Ohayon v. Hertz - FAC

1 MARYAM S. KARSON, State Bar No.
221184
THE KARSON LAW FIRM
2 4151 Middlefield Road
3 Suite 105
Palo Alto, CA 94303-4743
4 Telephone: 408.205.1721
5 maryam@karsonlawfirm.com
6 Attorney for Plaintiff, SIMON GOLAN OHAYON
7
8
9
10
11
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
IN AND FOR
14
15 THE COUNTY OF SANTA CLARA
16
SIMON GOLAN OHAYON, individually, Case No.:110CV178144
17 and on behalf of all those similarly
18 situated, CLASS ACTION
19 Plaintiff, FIRST AMENDED COMPLAINT FOR: (1)
20 VIOLATION OF THE CALIFORNIA LABOR
v. CODE AND THE CALIFORNIA INDUSTRIAL
21 WELFARE COMMISSION ORDER 9-2001; (2)
22 THE HERTZ CORPORATION, and VIOLATION OF LABOR CODE SECTION 2802;
DOES 1 through 100, inclusive, (3) VIOLATION OF CALIFORNIA BUSINESS &
23 PROFESSIONS CODE SECTION 17200;
24 Defendants. PLAINTIFF SIMON GOLAN OHAYON’S
INDIVIDUAL CLAIMS FOR: (4) RACE AND/OR
25 NATIONAL ORIGIN DISCRIMINATION; (5)
26 HOSTILE WORK ENVIRONMENT; (6)
DISABILITY DISCRIMINATION; (7) FAILURE
27 TO TAKE STEPS NECESSARY TO PREVENT
28 DISCRIMINATION AND HARASSMENT; (8)
RETALIATION; (9) WRONGFUL
29 TERMINATION IN VIOLATION OF PUBLIC
30 POLICY; AND (10) INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS
31
32 DEMAND FOR A JURY TRIAL
33
34
35
36
THE KARSON LAW FIRM Case No.:110CV178144
4151 MIDDLEFIELD
ROAD; SUITE 105 FIRST AMENDED COMPLAINT FOR DAMAGES
PALO ALTO, CA 94303
1 Plaintiff, SIMON GOLAN OHAYON, on behalf of himself and other similarly
2 situated persons, demands a jury trial, and alleges as follows:
3
4
5 PARTIES
6 1. Plaintiff is an adult person competent to bring this action. At all times relevant
7
herein, Plaintiff was and is a resident of Gilroy, located in the County of Santa Clara, State of
8
9 California.
10 2. Plaintiff is informed and believes and thereupon alleges that Defendant, The
11
Hertz Corporation (“HERTZ”), is, and at all times relevant herein was, a corporation organized and
12
13 existing under the laws of the State of Delaware and duly qualified to conduct business in California.
14 3. At all times herein mentioned, HERTZ was and is in the transportation
15
industry and primarily engaged in the business of renting vehicles to the general public. At all times
16
17 herein mentioned, HERTZ employed “Sales Representatives” to sell to third parties the vehicles it
18 no longer wished to rent out to the general public.
19
4. Plaintiff was employed and/or performed services as a Sales Representative
20
21 for HERTZ for over ten consecutive years, which include the four years preceding the filing of this
22 action. HERTZ has wrongfully refused to pay to Plaintiff and other of its former and current
23
employees whom it employed/employs as Sales Representatives the overtime pay to which they
24
25 were and are entitled. As more fully set forth below, HERTZ has also refused to observe other
26 requirements under California law.
27
5. Plaintiff is ignorant of the true names and capacities of the defendants sued
28
29 herein as DOES 1 through 100, inclusive, and therefore sues said defendants by such fictitious
30 names. Plaintiff will seek leave from this court to amend this complaint to allege the true names and
31
capacities of the defendants sued herein as DOES 1 through 100, inclusive, when the same is
32
33 ascertained. Plaintiff is informed and believes and thereupon alleges that each defendant is legally
34 responsible in some manner for the occurrences herein alleged and has participated in the acts
35
alleged to have been done by the named Defendant in this pleading.
36
THE KARSON LAW FIRM Case No.:110CV178144 2
4151 MIDDLEFIELD
PALO ALTO, CA 94303
1 6. Plaintiff is informed and believes and thereupon alleges that at all times
2 referenced herein, each of the defendants, whether named or fictitious, was the agent or employee of
3
each of the other defendants, and in doing the things alleged to have been done in this complaint,
4
5 acted within the scope of such agency or employment. Each corporate defendant was the alter ego of
6 each and every other defendant.
7
7. In committing the acts hereinafter alleged, each defendant, whether named or
8
9 fictitious, conspired with or aided and abetted each of the other defendants, or acted with the
10 advance knowledge, acquiescence, or subsequent ratification of each and every remaining defendant.
11
Each defendant, whether named or fictitious, is liable for the damages set forth herein.
12
13
14 UNLIMITED JURISDICTION AND VENUE
15
8. The monetary value of Plaintiff’s claim exceeds $25,000.
16
17 9. At all times relevant hereto, and at present, Plaintiff and other similarly
18 situated employees have performed services for HERTZ within this judicial district. During the
19
relevant period, HERTZ has paid Plaintiff within this judicial district, which payments have been
20
21 less than is legally required, as alleged herein. Consequently, Plaintiff’s causes of action have arisen
22 within this judicial district and venue for this action is proper in this judicial district.
23
24
25 CLASS ACTION ALLEGATIONS
26 10. Plaintiff’s first three causes of action alleged herein have been pleaded on
27
behalf of Plaintiff as an individual as well as in a representative capacity on behalf of the similarly
28
29 situated current and former employees whom HERTZ has employed or does employ. Plaintiff asserts
30 violations of California law on behalf of himself and other similarly situated persons, described as
31
follows:
32
33 a) Violations of California Wage Law: all persons whom HERTZ
34 employed as Sales Representatives at anytime since three years prior to the filing of the original
35
complaint in this action (the “California Wage and Expense Recovery Class”).
