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STATE OF MINNESOTA FIRST JUDICIAL DISTRICT

COUNTY OF SCOTT DISTRICT COURT


_____________________________________________________________________________
Case Type: Civil
JOSHUA J. ISRAEL,
Plaintiff, Case No. 70-CV-10-29417
Reply To Motion To Dismiss
vs.
OBJECTION TO THE MOTION
FEDEX GROUND PACKAGE SYSTEMS INC., 21 Day Safe Harbor
Defendant.
_____________________________________________________________________________

REPLY TO MOTION TO DISMISS


OBJECTION TO MOTION TO DISMISS
OBJECTION TO Footnote 4
OBJECTION TO EVIDENTIARY EXHIBITS

This OBJECTION serves as the 21 day “SAFE HARBOR” provision of Rule 11, of the

Minnesota Rules of Civil Procedure, requiring Plaintiff to give notice of an offending paper,

writing, or contention that is unwarranted by existing law, unwarranted on the evidence, or for

being matters immune from this proceeding, or for being matters that are irrelevant and

immaterial to this civil action. Therefore, to provide Counsel with an opportunity to withdraw,

remove, or correct matters unwarranted by existing law, Plaintiff states as follows:

1. On the 10th day of February, 2011, the Plaintiff did receive the Motion To Dismiss of the

Defendant, together with a Memorandum of Law and Evidentiary Exhibits.

2. When reviewing the Memorandum In Support of Motion to Dismiss, footnote #4, (pages 3-

4), of the Memorandum does introduce irrelevant and immaterial matters that are collateral

and unconnected to anything alleged in the EEOC investigation, or the complaint, and the

Defendant has not claimed these matters were its reasons to deny wage earning opportunity

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to Plaintiff. In addition, the claim that Defendant informed Plaintiff that he was passed-up

for more qualified applicants, is a contention unwarranted on the evidence.

3. By reference to irrelevant and immaterial matters, the Defendant has brought prejudice to this

proceeding, the Defendant intends to obstruct the administration of justice in this action, and

Defendant intends to prejudice the mind of the Court against the Plaintiff.

4. To demonstrate prejudice, (Exhibit A) is an unsigned Memorandum and an unverified

document that is not represented by the person asserting it; therefore, by authority of

Minnesota Rules of Civil Procedure (MRCP) 26.07, Plaintiff has no obligation to respond to

any unsigned or unverified statement not certified by the person asserting it; therefore, this

Memorandum is incompetent evidence that cannot represent the truth of the matter asserted

Radloff v. First American Natl. Bank, (MN App. 1991) 470 N.W.2d 154, 156-157.

5. To demonstrate irrelevant and immaterial matters, (Exhibit B to Exhibit E) introduces a 2005

workers compensation claim, and Defendant has not alleged that this claim is the reason for

denying wage earning opportunity to Plaintiff. Therefore, this Exhibit is without foundation

under MRCP 26.02(a), and this exhibit is a violation of 176.82(1) and creates another claim

against the Defendant State v. Phillip Morris Inc., (MN App. 2000) 606 N.W.2d 676, 690.

6. To Demonstrate matters immune due to being the work product privilege of Plaintiff,

(Exhibit F) is a matter still pending before the Administrative Review Board, of the USDOL,

and this matter is hereby exempt Henry v. Champlain Enterprises Inc. (U. S. Dist. 2003) 21

F.R.D. 73, 87-92; State v. Phillip Morris Inc., (MN App. 2000) 606 N.W.2d 676, 690.

7. To demonstrate irrelevant and immaterial matters, (Exhibit G) is a proceeding before the

Circuit Court Of Apeals, in May 2010, which is two years and 6 months after the Defendant

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denied wage opportunity to Plaintiff; therefore, the mental impressions, conclusions,

opinions, or legal theories of Plaintiff are immune and cannot lead to discovery of admissible

evidence State v. Phillip Morris Inc., (MN App. 2000) 606 N.W.2d 676, 690.

8. To demonstrate matters exempt due to being the work product privilege of Plaintiff, (Exhibit

H to Exhibit K) is a matter pending before the U. S. Department of Justice, which occurred 2

years and 4 months after Defendant denied wage opportunity to Plaintiff; therefore, this

exempt proceeding is unconnected to this case, and cannot lead to discovery of admissible

evidence Henry v. Champlain Enterprises Inc. (U. S. Dist. 2003) 21 F.R.D. 73, 87-92.

9. To demonstrate matters exempt due to being the work product privilege of Plaintiff, (Exhibit

L to Exhibit O) is a matter pending before the U. S. District Court, which occurred 1 year and

5 months after Defendant refused wage earning opportunity to Plaintiff; therefore, the mental

impressions, opinions, conclusions, or legal theories of Plaintiff are immune, and cannot

illuminate a legitimate reason to deny wage earning opportunity to Plaintiff State v. Phillip

Morris Inc., (MN App. 2000) 606 N.W.2d 676, 690.

