Free Motion to Amend/Correct - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SAMI ALMAKHADHI,

Plaintiff,
v. : : : : : : : : : :

No. 1:07-cv-00078-JJF

DELAWARE PARK LLC,
Defendant.

JURY TRIAL DEMANDED

PLAINTIFF SAMI ALMAKHADHI'S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION FOR LEAVE TO AMEND HIS PRO SE COMPLAINT I.
INTRODUCTION Plaintiff Sami Almakhadhi respectfully submits this Memorandum of Law in

support of his Motion for Leave to Amend his Pro Se Complaint. After obtaining counsel, Mr. Almakhadhi now seeks to clarify the factual and legal allegations of his Pro Se Complaint. Mr. Almakhadhi's proposed Amended Complaint describes his claims with more specificity than allowed on the form complaint which Mr. Almakhadhi completed by filling in certain blanks and marking certain boxes. (Mr. Almakhadhi's proposed Amended Complaint is attached as Exhibit A.)
The proposed Amended Complaint will enable the parties and the Court to

proceed without undue difficulty or confusion. Moreover, because all the facts and legal allegations in the proposed Amended Complaint are fairly within both Mr.

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Almakhadhi's Pro Se Complaint and his Delaware Department of Labor Charge of Discrimination, Mr. Almakhadhi's proposed amendments cause no prejudice to Defendant Delaware Park LLC ("Delaware Park").
Unfortunately, Mr. Almakhadhi was unsuccessful in obtaining Defendant

Delaware Park's consent to file his Amended Complaint, making necessary this Motion.1 II.

RELEVANT FACTS AND PROCEDURAL HISTORY Plaintiff Sami Almakhadhi was born in Yemen, and emigrated to the United

States in 1996. Although Mr. Almakhadhi is educated, English is his second language. He speaks with a heavy accent and has difficulty understanding certain phrases and terms of art. Additionally, his ability to read and write is below average.
On January 18, 2002, Delaware Park hired Mr. Almakhadhi as a Booth Cashier.

Mr. Almakhadhi began suffering discrimination shortly after he began working at Delaware Park. After failing to achieve any satisfaction through Delaware Park's internal complaint mechanisms, Mr. Almakhadhi filed a Charge of Discrimination with the Delaware Department of Labor on April 26, 2006. (See Exhibit B.) On September 29, 2006, the Delaware Department of Labor issued a Final Determination and Right to Sue Notice. (See Exhibit C.) The U.S. Equal Employment Opportunity Commission issued its Dismissal and Notice of Suit Rights on January 16, 2007. (See Exhibit D.) Because Mr.
On October 2, 2007, Mr. Almakhadhi provided to counsel for Delaware Park a copy of his proposed Amended Complaint in its entirety.
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Almakhadhi was unable to obtain counsel, he filed timely his original Complaint pro se, using a complaint form provided by the Clerk of Court. (See Exhibit E.)
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. Mr. Almakhadhi corrected the problem and on April 13, 2007, Delaware Park filed its Answer.
On June 24, 2007, this Court entered a Scheduling Order. Thereafter, the parties

engaged in discovery. Delaware Park served interrogatories and document requests, to which Mr. Almakhadhi has responded. Mr. Almakhadhi likewise served written discovery requests on Delaware Park. Delaware Park has not fully responded to those requests. Discovery is scheduled to end on October 31, 2007. The Court has scheduled a Pretrial Conference for February 7, 2008.
On September 12, 2007, the undersigned filed a Motion for Pro Hac Vice

Admission on behalf of Mr. Almakhadhi. That motion is pending. Because the close of discovery is near, however, Mr. Almakhadhi believes it is necessary to seek expeditiously the Court's permission to amend his Pro Se Complaint.
Accordingly, Mr. Almakhadhi now seeks to clarify the factual and legal

allegations of his Pro Se Complaint.

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III. ARGUMENT A. The Legal Standards. 1. Federal Rule of Civil Procedure 15
The Federal Rules of Civil Procedure provide for the liberal amendment of

pleadings. Rule 15(a), in pertinent part, provides: "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." FED. R. CIV. P. 15(a) (emphasis added). The Supreme Court has broadly interpreted Rule 15: The Federal Rules reject the approach that pleading is a game of skill in which one misstep . . . may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. . . . The Rules themselves provide that they are to be construed "to secure the just, speedy, and inexpensive determination of every action." Rule 1. *** In the absence of any declared reason--such as undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.--the leave sought should, as the rules require, be "freely given." Foman v. Davis, 371 U.S. 178, 181-82 (1962) (internal citations omitted). The Third Circuit Court of Appeals has simplified this standard to an even narrower band of consideration: "Unless the opposing party will be prejudiced, leave to amend should generally be allowed." Charpentier v. Godsil, 937 F.2d 859, 864 (3d Cir. 1991). -4-

