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Michael T. Brooks (SBN 272053) E-FILED
BROOKS LAW, P 7/19/2019 10:40 AM
815 West Center Avenue Superior Court of California
Visalia, CA 93291
County of Fresno
Telephone: 559-471-4400 By: A. Rodriguez, Deputy
ax! 559-550-0326
Email: michael@brookslaw.us
Attorney for Plaintiff CRESCENCIANO GARCIA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF FRESNO
11 CRESCENCIANO GARCIA, Case No.: 19CECG02624
12 Plaintiff, COMPLAINT FOR DAMAGES AND
OTHER RELIEF FOR:
13 vs.
1. DISABILITY DISCRIMINATION
14 THE WINE GROUP, INC.; (Gov. Code, § 12940, subd. (a));
THE WINE GROUP, LLC; and
15 DOES 1 through 50, inclusive, 2. FAILURE TO ACCOMMODATE
DISABILITY
16 Defendants. (Gov. Code, § 12940, subd. (m));
17 3. FAILURE TO ENGAGE IN GOOD
FAITH INTERACTIVE PROCESS
18 (Gov. Code, § 12940, subd. (n));
19 4. VIOLATION OF RIGHT TO
PRIVACY: INTRUSION INTO
20 PRIVATE AFFAIRS; and
21 5. WRONGFUL DISCHARGE IN
VIOLATION OF PUBLIC POLICY
22
DEMAND FOR JURY TRIAL
23
24
25 Plaintiff CRESCENCIANO GARCIA (“Mr. Garcia”) alleges against defendant THE
26 WINE GROUP, INC. (“TWG INC’), defendant THE WINE GROUP, LLC (“TWG LLC”)
27 (collectively, “TWG”), and defendant DOES 1 through 50, inclusive (collectively
28 “Defendants”), and each of them, as follows:
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Complaint for Damages and Other Relief
BACKGROUND
1 In August 2005, Mr. Garcia began working at a winery commonly known as
the Franzia Winery located in or near Sanger, California (“Franzia Winery”).
2 Thereafter, Mr. Garcia continued to be employed at the Franzia Winery on a
primarily seasonal basis until he was fired effective August 25, 2017.
3 Throughout the approximately 12 years that Mr. Garcia worked at the Franzia
Winery, he was routinely laid off and then recalled back to work depending on the
production needs of the company.
4 On or about June 16, 2017, Mr. Garcia was laid off.
10 5: On or about August 23, 2017, Mr. Garcia was called back to work and required
11 to submit to a “pre-employment” drug screening.
12 6. The results of the drug screening showed that Mr. Garcia tested positive for
13 methadone.
14 7: Mr. Garcia did not deny using methadone. He admitted to the person
15 performing the screening that he had recently used methadone on the advice of his doctor
16 for the purpose of pain management.
17 8 Effective August 25, 2017, Mr. Garcia was fired because he tested positive for
18 methadone.
19 9. On or about August 29, 2017, a grievance was filed by Mr. Garcia’s union
20 regarding his termination.
21 10. During the time the grievance was pending, Mr. Garcia’s employers were
22 provided with a written correspondence from Mr. Garcia’s long-term treating physician
23 explaining that Mr. Garcia had been advised by the doctor to try methadone as a possible
24 alternative to continued use of Norco for control of chronic pain.
25 11. On September 7, 2017, without any substantive discussion with Mr. Garcia
26 regarding the doctor’s note or the underlying physical disability associated with his chronic
27 pain, Mr. Garcia’s employers summarily re-affirmed the decision to fire him for failing to
28 pass the drug test.
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Complaint for Damages and Other Relief
12. On October 19, 2017, still without any substantive discussion with Mr. Garcia
regarding the doctor’s note or his underlying physical disability, Mr. Garcia’s employers
again ratified the decision to fire him.
THE PARTIES
13. Plaintiff CRESCENCIANO GARCIA is an individual citizen of the State of
California who currently resides and is domiciled in the County of Fresno.
