Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997)_________________ 34, 35 Statutes 29 U.S.C. § 2617 ______________________________________________________ 38 42 U.S.C. § 12102(2) ___________________________________________________ 25 42 U.S.C. § 12111(8) ___________________________________________________ 25 Rules Fed. R. Civ. P. 56(a) _________________________________________________ 4, 29 Treatises 2 C HARLES A. SULLIVAN , MICHAEL J. ZIMMER & REBECCA H ANNER WHITE, EMPLOYMENT DISCRIMINATION LAW AND PRACTICE 455 (3d ed. 2002) ________ 33

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I.

STATEMENT OF THE NATURE AND STAGE OF THE PROCEEDING On January 18, 2002, Defendant Delaware Park, LLC ("Defendant" or

"Delaware Park") hired Plaintiff Sami Almakhadhi as a Booth Cashier at its casino. (A38)1 Mr. Almakhadhi began suffering discrimination shortly after he began working at Delaware Park, and sought the assistance of his supervisors and Delaware Park's Human Resources Department. (Pl. Dep. at 76-78, A63-A65) After failing to achieve any satisfaction through Delaware Park's internal complaint mechanisms, and following Defendant's termination of his employment, on April 26, 2006, Mr. Almakhadhi filed a Charge of Discrimination with the Delaware Department of Labor. (A169) On September 29, 2006, the Delaware Department of Labor issued a Final Determination and Right to Sue Notice. (A171) The U.S. Equal Employment Opportunity Commission issued its Dismissal and Notice of Suit Rights on January 16, 2007. (A173) Because Mr. Almakhadhi was unable to obtain counsel, he filed timely his original Complaint pro se, using a Title VII complaint form provided by the Clerk of Court. (D.I. 1) On March 21, 2007, Delaware Park filed a Motion to Dismiss Mr. Almakhadhi's Pro Se Complaint based upon a technical service of process issue. (D.I. 6) Mr. Almakhadhi corrected the problem and on April 13, 2007, Delaware Park filed its Answer. (D.I. 14) On June 24, 2007, this Court entered a Scheduling Order. (D.I. 21) Thereafter, Delaware Park served on Mr. Almakhadhi interrogatories and document requests, to which Mr. Almakhadhi has responded. Mr. Almakhadhi
1

Delaware Park made no effort to agree to a Joint Appendix. To reduce duplication, where possible Mr. Almakhadhi cites to Defendant's Appendix. Relevant documentary evidence Delaware Park failed to include in its Appendix is attached hereto as Appendix B ("B ___") or referred to by Docket Index number where appropriate.

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likewise served written discovery requests on Delaware Park. On September 12, 2007, the undersigned filed a Motion for Pro Hac Vice Admission on behalf of Mr. Almakhadhi. (D.I. 40) The Court granted that motion on October 2, 2007. Because of deficiencies in Mr. Almakhadhi's Pro Se Complaint (caused, in part, by his use of a form and also his limited language proficiency), on October 2, 2006, Mr. Almakhadhi filed a Motion for Leave to Amend his Pro Se Complaint. (D.I. 41) That Motion is outstanding. With the assistance of counsel Mr. Almakhadhi also determined that Delaware Park's responses to his discovery requests were lacking. Indeed, Delaware Park has not fully responded to Mr. Almakhadhi's discovery requests nor complied with its Rule 26 obligations, necessitating Mr. Almakhadhi's filing on November 14, 2007, of a Motion to Compel Discovery and for Sanctions. (D.I. 46.) Because Delaware Park failed to respond to Mr. Almakhadhi's Second Set of Discovery Requests (which largely sought information that should have been provided under Rule 26 to a pro se plaintiff2), on November 21, 2007,
2

Pro se litigants are the beneficiaries of special treatment. They are "commonly required to comply with standards less stringent than those applied to expertly trained members of the legal profession." Bates v. Jean, 745 F.2d 1146, 1150 (7th Cir. 1984). This is so because it is fundamental to our legal system that implicit in the right to self-representation is an obligation on the part of the judicial system "to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Although the right "does not exempt a party from compliance with relevant rules of procedural and substantive law," Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981), "it should not be impaired by harsh application of technical rules." Traguth at 95. Here, Mr. Almakhadhi acted not only pro se, but he also is a recent immigrant. English is Mr. Almakhadhi's second language, and he speaks with a heavy accent. He has difficulty understanding English. Additionally, Mr. Almakhadhi's ability to read and write is below average. At best, Delaware Park consistently took advantage of Mr. Almakhadhi's disadvantages (e.g., filing technical motions and parsing Mr. Almakhadhi's poor language to avoid its discovery obligations).
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Mr. Almakhadhi filed his Second Motion to Compel Discovery and for Sanctions. (D.I. 48) Briefing is complete on both the First and Second Motions to Compel and for Sanctions. The Court has not yet ruled on either of them. Among Mr. Almakhadhi's requested sanctions for Delaware Park's discovery violations was that the Court disallow Delaware Park from filing a motion for summary judgment. Mr. Almakhadhi requested this relief because, among other things, Delaware Park admits it failed to conduct a diligent search of its records in response to Mr. Almakhadhi's discovery requests3; it is undisputed that Delaware Park has withheld investigation files and electronic records; and Delaware Park has apparently failed to obtain or review boxes of potentially dispositive records. (See, e.g., D.I. 46 at Exhibits D and E; D.I. 48 at Exhibits E and F.) Mr. Almakhadhi cannot fairly be required to meet his burden in opposing Delaware Park's instant Motion when Delaware Park has been (thus far) successful in its effort to make this case a game of blind man's bluff--in the dark. Delaware Park's gamesmanship has prejudiced Mr. Almakhadhi.4

3

See also B17, which is a December 5, 2007, letter from Delaware Park seeking to amend substantively one of its Interrogatory responses (in fact, completely reversing its original response). That Delaware Park only now--after more than 19 months during which it was on notice of Mr. Almakhadhi's claims--has sought to investigate Mr. Almakhadhi's allegations is an apt example of its approach to discovery in this litigation.
4

"Our system of civil litigation cannot function if parties . . . suppress information called for upon discovery." Averbach v. Rival Mfg. Co., 879 F.2d 1196, 1201 (3d Cir. 1989). Instead, the aim of the liberal discovery rules is to "make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." U.S. v. Procter & Gamble Co., 356 U.S. 677, 683 (1958). As the Supreme Court stated in Hickman v. Taylor, "civil trials . . . no longer need be carried on in the dark. The way is now clear . . . for the parties to obtain the fullest possible knowledge of the issues and facts before trial." 329 U.S. 495, 501 (1947).