36
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1 b) Violation of California Labor Code section 2802: all persons whom
2 HERTZ employed in California at anytime since three years prior to the filing of the original
3
complaint in this action who were required to wear, during business hours, clothing provided to them
4
5 by HERTZ that depicted HERTZ logos on them (“HERTZ Uniform”) (the “California Business
6 Expense Recovery Class”).
7
c) Violations of California Unfair Business Practices Act/Unfair
8
9 Competition Law, California Business and Professions Code §§17200, et.seq.: all persons whom
10 HERTZ employed as Sales Representatives at anytime since four years prior to the filing of this first
11
amended complaint (the “California Unfair Business Practices Recovery Class I”).
12
13 d) Violations of California Unfair Business Practices Act/Unfair
14 Competition Law, California Business and Professions Code §§17200, et.seq.: all persons whom
15
HERTZ employed in California at anytime since four years prior to the filing of this first amended
16
17 complaint who were required to wear, during business hours, a HERTZ Uniform (the “California
18 Unfair Business Practices Recovery Class II”).
19
For ease of reference, the California Wage and Expense Recovery Class, the
20
21 California Business Expense Recovery Class, and the California Unfair Business Practices Recovery
22 Class I and II are at times hereinafter referred to as the “California Classes”.
23
11. Plaintiff, who seeks to serve as a representative of the California Classes, is a
24
25 member of those classes. Similar to the other members of the California Classes, Plaintiff suffered
26 some form of injury of which complaint is herein alleged on behalf of the respective classes whom
27
Plaintiff seeks to represent. Plaintiff’s injuries include not having been paid and provided the
28
29 benefits required by his non-exempt employee status, such as not being paid overtime pay; not
30 receiving properly itemized pay statements; not being provided additional compensation for on-duty
31
meal and rest periods; not being reimbursed for employment-related expenses; and not being paid for
32
33 work performed ‘off-the-clock’, all in violation of California law.
34 12. Plaintiff is unable to state the exact number of each California Class. Plaintiff
35
is informed and believes, and thereupon alleges, that the California Wage and Expense Recovery
36
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PALO ALTO, CA 94303
1 Class and the California Unfair Business Practices Recovery Class I are each comprised of
2 approximately 400 persons or more, and that the California Business Expense Recovery Class and
3
the California Unfair Business Practices Recovery Class II are each comprised of several thousand
4
5 members or more. The members of each class are so numerous as to make joinder impracticable.
6 13. Plaintiff is informed and believes, and thereupon alleges, that HERTZ can
7
readily identify members of each of the California Classes, which are therefore ascertainable under
8
9 Code of Civil Procedure section 382, but that it is impractical, in light of their number, to bring them
10 all before this Court as named plaintiffs.
11
14. The common questions of law or fact, which are of general interest,
12
13 predominate over any questions affecting individual class members only, rendering a class action
14 superior to other available methods for the fair and efficient adjudication of the controversy. These
15
questions are such, that proof of a state of facts common to the members of the class will entitle each
16
17 member of the class to some form of relief as requested in this complaint. The questions of law or
18 fact common to each class include, but are not limited to, the following examples:
19
A. Questions of law or fact common to the California Classes
20
21 i) The rights that are the subject of this litigation are held in
22 common by each class member, including Plaintiff. The controlling body of law is the same under
23
the California Labor Code and the California Industrial Welfare Commission Wage Order 9-2001.
24
25 The claims of the California Unfair Business Practices Recovery Class I and II rely on these
26 illegalities as predicate unlawful acts to support a finding that Defendants have engaged in unfair
27
business practices in violation of California Business & Professions Code §§17200 et.seq.
28
29 ii) During the relevant period, HERTZ has had a policy and
30 practice of not reimbursing its employees for certain business-related expenses. Plaintiff is informed
31
and believes and thereupon alleges that these include the expenses related to the maintenance of their
32
33 Hertz Uniforms and/or the purchase of business cards, posters, and other materials, for the purpose
34 of advertising the work they have performed or do perform at HERTZ.
35
iii) During the relevant period, whether or not HERTZ has acted in
36
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1 good faith so as to avoid certain penalties sought herein is a common question.
2
B. Questions of law or fact common to the California Wage and
3 Expense Recovery Class and the California Unfair Business
4 Practices Recovery Class I
5 iv) Plaintiff is informed and believes and thereupon alleges that at
6 all times relevant herein, HERTZ has had a uniform policy and practice of not paying required
7
overtime to its Sales Representatives; not providing them the required duty-free rest breaks; not
8
9 providing them the required duty-free meal breaks (notwithstanding that HERTZ systematically
10 required, through its managing agents, for its Sales Representatives to punch their timecards in and
11
out at lunch time); not providing them with itemized pay statements; and unlawfully deducting some
12
13 of the overtime wages earned by its Sales Representative from their paychecks.
14 v) Plaintiff is also informed and believes and thereupon alleges
15
that at all times relevant herein, HERTZ has had a uniform policy and practice of not paying its
16
17 Sales Representatives for work performed ‘off-the-clock’, so as to deprive them of their overtime
18 compensation. For example, Plaintiff is informed and believes and thereupon alleges that HERTZ,
19
through its managing agents, directed its Sales Representatives to punch out their timecards even
20
21 though it was aware that some of its Sales Representatives would continue working after having
22 punched their timecards out.
23
vi) During the relevant period, HERTZ has had a policy and
24
25 practice of not accurately recording the Sales Representatives’ hourly wages and therefore not
26 providing itemized pay statements as California law requires for non-exempt employees.
27
vii) During the relevant time period, HERTZ has had a practice of
28
29 making unlawful deductions from the Sales Representative’s paychecks.
30 viii) During the relevant period, all Sales Representatives have
31
occupied a common position at the bottom of HERTZ’s organizational hierarchy and common role
32
33 of selling HERTZ’s used vehicles to the marketplace. Thus, during the relevant period, Sales
34 Representatives have not been part of HERTZ’s management. Plaintiff is informed and believes and
35
thereupon alleges that HERTZ’s policy and practice has been to not have its Sales Representatives
36
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1 participate in the development of HERTZ’s general administrative policies.
2 ix) During the relevant period, HERTZ has discouraged its Sales
3
Representatives from taking duty-free meal and rest breaks by having a policy and practice of firing
4
5 those Sales Representatives who did not sell a certain number of cars within a specific period of
6 time.