14. Defendant THE WINE GROUP, INC. (“TWG INC”) is a corporation organized
under the laws of the State of California. TWG INC’s principal business office is located at
4596 S Tracy Blvd, Tracy, CA 95377. On information and belief, TWG INC is an “employer”
10 as that term is defined in Government Code section 12926, subdivision (d). On information
11 and belief, TWG INC has, and at all times relevant to the claims raised herein has had: a
12 direct or indirect responsibility for the payment of wages or other employment benefits and
13 associated payroll taxes for and to employees working at the Franzia Winery; an ownership
14 interest in some or all of the equipment necessary to the operation of Franzia Winery; an
15 ownership interest in some or all of the locations where the operations of the Franzia
16 Winery take place; authority to hire, transfer, promote, discipline or discharge employees
17 working at the Franzia Winery; authority to establish work schedules and assignments for
18 employees working at the Franzia Winery; discretion to determine salaries and benefits for
19 employees working at the Franzia Winery; discretion to determine the skill required of the
20 work performed by employees working at the Franzia Winery and the extent to which it is
21 done under the direction of a supervisor; or other forms of control over the terms and
22 conditions of employment of the employees working at the Franzia Winery, including Mr.
23 Garcia, such that under the totality of the circumstances TWG INC was a joint employer of
24 Mr. Garcia.
25 15. Defendant THE WINE GROUP, LLC (“TWG LLC’) is a limited liability
26 company organized under the laws of the State of Delaware. TWG LLC’s principal business
27 office is located at 4596 S Tracy Blvd, Tracy, CA 95377. On information and belief, TWG LLC|
28 is an “employer” as that term is defined in Government Code section 12926, subdivision (d).
Complaint for Damages and Other Relief
On information and belief, TWG LLC has, and at all times relevant to the claims raised
herein has had: a direct or indirect responsibility for the payment of wages or other
employment benefits and associated payroll taxes for and to employees working at the
Franzia Winery; an ownership interest in some or all of the equipment necessary to the
operation of Franzia Winery; an ownership interest in some or all of the locations where the
operations of the Franzia Winery take place; authority to hire, transfer, promote, discipline
or discharge employees working at the Franzia Winery; authority to establish work
schedules and assignments for employees working at the Franzia Winery; discretion to
determine salaries and benefits for employees working at the Franzia Winery; discretion to
10 determine the skill required of the work performed by employees working at the Franzia
11 Winery and the extent to which it is done under the direction of a supervisor; or other form
12 of control over the terms and conditions of employment of the employees working at the
13 Franzia Winery, including Mr. Garcia, such that under the totality of the cireumstances
14 TWG LLC was a joint employer of Mr. Garcia.
15 16. The true names and capacities, whether individual, corporate, associate or
16 otherwise of the defendants named herein as DOES 1 through 50, inclusive, are unknown to
17 Mr. Garcia at this time. Mr. Garcia therefore sues these defendants by fictitious names
18 pursuant to Code of Civil Procedure section 474. Mr. Garcia will seek to amend this
19 complaint to allege the true names and capacities of DOES 1 through 50, inclusive, when
20 their names are ascertained. Each of the DOE defendants is in some manner liable to Mr.
21 Garcia for the events and actions alleged herein.
22 17. Each defendant was in some manner responsible for the acts and damages
23 alleged herein, or is indebted to Mr. Garcia as alleged herein, and each defendant
24 participated in the acts alleged herein and, in participating in such acts, each defendant was
25 the agent and co-conspirator of each other defendant and was acting in the course and scope
26 of such agency and conspiracy.
27 18. In addition, or in the alternative, on information and belief, TWG INC is
28 the alter ego of TWG LLC. The unity of interest and ownership between the two entities
Complaint for Damages and Other Relief
is such that neither entity has a separate personality, and allowing either to avoid the
debts and obligations of the other would be inequitable.
JURISDICTION AND VENUE
19. Under article VI, section 10 of the California Constitution and section 12965 of
the Government Code, this Court has jurisdiction over the subject matter of this case.
20. Under section 12965 of the Government Code, venue is proper in this Court
because the unlawful practices alleged herein were committed in the County of Fresno, and
Mr. Garcia would have continued to work for TWG at the Franzia Winery in the County of
Fresno but for Defendants’ unlawful practices.
10 21. The amount in controversy in this matter exceeds the sum of $25,000.00,
11 exclusive of interest and costs.