10. To demonstrate matters exempt due to being the work product privilege of Plaintiff, (Exhibit

P to Exhibit S) is a matter pending before the Scott County District Court, which occurred 2

years and 8 months after Defendant refused wage earning opportunity to Plaintiff; therefore,

the mental impressions, conclusions, opinions, or legal theories of Plaintiff are immune, and

cannot lead to discovery of admissible evidence State v. Phillip Morris Inc., (MN App. 2000)

606 N.W.2d 676, 690.

11. As a result of all aforesaid Exhibits, Defendant has failed to demonstrate any legitimate

foundation for introduction of said Exhibits, Defendant has failed to demonstrate that said

exhibits are generally known by the Defendant, and no sworn affidavit from the (unknown)

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person who searched and found said exhibits so as to certify that said exhibits were not

altered or edited, and to certify said exhibits are capable of accurate and ready determination

by resort to sources whose basis of knowledge cannot be reasonable be questioned U. S. v.

Ritchie, (9th Cir. 2003) 342 F.3d 903, 907-909; Franks v. Delaware, (S. Ct. 1978)438 U. S.

154, 158-160, 164-165; Illinois v. Gates, (S. Ct. 1983) 462 U. S. 213, 228-230.

12. As a result, since the unidentified person who learned, discovered, and obtained possession

of these Exhibits have failed to demonstrate its veracity and its relevance to this proceeding,

the “work product doctrine,” the doctrine of “incorporation by reference,” the doctrine of

“basis of knowledge,” and the doctrine of “judicial notice” cannot support the introduction,

or the consideration, of any aforesaid Exhibit for any purpose in this case U. S. v. Ritchie, (9th

Cir. 2003) 342 F.3d 903, 907-909; Franks v. Delaware, (S. Ct. 1978)438 U. S. 154, 158-160,

164-165; State v. Phillip Morris Inc., (MN App. 2000) 606 N.W.2d 676, 690.

13. By the introduction of collateral matters (Exhibits, A-S) unconnected to this proceeding, the

Defendant has engaged in “bad faith” to prejudice to the administration of justice herewith;

because, said collateral matters are unwarranted by existing law Roadway Express v. Piper,

(S. Ct. 1980) 447 U. S. 752, 763-768.

14. Therefore, Counsel for the Defendant is afforded the 21 day “safe harbor” provision of Rule

11, to withdraw, remove, or correct footnote 4, and Defendant has 21 days before the

hearing, on 3/10/11, to withdraw the exhibits that are unwarranted by existing law, and

unwarranted on the evidence.

By: _________________________________________
Joshua J. Israel / Plaintiff-Pro-se
X. X. xxx XXX
SXXXXX, XX XXXXX

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STATE OF MINNESOTA DISTRICT COURT

COUNTY OF SCOTT FIRST JUDICIAL DISTRICT


_____________________________________________________________________________
Case Type: Civil

JOSHUA J. ISRAEL, Case No. 70-CV-10-29417


Plaintiff,

vs. Complaint
Wrongful Discharge
FEDEX GROUND PACKAGE SYSTEMS INC.,
Defendant. Judge, ______________________
_____________________________________________________________________________

PROOF OF SERVICE

Plaintiff, Joshua J. Israel, certifies that a copy of his 1st Amended Complaint, his Motion To
Amend Complaint, his Objection to Defendant’s Motion To Dismiss, and Objection to
Defendant’s Evidentiary Exhibits are served to the Defendant, and Defendant’s Counsel, by
placing said Motions and Complaint in an envelope, addressed to said counsel, and delivered to
said counsel, by first class mail through the U. S. Postal Service, on the 16th day of February,
2011, at the address listed below:

Andre J. Lamere, Attorney at Law Personal Hand Delivery To:


Maslon, Edelman, Borman, Grand, LLP Clerk of Court
3300 Wells Fargo Center Scott County Government Center
90 South 7th Street 200 Fourth Avenue West
Minneapolis, MN 55402-4140 Shakopee, MN 55379-1220

By: ____________________________________
Joshua J. Israel / Plaintiff-Pro-Se

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STATE OF MINNESOTA FIRST JUDICIAL DISTRICT

COUNTY OF SCOTT DISTRICT COURT


_____________________________________________________________________________
Case Type: Civil
JOSHUA J. ISRAEL,
Plaintiff, Case No. 70-CV-10-29417
Reply To Motion To Dismiss
vs. NOTICE of, Motion For Leave
To Amend Complaint, By Plaintiff,
FEDEX GROUND PACKAGE SYSTEMS, INC., during Hearing on Motions by Defendant
Defendant. on March 10, 2011 at 9:00 A.M.
_____________________________________________________________________________

TO: the DEFENDANT, FEDEX Ground Package Systems, and Clerk of Court.

NOTICE OF MOTION

PLEASE TAKE NOTICE that on March 10, 2011, at 9:00 A. M., in reply to the

Memorandum in support of Defendant’s Motion To Dismiss, the PLAINTIFF, Joshua J. Israel,

must be present at a hearing, scheduled by Defendant, and the opportunity to be heard and to

defend, of Plaintiff, must include a Motion For Leave To Amend the original Complaint.