3

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Pursuant to the Court's June 24, 2007 Rule 16 Scheduling Order, discovery ended on October 31, 2007. (D.I. 21) The Court has scheduled a Pretrial Conference for February 7, 2008. (D.I. 22) On November 27, 2007, Delaware Park filed its Motion for Summary Judgment. (D.I. 52) On November 28, 2007, Delaware Park filed a "Corrected" version of its Motion for Summary Judgment. (D.I. 55) Continuing the gamesmanship it has practiced since Mr. Almakhadhi first complained about the discrimination against him, Delaware Park now seeks to dictate to Mr. Almakhadhi and to this Court which claims should be addressed on summary judgment. (Opening Brief in Support of Defendant Delaware Park, LLC's Motion for Summary Judgment at 2 (hereinafter "Defendant's Brief at ___.")) Delaware Park's attempted end-run around this Court's authority is wholly inappropriate. To the extent this Court does not strike Delaware Park's Motion for Summary Judgment (as requested by Mr. Almakhadhi as a sanction for Delaware Park's discovery violations5), and to the extent the Court grants Mr. Almakhadhi's Motion for Leave to Amend, pursuant to Fed. R. Civ. P. 56(a), Mr. Almakhadhi respectfully requests that the Court enter judgment in his favor on those claims Delaware Park did not address in its Motion for Summary Judgment. To comply with this Court's deadlines, Mr. Almakhadhi respectfully submits his Answering Brief in Opposition to Delaware Park's Motion for Summary Judgment. Because the reasons for Mr. Almakhadhi's termination are in marked dispute, this Court should deny Defendant's Motion for Summary Judgment as a matter of law.
5

Mr. Almakhadhi incorporates by reference his First and Second Motions to Compel Discovery and for Sanctions.
4

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II.

SUMMARY OF ARGUMENT A. Taking the facts and reasonable inferences drawn therefrom in the

light most favorable to Mr. Almakhadhi, Delaware Park is not entitled to summary judgment on Mr. Almakhadhi's ADA claims because he is a qualified individual with a disability and Delaware Park discriminated against him because he is disabled, because of his record of disability, and/or because it regarded him as disabled. B. Taking the facts and reasonable inferences drawn therefrom in the

light most favorable to Mr. Almakhadhi, Delaware Park is not entitled to summary judgment on Mr. Almakhadhi's Title VII claims because he has satisfied his initial burden and can show that the reasons for Delaware Park's actions were pretext for discrimination and retaliation. C. Taking the facts and reasonable inferences drawn therefrom in the

light most favorable to Mr. Almakhadhi, Delaware Park is not entitled to summary judgment on Mr. Almakhadhi's state Worker's Compensation Act claim because he has satisfied his initial burden and can show that the reasons for Delaware Park's actions were pretext for retaliation. D. Taking the facts and reasonable inferences drawn therefrom in the

light most favorable to Mr. Almakhadhi, Delaware Park is not entitled to summary judgment on Mr. Almakhadhi's FMLA claims because he has satisfied his initial burden, can show that Delaware Park denied him FMLA leave to which he was entitled, and that the reasons for Delaware Park's actions were pretext for retaliation.

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III. COUNTER STATEMENT OF THE FACTS A. Undisputed Basic Facts

A skeleton of undisputed basic facts exists in this matter. 1. Mr. Almakhadhi's Background and Work History Sami Almakhadhi was born in Yemen, and emigrated with his wife to the United States in 1996. He and his wife have three children. Although Mr. Almakhadhi is educated, English is his second language. He speaks with a heavy accent and his ability to read and write is below average. Mr. Almakhadhi became a Citizen in 2006. Delaware Park is a gambling and casino operation. It hosts thoroughbred horse racing and betting, a casino, and a golf course. On January 18, 2002, Defendant hired Mr. Almakhadhi as a Booth Cashier at its casino. As a Booth Cashier, Mr. Almakhadhi was required to stand at a booth window, accept cash, coins, and coupons from customers, count the money, bag it, and carry the bagged money to the Satellite Cashier station. (A199) Mr. Almakhadhi worked a variety of shifts. Mr. Almakhadhi's performance was excellent. (See, e.g., A234; B42; B43) Mr. Almakhadhi worked in the Cage Operations department. He had two direct supervisors: Karlyn Dixon, Director of Accounting, and Stacy Suhr Assistant Manager of Cage Operations. (A13 at ¶ 2) Ms. Dixon and Ms. Suhr made hiring, firing, promotional, and all other decisions affecting Cage Operations. (Statement of K. Dixon at B23; B37-B38; A14 at ¶ 5)

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2. Mr. Almakhadhi's Efforts to Advance Mr. Almakhadhi believed in the possibilities and promise that America and Delaware Park offered, and he made every effort to improve. Accordingly, during his employment with Delaware Park, Mr. Almakhadhi applied for at least 13 positions, for all of which he met the required experience and qualifications:6 Date of Application April 30, 2002 August 29, 2002 May 6, 2003 June 23, 2003 July 14, 2003 December 8, 2003 February 5, 2004 May 24, 2004 September 2, 2004 January 16, 2005 January 30, 2005 April 5, 2005 August 11, 2005 Position Sought Heavy Equipment Operation Satellite Cashier Satellite Cashier Satellite Cashier Cashier Shift Supervisor VLT Technician Cashier Shift Supervisor Satellite Cashier Main Bank Cashier Main Bank Cashier (two open positions) Impress Supervisor (two open positions) Surveillance Officer Impress Supervisor Citation B15 B15 B15 B15 B15 B15 B15 B15 B15 A211 A213 B4 A215

6

There are at least 5 additional positions to which Mr. Almakhadhi applied, but Defendant has not provided any documents concerning them. Instead, Defendant asserts that it "changed its record-keeping systems regarding applications for transfer." (B14) That Defendant failed to investigate its own records until after November 8, 2007 is in contravention of Rule 26. Cardenas v. Dorel Juvenile Group, Inc., 2006 U.S. Dist. LEXIS 37465, *22 (D. Kan. 2006).
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3. Mr. Almakhadhi's Complaints of Discrimination Because of Delaware Park's repeated failure to promote him, and because of the treatment he received from his supervisors as well as their comments to him, Mr. Almakhadhi made repeated complaints of discrimination to Delaware Park. Mr. Almakhadhi made formal complaints in February 2005 (A224); March 2007 (A227; A240); as well as in June 2005 (A236), as well as numerous verbal complaints. 4. Mr. Almakhadhi's Work Injury Mr. Almakhadhi injured himself at work in December 2003. (A242) Delaware Park refused to acknowledge Mr. Almakhadhi's injury for 16 months.7 During that time, Mr. Almakhadhi continued to work, taking FMLA to cover the time needed to treat his disabling injury. (A232) After Delaware Park's medical expert determined that Mr. Almakhadhi had, in fact, injured himself while at work (A242-244), Mr. Almakhadhi's supervisors refused to assign him light duty work as required by Delaware Park's doctor. (A245) Instead, on September 2, 2006, Delaware Park sent Mr. Almakhadhi home and required him to call in each day to inquire about light duty assignments.8 From the time it sent him home until it terminated his

