ohayon v. hertz - fac

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Case No.:110CV178144

THE KARSON LAW FIRM

4151 MIDDLEFIELD

ROAD; SUITE 105

PALO ALTO, CA 94303

FIRST AMENDED COMPLAINT FOR DAMAGES

MARYAM S. KARSON, State Bar No.221184 THE KARSON LAW FIRM 4151 Middlefield Road Suite 105 Palo Alto, CA 94303-4743 Telephone: 408.205.1721 [email protected] Attorney for Plaintiff, SIMON GOLAN OHAYON

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR

THE COUNTY OF SANTA CLARA

SIMON GOLAN OHAYON, individually, and on behalf of all those similarly situated,

Plaintiff,

v.

THE HERTZ CORPORATION, and DOES 1 through 100, inclusive,

Defendants.

Case No.:110CV178144 CLASS ACTION FIRST AMENDED COMPLAINT FOR: (1) VIOLATION OF THE CALIFORNIA LABOR CODE AND THE CALIFORNIA INDUSTRIAL WELFARE COMMISSION ORDER 9-2001; (2) VIOLATION OF LABOR CODE SECTION 2802; (3) VIOLATION OF CALIFORNIA BUSINESS & PROFESSIONS CODE SECTION 17200; PLAINTIFF SIMON GOLAN OHAYON’S INDIVIDUAL CLAIMS FOR: (4) RACE AND/OR NATIONAL ORIGIN DISCRIMINATION; (5) HOSTILE WORK ENVIRONMENT; (6) DISABILITY DISCRIMINATION; (7) FAILURE TO TAKE STEPS NECESSARY TO PREVENT DISCRIMINATION AND HARASSMENT; (8) RETALIATION; (9) WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY; AND (10) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS DEMAND FOR A JURY TRIAL

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THE KARSON LAW FIRM

4151 MIDDLEFIELD

ROAD; SUITE 105

PALO ALTO, CA 94303


2

Plaintiff, SIMON GOLAN OHAYON, on behalf of himself and other similarly

situated persons, demands a jury trial, and alleges as follows:

PARTIES

1. Plaintiff is an adult person competent to bring this action. At all times relevant

herein, Plaintiff was and is a resident of Gilroy, located in the County of Santa Clara, State of

California.

2. Plaintiff is informed and believes and thereupon alleges that Defendant, The

Hertz Corporation (“HERTZ”), is, and at all times relevant herein was, a corporation organized and

existing under the laws of the State of Delaware and duly qualified to conduct business in California.

3. At all times herein mentioned, HERTZ was and is in the transportation

industry and primarily engaged in the business of renting vehicles to the general public. At all times

herein mentioned, HERTZ employed “Sales Representatives” to sell to third parties the vehicles it

no longer wished to rent out to the general public.

4. Plaintiff was employed and/or performed services as a Sales Representative

for HERTZ for over ten consecutive years, which include the four years preceding the filing of this

action. HERTZ has wrongfully refused to pay to Plaintiff and other of its former and current

employees whom it employed/employs as Sales Representatives the overtime pay to which they

were and are entitled. As more fully set forth below, HERTZ has also refused to observe other

requirements under California law.

5. Plaintiff is ignorant of the true names and capacities of the defendants sued

herein as DOES 1 through 100, inclusive, and therefore sues said defendants by such fictitious

names. Plaintiff will seek leave from this court to amend this complaint to allege the true names and

capacities of the defendants sued herein as DOES 1 through 100, inclusive, when the same is

ascertained. Plaintiff is informed and believes and thereupon alleges that each defendant is legally

responsible in some manner for the occurrences herein alleged and has participated in the acts

alleged to have been done by the named Defendant in this pleading.

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THE KARSON LAW FIRM

4151 MIDDLEFIELD

ROAD; SUITE 105

PALO ALTO, CA 94303


3

6. Plaintiff is informed and believes and thereupon alleges that at all times

referenced herein, each of the defendants, whether named or fictitious, was the agent or employee of

each of the other defendants, and in doing the things alleged to have been done in this complaint,

acted within the scope of such agency or employment. Each corporate defendant was the alter ego of

each and every other defendant.

7. In committing the acts hereinafter alleged, each defendant, whether named or

fictitious, conspired with or aided and abetted each of the other defendants, or acted with the

advance knowledge, acquiescence, or subsequent ratification of each and every remaining defendant.

Each defendant, whether named or fictitious, is liable for the damages set forth herein.

UNLIMITED JURISDICTION AND VENUE

8. The monetary value of Plaintiff’s claim exceeds $25,000.

9. At all times relevant hereto, and at present, Plaintiff and other similarly

situated employees have performed services for HERTZ within this judicial district. During the

relevant period, HERTZ has paid Plaintiff within this judicial district, which payments have been

less than is legally required, as alleged herein. Consequently, Plaintiff’s causes of action have arisen

within this judicial district and venue for this action is proper in this judicial district.

CLASS ACTION ALLEGATIONS

10. Plaintiff’s first three causes of action alleged herein have been pleaded on

behalf of Plaintiff as an individual as well as in a representative capacity on behalf of the similarly

situated current and former employees whom HERTZ has employed or does employ. Plaintiff asserts

violations of California law on behalf of himself and other similarly situated persons, described as

follows:

a) Violations of California Wage Law: all persons whom HERTZ

employed as Sales Representatives at anytime since three years prior to the filing of the original

complaint in this action (the “California Wage and Expense Recovery Class”).