12 ADMINISTRATIVE EXHAUSTION
13 22. On or about August 21, 2018, by and through counsel, Mr. Garcia filed an
14 administrative complaint against TWG alleging disability discrimination and related
15 violations with the Department of Fair Employment and Housing and obtained an
16 immediate right to sue notice. That same day, a copy of the Notice of Filing of
17 Discrimination Complaint, a copy of the Notice of Case Closure and Right to Sue, and a copy
18 of the administrative complaint was served on TWG by certified mail. Copies of the same
19 documents are attached hereto as Exhibit 1.
20 FIRST CAUSE OF ACTION
21 DISABILITY DISCRIMINATION
22 [Gov. Code, § 12940, subd. (a)]
23 (Against all Defendants)
24 23. Mr. Garcia re-alleges and incorporates by reference each of the foregoing
25 allegations as though set forth herein.
26 Disparate Treatment
27 24. Defendants employed Mr. Garcia.
28 25. Prior to terminating Mr. Garcia’s employment, Defendants knew that Mr.
Complaint forDamages and Other Relief
Garcia had a disability, i.e., a physical condition that limited his ability to work.
26. At all relevant times, Mr. Garcia was able to perform his essential job duties
with reasonable accommodation for his disability.
27. Mr. Garcia’s disability was a substantially motivating reason for Defendants’
decision to terminate his employment.
Disparate Impact
28. At all relevant times, Defendants had an employment practice of imposing
discipline, including termination, based on an employee’s drug test results that
unreasonably and unlawfully interfered with the ability of employees with disabilities to
10 obtain leave and other reasonable accommodation.
11 29. Defendants’ employment practice had a disproportionate adverse effect on
12 employees with physical disabilities, including those like Mr. Garcia who have physical
13 conditions and associated chronic pain that limits their ability to work.
14 30. Defendants’ employment practice was a substantially motivating reason for
15 Defendants’ decision to terminate Mr. Garcia’s employment.
16 Damages
17 31. As a result of being subjected to disability discrimination and having his
18 employment terminated, Mr. Garcia has suffered special and general damages in an amount
19 to be proven at trial.
20 32. Mr. Garcia has and continues to suffer lost wages and other benefits of
21 employment in an amount to be proven at trial.
22 33. Mr. Garcia has and continues to suffer emotional distress, anxiety,
23 humiliation, frustration, mental anguish and nervousness in an amount to be proven at trial
24 34- Defendants’ conduct was a substantial factor in causing Mr. Garcia’s damages.
25 35. An award of exemplary and punitive damages against Defendants in an
26 amount to be proven at trial is justified because Defendants’ conduct constitutes oppression,
27 fraud or malice.
28 ///
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Complaint for Damages and Other Relief
SECOND CAUSE OF ACTION
FAILURE TO ACCOMMODATE DISABILITY
[Gov. Code, § 12940, subd. (m)]
(Against all Defendants)
36. Mr. Garcia re-alleges and incorporates by reference each of the foregoing
allegations as though set forth herein.
37. Defendants failed to provide reasonable accommodation for Mr. Garcia’s
disabling physical condition and associated chronic pain.
38. As a result of Defendants’ failure to provide reasonable accommodation, Mr.
10 Garcia has suffered special and general damages in an amount to be proven at trial.
11 39. Mr. Garcia has and continues to suffer lost wages and other benefits of
12 employment in an amount to be proven at trial.
13 40. Mr. Garcia has and continues to suffer emotional distress, anxiety,
14 humiliation, frustration, mental anguish and nervousness in an amount to be proven at trial
15 41. Defendants’ conduct was a substantial factor in causing Mr. Garcia’s damages.
16 42. An award of exemplary and punitive damages against Defendants in an
17 amount to be proven at trial is justified because Defendants’ conduct constitutes oppression,
18 fraud or malice.
19 THIRD CAUSE OF ACTION
20 FAILURE TO ENGAGE IN GOOD FAITH INTERACTIVE PROCESS
21 [Gov. Code, § 12940, subd. (n)]
22 (Against all Defendants)
23 43. Mr. Garcia re-alleges and incorporates by reference each of the foregoing
24 allegations as though set forth herein.