7
15. Plaintiff will fairly and adequately protect the interests of the California
8
9 Classes, whom he seeks to represent. He is a member of each class and is asserting claims typical of
10 those asserted on behalf of the California Classes. Legal counsel, who are competent and
11
experienced in class action litigation, represent each class.
12
13 16. The claims of the named Plaintiff are typical of the claims of each class he
14 seeks to represent. Plaintiff is not asserting any individual claims as a class claim that are
15
qualitatively different from those of the California Classes whom he seeks to represent.
16
17 17. The prosecution of separate actions by the individual class members would
18 create the risk of inconsistent or varying adjudications of California law with respect to individual
19
class members, which could establish incompatible standards of conduct for HERTZ.
20
21 18. Plaintiff is informed and believes and thereupon alleges that HERTZ, in
22 refusing to pay and provide employees the benefits to which he and other similarly situated
23
employees were entitled, including overtime pay to or for the members of the California Wage and
24
25 Expense Recovery Class and the California Unfair Business Practices Recovery Class I, has acted
26 and refused to act on grounds generally applicable to all claims, thereby making appropriate
27
injunctive and monetary relief for all members of each class.
28
29 19. Wherefore, a well-defined community of interest exists among the members
30 of each ascertainable California Class, including Plaintiff.
31
32
33 SUMMARY OF FACTUAL ALLEGATIONS
34 20. HERTZ has improperly failed and continues to refuse to pay and provide
35
legally mandated employee benefits, including overtime pay, to Plaintiff and the members of the
36
4151 MIDDLEFIELD
PALO ALTO, CA 94303
1 California Wage and Expense Recovery Class and California Unfair Business Practices Recovery
2 Class I, in violation of the provisions of the California Labor Code, the California Industrial Welfare
3
Commission Wage Order 9-2001, and California Business & Professions Code section 17200. At all
4
5 times relevant hereto, HERTZ was aware or on notice of the duties assigned to Sales Representatives
6 and that they routinely worked overtime hours for which they were illegally not compensated.
7
HERTZ caused its Sales Representatives to work such hours without additional compensation or else
8
9 suffer the loss of employment. HERTZ has violated the California Labor Code and provisions of the
10 California Industrial Welfare Commission Wage Order 9-2001 concerning prompt final payment to
11
departing employees, including Plaintiff, and payment for working without a duty-free meal/rest
12
13 break. HERTZ has also made illegal deductions from the paychecks of its Sales Representatives, has
14 failed to maintain sufficient records of the actual hours its Sales Representatives worked, and has
15
failed to provide to its Sales Representatives legally required information in pay statements as
16
17 required by California law. HERTZ has not reimbursed the members of the California Classes for
18 certain job-related expenses.
19
20
I.
21 FIRST CAUSE OF ACTION
22 [Plaintiff’s First Cause Of Action On Behalf Of Himself And The
California Wage And Expense Recovery Class For The Violation Of
23 The California Labor Code And The California Industrial Welfare
24 Commission Wage Order 9-2001]
25 21. Plaintiff incorporates herein by reference Paragraphs 1 through 20, above, as
26
though fully set forth herein verbatim.
27
28 22. As hereinabove alleged, HERTZ has willfully failed to pay to Plaintiff and
29 other members of the California Classes accrued overtime pay, as required by the applicable
30
provisions of the California Labor Code and Wage Order 9-2001. HERTZ has also failed to pay to
31
32 Plaintiff and other members of the California Wage and Expense Recovery Class overtime pay
33 within the thirty-day time limit set forth for the payment of termination wages under California
34
Labor Code sections 201, 202, and 203. HERTZ has failed to provide duty-free meal/rest periods or
35
36 pay wages in lieu thereof as required by Labor Code section 226.7. HERTZ has also failed to
4151 MIDDLEFIELD
PALO ALTO, CA 94303
1 provide itemized pay statements to Plaintiff and other members of the California Wage and Expense
2 Recovery Class as required by Labor Code section 226. HERTZ has failed to reimburse Plaintiff and
3
other members of the California Wage and Expense Recovery Class for job-related expenses as
4
5 required by Labor Code section 2802. HERTZ has therefore breached its duties to Plaintiff and other
6 members of the California Wage and Expense Recovery Class, including the duties it owed to them
7
pursuant to Labor Code sections 201, 202, 203, 221, 226, 226.7, 510, 512, 2802, and the applicable
8
9 provisions of the California Industrial Welfare Commission Wage Order 9-2001.
10 23. Plaintiff requests that HERTZ be required to pay him and other members of
11
the California Wage and Expense Recovery Class, overtime wages, including for work performed
12
13 ‘off-the-clock’, to provide duty-free meal/rest periods, and to pay penalties/additional wages as
14 provided under the California Labor Code, including sections 201, 202, 203, 221, 226, 226.7,
15
1194.2, subsection (a), and the California Industrial Welfare Commission Wage Order 9-2001.
16
17 Plaintiff also requests that HERTZ be required to reimburse him and other members of the
18 California Wage and Expense Recovery Class for their business-related expenses incurred in the
19
course of their tenures at HERTZ. Plaintiff further requests that any unpaid residue be ordered paid
20
21 “to nonprofit organizations or foundations to support projects that will benefit the class or similarly
22 situated persons, or that promote the law consistent with the objectives and purposes of the
23
underlying cause of action, to child advocacy programs, or to nonprofit organizations providing civil
24
25 legal services to the indigent” as provided under section 384, subsection (b), of the California Code
26 of Civil Procedure.
27
24. Plaintiff is informed and believes and thereupon alleges that HERTZ, unless
28
29 restrained, will continue to violate its legal duties under California law, of which complaint is herein
30 made. Plaintiff therefore requests that HERTZ be enjoined from so doing.
31
25. In pursuing the claims alleged herein, including his investigation and
32
33 litigation, Plaintiff has incurred and will incur attorneys’ fees (and paralegal fees) and costs, for
34 which he seeks reimbursement under the law, including California Labor Code sections 226,
35
subsection (e), 1194, subsection (a), and 2802, subsection (c). The costs incurred/to be incurred
36
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PALO ALTO, CA 94303
1 include, but are not limited to, filing fees, deposition charges, service of process fees, photocopying,
2 scanning, telephone charges, fax charges, postage charges, travel/transportation expenses, messenger
3
and other delivery charges, expert/consultant expenses, expenses associated with the preparation of
4
5 evidence for presentation at trial, and other charges customary to the conduct of litigation and class
6 actions.