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2. The Amendment of Claims Arising under Title VII of the Civil Rights Act of 1964
When a plaintiff's claims arise under Title VII of the Civil Rights Act, "the

parameters of the civil action in the district court are defined by the scope of the EEOC investigation . . . ." Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984). The Third Circuit Court of Appeals, however, has "rejected the view that the EEOC investigation sets an outer limit on the scope of the civil complaint." Id. Rather, in keeping with the spirit of the Federal Rules, in Howze the Court of Appeals made clear: Whether the actual EEOC investigation uncovered any evidence of [the alleged conduct] is of no consequence. . . . [Instead,] a district court may assume jurisdiction over additional charges if they are reasonably within the scope of the claimant's original charges and if a reasonable investigation by the EEOC would have encompassed the new claims. Id. at 1212 (citing Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976), cert. denied, 429 U.S. 1041. B. The Allegations In Mr. Almakhadhi's Amended Complaint Expand Upon Those In His Pro Se Complaint And Are Reasonably Within The Scope Of His Original Charges.
Mr. Almakhadhi's claims fall into two broad categories: disability and race/

national origin. His proposed amendments expand upon the allegations in his Delaware Department of Labor Charge and his Pro Se Complaint. Because Mr. Almakhadhi's

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proposed amendments are reasonably within the scope of his original charges, this Court should grant Mr. Almakhadhi's Motion for Leave to Amend.
Specifically, Mr. Almakhadhi seeks only to clarify the allegations contained in his

Delaware Department of Labor Charge and his Pro Se Complaint by providing eight discrete counts. To the extent the Court deems any of these Counts to be additional charges, each Count is reasonably within the scope of Mr. Almakhadhi's original charges, as discussed below. 1. Count I, Title VII (National Origin Discrimination; Hostile Work Environment; Retaliation)
Mr. Almakhadhi alleged National Origin Discrimination in his Charge of

Discrimination (which was dual-filed with the Equal Employment Opportunity Commission) and in his Pro Se Complaint (titled "Complaint under Title VII of the Civil Rights Act of 1964"). Accordingly, the amendment of this Count to clarify the factual and legal allegations supporting it in no way prejudices Delaware Park. 2. Count II, The Delaware Discrimination in Employment Act (National Origin Discrimination; Hostile Work Environment; Retaliation)
Count II of the proposed Amended Complaint is simply the state law corollary to

Mr. Almakhadhi's Title VII National Origin discrimination claim.2 This Count in no way prejudices Delaware Park.

This court has supplemental jurisdiction over all of Mr. Almakhadhi's state law claims pursuant to 28 U.S.C. § 1367.
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3. Count III, Title VII (Race Discrimination; Hostile Work Environment; Retaliation)
Mr. Almakhadhi's Race Discrimination claim reasonably arises from his Charge

of Discrimination. Although Mr. Almakhadhi selected only "national origin" on his Charge form, National Origin discrimination claims under Title VII often overlap with Race Discrimination claims. As explained in the EEOC's Compliance Manual, "discrimination based on physical traits or ancestry may be both national origin and racial discrimination." (See EEOC Compliance Manual, Section 13, Directive No. 915.003 (2002), http://www.eeoc.gov/policy/docs/national-origin.html.) Because of the overlapping nature of claims such as Race and National Origin, "[t]he failure to check a particular box is not fatal to a Title VII action, and courts in the Third Circuit liberally construe EEOC charges." Butterbaugh v. Chertoff, 479 F. Supp. 2d 485, 499 (W.D. Pa. 2007). (See also Anjelino v. New York Times Co., 200 F.3d 73, 93-96 (3d Cir. 1999); Schouten v. CSX Transp., Inc., 58 F. Supp. 2d 614, 616 (E.D. Pa. 1999) ("The[] administrative exhaustion requirement . . . is tempered by a fairly liberal construction given to EEOC charges. Indeed, the failure to check a particular box on an EEOC charge, such as is the case here, is not necessarily indicative of a failure to exhaust the mandatory administrative remedies.")
Mr. Almakhadhi was born and raised in Yemen. Although Mr. Almakhadhi

studied the English language while in Yemen, he speaks with a heavy accent, and has limited comprehension of written English. He is not a lawyer, and had no experience -7-

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with the American justice system before he filed the instant lawsuit. Moreover, he submitted his Charge of Discrimination to the Delaware Department of Labor without the aid of a lawyer. The Shouten court's analysis is apt: . . . it seems at least possible, if not probable, that Schouten, who is unschooled in the technical distinction between racial and national origin discrimination, assumed that the actions on the part of [defendant] constituted the former as opposed to the latter. In such situations, "not to allow the lawsuit would . . . penalize . . . a lay person for not attaching the correct conclusion to [his] claim and thus would . . . constitute . . . an improperly narrow construction of Title VII." Rodriguez v. Am. Parts Sys., 1986 U.S. Dist. LEXIS 17635, (E.D. Pa. Nov. 19, 1986). Schouten, 58 F. Supp. 2d at 616.
Mr. Almakhadhi should not be prejudiced by the Delaware Department of

Labor's selection (or lack thereof) of certain check-mark boxes on a form charge of discrimination, or his own understanding of which boxes to mark on a form Pro Se Complaint. As cogently stated by the court in Doe v. Kohn Nast & Graf, P.C., "We decline to hold that the failure to place a check mark in the correct box is a fatal error. In the context of Title VII, no one . . . should be boxed out." 866 F. Supp. 190, 196 (E.D. Pa. 1994) (citation omitted).