7

Delaware Park refused to produce discovery concerning Mr. Almakhadhi's worker's compensation claims. (See D.I. 46 and D.I. 48)
8

Delaware Park's rendition of facts is inconsistent and not credible on many points, including this one. In its Responses to Mr. Almakhadhi's Request for Admission, Delaware Park "denied that Plaintiff was required to verify his restrictions each day between September 2, 2005 and his termination and/or to ask each day whether he would be assigned work that accommodated such
8

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employment, Delaware Park failed to find any light duty work for Mr. Almakhadhi even though light duty was provided to non-Arabs. (B2-B3; B29; Witness Statements at A141-A143) In fact, Delaware Park made no effort to locate any light duty work for Mr. Almakhadhi. (Statement of S. DeLucia, B20 at ¶ 8; Statement of K. Dixon, B26 at ¶ 13; Affidavit of S. DeLucia, A5 at ¶ 11, A6 at ¶ 12.) 5. Mr. Almakhadhi's Use of FMLA It is uncontested that through October 12, 2005, Mr. Almakhadhi used all of his FMLA. (A239) It is also uncontested that he worked more than 1,250 hours in 2005. The record evidence from Delaware Park's Benefits Assistant, Judy Passmore, shows that Mr. Almakhadhi was entitled to another 12 weeks of FMLA beginning October 12, 2005. (Id.) 6. Delaware Park's Termination of Mr. Almakhadhi's Employment Delaware Park terminated Mr. Almakhadhi's employment first on February 12, 2006, and again on March 10, 2006. (A7-A8) Mr. Almakhadhi did not receive any notice about the termination of his employment. (A8) Instead, he discovered that his health care benefits had been cut off when he tried to obtain an antibiotic for his newborn son on March 29, 2006. (Pl. Dep. at 199, B70)

restrictions." (B6) Ms. DeLucia, however, states that Mr. Almakhadhi was required to do just that. (See A6; see also A252) Defendant also responded in its Responses to Mr. Almakhadhi's Request for Admissions that Ms. DeLucia made the decision not to accommodate the restrictions Delaware Park's own doctor placed on Mr. Almakhadhi. (B7) Claims Coordinator Sheryl Cartwright's September 2, 2005 e-mail is clear, however, that Ms. Dixon made the decision not to accommodate Mr. Almakhadhi's restrictions. (A251-A252)
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B. Disputed Material Facts Beyond the skeleton of facts set forth above, the material facts concerning Mr. Almakhadhi's employment and the termination thereof are greatly disputed. The record is replete with genuine issues of material fact and credibility issues that should be decided by a jury. Contrary to Delaware Park's assertion in its Opening Brief, Delaware Park's "wrongful acts" were not simply its failure to promote Mr. Almakhadhi, its failure to provide him with light duty assignments for an injury he suffered at work, and its termination of his employment. Those acts are simply a sample of the overt evidence of Delaware Park's illegal discrimination against Mr. Almakhadhi because of his race, national origin, and his disability, and its retaliation for his resistance to that discrimination. Its willful wrongful acts are legion. 1. Delaware Park's Discrimination Against Mr. Almakhadhi Mr. Almakhadhi began suffering discrimination shortly after he began working at Delaware Park. For example, Mr. Almakhadhi was commonly referred to as "the terrorist of Delaware Park." (Pl. Dep. at 71-73, B 63-65) A Cashier Supervisor also told him that the United States is "not your country." (Pl. Dep. at 29-30, B61-B62)9 When he complained about the discrimination, Ms. Dixon and Ms. Suhr retaliated against him for his complaint, including by stating in his annual Performance Evaluation that he had been the cause of the

9

Although Mr. Almakhadhi believed Delaware Park made an investigation into his complaint about this remark, Delaware Park produced no documents demonstrating that it did so or that it took any other action.

10

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problem. (Pl. Dep. at 29-30, B61-B62; B41) Moreover, Ms. Dixon even used the racist comments made against Mr. Almakhadhi as reasons not to advance him. (A228) Ms. Dixon went so far as to instruct Mr. Almakhadhi not to apply for any supervisory positions "because Americans don't like to be supervised by Arabs . . . . ." (Pl. Dep. at 76, A63) Ms. Dixon also told Mr. Almakhadhi that "all Americans hate Arabs. . . . " (Id.) Despite this overt discrimination, Mr. Almakhadhi sought to fit in to his new country and tried to advance. (Pl. Dep. at 76, A63) Accordingly, as recounted above, he repeatedly sought transfer into better positions. Each time he applied for a promotion or a new position, however, Delaware Park thwarted his efforts. Ms. Dixon reminded Mr. Almakhadhi that he would never be promoted: A; . . . She told me, "You can't apply for satellite or main bank," but I told her, "I look like Spanish, don't worry." She said, "No, your accent, everybody knows you are Arab." Q. Based on your accent? A. . . . -- she said, "Don't go high, stay like satellite, main bank job, but don't go for supervisor." And that's the reason why she keep my transfer form for 2002, I believe 2003, even 2004.[10] (Pl. Dep. 78, A65)
10

Notably, Delaware Park withheld evidence concerning Mr. Almakhadhi's efforts to advance until November 16, 2007, (safely after the close of discovery) when it suddenly announced that it had discovered transfer application documents Mr. Almakhadhi had originally requested when he was acting pro se. (B15) To date, however, Delaware Park has not produced the hard copies of these applications, depriving Mr. Almakhadhi of relevant information contained on the applications and in the interview notes. Delaware Park has also failed to provide any information concerning the status of such documents or their spoliation. (Id.)