7
8
II.
9 SECOND CAUSE OF ACTION
10 [Plaintiff’s Second Cause Of Action On Behalf Of Himself And The
California Business Expense Recovery Class For The Violation Of
11 Labor Code Section 2802]
12
14
15
16 27. Labor Code Section 2802 provides that an employer is required to indemnify
17 its employees for all necessary expenditures that are incurred by the employees in direct
18
consequence of the discharge of their duties or their obedience to the directions of the employer.
19
20 28. HERTZ required from Plaintiff and the Business Expense Recovery Class
21 members to wear HERTZ Uniforms during their work hours. Plaintiff and the Business Expense
22
Recovery Class members incurred reasonable sums to maintain their HERTZ Uniforms. However,
23
24 HERTZ did not reimburse Plaintiff or other members of the Business Expense Recovery Class for
25 the reasonable sums they incurred to maintain their HERTZ Uniforms. Nor did HERTZ reimburse
26
them for other business-related expenses incurred in the course of their employment at HERTZ.
27
28 29. Pursuant to Labor Code Section 2802, subsection (a), Plaintiff and other
29 members of the Business Expense Recovery Class are entitled to recover from HERTZ the
30
reasonable sums they incurred for business-related expenditure in the course of their tenures at
31
32 HERTZ.
33 30. Pursuant to Labor Code Section 2802, subsections (b) and (c) respectively,
34
Plaintiff and other members of the Business Expense Recovery Class, request for interest on all
35
36 unpaid business-related expenses they incurred in the course of their tenures at HERTZ, as well as
4151 MIDDLEFIELD
PALO ALTO, CA 94303
1 reasonable attorneys’ fees and costs incurred by them in this action.
2
3 III.
4 THIRD CAUSE OF ACTION
[Plaintiff’s Third Cause Of Action On Behalf Of Himself And The
5 California Unfair Business Practices Recovery Class I and II For The
6 Violation Of California Business & Professions Code §17200]
8 though fully set forth herein verbatim.
9
32. As hereinabove alleged, in the course of its business, HERTZ has committed
10
11 acts and engaged in a practice of unfair competition within the meaning of California Business &
12 Professions Code section 17200, including by not paying the California Unfair Business Practices
13
Recovery Class I members for overtime work performed, including for work performed ‘off-the-
14
15 clock’, by not paying its Sales Representatives additional compensation for the on-duty meal and
16 rest breaks they were required to endure, and by not reimbursing the members of the California
17
Classes for their business-related expenses. HERTZ’s aforementioned acts are unlawful acts under
18
19 the California Labor Code and the California Industrial Welfare Commission Wage Order 9-2001.
20 33. HERTZ’s unlawful business acts and practices, as hereinabove alleged,
21
including in refusing and failing to pay overtime pay, presents a continuing threat, and Plaintiff and
22
23 other members of the California Classes do not have an adequate remedy at law. Wherefore, Plaintiff
24 requests that HERTZ be enjoined from said violations and be ordered to take such steps as are
25
proper, to redress the unlawful conduct that has occurred to date.
26
27 34. As a direct and proximate result of the above-described misconduct, HERTZ
28 has received and continues to hold, ill-gotten gains belonging to others, as described above,
29
including Plaintiff. Plaintiff therefore requests that HERTZ be ordered to make restitution and
30
31 disgorgement of all said ill-gotten gains as part of a fluid fund recovery to be distributed in
32 accordance with the Court’s equitable discretion, including consideration that unpaid residue be paid
33
“to nonprofit organizations or foundations to support projects that will benefit the class or similarly
34
35 situated persons, or that promote the law consistent with the objectives and purposes of the
36
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1 underlying cause of action, to child advocacy programs, or to nonprofit organizations providing civil
2 legal services to the indigent” as provided in section 384, subsection (b), of the California Code of
3
Civil Procedure.
4
5 35. Plaintiff requests reasonable attorneys’ fees under section 1021.5 of the
6 California Code of Civil Procedure.
7
8 SUMMARY OF FACTUAL ALLEGATIONS RELATED TO
PLAINTIFF’S INVIDIVUAL CAUSES OF ACTION
9 AGAINST HERTZ
10
36. Plaintiff was born and raised in Israel, and is a member of the Jewish race and
11
12 faith.
13 37. Beginning in or about February 1999, HERTZ employed Plaintiff as a Sales
14
Representative at its Hertz car sales offices located at 4401 Stevens Creek Blvd. in Santa Clara, CA
15
16 95051.
17 38. In the course of Plaintiff’s employment with HERTZ, Plaintiff was denied
18
promotions and/or other employment benefits, based on his Jewish race and/or national origin.
19
20 39. On or about May 10, 2010, Plaintiff sent a written complaint to HERTZ with
21 respect to the allegations set forth in this complaint.
22
40. On or about May 10, 2010, Plaintiff filed a complaint with the California
23
24 Department of Fair Employment and Housing (“DFEH”) with respect to the allegations set forth in
25 this complaint. On the same day, the DFEH issued Plaintiff a “Right-to-Sue” letter.
26
41. On or about May 21, 2010, Plaintiff was a mentally disabled individual within
27
28 the meaning of the California Fair Employment and Housing Act (“FEHA”), Government Code
29 sections 12940 et. seq.
30
42. On or about May 21, 2010, Plaintiff was terminated from his employment in
31
32 retaliation of having sent a demand letter to HERTZ with respect to the matters alleged in this
33 complaint, for having filed an administrative complaint with the DFEH with respect to the matters
34
alleged in this complaint, and/or based on his disability.
35
36 43. On or about July 16, 2010, Plaintiff filed a second complaint with the DFEH
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1 with respect to the allegations set forth in this complaint. On the same day, the DFEH issued
2 Plaintiff a “Right-to-Sue” letter.
3
4
IV.