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4. Count IV, The Delaware Discrimination in Employment Act (Race Discrimination; Hostile Work Environment; Retaliation)
Count IV of the proposed Amended Complaint is simply the state law corollary

to Mr. Almakhadhi's Title VII Race discrimination claim.3 This Count in no way prejudices Delaware Park. 5. Count V, Americans With Disabilities Act (Disabled; Record of Disability; Regarded As Disabled)







Mr. Almakhadhi alleged Disability Discrimination in his Charge of

Discrimination. This claim was within the scope of his Charge, and was investigated by the Delaware Department of Labor. Accordingly, the amendment of this Count to clarify the factual and legal allegations supporting it in no way prejudices Delaware Park. 6. Count VI, The Delaware Handicapped Persons Protection in Employment Act (Disabled; Record of Disability; Regarded As Disabled)
Count IV of the Amended Complaint is simply the state law corollary to Mr.

Almakhadhi's Americans With Disabilities Act claim. This Count in no way prejudices Delaware Park. 7. Count VII, The Family and Medical Leave Act (Improper Denial of Leave; Retaliation)
Mr. Almakhadhi's allegations that Delaware Park violated the Family and

Medical Leave Act were within the reasonable scope of Mr. Almakhadhi's Charge of Discrimination. Indeed, the Delaware Department of Labor investigated those This court has supplemental jurisdiction over all of Mr. Almakhadhi's state law claims pursuant to 28 U.S.C. § 1367.
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allegations and discussed them in the Department's Final Determination letter. (See Exhibit C.) Accordingly, Delaware Park cannot make any reasonable argument that Mr. Almakhadhi's FMLA claim was not within the reasonable scope of the Department of Labor's investigation. This Count in no way prejudices Delaware Park.4 8. Count VIII, The Delaware Worker's Compensation Act (Wrongful Termination )
Like Mr. Almakhadhi's FMLA claim, the Delaware Department of Labor

investigated Mr. Almakhadhi's allegations that Delaware Park had denied Mr. Almakhadhi's request for light duty work in retaliation for his pursuit of worker's compensation rights. Also, Mr. Almakhadhi pursued this allegation from the inception of discovery. Accordingly, Delaware Park cannot make any reasonable argument that it would be prejudiced by Mr. Almakhadhi's clarification of the factual and legal allegations of his Pro Se Complaint through this amended claim.

Moreover, even if Delaware Park could reasonably argue that Mr. Almakhadhi's FMLA claim was not within the reasonable scope of Mr. Almakhadhi's Charge and the Delaware Department of Labor's investigation, which it cannot, Mr. Almakhadhi is within the FMLA's statute of limitations for filing suit. Because Mr. Almakhadhi's FMLA claim arises from the same operative facts as his other claims, it should be part of this lawsuit.
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C. This Court Should Grant Mr. Almakhadhi Leave To Amend Because His Motion Does Not Suffer From Undue Delay, Bad Faith, Or Dilatory Motive On His Part, The Amendments Are Not Futile, And Delaware Park Will Suffer No Undue Prejudice By Virtue Of Allowance Of The Amendments.


Mr. Almakhadhi's proposed amendments are not made in bad faith, nor has Mr.

Almakhadhi been dilatory. Instead, Mr. Almakhadhi has conscientiously prosecuted his case pro se while continuing his efforts to find a lawyer to assist him. Mr. Almakhadhi obtained counsel for the first time on September 12, 2007. Counsel has moved expeditiously upon entry into this case, and this Motion was filed at the first available opportunity after Delaware Park refused to provide its consent to amend.5
Nor are Mr. Almakhadhi's amendments futile. As discussed above, every

proposed amendment is based upon facts within the reasonable scope of Mr. Almakhadhi's Charge of Discrimination and his Pro Se Complaint, and upon information within Delaware Park's control and which it produced in response to the Charge of Discrimination. These facts establish a prima facie case on each of his claims. Notably: although Delaware Park saw fit to contest in a lengthy motion the technical deficiencies in Mr. Almakhadhi's first attempt at service of process, it did not see fit to