Pursuant to Minnesota Rules of Civil Procedure, Rule 15.01, this Motion for Leave to Amend

the original complaint is to “correct discrepancies” revealed by Defendant, to comply and

resolve discrepancy issues, and to fulfill the “fact-finding” and “issue-forming” functions of Rule

15.01. In addition, this motion is fair to both parties because the court calendar in this action will

NOT be disturbed, and neither party will be prejudiced by delay; and, this reply is served and

filed in accordance with Minn. Gen. R. Prac. 115.03.

By: ____________________________________
Joshua J. Israel / Plaintiff-Pro-Se

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STATE OF MINNESOTA FIRST JUDICIAL DISTRICT

COUNTY OF SCOTT DISTRICT COURT


_____________________________________________________________________________
Case Type: Civil
JOSHUA J. ISRAEL,
Plaintiff, Case No. 70-CV-10-29417
Reply To Motion To Dismiss
vs.
Motion For Leave To Amend
FEDEX GROUND PACKAGE SYSTEMS, INC., The COMPLAINT
Defendant.
_____________________________________________________________________________

REPLY TO MOTION TO DISMISS


MOTION FOR LEAVE TO AMEND COMPLAINT
Pursuant to Minnesota Rule of Civil Procedure, Rule 15.01, the PLAINTIFF, Joshua J. Israel,

moves the court for leave to amend his original complaint, filed herewith, due to notice from the

Defendant, FEDEX GROUND PACKAGE SYSTEMS, INC., regarding errors in the original

complaint, and regarding corrections necessary to adequately Answer the complaint, and to

demonstrate said errors and amendments, Plaintiff states as follows:

15. On the 8th day of February, 2011, Plaintiff received an information statement from the

Defendant detailing a proposed calendar in this action, and Defendant noted that its true

name is FEDEX Ground Package System, Inc.; therefore, Plaintiff moves the Court for leave

to Amend the complaint to properly name and identify the Defendant.

16. On the 10th day of February, 2011, Plaintiff received the Motion to Dismiss of the Defendant,

with a supporting Memorandum of Law, and with numerous Evidentiary Exhibits to support

the Motion To Dismiss. Consequently, the Defendant did set forth errors and discrepancies

that made the original complaint insufficient for Defendant to Answer. Therefore, Plaintiff

moves the Court for Leave to Amend the following insufficiencies:

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17. The Defendant found that the complaint had several date errors, therefore, Plaintiff moves

the Court for Leave to Amend the pleadings to correct said errors in date and time.

18. The Defendant claimed that Plaintiff did make an admission on findings made by the EEOC

to agree that Plaintiff was not an employee of Defendant; however, since Plaintiff did NOT

make such admission, and since the EEOC officially determined that it could not conclude

that there was a violation of its statute (CA-3), Plaintiff must clarify the words in his

pleadings to demonstrate a rebuttal of EEOC evidence. Therefore, Plaintiff moves the Court

for Leave to Amend the pleadings so that an admission cannot be claimed.

19. The Defendant raised the issue of Statute of Limitations, and demonstrated that the two year

limitation for intentional torts has expired and that this action is time-barred; however, since

the Defendant has used this excessive delay process, of the EEOC, to its advantage, the

Defendant cannot demonstrate any prejudice by such delay.

20. Moreover, the mandate from the Minnesota Supreme Court has declared that the Statute of

Limitations begins to run, on an employment discrimination claim, at the time the employer

gives the employee Notice of termination; and, if the job termination and the Notice of

employment termination are two separate events, the statute of limitation begins to accrue on

the date of Notice of employment termination; because, the employer could change its mind,

and decide not to terminate the employee Turner v. IDS Financial Services, (MN S. Ct. 1991)

471 N.W.2d 105, 108.

21. As a result, since the Defendant has claimed that Plaintiff is Not its employee; and therefore,

since Defendant has NOT given Notice of termination, the statute of limitations begins to

accrue when this Court determines that Plaintiff was the employee of Defendant, and the

statute of limitations begins to accrue when Notice of employment termination is thereafter

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given to Plaintiff. Therefore the Statute of Limitations in this action will begin to accrue

when this Court renders judgment hereupon.

22. To assist this court in making its determination upon said employment relationship, the

Plaintiff has set forth pleadings that demonstrate an employee-employer (master-servant)

relationship does exist, and Plaintiff has set forth pleadings demonstrating that the adverse

employment action and the Notice of termination are two separate events; therefore, Plaintiff

moves the Court for Leave to Amend the original complaint.

23. The Defendant has claimed that Plaintiff has failed to plead or has failed to allege that he was

requested by public body or office to participate in an investigation, hearing, or inquiry, and

that Plaintiff has failed to establish that his statutorily protected activity is connected to the

employer’s conduct. Therefore, Plaintiff moves the Court for leave to Amend the complaint,

and to set forth allegations demonstrating that statutorily protected conduct is connected to

the Defendant, by imputed knowledge of protected conduct from Plaintiff, and to

demonstrate that an official telephone pre-trial conference is statutorily protected conduct.