25 44. Mr. Garcia effectively requested that Defendants make reasonable
26 accommodation for his disabling physical condition and associated chronic pain by putting
27 Defendants on notice that he was taking pain medication on the advice of his doctor.
28 45. Mr. Garcia was willing to participate in an interactive process to determine
Complaint for Damages and Other Relief
whether reasonable accommodation could be made.
46. Defendants failed to participate in a timely good-faith interactive process with
Mr. Garcia to determine whether reasonable accommodation could be made.
47. As a result of Defendants’ failure to participate in a timely good-faith
interactive process, Mr. Garcia has suffered special and general damages in an amount to be
proven at trial.
48. Mr. Garcia has and continues to suffer lost wages and other benefits of
employment in an amount to be proven at trial.
49. Mr. Garcia has and continues to suffer emotional distress, anxiety,
10 humiliation, frustration, mental anguish and nervousness in an amount to be proven at trial
11 50. Defendants’ conduct was a substantial factor in causing Mr. Garcia’s damages.
12 51. An award of exemplary and punitive damages against Defendants in an
13 amount to be proven at trial is justified because Defendants’ conduct constitutes oppression,
14 fraud or malice.
15 FOURTH CAUSE OF ACTION
16 VIOLATION OF RIGHT TO PRIVACY: INTRUSION INTO PRIVATE AFFAIRS
17 (Against all Defendants)
18 52. Mr. Garcia re-alleges and incorporates by reference the allegations set forth in
19 paragraphs 1 through 21 above.
20 53. Mr. Garcia has, and at all times relevant to the claims raised herein has had, a
21 reasonable expectation of medical privacy, autonomy, dignity and sovereignty over himself
22 and his body.
23 54. Defendants intentionally intruded on Mr. Garcia’s medical privacy, autonomy,
24 dignity and sovereignty over himself and his body by requiring him to take a post-
25 employment drug test as a condition of continued employment.
26 55- Defendants’ intrusion was serious and would be highly offensive to a
27 reasonable person.
28 56. Mr. Garcia’s interests in medical privacy, autonomy, dignity and sovereignty
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Complaint for Damages and Other Relief
over himself and his body outweigh Defendants’ reasons or justifications for requiring the
drug test.
57- As a result of Defendants’ intrusion on Mr. Garcia’s privacy interests, he has
suffered special and general damages in an amount to be proven at trial.
58. Mr. Garcia has and continues to suffer lost wages and other benefits of
employment in an amount to be proven at trial.
59. Mr. Garcia has and continues to suffer emotional distress, anxiety,
humiliation, frustration, mental anguish and nervousness in an amount to be proven at trial.
60. Defendants’ conduct was a substantial factor in causing Mr. Garcia’s damages.
10 61. An award of exemplary and punitive damages against Defendants in an
11 amount to be proven at trial is justified because Defendants’ conduct constitutes oppression,
12 fraud or malice.
13 FIFTH CAUSE OF ACTION
14 WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY
15 (Against all Defendants)
16 62. Mr. Garcia re-alleges and incorporates by reference each of the foregoing
17 allegations as though set forth herein.
18 63. Defendants’ violation of the public policy against discrimination on the basis of
19 disability embodied in the Fair Employment and Housing Act was a substantial motivating
20 reason for Mr. Garcia’s discharge.
21 64. Defendants’ violation of the public policy against unwarranted intrusion on the}
22 autonomy privacy interests of the individual, including but not limited to the right to privacy]
23 under the California constitution, was a substantial motivating reason for Mr. Garcia’s
24 discharge.
25 65. As a result of Mr. Garcia’s discharge, he has suffered special and general
26 damages in an amount to be proven at trial.
27 66. Mr. Garcia has and continues to suffer lost wages and other benefits of
28 employment in an amount to be proven at trial.
Complaint for Damages and Other Relief
67. Mr. Garcia has and continues to suffer emotional distress, anxiety,
humiliation, frustration, mental anguish and nervousness in an amount to be proven at trial
68. Defendants’ conduct was a substantial factor in causing Mr. Garcia’s damages.
69. An award of exemplary and punitive damages against Defendants in an
amount to be proven at trial is justified because Defendants’ conduct constitutes oppression,
fraud or malice.