5 FOURTH CAUSE OF ACTION
6 [Race And/Or National Origin Discrimination,
Alleged By Plaintiff As An Individual]
7
10
45. Government Code sections 12940 et. seq., prohibit an employer from
11
12 discriminating against any employee because of that employee’s race or national origin. Defendants,
13 and each of them, discriminated against Plaintiff because of his race and/or national origin. Plaintiff
14
is informed and believes and thereupon alleges that at all times relevant herein, Defendants
15
16 disparately treated Plaintiff from other Sales Representatives in the terms, conditions, and/or
17 privileges of employment, by, for example, denying Plaintiff promotions, equal pay, and/or the full
18
wages due to him, because of his race and/or national origin. Plaintiff is further informed and
19
20 believes and thereupon alleges that at all times relevant herein, Defendants had a pattern and practice
21 of subjecting their minority employees, including their Jewish and African American employees, to
22
disparate treatment in the terms, conditions, and/or privileges of employment, based on their race
23
24 and/or national origin.
25 46. Similarly situated non-Jewish employees were not treated in the disparate
26
manner in which Plaintiff was treated. In having discriminated against Plaintiff on account of his
27
28 race and/or national origin, Defendants, and each of them, violated the law, including Government
29 Code Section 12940, subsection (a).
30
47. Plaintiff is informed and believes and thereupon alleges that the fictitious
31
32 defendants named as DOES 1 through 100, inclusive, aided, abetted, incited, compelled, coerced or
33 conspired to commit one or more of the acts alleged herein.
34
48. Defendants also unlawfully discriminated against Plaintiff in the conditions of
35
36 his employment, by fostering a work environment permeated with hostility towards Plaintiff based
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1 on his race and/or national origin. For instance, HERTZ permitted its employees and managing
2 agents, including Plaintiff’s manager, Donald Ballerini, to address Plaintiff by referring to Plaintiff
3
as “Jew boy”, “Middle East”, and/or “piece/peace”. HERTZ also permitted its employees and agents
4
5 to make crude jokes regarding the Jewish practice of circumcision in the presence of Plaintiff, and to
6 post derogatory literature in the workplace directed at Plaintiff and related to his race and/or national
7
origin. Although Plaintiff complained to Defendants on more than one occasion concerning the
8
9 unlawful harassment and discrimination to which he was subjected in his workplace because of his
10 race and/or national origin, Defendants took no corrective measures to curtail the offensive actions.
11
49. As a direct and proximate result of the conduct of these Defendants, and each
12
13 of them, Plaintiff has suffered emotional anguish and distress, loss of income and benefits, and other
14 special and general damages, all in an amount to be proven at trial.
15
50. In doing the things herein alleged, the conduct of Defendants, and each of
16
17 them, was despicable, and Defendants, and each of them, acted towards Plaintiff with malice,
18 oppression, fraud, and with a willful and conscious disregard of Plaintiff’s rights. Each Defendant
19
ratified, authorized and condoned the conduct of each and every other Defendant and managing
20
21 agent, entitling Plaintiff to an award of punitive damages and exemplary damages pursuant to Civil
22 Code Section 3294 and Government Code Section 12940.
23
51. Pursuant to Government Code Section 12965, subsection (b), Plaintiff
24
25 requests the award of attorneys’ fees against Defendants, and each of them.
26
V.
27
FIFTH CAUSE OF ACTION
28 [Hostile Work Environment, Alleged
29 By Plaintiff As An Individual]
31
32
33 53. As alleged above, in the course of Plaintiff’s tenure at HERTZ, HERTZ’s
34 employees and managing agents, including Plaintiff’s manager, Donald Ballerini, subjected Plaintiff
35
to repeated offensive remarks on the basis of Plaintiff’s Jewish race and/or national origin. For
36
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1 instance, one or more of these individuals repeatedly addressed Plaintiff as “Jew boy”, and implied
2 in a derogatory manner that Plaintiff was from the “Middle East” and thus violent and a threat to the
3
safety of others. HERTZ also permitted its employees and agents to make crude jokes regarding the
4
5 Jewish practice of circumcision in the presence of Plaintiff and to post derogatory literature in the
6 workplace directed at Plaintiff and related to his race and/or national origin.
7
54. Plaintiff was offended, angered, intimidated, threatened, and harassed by the
8
9 repeated derogatory remarks that were made to him in the workplace based on his race and/or
10 national origin. On more than one occasion, Plaintiff complained to his immediate
11
supervisor/manager concerning the offensive remarks and the hostile work environment to which he
12
13 was subjected, to no avail.
14 55. The last time Plaintiff complained to Defendants regarding the offensive
15
remarks to which he had been subjected in the workplace was on or about May 10, 2010.
16
17 Approximately ten days later, on or about May 21, 2010, Plaintiff was terminated from his
18 employment.
19
56. The conduct of Defendants alleged above constitutes unlawful discrimination
20
21 based on Plaintiff’s race and/or national origin, including unlawful harassment, in violation of the
22 FEHA, including Government Code section 12940, subsections (a), (i) (j) and/or (k).
23
57. As a result of Defendants’ discriminatory and harassing actions against him,
24
25 Plaintiff has suffered and continues to suffer damages, in the form of lost wages and/or other
26 tangible and intangible employment benefits, and severe emotional and physical distress, the exact
27
amount of which will be proven at trial.
28
29 58. Defendants, and each of them, acted for the purpose of causing Plaintiff to
30 suffer financial loss and severe emotional distress and physical distress and are guilty of oppression
31
or malice, justifying an award of exemplary and punitive damages, for, among other reasons,
32
33 requiring Plaintiff to perform his job duties in a work environment permeated with hostility towards
34 Plaintiff based on his race and/or national origin, for failure of Defendants to appropriately or
35
sufficiently discipline the individuals who harassed Plaintiff, for continuing to subject Plaintiff to
36
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1 repeated offensive comments regarding his race and/or national origin in Plaintiff’s immediate work
2 environment with conscious disregard of Plaintiff’s rights, and for discharging Plaintiff from his
3
employment subsequent to receiving Plaintiff’s written complaint regarding the hostile work
4
5 environment to which he had been subjected.
6
VI.