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THE KARSON LAW FIRM

4151 MIDDLEFIELD

ROAD; SUITE 105

PALO ALTO, CA 94303


4

b) Violation of California Labor Code section 2802: all persons whom

HERTZ employed in California at anytime since three years prior to the filing of the original

complaint in this action who were required to wear, during business hours, clothing provided to them

by HERTZ that depicted HERTZ logos on them (“HERTZ Uniform”) (the “California Business

Expense Recovery Class”).

c) Violations of California Unfair Business Practices Act/Unfair

Competition Law, California Business and Professions Code §§17200, et.seq.: all persons whom

HERTZ employed as Sales Representatives at anytime since four years prior to the filing of this first

amended complaint (the “California Unfair Business Practices Recovery Class I”).

d) Violations of California Unfair Business Practices Act/Unfair

Competition Law, California Business and Professions Code §§17200, et.seq.: all persons whom

HERTZ employed in California at anytime since four years prior to the filing of this first amended

complaint who were required to wear, during business hours, a HERTZ Uniform (the “California

Unfair Business Practices Recovery Class II”).

For ease of reference, the California Wage and Expense Recovery Class, the

California Business Expense Recovery Class, and the California Unfair Business Practices Recovery

Class I and II are at times hereinafter referred to as the “California Classes”.

11. Plaintiff, who seeks to serve as a representative of the California Classes, is a

member of those classes. Similar to the other members of the California Classes, Plaintiff suffered

some form of injury of which complaint is herein alleged on behalf of the respective classes whom

Plaintiff seeks to represent. Plaintiff’s injuries include not having been paid and provided the

benefits required by his non-exempt employee status, such as not being paid overtime pay; not

receiving properly itemized pay statements; not being provided additional compensation for on-duty

meal and rest periods; not being reimbursed for employment-related expenses; and not being paid for

work performed ‘off-the-clock’, all in violation of California law.

12. Plaintiff is unable to state the exact number of each California Class. Plaintiff

is informed and believes, and thereupon alleges, that the California Wage and Expense Recovery

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THE KARSON LAW FIRM

4151 MIDDLEFIELD

ROAD; SUITE 105

PALO ALTO, CA 94303


5

Class and the California Unfair Business Practices Recovery Class I are each comprised of

approximately 400 persons or more, and that the California Business Expense Recovery Class and

the California Unfair Business Practices Recovery Class II are each comprised of several thousand

members or more. The members of each class are so numerous as to make joinder impracticable.

13. Plaintiff is informed and believes, and thereupon alleges, that HERTZ can

readily identify members of each of the California Classes, which are therefore ascertainable under

Code of Civil Procedure section 382, but that it is impractical, in light of their number, to bring them

all before this Court as named plaintiffs.

14. The common questions of law or fact, which are of general interest,

predominate over any questions affecting individual class members only, rendering a class action

superior to other available methods for the fair and efficient adjudication of the controversy. These

questions are such, that proof of a state of facts common to the members of the class will entitle each

member of the class to some form of relief as requested in this complaint. The questions of law or

fact common to each class include, but are not limited to, the following examples:

A. Questions of law or fact common to the California Classes

i) The rights that are the subject of this litigation are held in

common by each class member, including Plaintiff. The controlling body of law is the same under

the California Labor Code and the California Industrial Welfare Commission Wage Order 9-2001.

The claims of the California Unfair Business Practices Recovery Class I and II rely on these

illegalities as predicate unlawful acts to support a finding that Defendants have engaged in unfair

business practices in violation of California Business & Professions Code §§17200 et.seq.

ii) During the relevant period, HERTZ has had a policy and

practice of not reimbursing its employees for certain business-related expenses. Plaintiff is informed

and believes and thereupon alleges that these include the expenses related to the maintenance of their

Hertz Uniforms and/or the purchase of business cards, posters, and other materials, for the purpose

of advertising the work they have performed or do perform at HERTZ.

iii) During the relevant period, whether or not HERTZ has acted in

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THE KARSON LAW FIRM

4151 MIDDLEFIELD

ROAD; SUITE 105

PALO ALTO, CA 94303


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good faith so as to avoid certain penalties sought herein is a common question. B. Questions of law or fact common to the California Wage and

Expense Recovery Class and the California Unfair Business Practices Recovery Class I

iv) Plaintiff is informed and believes and thereupon alleges that at

all times relevant herein, HERTZ has had a uniform policy and practice of not paying required

overtime to its Sales Representatives; not providing them the required duty-free rest breaks; not

providing them the required duty-free meal breaks (notwithstanding that HERTZ systematically

required, through its managing agents, for its Sales Representatives to punch their timecards in and

out at lunch time); not providing them with itemized pay statements; and unlawfully deducting some

of the overtime wages earned by its Sales Representative from their paychecks.

v) Plaintiff is also informed and believes and thereupon alleges

that at all times relevant herein, HERTZ has had a uniform policy and practice of not paying its

Sales Representatives for work performed ‘off-the-clock’, so as to deprive them of their overtime

compensation. For example, Plaintiff is informed and believes and thereupon alleges that HERTZ,

through its managing agents, directed its Sales Representatives to punch out their timecards even

though it was aware that some of its Sales Representatives would continue working after having

punched their timecards out.

vi) During the relevant period, HERTZ has had a policy and

practice of not accurately recording the Sales Representatives’ hourly wages and therefore not

providing itemized pay statements as California law requires for non-exempt employees.

vii) During the relevant time period, HERTZ has had a practice of

making unlawful deductions from the Sales Representative’s paychecks.

viii) During the relevant period, all Sales Representatives have

occupied a common position at the bottom of HERTZ’s organizational hierarchy and common role

of selling HERTZ’s used vehicles to the marketplace. Thus, during the relevant period, Sales

Representatives have not been part of HERTZ’s management. Plaintiff is informed and believes and

thereupon alleges that HERTZ’s policy and practice has been to not have its Sales Representatives

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THE KARSON LAW FIRM

4151 MIDDLEFIELD

ROAD; SUITE 105

PALO ALTO, CA 94303


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participate in the development of HERTZ’s general administrative policies.

ix) During the relevant period, HERTZ has discouraged its Sales

Representatives from taking duty-free meal and rest breaks by having a policy and practice of firing

those Sales Representatives who did not sell a certain number of cars within a specific period of

time.