Even if the Court finds that Mr. Almakhadhi was dilatory, however, the Court of Appeals has held that delay alone is an insufficient ground upon which to deny a motion to amend. See Cornell and Co., Inc., v. Occupational Safety and Health Review Comm'n, 573 F.2d 820 (3d Cir. 1978). Rather, the touchstone is whether the non-moving party will be prejudiced if the amendment is allowed. Id. at 823. As discussed supra and infra, none of Mr. Almakhadhi's proposed amendments prejudices Delaware Park.
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seek a more definite statement from Mr. Almakhadhi or, indeed, move to dismiss his lawsuit. Accordingly, Delaware Park cannot now reasonably argue futility.
Finally, there is no reasonable basis upon which Delaware Park may argue

generally that it will suffer prejudice by these proposed amendments. The discovery period has not closed, and Delaware Park has not yet taken Mr. Almakhadhi's deposition. To the extent Delaware Park has expended certain resources, those expenditures cannot rise to the level of prejudice: while Mr. Almakhadhi remains unemployed following Delaware Park's termination of his employment, Delaware Park's 2006 revenues were $306.67 million (placing it 4th in the United States for racetrack casino revenue). (See Exhibit F.) Accordingly, Mr. Almakhadhi's amendments will not prejudice Delaware Park. IV. CONCLUSION
Mr. Almakhadhi's proposed Amended Complaint merely expands upon his

Delaware Department of Labor Charge of Discrimination and his Pro Se Complaint. He has established a prima facie case on each of his claims; has not unduly delayed in presenting his amendments (his Motion was filed as expeditiously as possible after he was able to obtain counsel); and the amendments do not prejudice Delaware Park because the discovery period is still open and to date Delaware Park has expended minimal resources in its defense of Mr. Almakhadhi's lawsuit. As stated by the Supreme Court, "If the underlying facts or circumstances relied upon by a plaintiff may be a

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proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962). Accordingly, Mr. Almakhadhi respectfully requests that this Court grant his Motion for Leave to Amend his Pro Se Complaint and allow him to test his claims on the merits. Respectfully submitted, /s/ Frank Conley Frank J. Conley, Esquire Pro hac vice The Conley Firm 7715 Cheltenham Avenue, Suite 133 Philadelphia, PA 19118 (215) 836-4789 /s/ Glenn Brown Glenn Brown, Esquire Real World Law 916 N. Union St #2 Wilmington, DE 19805 (302) 225-8340 Date: 2 October 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ____________________________________ SAMI ALMAKHADI : Plaintiff : : v. : : DELAWARE PARK, LLC : Defendant : ____________________________________

No. 1:07-cv-00078-JFF JURY TRIAL DEMANDED

COUNSEL'S AVERMENT PURSUANT TO LOCAL FEDERAL RULE OF CIVIL PROCEDURE 7.1.1. Proposed pro hoc vice counsel has been in communication with counsel for the Defendant in an attempt to resolve the dispute giving rise to the attached motion. Counsel now believes that the intervention of the Court is necessary. REAL WORLD LAW, PC /s/ Glenn A. Brown, Esquire__________ GLENN A. BROWN, DMD, ESQUIRE No. 4669 916 North Union Street No. 2 Wilmington, DE 19805 (302) 225-8340 Attorney for Plaintiff Dated: October 2, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SAMI ALMAKHADHI,

Plaintiff,
v. : : : : : : : : : :

No. 07-78-JJF

DELAWARE PARK,
Defendant.

ORDER
AND NOW this _____________ day of ________________, 2007, it is hereby

ORDERED that Plaintiff's Motion for Leave to Amend his Pro Se Complaint is GRANTED, and Plaintiff's Amended Complaint is deemed filed with the Clerk of the Court.

_____________________________ J.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SAMI ALMAKHADHI,

Plaintiff,
v. : : : : : : : : : :

No. 07-78-JJF

DELAWARE PARK,
Defendant.

JURY TRIAL DEMANDED

FIRST AMENDED COMPLAINT
Plaintiff Sami Almakhadhi files this Amended Complaint against his former

employer, Defendant Delaware Park, seeking declaratory relief, punitive and compensatory damages, attorney's fees, and other relief because of Delaware Park's discrimination against him because of his national origin and race; Delaware Park's discrimination against him because of his disability; Delaware Park's retaliation against him because of his complaints about discrimination in the workplace; Delaware Park's retaliation against him because of his Family and Medical Leave Act ("FMLA") use; Delaware Park's interference with his FMLA rights; and Delaware Park's wrongful termination of him because he filed a worker's compensation claim.
Mr. Almakhadhi brings this action under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000(e), et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C.

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§ 1981(a) ("Title VII"); the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., ("ADA"); the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"); the Delaware Worker's Compensation Law, 19 DEL. CODE. ANN. § 2365, the Delaware Discrimination in Employment Act, 19 DEL. CODE. ANN. § 710, et seq.; and the Delaware Handicapped persons Protection in Employment Act, 19 DEL. CODE. ANN. § 720, et seq. I. JURISDICTION AND VENUE 1.
This court has original jurisdiction over Mr. Almakhadhi's federal law

claims pursuant to 28 U.S.C. § 1331. 2.
This court has supplemental jurisdiction over Mr. Almakhadhi's state law

claims pursuant to 28 U.S.C. § 1367. 3.
Mr. Almakhadhi has fulfilled all conditions precedent to the filing of this

lawsuit. Specifically, on September 29, 2006, the Delaware Department of Labor issued a Final Determination and Notice of Right to Sue. Mr. Almakhadhi filed his original Complaint, pro se, within ninety days of that Notice. II. THE PARTIES A. Plaintiff Sami Almakhadhi 4.
At the time of filing his original Complaint, Plaintiff Sami Almakhadhi

was a citizen and resident of the State of Maryland. He has since moved to the State of Delaware.