7
SIXTH CAUSE OF ACTION
8 [Disability Discrimination, Alleged
9 By Plaintiff As An Individual]
11
12
13 60. While employed at HERTZ, Plaintiff suffered, among other symptoms, severe
14 anxiety, panic attacks, and depression, and was thus a mentally disabled individual within the
15
meaning of the FEHA.
16
17 61. Defendants were aware of Plaintiff’s disability and placed him on a leave of
18 absence. Thereafter, on or about May 25, 2010, while Plaintiff was still on disability leave,
19
Defendants arbitrarily terminated Plaintiff’s employment, effective May 21, 2010. Prior to
20
21 Plaintiff’s termination, Plaintiff’s physician had specifically requested from HERTZ to extend
22 Plaintiff’s disability leave until about August 2010. HERTZ failed to engage in an interactive
23
process with Plaintiff or his physician prior to terminating Plaintiff’s employment. HERTZ thus
24
25 failed to reasonably accommodate Plaintiff’s needs based on his disability as required by the law,
26 including Government Code section 12940, subsections (a), (m), (n), and/or (k).
27
62. At all times mentioned herein, Plaintiff was willing and able to perform the
28
29 duties and functions of his position if such reasonable accommodation had been made by HERTZ.
30 At no time would the performance of the functions of the employment position, with a reasonable
31
accommodation for Plaintiff’s disability, have been a danger to Plaintiff or any other person’s health
32
33 or safety, nor would it have created an undue hardship to the operation of HERTZ’s business.
34 63. As a proximate result of HERTZ’s discriminatory actions against Plaintiff, as
35
alleged above, Plaintiff has been harmed in that Plaintiff has suffered mental anguish, and emotional
36
4151 MIDDLEFIELD
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1 and physical distress that has manifested itself in, among other consequences, anxiety, anger,
2 insomnia, depression, panic attacks, and severe pain and distress. As a result of such discrimination
3
and consequent harm, Plaintiff has suffered and will continue to suffer damages, including for expert
4
5 fees, in an amount according to proof.
6 64. The above-recited actions by HERTZ were done with malice, fraud, or
7
oppression, and in reckless disregard of Plaintiff’s rights under the law, justifying an award of
8
9 exemplary and punitive damages.
10
11 VII.
12 SEVENTH CAUSE OF ACTION
13 [Failure To Take Steps Necessary To Prevent Discrimination
And Harassment, Alleged By Plaintiff As An Individual]
14
17
66. This cause of action is brought pursuant to California Government Code
18
19 section 12940, subsection (k).
20 67. Plaintiff is informed and believes and thereupon alleges that HERTZ, by and
21
through its managing agents, failed to take all steps necessary to prevent discrimination and
22
23 harassment from occurring, when HERTZ authorized, ratified and condoned the acts of
24 discrimination and harassment on the account of Plaintiff’s disability, race and/or national origin and
25
failed to adequately investigate Plaintiff’s complaints in this regard.
26
27 68. Plaintiff is informed and believes and thereupon alleges that HERTZ failed to
28 take all steps necessary to prevent discrimination, harassment and retaliation from occurring, when
29
among other acts or omissions, HERTZ failed to conduct a proper investigation into Plaintiff’s
30
31 complaints, failed to take immediate and appropriate corrective action, and terminated Plaintiff from
32 his employment approximately ten days following his written complaint to HERTZ concerning the
33
unlawful conduct to which he had been subjected at its hands.
34
35 69. Plaintiff is informed and believes and thereupon alleges that the fictitious
36 defendants named as DOES 1 through 100, inclusive, aided, abetted, incited, compelled, coerced or
4151 MIDDLEFIELD
PALO ALTO, CA 94303
1 conspired to commit one or more of the acts alleged herein.
2 70. As a direct and proximate result of the conduct of these Defendants, and each
3
of them, Plaintiff has suffered emotional anguish and distress, loss of income and benefits, and other
4
5 special and general damages, all in an amount to be proven at trial.
6 71. HERTZ committed these acts maliciously, despicably, fraudulently and
7
oppressively, with the wrongful intent of injuring Plaintiff. Each Defendant acted with an improper
8
9 and evil motive amounting to malice and conscious disregard of Plaintiff’s rights. Because the acts
10 taken towards Plaintiff were carried out in a despicable, deliberate, cold, callous, and intentional
11
manner to injure and damage Plaintiff, and because HERTZ ratified, authorized and condoned the
12
13 conduct of each and every other Defendant, Plaintiff is entitled to punitive damages from HERTZ
14 according to proof at trial.
15
72. Pursuant to Government Code Section 12965, subsection (b), Plaintiff
16
17 requests the award of attorney’s fees against Defendants, and each of them.
18
19 VIII.
20 EIGHTH CAUSE OF ACTION
21 [Retaliation, Alleged By Plaintiff As An Individual]
22
25
74. On or about May 10, 2010, Plaintiff opposed Defendants’ discriminatory acts
26
27 set forth in this complaint by complaining about them in writing in a letter mailed to HERTZ via
28 certified mail. In that letter, Plaintiff, among other things, informed HERTZ that he intended to file
29
an administrative complaint with the DFEH regarding the unlawful treatment to which he had been
30
31 subjected at the hands of HERTZ. Plaintiff filed his initial complaint with the DFEH on the same
32 day.
33
75. Approximately ten days later, on or about May 21, 2010, HERTZ terminated
34
35 Plaintiff’s employment in retaliation for his written complaints of May 10, 2010 to HERTZ and/or
36 the DFEH.
4151 MIDDLEFIELD
PALO ALTO, CA 94303
1 76. As a result of HERTZ’s retaliation, Plaintiff has suffered and continues to
2 suffer damages, in the form of lost wages and other employment benefits, and severe emotional and
3
physical distress, the exact amount of which will be proven at trial.
4
5 77. Defendants, and each of them, acted for the purpose of causing Plaintiff to
6 suffer financial loss and severe emotional distress and physical distress and are guilty of oppression
7
and malice, justifying an award of exemplary and punitive damages.
8
9 IX.
10 NINTH CAUSE OF ACTION
11 [Wrongful Termination In Violation Of Public Policy,
Alleged By Plaintiff As An Individual]
12
15
79. The acts of HERTZ, as alleged above, violated the public policy of the State
16
17 of California, as expressed in the provisions of the FEHA, including Government Code section 1294;
18 Labor Code sections 201, 202, 203, 216, subsection (a), 226, 226.7, 510 and/or 512; and/or Article 1
19
section 8 of the California Constitution.