24. Since the Defendant has demonstrated that Count 2 in the complaint is an error that is

unsupported by law, Plaintiff has eliminated Count 2 in the complaint; therefore, Plaintiff

moves for Leave to Amend so as to eliminate Count 2 in the complaint.

25. Wherefore, Plaintiff pleads with the Court for Leave to Amend the complaint, and to accept

the 1st Amended Complaint as adequate for further proceedings.

By: ___________________________________
Joshua J. Israel / Plaintiff-Pro-Se
X. X. XXX xxx, SXXXXXX, XX XXXXX

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STATE OF MINNESOTA FIRST JUDICIAL DISTRICT

COUNTY OF SCOTT DISTRICT COURT


_____________________________________________________________________________
Case Type: Civil
JOSHUA J. ISRAEL,
Plaintiff, Case No. 70-CV-10-29417

vs. ORDER
FOR LEAVE
FEDEX GROUND PACKAGE SYSTEMS, INC., TO AMEND COMPLAINT
Defendant.
_____________________________________________________________________________

The above entitled matter having come forward for hearing before the undersigned Judge

of the First Judicial District Court, of Scott County, for the Motion of Plaintiff to Amend the

original complaint.

The PLAINTIFF, Joshua J. Israel, appeared pro-se. Andre Lamere and Nadge Souvenir

from Maston Edelman Borman & Brand, LLP appeared on behalf of Defendant, FEDEX

GROUND PACKAGE SYSTEMS, INC.,

The Court having read and taking notice of the Amended pleadings and have heard

arguments of Plaintiff, and the arguments of Defendant’s counsel, and being duly advised in the

merits of this action, hereby Finds and ORDERS:

1. The Plaintiff’s Motion To Amend his original complaint is hereby GRANTED for the

following reasons:

2. Plaintiff has demonstrated that the Statute of Limitations is dependent upon Notice of

employment termination, which would either to be determined by this Court, or would be

demonstrated after discovery, and after further proceedings hereafter.

3. That pleadings demonstrating an employee-employer relationship has been

sufficiently set forth, and this case controversy must be determined in further proceedings.

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4. That a Pre-Trial Order of an Administrative Law Judge requiring an employee to

participate in the Judge’s inquiry into evidentiary matters regarding the public safety and

welfare, or the public interest, on matters concerning a violation of law, is an adequate pleading

for statutorily protected conduct, under 181.932(1)(2), and such matters must proceed to trial.

5. That statutorily protected conduct has been established by the EEOC investigation,

where Defendant did Notify Plaintiff, through the EEOC investigation, of its true reason for

“letting Plaintiff go,” and thereby, statutorily protected conduct is connected to the Defendant, by

imputed knowledge from the EEOC and the Plaintiff.

6. That discovery is necessary to reveal the extent of the pre-employment background

investigation that Defendant initiated on the Plaintiff.

WHEREFORE, the Amended Complaint of Plaintiff is sufficient for the Defendant to file

its Answer thereto within (14) days from this hearing date, from the 10th day of March, 2011.

JUDGMENT IS HEREBY ENTERED ACCORDINGLY.

Dated: ______________________, 2011 BY THE COURT

____________________________________________
The Honorable
________________________________
Judge of First District Court

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STATE OF MINNESOTA DISTRICT COURT

COUNTY OF SCOTT FIRST JUDICIAL DISTRICT


_____________________________________________________________________________
Case Type: Civil

JOSHUA J. ISRAEL, Case No. 70-CV-10-29417


Plaintiff,

vs. Complaint
Wrongful Discharge
FEDEX GROUND PACKAGE SYSTEMS INC.,
Defendant. Judge, ______________________
_____________________________________________________________________________

PROOF OF SERVICE

Plaintiff, Joshua J. Israel, certifies that a copy of his 1st Amended Complaint, his Motion To
Amend Complaint, his Objection to Defendant’s Motion To Dismiss, and Objection to
Defendant’s Evidentiary Exhibits are served to the Defendant, and Defendant’s Counsel, by
placing said Motions and Complaint in an envelope, addressed to said counsel, and delivered to
said counsel, by first class mail through the U. S. Postal Service, on the 16th day of February,
2011, at the address listed below:

Andre J. Lamere, Attorney at Law Personal Hand Delivery To:


Maslon, Edelman, Borman, Grand, LLP Clerk of Court
3300 Wells Fargo Center Scott County Government Center
90 South 7th Street 200 Fourth Avenue West
Minneapolis, MN 55402-4140 Shakopee, MN 55379-1220

By: ____________________________________
Joshua J. Israel / Plaintiff-Pro-Se

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STATE OF MINNESOTA FIRST JUDICIAL DISTRICT

COUNTY OF SCOTT DISTRICT COURT


_____________________________________________________________________________
Case Type: Civil
JOSHUA J. ISRAEL,
Plaintiff, Case No. 70-CV-10-29417

vs. Complaint

FEDEX GROUND PACKAGE SYSTEMS, INC., Wrongful Discharge


Defendant.
_____________________________________________________________________________

1st AMENDED COMPLAINT


This civil action arises out of the Minnesota Human Rights Act, where the PLAINTIFF,