15. Plaintiff will fairly and adequately protect the interests of the California

Classes, whom he seeks to represent. He is a member of each class and is asserting claims typical of

those asserted on behalf of the California Classes. Legal counsel, who are competent and

experienced in class action litigation, represent each class.

16. The claims of the named Plaintiff are typical of the claims of each class he

seeks to represent. Plaintiff is not asserting any individual claims as a class claim that are

qualitatively different from those of the California Classes whom he seeks to represent.

17. The prosecution of separate actions by the individual class members would

create the risk of inconsistent or varying adjudications of California law with respect to individual

class members, which could establish incompatible standards of conduct for HERTZ.

18. Plaintiff is informed and believes and thereupon alleges that HERTZ, in

refusing to pay and provide employees the benefits to which he and other similarly situated

employees were entitled, including overtime pay to or for the members of the California Wage and

Expense Recovery Class and the California Unfair Business Practices Recovery Class I, has acted

and refused to act on grounds generally applicable to all claims, thereby making appropriate

injunctive and monetary relief for all members of each class.

19. Wherefore, a well-defined community of interest exists among the members

of each ascertainable California Class, including Plaintiff.

SUMMARY OF FACTUAL ALLEGATIONS

20. HERTZ has improperly failed and continues to refuse to pay and provide

legally mandated employee benefits, including overtime pay, to Plaintiff and the members of the

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THE KARSON LAW FIRM

4151 MIDDLEFIELD

ROAD; SUITE 105

PALO ALTO, CA 94303


8

California Wage and Expense Recovery Class and California Unfair Business Practices Recovery

Class I, in violation of the provisions of the California Labor Code, the California Industrial Welfare

Commission Wage Order 9-2001, and California Business & Professions Code section 17200. At all

times relevant hereto, HERTZ was aware or on notice of the duties assigned to Sales Representatives

and that they routinely worked overtime hours for which they were illegally not compensated.

HERTZ caused its Sales Representatives to work such hours without additional compensation or else

suffer the loss of employment. HERTZ has violated the California Labor Code and provisions of the

California Industrial Welfare Commission Wage Order 9-2001 concerning prompt final payment to

departing employees, including Plaintiff, and payment for working without a duty-free meal/rest

break. HERTZ has also made illegal deductions from the paychecks of its Sales Representatives, has

failed to maintain sufficient records of the actual hours its Sales Representatives worked, and has

failed to provide to its Sales Representatives legally required information in pay statements as

required by California law. HERTZ has not reimbursed the members of the California Classes for

certain job-related expenses.

I.

FIRST CAUSE OF ACTION [Plaintiff’s First Cause Of Action On Behalf Of Himself And The California Wage And Expense Recovery Class For The Violation Of The California Labor Code And The California Industrial Welfare Commission Wage Order 9-2001]

21. Plaintiff incorporates herein by reference Paragraphs 1 through 20, above, as

though fully set forth herein verbatim.

22. As hereinabove alleged, HERTZ has willfully failed to pay to Plaintiff and

other members of the California Classes accrued overtime pay, as required by the applicable

provisions of the California Labor Code and Wage Order 9-2001. HERTZ has also failed to pay to

Plaintiff and other members of the California Wage and Expense Recovery Class overtime pay

within the thirty-day time limit set forth for the payment of termination wages under California

Labor Code sections 201, 202, and 203. HERTZ has failed to provide duty-free meal/rest periods or

pay wages in lieu thereof as required by Labor Code section 226.7. HERTZ has also failed to

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THE KARSON LAW FIRM

4151 MIDDLEFIELD

ROAD; SUITE 105

PALO ALTO, CA 94303


9

provide itemized pay statements to Plaintiff and other members of the California Wage and Expense

Recovery Class as required by Labor Code section 226. HERTZ has failed to reimburse Plaintiff and

other members of the California Wage and Expense Recovery Class for job-related expenses as

required by Labor Code section 2802. HERTZ has therefore breached its duties to Plaintiff and other

members of the California Wage and Expense Recovery Class, including the duties it owed to them

pursuant to Labor Code sections 201, 202, 203, 221, 226, 226.7, 510, 512, 2802, and the applicable

provisions of the California Industrial Welfare Commission Wage Order 9-2001.

23. Plaintiff requests that HERTZ be required to pay him and other members of

the California Wage and Expense Recovery Class, overtime wages, including for work performed

‘off-the-clock’, to provide duty-free meal/rest periods, and to pay penalties/additional wages as

provided under the California Labor Code, including sections 201, 202, 203, 221, 226, 226.7,

1194.2, subsection (a), and the California Industrial Welfare Commission Wage Order 9-2001.

Plaintiff also requests that HERTZ be required to reimburse him and other members of the

California Wage and Expense Recovery Class for their business-related expenses incurred in the

course of their tenures at HERTZ. Plaintiff further requests that any unpaid residue be ordered paid

“to nonprofit organizations or foundations to support projects that will benefit the class or similarly

situated persons, or that promote the law consistent with the objectives and purposes of the

underlying cause of action, to child advocacy programs, or to nonprofit organizations providing civil

legal services to the indigent” as provided under section 384, subsection (b), of the California Code

of Civil Procedure.