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Notably, Delaware Park makes no argument concerning 12 of Mr. Almakhadhi's 13 applications for promotion. Instead, Delaware Park focuses only upon Mr. Almakhadhi's last application for promotion and the job experience of Penny Payne--the person selected for the job. (Defendant's Brief at 4-5; A16-A17; A24) Even assuming, arguendo, that Ms. Payne was more qualified than Mr. Almakhadhi for one particular job, Mr. Almakhadhi's complaints of discrimination to Delaware Park's Human Resources Department, the Department of Labor, in his Pro Se Complaint, and in his Proposed Amended Complaint pertained to all of his efforts to advance. (See, e.g., A224; A227; A240; A236; A169; D.I. 1; D.I. 41) Accordingly, there are genuine issues of material fact concerning Delaware Park's state of mind and intent in denying Mr. Almakhadhi the other 12 positions.11 Mr. Almakhadhi sought the assistance of Delaware Park's Human Resources Department for the discrimination and retaliation he was suffering. Delaware Park's Human Resources Department failed to perform a meaningful investigation, and instead simply rubber-stamped the actions of Ms. Dixon. Indeed, Ms. Dixon's anti-Arab attitude is also shared by Micki Nardo, then Director of Human Resources, whom Delaware Park tasked to investigate

11

Delaware Park admits that for at least one job it selected a candidate before even interviewing Mr. Almakhadhi. (Pl. Dep. 155-56, B68-B69; A224-A225) Again, however, as set forth in Mr. Almakhadhi's Motions to Compel Discovery and for Sanctions, Delaware Park has refused to provide documents concerning many of Mr. Almakhadhi's applications, the entire interview notes for jobs for which he was interviewed, or any electronic documents concerning his applications or his interviews.

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Mr. Almakhadhi's February 14, 2007 complaint of discrimination.12 In fact, neither Ms. Nardo nor anyone else from Human Resources interviewed Ms. Dixon about Mr. Almakhadhi's allegations of discrimination. (See A224-A226; A15 at ¶ 6) 2. Delaware Park's Retaliation Against Mr. Almakhadhi Because of his Complaints about Discrimination and Because of his Application for Worker's Compensation Benefits

Delaware Park used Mr. Almakhadhi's December 2003 workplace injury as another avenue of discrimination and retaliation against him. 13 Specifically, on December 3, 2003, Mr. Almakhadhi injured his back while pushing a cart full of approximately 1,000 pounds of coins at work. At first he believed the resulting pain would go away, but as the weeks passed his symptoms worsened. (Pl. Dep.

12

Included as part of an Incident Report concerning Mr. Almakhadhi's February 22, 2005 complaint of discrimination is an e-mail from Ms. Nardo in which she states: [Mr. Almakhadhi] makes the conscious effort to decide if he will continue to support the cultural differences between his home land and o u r s . . . . (I would not support a promotion to Supervisor because of his opinion of woman. [sic] I think 75% of that dept is woman. Bad move! He missed the class on Public Relations in Politics.) (A226) (emphasis added; parentheses in original) Despite Mr. Almakhadhi's repeated discovery requests, Delaware Park did not produce the entire investigation file for this complaint, or any other of Mr. Almakhadhi's complaints of discrimination. Delaware Park also refused to respond to Mr. Almakhadhi's requests for information concerning other relevant complaints of discrimination made against Ms. Nardo and Ms. Dixon.
13

Despite Mr. Almakhadhi's discovery requests, Delaware Park has refused to provide any documents concerning the handling of Mr. Almakhadhi's worker's compensation claim. Delaware Park's efforts to withhold relevant and potentially dispositive documents has prejudiced his ability to respond to Delaware Park's instant Motion.
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at 44-45, A46-A47) Finally, on April 13, 2005, Mr. Almakhadhi went to the Emergency Room at Christiana hospital. (B58) Doctors there instructed him to remain off of work through April 17, 2005, and to follow up with his regular doctor. (B56; B59) On April 18, 2005, Doctor John Lawrence examined Mr. Almakhadhi and instructed him to remain home until April 23, 2005. (B57) Pursuant to Delaware Park's policies, Mr. Almakhadhi reported his injury to Defendant's Risk Management department on April 18, 2005. (A230) He returned to work on April 25, 2005. Rather than following Delaware Park's stated policy to immediately determine the extent of an employee's injury so that he can get "back to work as soon as possible while working with the employee to ensure that he does not engage in activities that might exacerbate the injury" (A2, ¶ 3), Ms. Dixon and Ms. Suhr denied that Mr. Almakhadhi had been injured at work and denied him any recourse. Specifically, because of his doctor's instructions, on April 29, 2005, Mr. Almakhadhi asked Training Supervisor Roberta Evans about light duty work. (Pl. Dep. at 102-103, A80-81) Ms. Evans stated that only Ms. Dixon and Ms. Suhr approve light duty work. (Id.) Shortly after he spoke with Ms. Evans, Ms. Dixon and Ms. Suhr summoned Mr. Almakhadhi to Ms. Dixon's office and Ms. Dixon suspended him without pay and told him to "get out." (Pl. Dep. at 102, A80; B8.) When Mr. Almakhadhi asked why he was suspended, Ms. Dixon told him that she had discussed the situation with Shannon DeLucia and that they had determined he was not injured at work. (Pl. Dep. at 102-103, A80-81) Ms. Suhr then asked Mr. Almakhadhi if he wanted to quit his job. (Id.) Ms. Suhr also asked if Mr. Almakhadhi if he would leave the country. (Pl. Dep. at 234, B71)
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Because he would not resign, Mr. Almakhadhi was suspended. (Pl. Dep. at 102103, A80-81) Each day Mr. Almakhadhi missed work would count as an attendance point against him. (A180) Because Mr. Almakhadhi knew Ms. Dixon's actions were an effort to terminate his employment in retaliation for his complaints of discrimination, to avoid accumulating attendance points Mr. Almakhadhi took FMLA leave. (B54; B55) Mr. Almakhadhi also indicated that he would seek legal counsel. (A230) Even after Mr. Almakhadhi obtained medical proof of his injury (A214), Delaware Park refused to provide him with light duty assignments even though Delaware Park routinely provided non-Arabs with light duty. (B29; B2-B3; Witness Statements at A141-A143) These actions were in contravention of Delaware Park's stated policies. (B34) Instead, Delaware Park's actions were in retaliation for Mr. Almakhadhi's worker's compensation claim, as well as in retaliation for his February 2005 complaints of discrimination against Ms. Dixon. Resisting Delaware Park's discriminatory acts, Mr. Almakhadhi obtained worker's compensation counsel. He also obtained a release from his doctor to return to work. (B46) Because Delaware Park refused to acknowledge his workrelated injury, however, Mr. Almakhadhi continued to work while his worker's compensation claim was pending.14 So that he could perform fully his job
14