PRAYER FOR RELIEF
WHEREFORE, Mr. Garcia hereby prays that the Court enter judgment in his favor
and against Defendants, and each of them, as follows:
10 A An award of special damages according to proof;
11 B An award of general damages according to proof;
12 Cc An award of exemplary and punitive damages;
13 An award of prejudgment interest according to law;
14 An order providing declaratory relief;
15 Costs of suit, including attorney’s fees authorized by statute; and
16 Any other and further relief that the Court considers just and proper.
17 DEMAND FOR JURY TRIAL
18 Mr. Garcia hereby demands trial by jury on all issues triable by jury.
19
20 DATED: July 19, 2019 BROOKS LAW, PC
21
B Michael Brooky
22 Michael T. Brooks
Attorney for Plaintiff
23 CRESCENCIANO GARCIA
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Complaint for Damages and Other Relief
Exhibit 1
i)
on
“y ‘STATE OF CALIFORNIA | Business. Consumer Services and Housing Agency GOVERNOR EDMUND G_ BROWN
(m
DIRECTOR KEVIN KISH
DEPARTMENT OF FAIR EMPLOYMENT & HOUSING
tN, 2218 Kausen Drive, Suite 100 | Elk Grove { CA | 95758
MSee (800) 884-1684 | TDD (800) 700-2320
http:/www.dfeh.ca.gov | email: contact.center@dfeh.ca.gov
August 21, 2018
RE: Notice of Filing of Discrimination Complaint
DFEH Matter Number: 201808-03291420
Right to Sue: Garcia / The Wine Group, Inc. et al.
To All Respondent(s):
Enclosed is a copy of a complaint of discrimination that has been filed with the
Department of Fair Employment and Housing (DFEH) in accordance with Government
Code section 12960. This constitutes service of the complaint pursuant to Government
Code section 12962. The complainant has requested an authorization to file a lawsuit.
This case is not being investigated by DFEH and is being closed immediately. A copy of
the Notice of Case Closure and Right to Sue is enclosed for your records.
Please refer to the attached complaint for a list of all respondent(s) and their contact
information.
No response to DFEH is requested or required.
Sincerely,
Department of Fair Employment and Housing
nd Hous GOVERNOR EDMUND G_ BROWN JR.
IRECTOR KEVIN KISH
DEPARTMENT OF FAIR Emp LOYMENT & HousinG
2218 Kausen Drive, Suite 100 | Elk Grove | CA1 95758
(800) 884-1684 | TDD (800) 700-2320
http:/Awww.dfeh.ca.gov | email: contact.center@dfeh.ca.gov
August 21, 2018
Crescenciano Garcia
Parlier, California
RE: Notice of Case Closure and Right to Sue
DFEH Matter Number: 201808-03291420
Right to Sue: Garcia / The Wine Group, Inc. et al.
Dear Crescenciano Garcia,
This letter informs you that the above-referenced complaint was filed with the
Department of Fair Employment and Housing (DFEH) has been closed effective August
21, 2018 because an immediate Right to Sue notice was requested. DFEH will take no
further action on the complaint.
This letter is also your Right to Sue notice. According to Government Code section
12965, subdivision (b), a civil action may be brought under the provisions of the Fair
Employment and Housing Act against the person, employer, labor organization or
employment agency named in the above-referenced complaint. The civil action must be
filed within one year from the date of this letter.
To obtain a federal Right to Sue notice, you must contact the U.S. Equal Employment
Opportunity Commission (EEOC) to file a complaint within 30 days of receipt of this
DFEH Notice of Case Closure or within 300 days of the alleged discriminatory act,
whichever is earlier.
Sincerely,
Department of Fair Employment and Housing
COMPLAINT OF EMPLOYMENT DISCRIMINATION
BEFORE THE STATE OF CALIFORNIA
DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING
Under the California Fair Employment and Housing Act
(Gov. Code, § 12900 et seq.)
In the Matter of the Complaint of
Crescenciano Garcia DFEH No. 201808-03291420
Complainant,
vs.
The Wine Group, Inc.
4596 S Tracy Blvd
Tracy, California 95377
10
The Wine Group, Limited Liability Corp
11 4596 S Tracy Blvd
Tracy, California 95377
12
Respondents
13
14
1. Respondent The Wine Group, Inc. is an employer subject to suit under the
15 California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).
16 2. Complainant Crescenciano Garcia, resides in the City of Parlier State of
California.