Joshua J. Israel, did bring a Charge Of Discrimination against the Defendant, FEDEX GROUND

PACKAGING SYSTEMS, INC., and where Defendant failed to give warning prior to denying

wage earning opportunity to Plaintiff, and where Defendant failed to give notice after taking

adverse action against Plaintiff; and then, Defendant did wait 28 months before giving notice of

employment termination. Since the EEOC investigation is statutorily protected activity that is

connected to the Defendant, Plaintiff will set forth pleadings for relief from wrongful discharge,

in breach of public policy, and to demonstrate, Plaintiff states as follows:

PARTIES

26. Plaintiff, Joshua J. Israel, is a Minnesota Resident who resides at the address of X. X. xxx

xxx, xxx xxx xxxxx xxxx, xxxxxx, xx xxxxx, xx. xxx-xxxx-xxxxx xxx.

27. Defendant, FEDEX GROUND, is a parcel package courier company, where its principle

place of business is at the address of 5800 12th Ave. East, Shakopee, MN 55379, Ph. (952)

445-0083 and 952-445-0657 and 612-201-6799.

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JURISDICTION AND VENUE
28. This Court has personal jurisdiction over the Defendant, pursuant to Minn. Stat. 363A.33(6)

which sets forth the following jurisdiction:

Minn. Stat. 363A.33(6) District Court Jurisdiction. Any action brought


pursuant to this section shall be filed in the district court wherein the unlawful
discriminatory practice is alleged to have been committed or where the
respondent resides or has a principle place of business.

29. This action arose in Scott County, Minnesota, at the Defendant’s Shakopee, Minnesota,

address; therefore, venue is proper pursuant to 363A.33(6).

STATUTE OF LIMITATIONS

30. Since the deprivation of the wage earning opportunity, and the actual notice of employment

termination, are two separate events; and, since Defendant did not change its mind about its

adverse action, Plaintiff did receive notice of employment termination on the 19th day of

August, 2010, and the (2) year statute of limitation began to run theretofore Turner v. IDS

Financial Services, (MN S. Ct. 1991) 471 N.W.2d 105, 108.

AMBIGUITY IN NOTICE AND KNOWLEDGE REQUIREMENTS

31. At all times herewith, the Defendant has engaged in ambiguities and deceptive practices that

has subjected Plaintiff to contradictions in legitimate employment practices.

32. Plaintiff responded to an employment job advertisement placed in the Star Tribune

Newspaper, this job opportunity was posted by FEDEX Ground, Plaintiff was greeted by

FEDEX Staff, Plaintiff used FEDEX Computers to apply for said job advertisement, Plaintiff

was interviewed by FEDEX Staff, and FEDEX paid for the drug test of Plaintiff.

33. Thereafter, Plaintiff was trained, tested, and qualified by FEDEX Staff who exercised control

over all pre-employment activity; therefore, Kelly Management Services is also employed by

Defendant to perform a “payroll” service in the interests of the Defendant (CA-5).

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34. During orientation and training, Plaintiff was trained to believe that Plaintiff would perform a

service that is in the interests of FEDEX, where the physical conduct and employment

activity, of Plaintiff, in the performance of such service, is controlled by the Defendant, or is

subject to the right to control by the Defendant; hence, the Defendant did control what was to

be done, how it was to be done, and the timing for which it must be done; as a result, and

employee-employer relationship was established, and Plaintiff was an employee of the

Defendant Frankle v. Twedt, (MN S. Ct. 1951) 234 Minn. 42, 47-48.

35. On the 19th day of December, 2007, after failing to warn or notify Plaintiff of reasons for

denial of wage earning opportunity, the Defendant (Scott) did inform Plaintiff that his

potential courier services were no longer needed and we’ll see you next year.

FACTUAL BACKGROUND

36. Since the Defendant failed to give Notice of termination, Plaintiff was compelled to assume

his denial of wage earning opportunity was either race or age discrimination.

37. Therefore, Plaintiff filed a CHARGE of DISCRIMINATION with the EEOC (CA-1) against

the Defendant on the 7th day of January, 2008, and the Defendant did enter its Appearance in

this action (CA-3), and did respond this Charge of Discrimination, on 6/8/2010.

38. After deciding that it was unable to conclude whether a violation of the statute had occurred,

this Charge was dismissed by the EEOC (CA-4); and later, the MDHR dismissed this Charge

without an investigation of the evidence in this case (CA-2).

39. After 28 months of delay, Plaintiff was contacted by EEOC Investigator, Andre Susan Taylor

on 6/8/2010, and during this first investigation interview, on 6/10/2010, the initial evidence

produced by said investigator was that Defendant said that Plaintiff was not its employee.

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40. However, in rebuttal to said EEOC investigation, on 6/10/10, Plaintiff produced evidence

demonstrating that Plaintiff was greeted by FEDEX Staff for the first informational meeting,

in St. Paul, MN, that Plaintiff used the FEDEX Computer System to complete an

employment application in St. Paul, MN, on 9/25/07, then a 2nd application was completed

with FEDEX Ground, in Shakopee, MN, on date 10/1/07; and, Plaintiff produced additional

evidence demonstrating his pre-employment interviewer was an employee of FEDEX,

(named Wade), at the Shakopee, MN, FEDEX Ground location, on 10/1/2007.