Illustrating that Delaware Park intended to make it impossible for Mr. Almakhadhi to work under any set of circumstances, Delaware Park incredibly claims that the reason it denied Mr. Almakhadhi light duty work after it sent him home on September 2, 2006, was because he continued to work in 2004 and 2005 after Defendant decided he was not injured. (See Defendant's Brief at 28.) As presented by Mesdames DeLucia, Dixon and Suhr, Mr. Almakhadhi's Catch-22 had only one possible outcome: Mr. Almakhadhi's loss of employment. That Delaware Park continues in its Brief to this Court to repeat its
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without exacerbating his back problem, he lifted only one bag of coins at a time. Mr. Almakhadhi was able to perform his job fully with this self-created accommodation for his disability. (Pl. Dep. at 84-85, A68-A69) Upon his return to work, Ms. Dixon continued to retaliate against Mr. Almakhadhi. For example, she frequently tasked surveillance to monitor Mr. Almakhadhi; stood behind him while he performed his job to intimidate him; and raised her voice at him to embarrass him in front of customers. (Pl. Dep. at 98-99, B66-B67) More than 16 months after he reported his injury, on August 25, 2005, mere days before the November 8, 2005 worker's compensation hearing, Delaware Park finally sent Mr. Almakhadhi to Doctor John Townsend, a companydesignated doctor. Dr. Townsend determined that Mr. Almakhadhi's injury was work related, and reiterated Mr. Almakhadhi's long-standing restrictions of not lifting more than 20 pounds. (A242-244; B30-33) Despite Doctor Townsend's conclusion, and as part of its pattern of discrimination, to retaliate against Mr. Almakhadhi for his complaints of discrimination, and in retaliation for Mr. Almakhadhi's pursuit of his worker's compensation claim, Delaware Park refused to allow Mr. Almakhadhi to work with a reasonable accommodation. It further refused to provide him with light duty work. (A237) Instead, in an effort to compel Mr. Almakhadhi to quit his job, Ms. Dixon baseless assertion that Mr. Almakhadhi worked outside his doctor's restrictions is all the more surprising because Defendant knows that it is not true: as discussed at Mr. Almakhadhi's deposition, on May 17, 2005, Mr. Almakhadhi's doctor limited his diagnosis to four weeks. Accordingly, he was not under medical restrictions when he returned to work. (Pl. Dep. At 60-61, A58-A59 and B74)
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sent him home and required him to call in every day to inquire about light duty assignments. (A251-A252) Delaware Park has not identified any non-Arab employee required to comply with such a process.15 Unsurprisingly, Delaware Park failed to have any light duty available for Mr. Almakhadhi after it sent him home on September 2, 2006, even though light duty was provided to non-Arabs. (B29) Indeed, Delaware Park admits that it made no effort to locate any light duty work for Mr. Almakhadhi despite making him jump through the humiliating hoop of calling in each day to request such work. (Statement of S. DeLucia, B20 at ¶ 8; Statement of K. Dixon, B26 at ¶ 13; A5 at ¶ 11; A6 at ¶ 12)16 In further retaliation against Mr. Almakhadhi, in December 2005 Delaware Park failed to provide Mr. Almakhadhi with an annual "Christmas gift," to which he was entitled. (A176) Accordingly, on February 7, 2007, Mr. Almakhadhi contacted Ms. Suhr and Ms. Dixon about the bonus. (Pl. Dep. at 123-124, A92A93) Alerted that Mr. Almakhadhi had not yet quit, Ms. Dixon took steps to terminate Mr. Almakhadhi's employment on a technicality. Consulting with Ms. DeLucia, Ms. Dixon requested that Ms. DeLucia terminate Mr. Almakhadhi's employment. (Statement of S. DeLucia at B21) Ms. DeLucia recommended that Ms. Dixon give Mr. Almakhadhi a return to work date and require that he be
15

Delaware Park has not identified a n y employee other than Mr. Almakhadhi who was subjected to such treatment. (See, e.g., A6 at ¶ 12)
16

On this point, Ms. DeLucia's and Ms. Dixon's self-serving affidavits to this Court are in contravention of the statements they signed and submitted to the Department of Labor. Because Defendant understandably failed to provide the Court with Mesdames DeLucia and Suhr's statements to the Department of Labor, Mr. Almakhadhi provides them in full at B18-B22, and B23-B27, respectively.
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able to perform "full duty," (Id.) which Delaware Park knew he could not because Delaware Park's own expert had stated that he could not. (B31; see also A251.) In early February 2006, Ms. DeLucia instructed Beverly Pope (who was not Mr. Almakhadhi's supervisor) to demand that he return to work without any limitation. (A25) Ms. Pope telephoned Mr. Almakhadhi with that demand on February 12, 2006. (Pl. Dep. at 216, A133) In response, Mr. Almakhadhi reiterated the permanency of his injury, and that he was able to perform his job with a reasonable accommodation that he lift only one bag at a time. (A25; Pl. Dep. at 216, A133) Indeed, Delaware Park admits that Mr. Almakhadhi was fully capable of performing his job with just such an accommodation. (See Defendant's Brief at 8) Nevertheless, Delaware Park refused to allow Mr. Almakhadhi to return to work and perform his job as he had for the 16 months Delaware Park had wrongfully contested his worker's compensation claim. Delaware Park understandably goes to great lengths to distance Ms. Dixon from the termination decision, attempting to lay that responsibility on Ms. DeLucia. Ms. DeLucia, however, creates the genuine issues of material fact necessary to defeat Delaware Park's Motion for Summary Judgment. Moreover, Ms. DeLucia is simply not credible. In her affidavit, Ms. DeLucia claims that on February 12, 2006, she terminated Mr. Almakhadhi's employment. 17 (A7 at ¶15; A9 at ¶ 18; Statement of S. DeLucia, B21 at ¶ 12; 13.) In mid-February 2006, however, Ms. DeLucia was
17

Before the Department of Labor, Delaware Park relied on the March 10, 2006 termination date. (B39) Here, Delaware Park relies on the February 12, 2006 date.