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5.

Mr. Almakhadhi was born in Yemen. One of five children, Mr.

Almakhadhi attended Sana'a' University in Yemen's capital city of Sana'a'. There, he studied international relations, receiving a bachelor's degree in 1994. After receiving his degree, Mr. Almakhadhi worked as the University's Station Manager. 6.
Mr. Almakhadhi married in 1995. In 1996, Mr. Almakhadhi and his wife

decided to move to America to make a better life for their family. They settled in Newark, Delaware. Mr. Almakhadhi worked a variety of jobs to support his family, including gas station attendant, car salesman, and clerk in a Lion Food-Mart. He eventually worked for Defendant Delaware Park. 7.
In 2006, Mr. Almakhadhi became a naturalized U.S. Citizen.

B. Defendant Delaware Park 8.
Defendant Delaware Park is a gambling and casino operation. It hosts

thoroughbred horse racing and betting, a casino, and a golf course. Delaware Park owns and operates its business at 777 Delaware Park Boulevard, Stanton, Delaware. 9.
At all times relevant herein, Delaware Park acted by and through its

agents, servants, and employees, each of whom acted in the course and scope of his or her employment with Delaware Park. III. FACTS 10.
herein.
The foregoing paragraphs are incorporated as if fully set forth

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11.

On January 18, 2002, Mr. Almakhadhi began working for Defendant

Delaware Park as a Booth Cashier. As a Booth Cashier, Mr. Almakhadhi handled coins used by patrons of the casino, including the exchange of currency for coins and cashing casino chips. 12.
Mr. Almakhadhi performed his job in an exemplary manner. He received

high marks on his performance reviews and got along well with his co-workers. Indeed, over the course of his employment Mr. Almakhadhi moved up the seniority chain until he was the seventh most senior Booth Cashier out of approximately thirty Booth Cashiers. 13.
Despite his hard work and dedication to both his job and his new country,

Mr. Almakhadhi suffered continuous and on-going discrimination at work. For example, a Satellite Cashier named Keisha told Mr. Almakhadhi that this was not his country. Another, named Janet (Cashier Supervisor), referred to Mr. Almakhadhi as "the terrorist of Delaware Park." 14.
Mr. Almakhadhi had suffered discrimination in Yemen because his family

is originally from Jordan. Accordingly, he did his best to ignore the discrimination at Delaware Park and simply concentrate on improving his life and doing a good job. 15.
In April 2004 Mr. Almakhadhi suffered a work-related injury. Booth

Cashiers are required to lift bags of coins. While lifting such a bag, Mr. Almakhadhi hurt his back.

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16.
17.

Mr. Almakhadhi reported his back pain to Delaware Park. Over the following months, Mr. Almakhadhi saw several doctors. Because

of the difficulty in diagnosing back injury, it was not until after Mr. Almakhadhi received an MRI in May 2005 that it was determined Mr. Almakhadhi had herniated a spinal disc at the L4-L5 level. Mr. Almakhadhi's doctor issued restrictions on his physical activity. 18.
Even though Mr. Almakhadhi's doctor had identified an injury and

provided restrictions, Delaware Park contested Mr. Almakhadhi's claim and refused to pay worker's compensation. Mr. Almakhadhi was compelled to obtain an attorney and appeal Delaware Park's refusal to pay benefits. 19.
After his work-related injury, Delaware Park "promoted" Mr. Almakhadhi

to a Satellite Cashier position to which he had applied prior to his injury. The Satellite Cashier position required lifting and standing beyond the restrictions imposed by Mr. Almakhadhi's doctor. Mr. Almakhadhi attempted to perform the job, but because the lifting and standing exacerbated his injury he requested to return to the Booth Cashier position. Upon information and belief, Delaware Park's reasons for assigning Mr. Almakhadhi to a Satellite Cashier position were to retaliate for his worker's compensation claim, and to show that Mr. Almakhadhi was not injured.

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20.