41. Furthermore, Plaintiff produced evidence that Defendant did pay for the (2) two pre-

employment drug tests administered to Plaintiff (CA-1a), on 10/03/2007 and 10/08/2007;

and, that (the FEDEX employee named Wade) did report a problem with the background

investigation of Plaintiff that caused a (2) week delay in the training of Plaintiff. In addition,

Plaintiff reported that he had never met, nor was contacted, by anyone from Kelly Services.

42. After said rebuttal, and during the second EEOC interview, on 8/19/2007, EEOC

Investigator, Andre Susan Taylor, produced additional evidence that Defendant did inform

her that Defendant decided to deny driver job assignments to Plaintiff because of a telephone

call that Plaintiff participated in, on Friday 10/26/2007, and that Defendant did determine this

lengthy telephone call was so unprofessional that said telephone call warranted its denial of

driver job assignments, and that Defendant decided to let Plaintiff go.

43. In rebuttal to said Investigator’s evidence, Plaintiff brought forth evidence that Defendant,

Chris Costello, allowed the driver-trainees to take telephone calls during the training class,

and that Chris Costello did give such permission due to its short notice provided for the re-

schedule of training sessions; and, because Chris Costello’s short notice to re-schedule

training will interfere with the schedules and personal appointments of driver-trainees.

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44. In further rebuttal to EEOC evidence, Plaintiff brought forth that he was coerced to

participate in this official telephone call because the Defendant did re-schedule its training

(3) times, and Defendant gave only two (2) days prior notice of its re-schedule, and that this

short notice did place FEDEX Ground Training on the exact same day, and time, that

Plaintiff was to participate in a court ordered official telephone pre-trial conference.

45. In additional rebuttal to EEOC evidence, Plaintiff brought forth that when the Judge’s official

pre-trial conference call did commence, Plaintiff did advise Administrative Law Judge

(ALJ), Thomas F. Phalen, that Plaintiff was at his place of employment; however, the ALJ

ordered Plaintiff to move to an isolated location where ambient noise would not be recorded.

In addition, Plaintiff did advise, Defendant, Chris Costello, that the telephone call was an

official pre-trial hearing before an Administrative Law judge, and that the ALJ required

Plaintiff to move to a quiet location, where others would not hear the conversation.

46. Moreover, in an additional rebuttal to EEOC evidence, Plaintiff brought forth that Defendant,

Chris Costello, did give permission to Plaintiff to complete the official telephone conference

call, Chris was advised that the telephone pre-trial conference concerned official matters of

public interest, and Chris Costello did allow Plaintiff to move to a quiet location.

47. Thereafter, in additional rebuttal to EEOC evidence, Plaintiff did produce evidence that when

the ALJ did finally conclude the official telephone pre-trial conference, Chris Costello did re-

schedule the driver road-test, of Plaintiff, for Tuesday 11/30/2007, and Chris Costello did not

issue any warning to Plaintiff concerning any unprofessional conduct.

48. In addition to EEOC evidence, Plaintiff produced evidence that he did report to Chris

Costello for the driver road-test, on Tuesday, 11/30/2007, at 9:30 AM; that Plaintiff did drive

the FEDEX courier van through the city streets of Shakopee, MN; and that thereafter,

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Plaintiff did drive the FEDEX courier van through an obstacle course in Defendant’s parking

lot, and that Plaintiff did pass the Defendant’s driver road-test.

49. Thereafter, to rebut evidence produced by EEOC investigator, Plaintiff produced evidence

that on Tuesday, 11/30/10, at 11:15 A.M., Chris Costello, and Scott (?), did inform Plaintiff

that a Bloomington, MN route would be assigned to Plaintiff (CA-1).

50. However, on 11/01/2007, after an Owners Meeting was held, the Defendant changed its mind

about the Bloomington driver route assignment and Chris Costello, and Scott, did refuse to

assign any driver route to the Plaintiff.

51. In addition, Defendant, Chris Costello, and Scott, engaged in conduct which created the

likelihood of confusion, or of misunderstanding, when Defendant refused to advise Plaintiff

of its true reason for denying wage earning opportunity, even after Plaintiff made (12) twelve

inquiries during the (8) eight weeks of available courier services.

52. In disregard of said clear admission of reprisal for statutorily protected conduct, EEOC

Investigator, Andre Susan Taylor, did inform Plaintiff that his Charge would still be

dismissed (CA-3); however, before the Charge was dismissed, Plaintiff did request a copy of

the EEOC Final Investigation Report (which was refused), and Plaintiff did request a hearing

before an administrative law judge (which was refused), and Plaintiff did make an audio

recording of the EEOC investigation interview (recorder).