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Director of Risk Management. (A1) In that position she would not have had the authority to terminate Mr. Almakhadhi's employment. Accordingly, and in contravention of Ms. DeLucia's sworn statement, the termination paperwork shows that Ms. DeLucia's husband, Kevin DeLucia, and Karlyn Dixon approved Mr. Almakhadhi's termination paperwork. (A262)18 Nevertheless, Delaware Park misrepresented to the Department of Labor that Ms. DeLucia was Executive Director of Human Resources and that she terminated Mr. Almakhadhi's employment. (B36.)19 Moreover, in her June 30, 2006 Statement, Ms. DeLucia denies any knowledge of any complaints by Mr. Almakhadhi of discrimination. (Statement of S. DeLucia, B22 at ¶ 13) Delaware Park relies on this denial in its Summary Judgment Motion. (See Defendant's Brief at pp. 11 and 30.) To the Department of Labor, however, Delaware Park admitted that Mr. Almakhadhi had raised his concerns about discrimination to Ms. DeLucia.20 (B39)
18

In her affidavit, Ms. Dixon attempts to explain away her approval of Mr. Almakhadhi's termination. (A19-A20) Her tortured explanation is inconsistent with the record evidence and simply not believable. Indeed, Ms. Dixon states in her affidavit that after February 12, 2006, "I was not involved in any of the administrative steps regarding [Mr. Almakhadhi's] termination, other than signing the Personnel Action Notice. . . ." (A19) On March 7, 2006, however, Ms. Dixon e-mailed Vice President of Human Resources Diane Joseph requesting a termination date for Mr. Almakhadhi. (B45) Ms. Dixon did not carbon copy Ms. DeLucia, or anyone else, on her e-mail. (Id.) Clearly, Ms. Dixon was directly involved in the steps, administrative and otherwise, concerning Mr. Almakhadhi's termination. Notably, Delaware Park fails to provide an affidavit from Kevin DeLucia supporting Ms. Dixon.
19

Delaware Park also misrepresented to the Department of Labor that Mr. Almakhadhi was a member of the UFCW union. (B35-B36) He was not.
20

Delaware Park's strained explanation of Ms. DeLucia's understanding of the word "discrimination" is unbelievable. Indeed, Ms. DeLucia was a highranking executive, supposedly intimately involved with employment decisions,
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Similarly, in attempting to cover for and justify Ms. Dixon's decision not to provide Mr. Almakhadhi light duty work, Ms. DeLucia asserts that "in the Cage Department, there is very little, if any, light duty work that is available." (A6 at ¶ 11.) In its Interrogatory Response No. 3A, however, Delaware Park lists 19 employees "who were provided light duty assignments in the Cage Department" between May 18, 2004 and February 12, 2006. (B2-B3) That represents one available light duty position each month, on average. Delaware Park and Ms. DeLucia's repeated misrepresentations and distortions are evidence of Delaware Park's attempt to obfuscate the truth about Mr. Almakhadhi's termination. Whether Ms. DeLucia's efforts are to protect the Company or to protect her friends (B21), her credibility must be assessed by a fact-finder because her Statement to the Department of Labor and Affidavit to this Court are not believable. Indeed, that Mesdames DeLucia, Dixon and Suhr contrived Mr. Almakhadhi's termination date is further shown by the fact that Delaware Park had scheduled Mr. Almakhadhi for a follow-up doctor visit with the Company's doctor, Doctor Townsend, on March 6, 2006.21 (B51-B53) Realizing that her hasty, unauthorized, and improper termination of Mr. Almakhadhi's employment on February 12 could be shown for what it truly was--discrimination and retaliation--Ms. DeLucia decided to terminate Mr. Almakhadhi again on March 10, 2007--after Mr. Almakhadhi's appointment with Dr. Townsend and after her transition to Executive Director of Human and was even promoted to Executive Director of Human Resources. At a minimum, her credibility must be tested by a jury. 21 As Director of Risk Management, Ms. DeLucia would have been aware of Mr. Almakhadhi's follow-up appointment. (A4 at ¶ 7; A10 at ¶ 22)

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Resources.22 Delaware Park failed to inform Mr. Almakhadhi of the termination of his employment.23 Instead, Mr. Almakhadhi only discovered he did not have a job on March 29, 2006, when he attempted to obtain medicine for his infant son and was denied pharmacy benefits. (Pl. Dep. at 199, B70) On March 30, 2006, Mr. Almakhadhi called Delaware Park to inquire about his job status. He was told to call the decision-makers, Ms. Suhr and Ms. Dixon for further information. (Pl. Dep. at 127, A96; A261.) On April 4, 2006, Mr. Almakhadhi finally received notice from Delaware Park that his employment had been terminated. IV. ARGUMENT In its Motion, Delaware Park has reordered Mr. Almakhadhi's claims. Mr. Almakhadhi assumes Delaware Park's purpose is not simply to make
22

Despite making the decision to terminate Mr. Almakhadhi's employment on February 12, 2006, Ms. DeLucia asserts in her Affidavit that she had to fire Mr. Almakhadhi, a g a i n , because the entire Human Resources Department--except her--failed to follow procedure: I had assumed that the outgoing Director of Human Resources, Micki Nardo, had completed the administrative process with regard to Mr. Almakhadhi's termination before her departure from Delaware Park. Apparently she had not done so, and the new Vice President of Human Resources, Diane Joseph, apparently had failed to do so as well. (A8, at ¶ 16.) Ms. DeLucia's assertions are not believable, and indeed do not make sense. Instead, it is necessary for a fact-finder to determine her credibility, intent, and state of mind.
23

In contravention of its statements to the Department of Labor that "Nondisciplinary discharge procedures for employees who are medically unable to perform the duties of their positions, such as Mr. Almakhadhi, are not in writing" (see B36), Delaware Park does provide written notice to non-Arabs, and only after all FMLA leave has been exhausted. (See A268 through A280; B 13)
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reference to the pleadings more difficult, but also to address what it believes to be Mr. Almakhadhi's weakest claims first, and his strongest claims last. To avoid contributing to the confusion, and to assist the Court in its analysis of the issues, Mr. Almakhadhi presents his arguments in the same order as Delaware Park's. A. Summary Judgment is Inappropriate where, as here, the Employer's Intent is at Issue

When deciding a motion for summary judgment under Federal Rule of Civil Procedure 56(c), a court must determine "whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999). A fact is "material" if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accordingly, summary judgment will not lie if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. In making this determination, courts view the facts, and reasonable inferences drawn therefrom, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). For its part, the non-moving party must, through affidavits, admissions, depositions, or other evidence, demonstrate that a genuine issue exists for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The Third Circuit Court of appeals has explained that in an employment discrimination case "a trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue." Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 321 (3d Cir. 2000) (quoting Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir.