24. Plaintiff is informed and believes and thereupon alleges that HERTZ, unless

restrained, will continue to violate its legal duties under California law, of which complaint is herein

made. Plaintiff therefore requests that HERTZ be enjoined from so doing.

25. In pursuing the claims alleged herein, including his investigation and

litigation, Plaintiff has incurred and will incur attorneys’ fees (and paralegal fees) and costs, for

which he seeks reimbursement under the law, including California Labor Code sections 226,

subsection (e), 1194, subsection (a), and 2802, subsection (c). The costs incurred/to be incurred

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THE KARSON LAW FIRM

4151 MIDDLEFIELD

ROAD; SUITE 105

PALO ALTO, CA 94303


10

include, but are not limited to, filing fees, deposition charges, service of process fees, photocopying,

scanning, telephone charges, fax charges, postage charges, travel/transportation expenses, messenger

and other delivery charges, expert/consultant expenses, expenses associated with the preparation of

evidence for presentation at trial, and other charges customary to the conduct of litigation and class

actions.

II.

SECOND CAUSE OF ACTION [Plaintiff’s Second Cause Of Action On Behalf Of Himself And The California Business Expense Recovery Class For The Violation Of Labor Code Section 2802]



27. Labor Code Section 2802 provides that an employer is required to indemnify

its employees for all necessary expenditures that are incurred by the employees in direct

consequence of the discharge of their duties or their obedience to the directions of the employer.

28. HERTZ required from Plaintiff and the Business Expense Recovery Class

members to wear HERTZ Uniforms during their work hours. Plaintiff and the Business Expense

Recovery Class members incurred reasonable sums to maintain their HERTZ Uniforms. However,

HERTZ did not reimburse Plaintiff or other members of the Business Expense Recovery Class for

the reasonable sums they incurred to maintain their HERTZ Uniforms. Nor did HERTZ reimburse

them for other business-related expenses incurred in the course of their employment at HERTZ.

29. Pursuant to Labor Code Section 2802, subsection (a), Plaintiff and other

members of the Business Expense Recovery Class are entitled to recover from HERTZ the

reasonable sums they incurred for business-related expenditure in the course of their tenures at

HERTZ.

30. Pursuant to Labor Code Section 2802, subsections (b) and (c) respectively,

Plaintiff and other members of the Business Expense Recovery Class, request for interest on all

unpaid business-related expenses they incurred in the course of their tenures at HERTZ, as well as

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THE KARSON LAW FIRM

4151 MIDDLEFIELD

ROAD; SUITE 105

PALO ALTO, CA 94303


11

reasonable attorneys’ fees and costs incurred by them in this action.

III.

THIRD CAUSE OF ACTION [Plaintiff’s Third Cause Of Action On Behalf Of Him self And The California Unfair Business Practices Recovery Class I and II For The Violation Of California Business & Professions Code §17200]



32. As hereinabove alleged, in the course of its business, HERTZ has committed

acts and engaged in a practice of unfair competition within the meaning of California Business &

Professions Code section 17200, including by not paying the California Unfair Business Practices

Recovery Class I members for overtime work performed, including for work performed ‘off-the-

clock’, by not paying its Sales Representatives additional compensation for the on-duty meal and

rest breaks they were required to endure, and by not reimbursing the members of the California

Classes for their business-related expenses. HERTZ’s aforementioned acts are unlawful acts under

the California Labor Code and the California Industrial Welfare Commission Wage Order 9-2001.

33. HERTZ’s unlawful business acts and practices, as hereinabove alleged,

including in refusing and failing to pay overtime pay, presents a continuing threat, and Plaintiff and

other members of the California Classes do not have an adequate remedy at law. Wherefore, Plaintiff

requests that HERTZ be enjoined from said violations and be ordered to take such steps as are

proper, to redress the unlawful conduct that has occurred to date.

34. As a direct and proximate result of the above-described misconduct, HERTZ

has received and continues to hold, ill-gotten gains belonging to others, as described above,

including Plaintiff. Plaintiff therefore requests that HERTZ be ordered to make restitution and

disgorgement of all said ill-gotten gains as part of a fluid fund recovery to be distributed in

accordance with the Court’s equitable discretion, including consideration that unpaid residue be paid

“to nonprofit organizations or foundations to support projects that will benefit the class or similarly

situated persons, or that promote the law consistent with the objectives and purposes of the

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THE KARSON LAW FIRM

4151 MIDDLEFIELD

ROAD; SUITE 105

PALO ALTO, CA 94303


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underlying cause of action, to child advocacy programs, or to nonprofit organizations providing civil

legal services to the indigent” as provided in section 384, subsection (b), of the California Code of

Civil Procedure.

35. Plaintiff requests reasonable attorneys’ fees under section 1021.5 of the

California Code of Civil Procedure.

SUMMARY OF FACTUAL ALLEGATIONS RELATED TO PLAINTIFF’S INVIDIVUAL CAUSES OF ACTION AGAINST HERTZ

36. Plaintiff was born and raised in Israel, and is a member of the Jewish race and

faith.

37. Beginning in or about February 1999, HERTZ employed Plaintiff as a Sales

Representative at its Hertz car sales offices located at 4401 Stevens Creek Blvd. in Santa Clara, CA

95051.

38. In the course of Plaintiff’s employment with HERTZ, Plaintiff was denied

promotions and/or other employment benefits, based on his Jewish race and/or national origin.