20
21 80. As a proximate result of the unlawful acts of HERTZ, as alleged above,
22 Plaintiff has been harmed in that he has suffered the loss of wages, salary, and/or other benefits that
23
he would have earned had his employment with HERTZ continued. As a result of such actions and
24
25 consequent harm, Plaintiff has suffered such damages in an amount according to proof.
26 81. As a further proximate result of HERTZ’s unlawful actions, as alleged above,
27
Plaintiff has been harmed in that he has suffered the intangible loss of such employment-related
28
29 opportunities as increased professional reputation and experience. As a result of such actions and
30 consequent harm, Plaintiff has suffered such damages in an amount according to proof.
31
82. As a further proximate result of the unlawful acts of HERTZ, as alleged
32
33 above, Plaintiff has been harmed in that he has suffered humiliation, mental anguish, and emotional
34 and physical distress. As a result of such actions and consequent harm, Plaintiff has suffered such
35
damages in an amount according to proof.
36
4151 MIDDLEFIELD
PALO ALTO, CA 94303
1 83. The actions of HERTZ, as alleged above, were despicable, in that they were
2 done with malice and oppression, and in reckless disregard of Plaintiff’s rights, justifying an award
3
of punitive damages in an amount sufficient to punish HERTZ and deter it and others from engaging
4
5 in similar conduct in future.
6
X.
7
TENTH CAUSE OF ACTION
8 [Intentional Infliction Of Emotional Distress,
9 Alleged By Plaintiff As An Individual]
11
12
13 85. Defendant’s wrongful acts, including their fostering of a hostile work
14 environment for Plaintiff based on Plaintiff’s race and/or national origin, by, among other things,
15
permitting HERTZ employees and managing agents to make derogatory statements and post
16
17 offensive literature concerning Plaintiff in the workplace; by discriminating against him in the terms,
18 conditions and/or privileges of his employment; by discriminating against him based on his
19
disability; by refusing to pay him the wages to which he was entitled; and/or by wrongfully
20
21 terminating him in retaliation of Plaintiff’s complaints, were acts that were knowing, intentional, and
22 willful, all of which were committed in reckless disregard of the probability of causing Plaintiff
23
emotional distress. Such acts by Defendants were outrageous in nature in that they jeopardized the
24
25 physical and mental health and safety of Plaintiff.
26 86. As a proximate result of Defendants’ conduct, as alleged in this complaint,
27
Plaintiff suffered severe mental anguish and emotional and physical distress, all to his general
28
29 damage in an amount according to proof.
30 87. As a further proximate result of Defendants’ conduct and Plaintiff’s severe
31
emotional distress, as alleged in this complaint, Plaintiff was required to and did incur medical and
32
33 related expenses, and will continue to incur expenses, including for expert fees, all to his further
34 damage in an amount according to proof.
35
88. In committing the wrongful acts set forth in this complaint, Defendants
36
4151 MIDDLEFIELD
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1 engaged in conduct that was fraudulent, malicious or oppressive, in that it was conduct carried out
2 by Defendants in willful and conscious disregard of Plaintiff’s rights and subjected Plaintiff to cruel
3
and unjust hardship. Plaintiff is therefore entitled to recover punitive damages in an amount to
4
5 punish and make an example of Defendants.
6
7
PRAYER FOR RELIEF
8
9 Wherefore, Plaintiff prays for judgment against Defendants, and each of them, as
10 follows:
11
CLASS ACTION CAUSES OF ACTION
12
13 On the First Cause of Action for the violation of the California Labor Code and
14 the California Industrial Welfare Commission Order 9-2001:
15
1. The Court declares, adjudges, and decrees, that this action has been properly
16
17 filed as a class action and certify the California Wage and Expense Recovery Class under section
18 382 of the California Code of Civil Procedure;
19
2. The Court declares, adjudges and decrees, that:
20
21 a) Defendants violated the California Labor Code and the California
22 Industrial Welfare Commission Wage Order 9-2001 by, among other reasons, failing to pay or
23
provide overtime pay, including for work performed ‘off-the-clock’; failing to pay wages for on duty
24
25 meal/rest periods as required by Labor Code section 226.7; failing to make reimbursements for
26 employment-related expenses; and failing to provide itemized pay statements as required under
27
Labor Code section 226, to the California Wage and Expense Recovery Class;
28
29 b) Time during which the California Wage and Expense Recovery Class
30 members were or are on duty constitutes hours of employment for the purpose of the California
31
Labor Code and the California Industrial Welfare Commission Wage Order 9-2001;
32
33 c) The California Wage and Expense Recovery Class is entitled to an
34 award of the unpaid overtime pay, including for work performed ‘off-the-clock’, extra wages for
35
failure to provide duty-free meal and rest breaks under Labor Code section 226.7, subsection (b), the
36
4151 MIDDLEFIELD
PALO ALTO, CA 94303
1 reimbursement for job-related expenses, and penalties, including but not limited to those under
2 sections 203, 226, subsection (e), and 226.3, of the Labor Code;
3
d) Injunctive Relief, prohibiting future violations of the rights of the
4
5 California Wage and Expense Recovery Class members to unpaid wages.
6 3. The Court decrees such other injunctive relief and/or enters such other orders
7
as are necessary to dissipate or relieve the effects of the aforesaid violations and illegal acts by
8
9 Defendants;
10 4. Reasonable attorneys’ fees, both non-statutory and statutory, including
11
pursuant to Labor Code sections 226, subsection (e), 1194, subsection (a), and 2802, subsection (c);
12
13 5. Costs of suit;
14 6. Pre-judgment and post-judgment interest, including under Labor Code
15
sections 1194, subsection (a), and 2802, subsection (b); and
16
17 7. For such other and further relief as the Court deems just and proper.