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1994). See also, Stewart v. Rutgers, The State University, 120 F.3d 426, 431 (3d Cir. 1997) ("This standard is applied with added rigor in employment discrimination cases, where intent and credibility are the crucial issues.") In the context of employment discrimination cases, the Gallo court described summary judgment as "a drastic . . . remedy." Gallo at 1224. These cautions are reinforced by the Supreme Court's unanimous decision in Desert Palace, inc. v. Costa, in which the Court clarified that employer liability attaches whenever an unlawful motive was a motivating factor for any employment practice, even though other factors also motivated the practice. 539 U.S. 90, 99 (2003). In reaching its holding, the Court expressly rejected a heightened "direct evidence" standard and instead concluded that a plaintiff may use direct or circumstantial evidence to support his claims. Highlighting the significance of circumstantial evidence, the Court stated: We have often acknowledged the utility of circumstantial evidence in discrimination cases. For instance, in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), we recognized that evidence that a defendant's explanation for an employment practice is "unworthy of credence" is "one form of circumstantial evidence that is probative of intentional discrimination." Id., at 147 (emphasis added). The reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: "Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence." Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, n. 17, 1 L. Ed. 2d 493, 77 S. Ct. 443 (1957), Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100 (2003). Accordingly, the Supreme Court concluded that mixed-motive plaintiffs need only present sufficient evidence for a reasonable jury to find, by a preponderance of the evidence, that race or national origin was a motivating factor for a contested employment

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practice. In its Brief, Delaware Park understandably glosses over the history of Mr. Almakhadhi's mistreatment and the circumstances surrounding its termination of his employment because those facts raise genuine issues that must be tried to a jury. Indeed, the record is replete with both direct and circumstantial evidence of Delaware Park's discriminatory motives, as well as substantive questions about its credibility and intent. The facts demonstrate that discrimination and retaliation were more likely the cause of Delaware Park's adverse actions than its proffered reasons. Accordingly, summary judgment should be denied and this case should be decided by a jury. 1. Delaware Park is not entitled to summary judgment on Mr. Almakhadhi's ADA claims

Contrary to Delaware Park's arguments, the evidence taken in the light most favorable to Mr. Almakhadhi requires a fact-finder to determine whether Delaware Park violated the ADA. "In order to make out a prima facie case under the ADA, a plaintiff must be able to establish that he . . . (1) has a disability (2) is a qualified individual and (3) has suffered an adverse employment action because of that disability." Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir. 1998) (citation and quotation omitted). Delaware Park does not contest that that Mr. Almakhadhi is a qualified individual or that he suffered an adverse employment action. (See Defendant's Brief at 11-17.)24

24

Even if Delaware Park had contested these prongs of Mr. Almakhadhi's prima facie case, it is clear that Mr. Almakhadhi is a qualified individual with a
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a.

Mr. Almakhadhi is disabled within the meaning of the ADA.

A person is disabled "within the meaning of the ADA" if he has "[1)] a physical . . . impairment that substantially limits one or more of the major life activities of such an individual; [2)] a record of such an impairment; or [3) has been] regarded as having such an impairment." 42 U.S.C. § 12102(2). The Third Circuit has emphasized that the evaluation of disabilities is an individualized process, and "requires . . . consider[ation of] the individual's training, skills, and abilities in order to evaluate `whether the particular impairment constitutes for the particular person a significant barrier to employment.'" Mondzelewski v. Pathmark Stores, 162 F.3d 778, 784 (3d Cir. 1998) (Alito, J.) (citation omitted).

i.

Mr. Almakhadhi's back injury limits one or more of his major life activities.

Delaware Park argues wrongly that because Mr. Almakhadhi can dress and

disability, and that he suffered multiple adverse employment actions, including termination of his employment. The ADA defines a qualified individual as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). As a Booth Cashier, Mr. Almakhadhi was required to stand at a booth window, accept cash, coins, and coupons from customers, count the money, bag it, and carry the bagged money to the Satellite Cashier station. (Pl. Dep. at 55-56, A53-A54) Delaware Park refused to acknowledge Mr. Almakhadhi's injury and disability for more than 16 months. During that time, Mr. Almakhadhi continued to perform the essential functions of his job by only lifting one bag of coins at a time. In this way he was able to abide by his doctor's lifting restriction, but still maintain his excellent performance. (Pl. Dep. at 56, A54) Even with his disability Mr. Almakhadhi was able to perform the essential functions of his job with a reasonable adjustment to his lifting requirements. Accordingly, he is a "qualified individual" under the ADA.

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bathe himself, he cannot be disabled.25 Contrary to Defendant's interpretation of the ADA, a person does not have to be bound to a wheelchair to be disabled under the Act. Indeed, the Supreme Court has made clear that "the [ADA] addresses substantial limitations on major life activities, not utter inabilities," Bragdon v. Abbott, 524 U.S. 624, 641 (1998). See also Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378 (3d Cir. 2004) ("We also read the Supreme Court to hold that a substantial limitation of a major life activity does not mean impossibility or even great physical difficulty; rather, substantial limitation is weighed in a broad, practical sense."); Emory v. AstraZeneca Pharms. LP, 401 F.3d 174, 179 (3d Cir. 2005) (same). Mr. Almakhadhi has a permanent back injury. (See, e.g., B48-B50; A242A244; A255; Pl. Dep. at 237-238, B72-B73) He is in constant pain of varying degrees. (Pl. Dep. at 237-238, B72-B73) As found by Delaware Park's own expert, Dr. Townsend, because of the injury to Mr. Almakhadhi's spine he is limited in his ability to lift and also has weakness and numbness in his left leg. (Pl. Dep. at 51-53, A49-51; A244) Because of the injury, Mr. Almakhadhi is limited to light duty tasks. (A242-244) Moreover, because of the limits of Mr. Almakhadhi's education, language ability, and work experience, his lifting restrictions and leg problems limit him to a narrow range of jobs. He is, accordingly, an individual with a disability as defined by the ADA. See, e.g., Webner v. Titan Distributing,
25

In support of its argument, Delaware Park cites to portions of Mr. Almakhadhi's deposition transcript. As a review of almost any portion of the transcript will reveal, Mr. Almakhadhi had great difficulty understanding counsel's questions during the deposition. Likewise, counsel for Delaware Park had great difficulty understanding Mr. Almakhadhi. Mr. Almakhadhi had hoped to avoid this difficulty by use of a translator. (B10) Delaware Park, however, refused to provide a translator and proceeded with the deposition over Mr. Almakhadhi's objection. (B12)
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Inc., 267 F.3d 828 (8th Cir. 2001) (individual's back problems limited ability to perform all but light duty tasks and, therefore, substantially limited major life activity of working).

ii.

Mr. Almakhadhi has a record of an impairment.