Despite Mr. Almakhadhi's best efforts to succeed at work, Delaware Park's

discrimination prevented him from moving forward. In January 2005, Mr. Almakhadhi applied for the job of Impress Supervisor. This job was a promotion for which Mr. Almakhadhi was qualified, and which did not involve the heavy lifting restricted by his doctor. Nevertheless, Mr. Almakhadhi's supervisors, Karlyn Dixon, Director of Accounting Operations, and Stacy Suhr, Assistant Manager of Cage Ops, refused to promote Mr. Almakhadhi under the pretext that Mr. Almakhadhi was not qualified, despite his years of experience as a booth cashier. Instead, upon information and belief, Ms. Dixon placed into the position two people: an 18 year old Security Officer, and an Impress Clerk. Neither of these persons had any supervisory experience. 21.
Mr. Almakhadhi complained to Delaware Park's Human Resources

Department about the discrimination against him. Delaware Park's investigation was pro forma. Indeed, Mr. Almakhadhi was not interviewed about the discrimination he had suffered. Instead, Human Resources personnel spoke to Mesdames Dixon and Suhr and relied on incorrect and inaccurate information provided by them. On February 14, 2005, Micki Nardo from Human Resources informed Mr. Almakhadhi that the Department had found no discrimination. 22.
In February 2005, Mr. Almakhadhi applied for the position of Main Bank

Cashier--a promotion for which he was qualified, and which would not have

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aggravated his work-related injury. Again, Mesdames Dixon and Suhr denied Mr. Almakhadhi's application. Notably, Ms. Dixon refused to interview Mr. Almakhadhi for the position until after she had filled it. 23.
Again, Mr. Almakhadhi complained to Delaware Park's Human Resources

Department about this discriminatory and retaliatory treatment. Again, Delaware Park dismissed cursorily Mr. Almakhadhi's allegations. 24. Because Mesdames Dixon and Suhr's discrimination and retaliation

continued, Mr. Almakhadhi filed additional complaints with Delaware Park's Human Resources Department. Again, these complaints were perfunctorily denied. 25.
Mesdames Dixon and Suhr increased their discriminatory and retaliatory

actions following Mr. Almakhadhi's complaints. For example, Ms. Dixon would raise her voice and speak to Mr. Almakhadhi in a disrespectful manner in front of other employees and customers. Ms. Dixon did not treat other employees the same way. Mr. Almakhadhi again complained to Delaware Park's Human Resources Department about this discriminatory treatment, and again was denied any satisfaction. 26.
Because of his work injury, Mr. Almakhadhi took FMLA leave between

April 13, 2005 and June 13, 2005. (Mr. Almakhadhi had previously taken FMLA leave separately to care for his father, and his then-pregnant wife.) Because Delaware

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Park refused to pay worker's compensation, Mr. Almakhadhi had no income during this time. 27.
He returned to work on June 14, 2005. His new FMLA period began on

October 12, 2005. 28.
Because of his excellent work performance, Delaware Park was unable to

substantively discipline Mr. Almakhadhi. Instead, Mesdames Dixon and Suhr sought to harass Mr. Almakhadhi until he quit, or to terminate Mr. Almakhadhi's employment on a technicality. 29.
The discrimination intensified after Mr. Almakhadhi was granted a

hearing on his worker's compensation claim and Delaware Park finally acknowledged his injury. (As a result of his successful appeal, Mr. Almakhadhi received worker's compensation benefits for the period between September 1, 2005 and August 25, 2006.) 30.
On September 2, 2005, Mr. Almakhadhi's doctor reiterated his work

restrictions and Mr. Almakhadhi again requested light duty. Although Delaware Park routinely made light duty available for other employees, it refused to provide Mr. Almakhadhi any light duty work and sent him home. Delaware Park required him to call daily Mesdames Dixon and Suhr to check for light duty work. Mr. Almakhadhi was denied any such work.

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31.

In early February 2006, Delaware Park's Risk Management Department

consulted with Mesdames Dixon and Suhr who decided to terminate Mr. Almakhadhi on the technicality that he had exhausted all of his available leave time. Notably, Delaware Park made its termination decision with no prior warning and no timely notification to Mr. Almakhadhi. Indeed, Mr. Almakhadhi only learned of Delaware Park's termination of his employment after he was denied medical benefits for his infant son. 32.
Delaware Park's reasons for its termination of Mr. Almakhadhi's

employment are pretext for its discrimination and retaliation. Indeed, Mr. Almakhadhi had an additional twelve weeks of FMLA leave time available to him at the time Delaware Park decided to terminate his employment.

COUNT I (Title VII--National Origin Discrimination; Hostile Work Environment; Retaliation) 33.
34.
The foregoing paragraphs are incorporated as if fully set forth herein. Based on the foregoing, Delaware Park has engaged in unlawful

employment practices in violation of Title VII because of Mr. Almakhadhi's national origin, including, but not limited to, perpetuating a hostile work environment, subjecting Mr. Almakhadhi to unlawful national origin discrimination and harassment, subjecting Mr. Almakhadhi to more onerous working conditions after he complained about the discrimination and harassment, and terminating Mr. -9-