Count 1
(Wrongful Discharge In Breach of Public Policy)

53. To establish a prima facie tort of wrongful discharge, it must be established that Defendant

(1) engaged in an intentional unlawful act to harm Plaintiff; that (2) Defendant intended to

harm Plaintiff; that, (3) the unlawful act did cause injury to Plaintiff; and (4) that there was

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no justification for Defendant’s unlawful action; in addition, to establish wrongful discharge

in reprisal for statutorily protected conduct, Plaintiff must establish that (1) he engaged in

statutorily protected conduct, that (2) the employer is aware of the protected conduct and still

took adverse employment action against Plaintiff soon thereafter, and that there (3) is a

casual connection between the protected conduct and the adverse action Bersch v. Rgnonti &

Associates Inc., (MN App.1998) 584 N.W.2d 783, 786-788.

54. Therefore, the protected conduct that Plaintiff was ordered to participate in (1) is set forth by

the Pre-Trial Order of ALJ, Thomas F. Phalen, requiring Plaintiff to participate in an official

Judicial investigation on evidentiary matters regarding the public safety and welfare, or the

public interest, on issues regarding a violation of law, Minn. Stat. 181.932(1)(2).

55. This aforesaid protected conduct applies when a third party requests an employee to

participate in an official investigation, hearing, or inquiry. The public interests served by

181.932(1)(2) is the interest in having employees participate in investigations, hearings, or

inquiries, when requested to do so by a public body, or office, without fear that their

participation will result in negative employment consequences. Evidence that an employee

participated in an investigation at the request of a public body or office is sufficient to prove

that the employee engaged in conduct protected by 181.932(1)(2) Bersch v. Rgnonti &

Associates Inc., (MN App.1998) 584 N.W.2d 783, 786-788.

56. The Defendant’s (1) knowledge of statutorily protected activity is established by Plaintiff

informing Defendant, Chris Costello, that the official telephone conference call was a pre-

trial hearing before an Administrative Law Judge concerning matters of public interests, and

this imputed knowledge is the necessary connection to the Defendant.

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57. The adverse action suffered by Plaintiff is a (2) denial of a job assignment and wage earning

opportunity, after Plaintiff did qualify to become a FEDEX Ground courier driver, and after

being promised a Bloomington, MN route assignment; and then, the willful refusal to inform

Plaintiff of its true reason for refusing wage earning opportunity.

58. The (3) casual connection between the statutorily protected activity and the adverse action, is

the four business days soon after Defendant obtained imputed knowledge that Plaintiff

participated in an official telephone pre-trail conference with an Administrative Judge; and

additionally, a casual connection is established by the one business day soon after the weekly

Owners-Meeting was held by Defendant, on 11/1/07.

59. Since the deprivation of wage earning opportunity, and the notice of employment termination

are two separate events, (separated by 28 months), the Defendant did not change its mind

about its adverse employment actions, and Defendant decided to give notice of employment

termination to the EEOC Investigator, who informed Plaintiff of his employment termination

on 8/19/2010 Turner v. IDS Financial Services, (MN S. Ct. 1991) 471 N.W.2d 105, 108.

Therefore, another casual connection is established between the EEOC protected activity, of

Plaintiff, and the notice of employment termination, by Defendant, where the EEOC

Investigation, on 6/10/10, did inform the Defendant that Plaintiff has demonstrated an

employee-employer relationship; as a result, said EEOC protected activity is connected to the

Defendant who then gave Notice of employment termination soon thereafter.

60. As a result of aforesaid prima facie elements, when an employer discharges an employee for

reasons that contravene a clear mandate of public policy Phipps v. Clark Oil & Refining

Corp., (MN S. Ct. 1987) 408 N.W.2d 569, 570-571, the employee has a cause of action for

20
wrongful discharge, and this clear mandate of public policy is set forth by the following

Minnesota Statute for employee protections:

Minn. Stat. 181.932(1)(2) Disclosure of information by employees. (1)


Prohibited action. An employer shall not discharge, discipline, threaten, or
otherwise discriminate against, or penalize an employee regarding the
employee’s compensation, terms, conditions, location, or privileges of
employment because: (2) the employee is requested by a public body or office to
participate in an investigation, hearing, or inquiry.
61. When Defendant did deny a driver job assignment to Plaintiff, the Defendant intended to

cause harm to Plaintiff, because Defendant was intentionally depriving Plaintiff of wage

earning opportunity (CA-5) and any prospective future employment; and because, Defendant

was deceptively and ambiguously terminating the employment of Plaintiff. In addition, the

Defendant did know that it was causing harm to Plaintiff because Defendant refused to

inform Plaintiff of its true reason for refusing wage-earning opportunity, after (12) separate

inquiries were made, in violation of Minn. Stat. 181.933(1).

62. After (28) months of delay, the Defendant made an admission of a material fact that

Defendant terminated the employment of Plaintiff because Plaintiff participated an official

telephone pre-trial conference before an Administrative Law Judge.

63. Since the Order to participate in a telephone pre-trial hearing before an ALJ is statutorily

protected conduct that is connected to Defendant by imputed knowledge from Plaintiff, and

since Plaintiff had no prior notice of any prohibition to an official telephone conference call

from an Administrative Law Judge, and since Plaintiff had no prior notice as to the length of

the ALJ conference call, and since Defendant failed to give any warning to Plaintiff about

participation in official court proceedings, the sudden assertion of unprofessional conduct by

the Defendant is ambiguous, and suspicious, and any ambiguity in the notice and knowledge

requirements is to be strictly construed AGAINST the Defendant St. Louis I. M. & S.