17
18 3. Complainant alleges that on or about August 25, 2017, respondent took the
following adverse actions:
19
Complainant was harassed because of complainant's disability (physical or
20 mental).
21 Complainant was discriminated against because of complainant's disability
22 (physical or mental) and as a result of the discrimination was terminated, denied a
work environment free of discrimination and/or retaliation, denied any employment
23 benefit or privilege, denied reasonable accommodation for a disability, denied work
opportunities or assignments.
24
Complainant experienced retaliation because complainant requested or used a
25
disability-related accommodation and as a result was terminated, denied a work
26
ats
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Complaint — DFEH No. 201808-03291420
28 Date Filed: August 21, 2018
environment free of discrimination and/or retaliation, denied any employment benefit
or privilege, denied reasonable accommodation for a disability.
Additional Complaint Details: On information and belief:
Crescenciano Garcia ("Garcia") began working for The Wine Group ("TWG") in
August 2005. Throughout the term of his employment with TWG, Garcia was
routinely laid off and then recalled back to work depending on the production needs
of the company.
On or about June 16, 2017, TWG temporarily laid off Garcia.
On or about August 23, 2017, TWG recalled Garcia back to work and required him
to submit to a “pre-employment” drug screening. The drug test rendered a positive
result for methadone. Garcia did not deny using methadone. He admitted to the
10
person performing the screening that he had recently used methadone on the advice
11 of his doctor.
12 Nevertheless, effective August 25, 2017, Garcia was fired because he tested
positive for methadone. No good-faith, interactive process. No accommodation.
13
On or about August 29, 2017, a grievance was filed by Garcia’s union, United Food
14
& Commercial Workers Union (“UFCW’), regarding TWG’s decision to fire Garcia.
15 During the time the grievance was pending, TWG was provided with a letter from
Garcia’s long-term treating physician explaining that Garcia had been advised by the
16 doctor to try methadone as a possible alternative to continued use of Norco for
control of chronic pain.
17
18 On September 7, 2017, without any substantive discussion with Garcia regarding the
doctor’s note or his apparent disability, TWG summarily re-affirmed its decision to
19 terminate Garcia for failing to pass the drug test. No good-faith, interactive process.
No accommodation.
20
On or about October 19, 2017, TWG met with representatives of Garcia's union
21
regarding Garcia's termination but not with Garcia himself. As a result of that
22 meeting, still without any substantive discussion with Garcia regarding the doctor's
note or his apparent disability, TWG again ratified its decision to terminate Garcia.
23 No good-faith, interactive process. No accommodation.
24
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Complaint - DFEH No. 201808-03291420
28 Date Filed: August 21, 2018
VERIFICATION
|, Michael Brooks, am the Attorney in the above-entitled complaint. | have read the
foregoing complaint and know the contents thereof. The matters alleged are based
on information and belief, which | believe to be true.
On August 21, 2018, | declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Visalia, CA
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Complaint — DFEH No. 201808-03291420
28 Date Filed: August 21, 2018
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Michael T. Brooks (SBN 272053) E-FILED BROOKS LAW, P 7/19/2019 10:40 AM 815 West Center Avenue Superior Court of California Visalia, CA 93291 County of Fresno Telephone: 559-471-4400 By: A. Rodriguez, Deputy ax! 559-550-0326 Email: michael@brookslaw.us Attorney for Plaintiff CRESCENCIANO GARCIA SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF FRESNO 11 CRESCENCIANO GARCIA, Case No.: 19CECG02624 12 Plaintiff, COMPLAINT FOR DAMAGES AND OTHER RELIEF FOR: 13 vs. 1. DISABILITY DISCRIMINATION 14 THE WINE GROUP, INC.; (Gov. Code, § 12940, subd. (a)); THE WINE GROUP, LLC; and 15 DOES 1 through 50, inclusive, 2. FAILURE TO ACCOMMODATE DISABILITY 16 Defendants. (Gov. Code, § 12940, subd. (m)); 17 3. FAILURE TO ENGAGE IN GOOD FAITH INTERACTIVE PROCESS 18 (Gov. Code, § 12940, subd. (n)); 19 4. VIOLATION OF RIGHT TO PRIVACY: INTRUSION INTO 20 PRIVATE AFFAIRS; and 21 5. WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY 22 DEMAND FOR JURY TRIAL 23 24 25 Plaintiff CRESCENCIANO GARCIA (“Mr. Garcia”) alleges against defendant THE 26 WINE GROUP, INC. (“TWG INC’), defendant THE WINE GROUP, LLC (“TWG LLC”) 27 (collectively, “TWG”), and defendant DOES 1 through 50, inclusive (collectively 28 “Defendants”), and each of them, as follows: -1- Complaint for Damages and Other Relief BACKGROUND 1 In August 2005, Mr. Garcia began working at a winery commonly known as the Franzia Winery located in or near Sanger, California (“Franzia Winery”). 