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Almakhadhi's employment in retaliation for opposing the discrimination and harassment. 35.
As a direct result of Delaware Park's unlawful discriminatory and

retaliatory practices in violation of Title VII, Mr. Almakhadhi has, among other things, sustained lost earnings, severe emotional and psychological distress, loss of self esteem, and loss of future earnings power. Mr. Almakhadhi has also lost back pay, front pay, and interest due thereon. COUNT II (Delaware Discrimination in Employment Act--National Origin Discrimination; Hostile Work Environment; Retaliation) 36.
37.
The foregoing paragraphs are incorporated as if fully set forth herein. Based on the foregoing, Delaware Park has engaged in unlawful

employment practices in violation of the Delaware Discrimination in Employment Act. Delaware Park's unlawful practices include, but are not limited to, perpetuating a hostile work environment, subjecting Mr. Almakhadhi to unlawful national origin discrimination and harassment, subjecting Mr. Almakhadhi to more onerous working conditions after he opposed discrimination and harassment in the workplace, and terminating Mr. Almakhadhi's employment in retaliation for opposing the discrimination and harassment. 38.
As a direct result of Delaware Park's willful and unlawful discriminatory

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lost earnings, severe emotional and psychological distress, loss of self esteem, and loss of future earnings power. Mr. Almakhadhi has also lost back pay, front pay, and interest due thereon. COUNT III (Title VII--Race Discrimination; Harassment; Hostile Work Environment; Retaliation) 39.
40.
The foregoing paragraphs are incorporated as if fully set forth herein. Based on the foregoing, Delaware Park has engaged in unlawful practices

in violation of Title VII because of Mr. Almakhadhi's race including, but not limited to, perpetuating a hostile work environment, subjecting Mr. Almakhadhi to unlawful race discrimination and harassment, subjecting Mr. Almakhadhi to more onerous working conditions after he complained about the discrimination and harassment, and terminating Mr. Almakhadhi's employment in retaliation for opposing racial discrimination and harassment. 41.
As a direct result of Delaware Park's unlawful discriminatory practices in

violation of Title VII, Mr. Almakhadhi has sustained loss of earnings, severe emotional and psychological distress, loss of self esteem, loss of future earnings power, plus back pay, front pay, and interest due thereon.

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COUNT IV (Delaware Discrimination in Employment Act--Race Discrimination; Hostile Work Environment; Retaliation) 42.
43.
The foregoing paragraphs are incorporated as if fully set forth herein. Based on the foregoing, Delaware Park has engaged in unlawful

employment practices in violation of the Delaware Discrimination in Employment Act. Delaware Park's unlawful practices include, but are not limited to, perpetuating a hostile work environment, subjecting Mr. Almakhadhi to unlawful race discrimination and harassment, subjecting Mr. Almakhadhi to more onerous working conditions after he opposed discrimination and harassment in the workplace, and terminating Mr. Almakhadhi's employment in retaliation for opposing the discrimination and harassment. 44.
As a direct result of Delaware Park's willful and unlawful discriminatory

and retaliatory practices in violation of Delaware law, Mr. Almakhadhi has sustained lost earnings, severe emotional and psychological distress, loss of self esteem, and loss of future earnings power. Mr. Almakhadhi has also lost back pay, front pay, and interest due thereon.

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COUNT V (ADA - Has a Disability; Record of Having a Disability; Regarded as Having a Disability) 45.
46.
The foregoing paragraphs are incorporated as if fully set forth herein. Because of the injury he suffered at Delaware Park, Mr. Almakhadhi has a

physical impairment that substantially limits one or more of his major life activities; has a record of such an impairment; and Delaware Park regarded him as having such an impairment. 47.
Among other effects on his major life activities, Mr. Almakhadhi's

disability substantially limits his ability to stand for uninterrupted periods. 48.
Among other effects on his major life activities, Mr. Almakhadhi's

disability substantially limits his ability to twist and lift. 49.
Delaware Park willfully refused to provide Mr. Almakhadhi promotions,

light duty work, or both, because of his disability, because of his record of having a disability, and because it regarded him as unable to perform a broad class of jobs. 50.
As a direct result of Delaware Park's intentional and unlawful

discriminatory employment practices in violation of the ADA, Mr. Almakhadhi sustained permanent and irreparable harm. Because of the loss of his employment, Mr. Almakhadhi suffered a loss of earnings and the value of certain benefits, the loss of future earning power, back pay, front pay and interest due thereon.

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51.

As a further direct result of Delaware Park's intentional and unlawful

discriminatory employment practices in violation of the ADA, Mr. Almakhadhi suffered, among other things, severe emotional distress, embarrassment, humiliation, and loss of self-esteem. COUNT VI (Delaware Handicapped Persons Protection in Employment Act Has a Disability; Record of Having a Disability; Regarded as Having a Disability) 52.
53.
The foregoing paragraphs are incorporated as if fully set forth herein. As a direct result of Delaware Park's intentional and unlawful

discriminatory employment practices in violation of the Delaware's Handicapped Persons Protection in Employment Act, Mr. Almakhadhi sustained permanent and irreparable harm. Because of the loss of his employment, Mr. Almakhadhi suffered a loss of earnings and the value of certain benefits, the loss of future earning power, back pay, front pay and interest due thereon. 54.
As a further direct result of Delaware Park's intentional and unlawful

discriminatory employment practices in violation of the Delaware's Handicapped Persons Protection in Employment Act, Mr. Almakhadhi suffered, among other things, severe emotional distress, embarrassment, humiliation, and loss of selfesteem.