18
19
On the Second Cause of Action for the violation of California Labor Code
20
21 Section 2802:
22 1. The Court declares, adjudges, and decrees, that this action has been properly
23
filed as a class action and certify the California Business Expense Recovery Class under section 382
24
25 of the California Code of Civil Procedure;
26 2. The Court declares, adjudges and decrees, that:
27
a) Defendants violated the California Labor Code and the California
28
29 Industrial Welfare Commission Wage Order 9-2001 by failing to make to the California Business
30 Expense Recovery Class members reimbursements for employment-related expenses, including
31
expenses incurred for maintaining their HERTZ Uniforms;
32
33 b) The California Business Expense Class is entitled to reimbursement
34 for all job-related expenses;
35
c) Injunctive Relief, prohibiting future violations of the rights of the
36
4151 MIDDLEFIELD
PALO ALTO, CA 94303
1 California Business Expense Recovery Class members to reimbursement for business-related
2 expenses.
3
3. The Court decrees such other injunctive relief and/or enters such other orders
4
5 as are necessary to dissipate or relieve the effects of the aforesaid violations and illegal acts by
6 Defendants;
7
4. Reasonable attorneys’ fees, both non-statutory and statutory, including
8
9 pursuant to Labor Code section 2802, subsection (c);
11
6. Pre-judgment and post-judgment interest, including under Labor Code section
12
13 2802, subsection (b); and
15
16
17 On the Third Cause of Action for the violation of the California Business and
18 Professions Code Sections 17200 et. seq.:
19
1. The Court declares, adjudges, and decrees, that this action has been properly
20
21 filed as a class action and certify the California Unfair Business Practices Recovery Class I and II
22 under section 382 of the California Code of Civil Procedure;
23
2. The Court declares, adjudges and decrees that:
24
25 a) Defendants violated the California Unfair Business Practices
26 Act/Unfair Competition Law, Business & Professions Code §§17200 et. seq., by, among other
27
things, failing to pay or provide overtime pay, failing to pay wages for on-duty meal/rest periods as
28
29 required by labor Code §226.7, failing to provide itemized wage statements as required under Labor
30 Code section 226, and failing to pay for work performed ‘off-the-clock’, to the members of the
31
California Unfair Business Practices Recovery Class I, and failing to make reimbursements for
32
33 employment-related expenses to the members of the California Unfair Business Practices Recovery
34 Class II;
35
b) Time during which the California Unfair Business Practices Recovery
36
4151 MIDDLEFIELD
PALO ALTO, CA 94303
1 Class I members were or are on duty constitutes hours of employment for the purpose of the
2 California Labor Code and the California Industrial Commission Wage Order 9-2001;
3
c) Defendants should be ordered to make restitution and to disgorge all
4
5 ill-gotten gains into a fluid recovery fund, including all unpaid overtime pay, unpaid wages for work
6 performed ‘off-the clock’, unpaid wages for on-duty meal/rest breaks, and unreimbursed business
7
expenses;
8
9 d) Injunctive relief prohibiting future violations of the rights of the
10 California Unfair Business Practices Recovery Class I and II members.
11
3. The Court decrees such other injunctive relief and/or enters such other orders
12
13 as are necessary to dissipate or relieve the effects of the aforesaid violations and illegal acts by
14 Defendants;
15
4. Reasonable attorneys’ fees, both statutory, including section 1021.5 of the
16
17 California Code of Civil Procedure, and non-statutory;
19
6. Pre-judgment and post-judgment interest; and
20
22
23
PLAINTIFF SIMON GOLAN OHAYON’S INDIVIDUAL CAUSES OF ACTION
24
25 On the Fourth Cause of Action for Race and/or National Origin Discrimination,
26 the Fifth Cause of Action for Hostile Work Environment, the Sixth Cause of Action for
27
Disability Discrimination, and the Seventh Cause of Action for Failure to take Steps Necessary
28
29 to Prevent Discrimination and Harassment:
30 1. A monetary judgment representing compensatory damages including lost
31
wages, earnings, retirement benefits, and other employee benefits, and all other sums of money,
32
33 together with interest on these amounts, according to proof;
34 2. A monetary judgment for mental pain and anguish and emotional distress,
35
according to proof;
36
4151 MIDDLEFIELD
PALO ALTO, CA 94303
1 3. An award of exemplary and punitive damages, according to proof;
2 4. Costs of suit;
3
5. Attorneys’ fees pursuant to the law, including Government Code Section
4
5 12965, subsection (b);
6 6. Pre-judgment and post-judgment interest; and
7
7. Such other and further relief as the Court deems just and proper.
8
9 On the Eighth Cause of Action for Retaliation:
10 1. A monetary judgment representing compensatory damages including lost
11
wages, earnings, retirement benefits and other employee benefits, and all other sums of money,
12
14 2. A monetary judgment for mental pain and anguish and emotional distress,
15
according to proof;
16
19
5. Attorneys’ fees pursuant to the law, including Government Code Section
20
23
7. Such other and further relief as the Court deems just and proper.
24
25 On the Ninth Cause of Action for Wrongful Termination in Violation of Public
26 Policy:
27
1. A monetary judgment representing compensatory damages including lost
28
29 wages, earnings, retirement benefits and other employee benefits, and all other sums of money,
31
2. A monetary judgment for mental pain and anguish and emotional distress,
32
33 according to proof;
35
4. Costs of suit;
36
4151 MIDDLEFIELD
PALO ALTO, CA 94303
1 5. Attorneys’ fees, pursuant to the law, including Government Code Section
3
6. Pre-judgment and post-judgment interest; and
4
5 7. Such other and further relief as the Court deems just and proper.
6 On the Tenth Cause of Action for Intentional Infliction of Emotional Distress:
7
1. A monetary judgment representing compensatory damages including lost
8
9 wages, earnings, retirement benefits and other employee benefits, and all other sums of money,
11
2. A monetary judgment for mental pain and anguish, emotional distress, and
12
13 humiliation, according to proof;
15
4. Costs of suit;
16
18 6. Such other and further relief as the Court deems just and proper.
19
20
21 DEMAND FOR JURY TRIAL
22 Plaintiff hereby demands a jury trial on all of the issues in this case.
23
24
25
26
DATE: September 7, 2010 _______________________________________
27 MARYAM S. KARSON
28 ATTORNEY FOR PLAINTIFF,
SIMON GOLAN OHAYON
29
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1 MARYAM S. KARSON, State Bar No.

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