39. On or about May 10, 2010, Plaintiff sent a written complaint to HERTZ with

respect to the allegations set forth in this complaint.

40. On or about May 10, 2010, Plaintiff filed a complaint with the California

Department of Fair Employment and Housing (“DFEH”) with respect to the allegations set forth in

this complaint. On the same day, the DFEH issued Plaintiff a “Right-to-Sue” letter.

41. On or about May 21, 2010, Plaintiff was a mentally disabled individual within

the meaning of the California Fair Employment and Housing Act (“FEHA”), Government Code

sections 12940 et. seq.

42. On or about May 21, 2010, Plaintiff was terminated from his employment in

retaliation of having sent a demand letter to HERTZ with respect to the matters alleged in this

complaint, for having filed an administrative complaint with the DFEH with respect to the matters

alleged in this complaint, and/or based on his disability.

43. On or about July 16, 2010, Plaintiff filed a second complaint with the DFEH

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THE KARSON LAW FIRM

4151 MIDDLEFIELD

ROAD; SUITE 105

PALO ALTO, CA 94303


13

with respect to the allegations set forth in this complaint. On the same day, the DFEH issued

Plaintiff a “Right-to-Sue” letter.

IV.

FOURTH CAUSE OF ACTION [Race And/Or National Origin Discrimination, Alleged By Plaintiff As An Individual]



45. Government Code sections 12940 et. seq., prohibit an employer from

discriminating against any employee because of that employee’s race or national origin. Defendants,

and each of them, discriminated against Plaintiff because of his race and/or national origin. Plaintiff

is informed and believes and thereupon alleges that at all times relevant herein, Defendants

disparately treated Plaintiff from other Sales Representatives in the terms, conditions, and/or

privileges of employment, by, for example, denying Plaintiff promotions, equal pay, and/or the full

wages due to him, because of his race and/or national origin. Plaintiff is further informed and

believes and thereupon alleges that at all times relevant herein, Defendants had a pattern and practice

of subjecting their minority employees, including their Jewish and African American employees, to

disparate treatment in the terms, conditions, and/or privileges of employment, based on their race

and/or national origin.

46. Similarly situated non-Jewish employees were not treated in the disparate

manner in which Plaintiff was treated. In having discriminated against Plaintiff on account of his

race and/or national origin, Defendants, and each of them, violated the law, including Government

Code Section 12940, subsection (a).

47. Plaintiff is informed and believes and thereupon alleges that the fictitious

defendants named as DOES 1 through 100, inclusive, aided, abetted, incited, compelled, coerced or

conspired to commit one or more of the acts alleged herein.

48. Defendants also unlawfully discriminated against Plaintiff in the conditions of

his employment, by fostering a work environment permeated with hostility towards Plaintiff based

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on his race and/or national origin. For instance, HERTZ permitted its employees and managing

agents, including Plaintiff’s manager, Donald Ballerini, to address Plaintiff by referring to Plaintiff

as “Jew boy”, “Middle East”, and/or “piece/peace”. HERTZ also permitted its employees and agents

to make crude jokes regarding the Jewish practice of circumcision in the presence of Plaintiff, and to

post derogatory literature in the workplace directed at Plaintiff and related to his race and/or national

origin. Although Plaintiff complained to Defendants on more than one occasion concerning the

unlawful harassment and discrimination to which he was subjected in his workplace because of his

race and/or national origin, Defendants took no corrective measures to curtail the offensive actions.

49. As a direct and proximate result of the conduct of these Defendants, and each

of them, Plaintiff has suffered emotional anguish and distress, loss of income and benefits, and other

special and general damages, all in an amount to be proven at trial.

50. In doing the things herein alleged, the conduct of Defendants, and each of

them, was despicable, and Defendants, and each of them, acted towards Plaintiff with malice,

oppression, fraud, and with a willful and conscious disregard of Plaintiff’s rights. Each Defendant

ratified, authorized and condoned the conduct of each and every other Defendant and managing

agent, entitling Plaintiff to an award of punitive damages and exemplary damages pursuant to Civil

Code Section 3294 and Government Code Section 12940.

51. Pursuant to Government Code Section 12965, subsection (b), Plaintiff

requests the award of attorneys’ fees against Defendants, and each of them. V.

FIFTH CAUSE OF ACTION [Hostile Work Environment, Alleged By Plaintiff As An Individual]



53. As alleged above, in the course of Plaintiff’s tenure at HERTZ, HERTZ’s

employees and managing agents, including Plaintiff’s manager, Donald Ballerini, subjected Plaintiff

to repeated offensive remarks on the basis of Plaintiff’s Jewish race and/or national origin. For

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instance, one or more of these individuals repeatedly addressed Plaintiff as “Jew boy”, and implied

in a derogatory manner that Plaintiff was from the “Middle East” and thus violent and a threat to the

safety of others. HERTZ also permitted its employees and agents to make crude jokes regarding the

Jewish practice of circumcision in the presence of Plaintiff and to post derogatory literature in the

workplace directed at Plaintiff and related to his race and/or national origin.

54. Plaintiff was offended, angered, intimidated, threatened, and harassed by the

repeated derogatory remarks that were made to him in the workplace based on his race and/or

national origin. On more than one occasion, Plaintiff complained to his immediate

supervisor/manager concerning the offensive remarks and the hostile work environment to which he

was subjected, to no avail.

55. The last time Plaintiff complained to Defendants regarding the offensive

remarks to which he had been subjected in the workplace was on or about May 10, 2010.