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COUNT VII (FMLA--Improper Denial of Leave; Retaliation) 55.
56.
The foregoing paragraphs are incorporated as if fully set forth herein. Mr. Almakhadhi took a medical leave of absence pursuant to the Family

and Medical Leave Act for work-related injuries. 57.
Among other of its pretextual reasons for wrongfully terminating Mr.

Almakhadhi's employment, Delaware Park claimed that Mr. Almakhadhi was not eligible for FMLA time. He was. 58.
In violation of the FMLA, Delaware Park denied Mr. Almakhadhi FMLA

time to which he was entitled. 59.
In violation of the FMLA, Delaware Park retaliated against Mr.

Almakhadhi for taking medical leave by terminating pretextually his employment. By its termination of Mr. Almakhadhi's employment, Delaware Park also sought to prevent incurring costs concerning any future medical leaves Mr. Almakhadhi might have. 60.
As a direct result of Delaware Park's intentional and unlawful practices in

violation of the FMLA, Mr. Almakhadhi sustained permanent and irreparable harm. Because of the loss of his employment, Mr. Almakhadhi suffered, among other things, a loss of earnings and the value of certain benefits, the loss of future earning power, back pay, front pay and interest due thereon.

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COUNT VIII (Delaware Worker's Compensation Act--Wrongful Termination) 61.
62.
The foregoing paragraphs are incorporated as if fully set forth herein. Delaware Park terminated Mr. Almakhadhi's employment because he

filed a worker's compensation claim. 63.
Delaware Park's retaliatory actions were in violation of the Delaware

Worker's Compensation Act. 64.
As a direct result of Delaware Park's intentional and unlawful practices in

violation of the Delaware Worker's Compensation Act, Mr. Almakhadhi sustained permanent and irreparable harm. Because of the loss of his employment, Mr. Almakhadhi suffered, among other things, a loss of earnings and the value of certain benefits, the loss of future earning power, back pay, front pay and interest due thereon. IV. PRAYER FOR RELIEF 65.

The foregoing paragraphs are incorporated as if fully set forth herein.

WHEREFORE, Mr. Almakhadhi requests that this Court enter a judgment in his

favor and against Delaware Park and order: a. That Delaware Park compensate, reimburse, and otherwise make Mr. Almakhadhi whole for any pay and benefits he would have received (including but not limited to back pay, front pay, salary, pay increases, bonuses, insurance, benefits,

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training, promotions, reinstatement, and seniority) had it not been for Delaware Park's illegal actions. b. That Delaware Park reinstate Mr. Almakhadhi to the position to which he would have been entitled had he not been subjected to Delaware Park's unlawful discrimination, including a rate of pay, pay increases, promotions, benefits, bonuses, insurance, training, seniority and other emoluments of employment that he would have received. c. An award of actual damages as well as damages for the pain, suffering, inconvenience, mental anguish, humiliation, loss of employment, and other nonpecuniary losses caused by Delaware Park's actions. d. An award of punitive damages in an amount believed by the Court or the trier of fact to punish appropriately Delaware Park for its deliberate, malicious, and outrageous conduct and to deter it and other employers from engaging in such misconduct in the future. e. An award of liquidated damages under the Family and Medical Leave Act. f. That Delaware Park pay $3,000 to the Workers' Compensation Fund. g. An award of attorney's fees and costs. h. Any such other and further relief as this Court deems appropriate.

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V. JURY DEMAND
Mr. Almakhadhi demands a trial by jury. Respectfully submitted, /s/Frank Conley Frank J. Conley, Esquire Pro hac vice pending The Conley Firm 7715 Cheltenham Avenue, Suite 133 Philadelphia, PA 19118 (215) 836-4789 /s/ Glenn Brown Glenn Brown, Esquire Real World Law 916 N. Union St #2 Wilmington, DE 19805 (302) 225-8340 Date: 2 October 2007

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CERTIFICATE OF MAILING AND/OR DELIVERY The undersigned certifies that on October 2, 2007, he caused the attached Plaintiff's Motion to Amend Complaint to be filed with the Clerk using CM/ECF and which will be delivered to the following persons electronically: Names and Addresses of Persons Served: Wendy K. Voss, Esquire Potter, Anderson & Corroon 1313 North Market Street 6th Floor Wilmington, DE 19899 Kenneth L. Dorsney, Esquire Potter, Anderson & Corron 1313 North Market Street 6th Floor Wilmington, DE 19899 REAL WORLD LAW, PC /s/ Glenn A. Brown, Esquire________ GLENN A. BROWN, DMD, ESQUIRE No. 4669 916 North Union Street No. 2 Wilmington, DE 19805 (302) 225-8340 Attorney for Plaintiff Jennifer C. Wasson, Esquire Potter, Anderson & Corroon 1313 North Market Street 6th Floor Wilmington, DE 19899