The "record of" prong of an ADA claim "is a close sibling to the `perceived impairment'" or "regarded as" claim. Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 509 (7th Cir. 1998). It is uncontested that Delaware Park relied upon Mr. Almakhadhi's record of disability in making its adverse employment decisions. As discussed infra and supra, over a period of 16 months Mr. Almakhadhi was treated for his back and leg problems. Delaware Park was aware of these treatments, and even discussed Mr. Almakhadhi's condition with Dr. Townsend--Delaware Park's medical expert. In making its employment decisions, Delaware Park relied directly upon Mr. Almakhadhi's record indicating that he has or had a substantially limiting impairment. Based on its knowledge of his record Delaware Park concluded that Mr. Almakhadhi's injury was so severe that he was unable to work at its facility, even with his requested reasonable accommodation. (See, e.g. Statement of S. DeLucia, B20 at ¶ 8; Statement of K. Dixon, B26 at ¶ 13; Affidavit of S. DeLucia, A5 at ¶ 11, A6 at ¶ 12) Because Delaware Park relied upon Mr. Almakhadhi's record of disability, summary judgment should not be granted. Indeed, based upon the affidavits of Mesdames DeLucia and Dixon, a fact-finder must determine Delaware Park's state of mind and intent concerning Mr. Almakhadhi's record of impairment.

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iii.

Delaware Park regarded Mr. Almakhadhi as disabled.

Even if the Court does not find that Mr. Almakhadhi is disabled, there is a genuine issue of material fact about Delaware Park's state of mind and intent concerning Mr. Almakhadhi's back problem. Specifically, it is undisputed that on September 2, 2007, Delaware Park sent Mr. Almakhadhi home from work against his wishes because it regarded him as unable to perform the essential functions of his job due to his back injury. (A237; Statement of S. DeLucia, B20 at ¶ 8; Statement of K. Dixon, B26 at ¶ 13; Affidavit of S. DeLucia, A5 at ¶ 11, A6 at ¶ 12) Indeed, Mesdames DeLucia and Dixon regarded Mr. Almakhadhi as so completely disabled that they made no efforts to find any light duty work for him which would have been within his doctor's restrictions. (Id.) "[E]ven an innocent misperception based on nothing more than a simple mistake of fact as to the severity, or even the very existence, of an individual's impairment can be sufficient to satisfy the statutory definition of a perceived disability." Deane v. Pocono Med. Ctr., 142 F.3d 138, 144 (3d Cir. 1998). Moreover, Delaware Park's discussion in its Brief of jobs that Mr. Almakhadhi has sought (or might try to pursue) is, at best, inapposite.26

26

In fact, Delaware Park misrepresents and distorts the record when it states that Mr. Almakhadhi's "actions in applying for and obtaining other employment confirm that he is not substantially limited from working." (Defendant's Brief at 14) As the sole income earner for his family, Mr. Almakhadhi has sought any kind of work available since Delaware Park terminated his employment. (Pl. Dep. at 53, A51) Other than thirty-hours of work at a pizza shop, his disability has kept him from obtaining a job. (See, e.g., Pl. Dep. at 16-17, A35-A36, concerning his interview for a job at Lowes Home Improvement: ". . . ­he told me can you lift 40 pounds? . . . I said, no, I have back injury, I cannot lift, but I can lift 20, 25, you know, I can manage. I said is it okay? He said okay. I think they sent me a note or something that I can apply again in the future or something.") Because of his disability, he did not get the job.

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Mr. Almakhadhi's "subsequent work history could, at most, reflect [his] lack of an actual disability, and it therefore sheds no light whatever on whether, at the time of [his] termination, [Delaware Park] regarded [his] impairment as substantially limiting [his] ability to work." Deane, 142 F.3d at 144. Because a jury could reasonably conclude that Delaware Park regarded Mr. Almakhadhi as disabled under the ADA, summary judgment must be denied. See Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 183 (3d Cir. 1999) (finding company's statements that employee unable to perform any job at company supported conclusion that company perceived employee as disabled and sufficed to make out "regarded as" claim). 2. Delaware Park is not entitled to summary judgment on Mr. Almakhadhi's Title VII claims27

Mr. Almakhadhi's Title VII claims encompass race and national origin discrimination, a hostile work environment, and retaliation. In an effort to distance itself from the facts supporting these allegations, Delaware Park focuses solely upon Mr. Almakhadhi's termination and Delaware Park's mistaken interpretation of what constitutes an adverse employment action in this Circuit.28 Delaware Park concedes, as it must, that Mr. Almakhadhi has established
27

Delaware Park fails to provide any argument concerning Mr. Almakhadhi's hostile work environment claims. Accordingly, pursuant to Fed. R. Civ. P. 56(a), Mr. Almakhadhi respectfully requests that the Court grant summary judgment in his favor on the hostile work environment portions of his claims. See Rule 56(a).
28

As set forth in Mr. Almakhadhi's Motions to Compel Discovery and for Sanctions, Delaware Park's refusal to engage in appropriate discovery has unduly prejudiced Mr. Almakhadhi's ability to respond to its arguments here. Nevertheless, it is clear that because Mr. Almakhadhi is able to show both direct and indirect evidence of discrimination and retaliation, Delaware Park's argument fails, and his Title VII claims require trial.

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his prima facie case--except that it curiously alleges that he cannot show that similarly situated individuals were not terminated from employment.29 Although Delaware Park's termination of Mr. Almakhadhi's employment was certainly an adverse employment action, it was not the only adverse employment action under Title VII that Mr. Almakhadhi suffered, nor is it the only adverse employment action that supports Mr. Almakhadhi's Title VII claims. "An adverse employment action may be a discharge or a failure to hire, or any action that alters an employee's compensation, terms, conditions, or privileges of employment." Collins v. Sload, 212 Fed. Appx. 136, 140 (3d Cir. 2007) (emphasis added). Mr. Almakhadhi does, however, appreciate Delaware Park's desire to distance itself from its history of adverse employment actions against him. Delaware Park also incorrectly defines similarly situated persons as those "who have exhausted available leave time and cannot return to work." (Defendant's Brief at 18.) Again, Mr. Almakhadhi appreciates Delaware Park's
29

To establish a prima facie case of discrimination on the basis of race and national origin under Title VII, a plaintiff must show that (1) he is a member of a protected class, (2) he was qualified for the position he held, (3) he suffered an adverse employment action, and (4) similarly situated persons outside of his protected class were treated more favorably, or the circumstances of the adverse employment action give rise to an inference of discrimination. See Jones v. School Dist. of Phila., 198 F.3d 403, 410-11 (3d Cir. 1999). "[T]here is a low bar for establishing a prima facie case of employment discrimination." Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 539 (3d Cir 2006). The Supreme Court has stated that once the prima facie case is established, it will presume that the employer's action is "more likely than not based on the consideration of impermissible factors." Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). Should the plaintiff establish his prima facie case, the burden of pro