Approximately ten days later, on or about May 21, 2010, Plaintiff was terminated from his

employment.

56. The conduct of Defendants alleged above constitutes unlawful discrimination

based on Plaintiff’s race and/or national origin, including unlawful harassment, in violation of the

FEHA, including Government Code section 12940, subsections (a), (i) (j) and/or (k).

57. As a result of Defendants’ discriminatory and harassing actions against him,

Plaintiff has suffered and continues to suffer damages, in the form of lost wages and/or other

tangible and intangible employment benefits, and severe emotional and physical distress, the exact

amount of which will be proven at trial.

58. Defendants, and each of them, acted for the purpose of causing Plaintiff to

suffer financial loss and severe emotional distress and physical distress and are guilty of oppression

or malice, justifying an award of exemplary and punitive damages, for, among other reasons,

requiring Plaintiff to perform his job duties in a work environment permeated with hostility towards

Plaintiff based on his race and/or national origin, for failure of Defendants to appropriately or

sufficiently discipline the individuals who harassed Plaintiff, for continuing to subject Plaintiff to

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repeated offensive comments regarding his race and/or national origin in Plaintiff’s immediate work

environment with conscious disregard of Plaintiff’s rights, and for discharging Plaintiff from his

employment subsequent to receiving Plaintiff’s written complaint regarding the hostile work

environment to which he had been subjected. VI.

SIXTH CAUSE OF ACTION [Disability Discrimination, Alleged By Plaintiff As An Individual]



60. While employed at HERTZ, Plaintiff suffered, among other symptoms, severe

anxiety, panic attacks, and depression, and was thus a mentally disabled individual within the

meaning of the FEHA.

61. Defendants were aware of Plaintiff’s disability and placed him on a leave of

absence. Thereafter, on or about May 25, 2010, while Plaintiff was still on disability leave,

Defendants arbitrarily terminated Plaintiff’s employment, effective May 21, 2010. Prior to

Plaintiff’s termination, Plaintiff’s physician had specifically requested from HERTZ to extend

Plaintiff’s disability leave until about August 2010. HERTZ failed to engage in an interactive

process with Plaintiff or his physician prior to terminating Plaintiff’s employment. HERTZ thus

failed to reasonably accommodate Plaintiff’s needs based on his disability as required by the law,

including Government Code section 12940, subsections (a), (m), (n), and/or (k).

62. At all times mentioned herein, Plaintiff was willing and able to perform the

duties and functions of his position if such reasonable accommodation had been made by HERTZ.

At no time would the performance of the functions of the employment position, with a reasonable

accommodation for Plaintiff’s disability, have been a danger to Plaintiff or any other person’s health

or safety, nor would it have created an undue hardship to the operation of HERTZ’s business.

63. As a proximate result of HERTZ’s discriminatory actions against Plaintiff, as

alleged above, Plaintiff has been harmed in that Plaintiff has suffered mental anguish, and emotional

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and physical distress that has manifested itself in, among other consequences, anxiety, anger,

insomnia, depression, panic attacks, and severe pain and distress. As a result of such discrimination

and consequent harm, Plaintiff has suffered and will continue to suffer damages, including for expert

fees, in an amount according to proof.

64. The above-recited actions by HERTZ were done with malice, fraud, or

oppression, and in reckless disregard of Plaintiff’s rights under the law, justifying an award of

exemplary and punitive damages.

VII.

SEVENTH CAUSE OF ACTION [Failure To Take Steps Necessary To Prevent Discrimination And Harassment, Alleged By Plaintiff As An Individual]



66. This cause of action is brought pursuant to California Government Code

section 12940, subsection (k).

67. Plaintiff is informed and believes and thereupon alleges that HERTZ, by and

through its managing agents, failed to take all steps necessary to prevent discrimination and

harassment from occurring, when HERTZ authorized, ratified and condoned the acts of

discrimination and harassment on the account of Plaintiff’s disability, race and/or national origin and

failed to adequately investigate Plaintiff’s complaints in this regard.

68. Plaintiff is informed and believes and thereupon alleges that HERTZ failed to

take all steps necessary to prevent discrimination, harassment and retaliation from occurring, when

among other acts or omissions, HERTZ failed to conduct a proper investigation into Plaintiff’s

complaints, failed to take immediate and appropriate corrective action, and terminated Plaintiff from

his employment approximately ten days following his written complaint to HERTZ concerning the

unlawful conduct to which he had been subjected at its hands.

69. Plaintiff is informed and believes and thereupon alleges that the fictitious

defendants named as DOES 1 through 100, inclusive, aided, abetted, incited, compelled, coerced or

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conspired to commit one or more of the acts alleged herein.

70. As a direct and proximate result of the conduct of these Defendants, and each

of them, Plaintiff has suffered emotional anguish and distress, loss of income and benefits, and other

special and general damages, all in an amount to be proven at trial.

71. HERTZ committed these acts maliciously, despicably, fraudulently and

oppressively, with the wrongful intent of injuring Plaintiff. Each Defendant acted with an improper

and evil motive amounting to malice and conscious disregard of Plaintiff’s rights. Because the acts

taken towards Plaintiff were carried out in a despicable, deliberate, cold, callous, and intentional

manner to injure and damage Plaintiff, and because HERTZ ratified, authorized and condoned the

conduct of each and every other Defendant, Plaintiff is entitled to punitive damages from HERTZ

according to proof at trial.

72. Pursuant to Government Code Section 12965, subsection (b), Plaintiff

requests the award of attorney’s fees against Defendants, and each of them.

VIII.