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Railway Co. v. Blaylock, (Ark. S. Ct. 1915) 175 S.W. 1170, 1175-1177. Therefore, Defendant

is without justification for refusing wage earning opportunity to Plaintiff, and Defendant is

without justification to delay notice of employment termination for (2) years and (8) months.

64. Furthermore, since no other driver-trainee, who answered their telephone calls, suffered the

adverse action that Plaintiff was subjected to, the Defendant has made a clear admission of a

material fact that disparate treatment actions were taken against the Plaintiff, Johnson v.

Canadian Pacific Ltd., (MN App. 1994) 522 N.W.2d 386, 389-392.

RELIEF AND DAMAGES

65. As a result of said wrongful discharge, Plaintiff suffered $5,600.00 in denied wages; Plaintiff

suffered $2,800.00 in personal property losses, and Plaintiff suffered $620.00 in out of

pocket expenses. Since the Defendant’s actions were intentionally egregious, a triple sum

total of punitive damage assessments does bring the total damage claim of Plaintiff to the

sum of $26,560.00 by authority of Minn. Stat. 549.20(1)(a)(b)(2)(a), and this Court is

entitled to a civil penalty of $750.00 by authority of Minn. Stat. 181.933(1).

66. Furthermore, Plaintiff moves the Court to Subpoena EEOC Records in this case, and to

Subpoena EEOC Investigator, Andrea Susan Taylor, for verification of evidence obtained

during her investigation, and for the reason to delay this matter for 28 months.

67. Wherefore, Plaintiff does plead with the Court for relief from wrongful discharge that has

deprived Plaintiff of wages, personal property, and prospective employment opportunity.

By: ________________________________________
Joshua J. Israel / Plaintiff
XXX XXXX , XXXX xxxx xxxxx xxxx
xxxxxxx, xxx xxxxxx
(xxx) xxxx-xxxxxx

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STATE OF MINNESOTA DISTRICT COURT

COUNTY OF SCOTT FIRST JUDICIAL DISTRICT


_____________________________________________________________________________
Case Type: Civil

JOSHUA J. ISRAEL, Case No. 70-CV-10-29417


Plaintiff,

vs. AFFIDAVIT

FEDEX GROUND PACKAGE SYSTEMS INC.,


Defendant. Judge, ______________________
_____________________________________________________________________________

AFFIDAVIT OF JOSHUA J. ISRAEL

STATE OF MINNESOTA )
) SS
COUNTY OF HENNEPIN )
Plaintiff, Joshua J. Israel, have read this document. To the best of my knowledge, information, and belief,
the information contained in this document is well grounded in fact and is warranted by existing law, and
there is no issue of military service as to any of the parties.

I have not been determined by any court in Minnesota, or in any other state to be a frivolous litigant, and I
am not a subject of an Order precluding me from serving or filing this document.

I am not serving this document for any improper purpose, such as to harass the other party, or to cause
delay or needless increase in the cost of litigation, or to commit fraud on the Court.

I understand that if I am not telling the truth, or if I am misleading or deceiving the Court, or if I am
serving this complaint for an improper purpose, the Court can order me to pay money to the other party,
including the reasonable expenses incurred by the other party because of the serving or the filing of this
complaint, court costs, and reasonable attorney fees.

Dated: _______________________ __________________________________


Joshua J. Israel / Plaintiff
Subscribed and sworn to before me
on this 6th day of December, 2010

______________________________
Notary Public

207-39-0/347097

23
STATE OF MINNESOTA DISTRICT COURT

COUNTY OF SCOTT FIRST JUDICIAL DISTRICT


_____________________________________________________________________________
Case Type: Civil

JOSHUA J. ISRAEL, Case No. 70-CV-10-29417


Plaintiff,

vs. Complaint
Wrongful Discharge
FEDEX GROUND PACKAGE SYSTEMS INC.,
Defendant. Judge, ______________________
_____________________________________________________________________________

PROOF OF SERVICE

Plaintiff, Joshua J. Israel, certifies that a copy of his 1st Amended Complaint, his Motion To
Amend Complaint, his Objection to Defendant’s Motion To Dismiss, and Objection to
Defendant’s Evidentiary Exhibits are served to the Defendant, and Defendant’s Counsel, by
placing said Motions and Complaint in an envelope, addressed to said counsel, and delivered to
said counsel, by first class mail through the U. S. Postal Service, on the 16th day of February,
2011, at the address listed below:

Andre J. Lamere, Attorney at Law Personal Hand Delivery To:


Maslon, Edelman, Borman, Grand, LLP Clerk of Court
3300 Wells Fargo Center Scott County Government Center
90 South 7th Street 200 Fourth Avenue West
Minneapolis, MN 55402-4140 Shakopee, MN 55379-1220

By: ____________________________________
Joshua J. Israel / Plaintiff-Pro-Se

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