EIGHTH CAUSE OF ACTION [Retaliation, Alleged By Plaintiff As An Individual]



74. On or about May 10, 2010, Plaintiff opposed Defendants’ discriminatory acts

set forth in this complaint by complaining about them in writing in a letter mailed to HERTZ via

certified mail. In that letter, Plaintiff, among other things, informed HERTZ that he intended to file

an administrative complaint with the DFEH regarding the unlawful treatment to which he had been

subjected at the hands of HERTZ. Plaintiff filed his initial complaint with the DFEH on the same

day.

75. Approximately ten days later, on or about May 21, 2010, HERTZ terminated

Plaintiff’s employment in retaliation for his written complaints of May 10, 2010 to HERTZ and/or

the DFEH.

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76. As a result of HERTZ’s retaliation, Plaintiff has suffered and continues to

suffer damages, in the form of lost wages and other employment benefits, and severe emotional and

physical distress, the exact amount of which will be proven at trial.

77. Defendants, and each of them, acted for the purpose of causing Plaintiff to

suffer financial loss and severe emotional distress and physical distress and are guilty of oppression

and malice, justifying an award of exemplary and punitive damages. IX.

NINTH CAUSE OF ACTION [Wrongful Termination In Violation Of Public Policy,

Alleged By Plaintiff As An Individual]



79. The acts of HERTZ, as alleged above, violated the public policy of the State

of California, as expressed in the provisions of the FEHA, including Government Code section 1294;

Labor Code sections 201, 202, 203, 216, subsection (a), 226, 226.7, 510 and/or 512; and/or Article 1

section 8 of the California Constitution.

80. As a proximate result of the unlawful acts of HERTZ, as alleged above,

Plaintiff has been harmed in that he has suffered the loss of wages, salary, and/or other benefits that

he would have earned had his employment with HERTZ continued. As a result of such actions and

consequent harm, Plaintiff has suffered such damages in an amount according to proof.

81. As a further proximate result of HERTZ’s unlawful actions, as alleged above,

Plaintiff has been harmed in that he has suffered the intangible loss of such employment-related

opportunities as increased professional reputation and experience. As a result of such actions and

consequent harm, Plaintiff has suffered such damages in an amount according to proof.

82. As a further proximate result of the unlawful acts of HERTZ, as alleged

above, Plaintiff has been harmed in that he has suffered humiliation, mental anguish, and emotional

and physical distress. As a result of such actions and consequent harm, Plaintiff has suffered such

damages in an amount according to proof.

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83. The actions of HERTZ, as alleged above, were despicable, in that they were

done with malice and oppression, and in reckless disregard of Plaintiff’s rights, justifying an award

of punitive damages in an amount sufficient to punish HERTZ and deter it and others from engaging

in similar conduct in future. X.

TENTH CAUSE OF ACTION [Intentional Infliction Of Emotional Distress, Alleged By Plaintiff As An Individual]



85. Defendant’s wrongful acts, including their fostering of a hostile work

environment for Plaintiff based on Plaintiff’s race and/or national origin, by, among other things,

permitting HERTZ employees and managing agents to make derogatory statements and post

offensive literature concerning Plaintiff in the workplace; by discriminating against him in the terms,

conditions and/or privileges of his employment; by discriminating against him based on his

disability; by refusing to pay him the wages to which he was entitled; and/or by wrongfully

terminating him in retaliation of Plaintiff’s complaints, were acts that were knowing, intentional, and

willful, all of which were committed in reckless disregard of the probability of causing Plaintiff

emotional distress. Such acts by Defendants were outrageous in nature in that they jeopardized the

physical and mental health and safety of Plaintiff.

86. As a proximate result of Defendants’ conduct, as alleged in this complaint,

Plaintiff suffered severe mental anguish and emotional and physical distress, all to his general

damage in an amount according to proof.

87. As a further proximate result of Defendants’ conduct and Plaintiff’s severe

emotional distress, as alleged in this complaint, Plaintiff was required to and did incur medical and

related expenses, and will continue to incur expenses, including for expert fees, all to his further

damage in an amount according to proof.

88. In committing the wrongful acts set forth in this complaint, Defendants

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engaged in conduct that was fraudulent, malicious or oppressive, in that it was conduct carried out

by Defendants in willful and conscious disregard of Plaintiff’s rights and subjected Plaintiff to cruel

and unjust hardship. Plaintiff is therefore entitled to recover punitive damages in an amount to

punish and make an example of Defendants.

PRAYER FOR RELIEF

Wherefore, Plaintiff prays for judgment against Defendants, and each of them, as

follows:

CLASS ACTION CAUSES OF ACTION

On the First Cause of Action for the violation of the California Labor Code and

the California Industrial Welfare Commission Order 9-2001:

1. The Court declares, adjudges, and decrees, that this action has been properly

filed as a class action and certify the California Wage and Expense Recovery Class under section

382 of the California Code of Civil Procedure;

2. The Court declares, adjudges and decrees, that:

a) Defendants violated the California Labor Code and the California

Industrial Welfare Commission Wage Order 9-2001 by, among other reasons, failing to pay or

provide overtime pay, including for work performed ‘off-the-clock’; failing to pay wages for on duty

meal/rest periods as required by Labor Code section 226.7; failing to make reimbursements for

employment-related expenses; and failing to provide itemized pay statements as required under

Labor Code section 226, to the California Wage and Expense Recovery Class;

b) Time during which the California Wage and Expense Recovery Class

members were or are on duty constitutes hours of employment for the purpose of the California

Labor Code and the California Industrial Welfare Commission Wage Order 9-2001;

c) The California Wage and Expense Recovery Class is entitled to an

award of the unpaid overtime pay, including for work performed ‘off-the-clock’, extra wages for

failure to provide duty-free meal and rest breaks under Labor Code section 226.7, subsection (b), the

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reimbursement for job-related expenses, and penalties, including but not limited to those under

sections 203, 226, subsection (e), and 226.3, of the Labor Code;

d) Injunctive Relief, prohibiting future violations of the rights of the

California Wage and Expense Recovery Class members to unpaid wages.

3. The Court decrees such other injunctive relief and/or enters such other orders

as are necessary to dissipate or relieve the effects of the aforesaid violations and illegal acts by

Defendants;

4. Reasonable attorneys’ fees, both non-statutory and statutory, including

pursuant to Labor Code sections 226, subsection (e), 1194, subsection (a), and 2802, subsection (c);

5. Costs of suit;

6. Pre-judgment and post-judgment interest, including under Labor Code

sections 1194, subsection (a), and 2802, subsection (b); and

7. For such other and further relief as the Court deems just and proper.

On the Second Cause of Action for the violation of California Labor Code

Section 2802:


filed as a class action and certify the California Business Expense Recovery Class under section 382

of the California Code of Civil Procedure;

2. The Court declares, adjudges and decrees, that:

a) Defendants violated the California Labor Code and the California

Industrial Welfare Commission Wage Order 9-2001 by failing to make to the California Business

Expense Recovery Class members reimbursements for employment-related expenses, including

expenses incurred for maintaining their HERTZ Uniforms;

b) The California Business Expense Class is entitled to reimbursement

for all job-related expenses;

c) Injunctive Relief, prohibiting future violations of the rights of the

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California Business Expense Recovery Class members to reimbursement for business-related

expenses.



Defendants;

4. Reasonable attorneys’ fees, both non-statutory and statutory, including

pursuant to Labor Code section 2802, subsection (c);

5. Costs of suit;

6. Pre-judgment and post-judgment interest, including under Labor Code section

2802, subsection (b); and


On the Third Cause of Action for the violation of the California Business and

Professions Code Sections 17200 et. seq.:


filed as a class action and certify the California Unfair Business Practices Recovery Class I and II

under section 382 of the California Code of Civil Procedure;

2. The Court declares, adjudges and decrees that:

a) Defendants violated the California Unfair Business Practices

Act/Unfair Competition Law, Business & Professions Code §§17200 et. seq., by, among other

things, failing to pay or provide overtime pay, failing to pay wages for on-duty meal/rest periods as

required by labor Code §226.7, failing to provide itemized wage statements as required under Labor

Code section 226, and failing to pay for work performed ‘off-the-clock’, to the members of the

California Unfair Business Practices Recovery Class I, and failing to make reimbursements for

employment-related expenses to the members of the California Unfair Business Practices Recovery

Class II;

b) Time during which the California Unfair Business Practices Recovery

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Class I members were or are on duty constitutes hours of employment for the purpose of the

California Labor Code and the California Industrial Commission Wage Order 9-2001;

c) Defendants should be ordered to make restitution and to disgorge all

ill-gotten gains into a fluid recovery fund, including all unpaid overtime pay, unpaid wages for work

performed ‘off-the clock’, unpaid wages for on-duty meal/rest breaks, and unreimbursed business

expenses;

d) Injunctive relief prohibiting future violations of the rights of the

California Unfair Business Practices Recovery Class I and II members.



Defendants;

4. Reasonable attorneys’ fees, both statutory, including section 1021.5 of the

California Code of Civil Procedure, and non-statutory;

5. Costs of suit;

6. Pre-judgment and post-judgment interest; and


PLAINTIFF SIMON GOLAN OHAYON’S INDIVIDUAL CAUSES OF ACTION

On the Fourth Cause of Action for Race and/or National Origin Discrimination,

the Fifth Cause of Action for Hostile Work Environment, the Sixth Cause of Action for

Disability Discrimination, and the Seventh Cause of Action for Failure to take Steps Necessary

to Prevent Discrimination and Harassment:

1. A monetary judgment representing compensatory damages including lost

wages, earnings, retirement benefits, and other employee benefits, and all other sums of money,

together with interest on these amounts, according to proof;

2. A monetary judgment for mental pain and anguish and emotional distress,

according to proof;

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3. An award of exemplary and punitive damages, according to proof;

4. Costs of suit;

5. Attorneys’ fees pursuant to the law, including Government Code Section

12965, subsection (b);


7. Such other and further relief as the Court deems just and proper.

On the Eighth Cause of Action for Retaliation:


wages, earnings, retirement benefits and other employee benefits, and all other sums of money,



according to proof;


4. Costs of suit;

5. Attorneys’ fees pursuant to the law, including Government Code Section




On the Ninth Cause of Action for Wrongful Termination in Violation of Public

Policy:





according to proof;


4. Costs of suit;

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5. Attorneys’ fees, pursuant to the law, including Government Code Section




On the Tenth Cause of Action for Intentional Infliction of Emotional Distress:




2. A monetary judgment for mental pain and anguish, emotional distress, and

humiliation, according to proof;


4. Costs of suit;



DEMAND FOR JURY TRIAL

Plaintiff hereby demands a jury trial on all of the issues in this case.

DATE: September 7, 2010 _______________________________________

MARYAM S. KARSON ATTORNEY FOR PLAINTIFF,

SIMON GOLAN OHAYON

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i.

ohayon v. hertz - fac

Documents

hertz corporation hertz

california law

named defendant

state of california

times relevant

karson law firm

remaining defendant

corporate defendant