2 Thereafter, Mr. Garcia continued to be employed at the Franzia Winery on a primarily seasonal basis until he was fired effective August 25, 2017. 3 Throughout the approximately 12 years that Mr. Garcia worked at the Franzia Winery, he was routinely laid off and then recalled back to work depending on the production needs of the company. 4 On or about June 16, 2017, Mr. Garcia was laid off. 10 5: On or about August 23, 2017, Mr. Garcia was called back to work and required 11 to submit to a “pre-employment” drug screening. 12 6. The results of the drug screening showed that Mr. Garcia tested positive for 13 methadone. 14 7: Mr. Garcia did not deny using methadone. He admitted to the person 15 performing the screening that he had recently used methadone on the advice of his doctor 16 for the purpose of pain management. 17 8 Effective August 25, 2017, Mr. Garcia was fired because he tested positive for 18 methadone. 19 9. On or about August 29, 2017, a grievance was filed by Mr. Garcia’s union 20 regarding his termination. 21 10. During the time the grievance was pending, Mr. Garcia’s employers were 22 provided with a written correspondence from Mr. Garcia’s long-term treating physician 23 explaining that Mr. Garcia had been advised by the doctor to try methadone as a possible 24 alternative to continued use of Norco for control of chronic pain. 25 11. On September 7, 2017, without any substantive discussion with Mr. Garcia 26 regarding the doctor’s note or the underlying physical disability associated with his chronic 27 pain, Mr. Garcia’s employers summarily re-affirmed the decision to fire him for failing to 28 pass the drug test. -2- Complaint for Damages and Other Relief 12. On October 19, 2017, still without any substantive discussion with Mr. Garcia regarding the doctor’s note or his underlying physical disability, Mr. Garcia’s employers again ratified the decision to fire him. THE PARTIES 13. Plaintiff CRESCENCIANO GARCIA is an individual citizen of the State of California who currently resides and is domiciled in the County of Fresno. 14. Defendant THE WINE GROUP, INC. (“TWG INC”) is a corporation organized under the laws of the State of California. TWG INC’s principal business office is located at 4596 S Tracy Blvd, Tracy, CA 95377. On information and belief, TWG INC is an “employer” 10 as that term is defined in Government Code section 12926, subdivision (d). On information 11 and belief, TWG INC has, and at all times relevant to the claims raised herein has had: a 12 direct or indirect responsibility for the payment of wages or other employment benefits and 13 associated payroll taxes for and to employees working at the Franzia Winery; an ownership 14 interest in some or all of the equipment necessary to the operation of Franzia Winery; an 15 ownership interest in some or all of the locations where the operations of the Franzia 16 Winery take place; authority to hire, transfer, promote, discipline or discharge employees 17 working at the Franzia Winery; authority to establish work schedules and assignments for 18 employees working at the Franzia Winery; discretion to determine salaries and benefits for 19 employees working at the Franzia Winery; discretion to determine the skill required of the 20 work performed by employees working at the Franzia Winery and the extent to which it is 21 done under the direction of a supervisor; or other forms of control over the terms and 22 conditions of employment of the employees working at the Franzia Winery, including Mr. 23 Garcia, such that under the totality of the circumstances TWG INC was a joint employer of 24 Mr. Garcia. 25 15. Defendant THE WINE GROUP, LLC (“TWG LLC’) is a limited liability 26 company organized under the laws of the State of Delaware. TWG LLC’s principal business 27 office is located at 4596 S Tracy Blvd, Tracy, CA 95377. On information and belief, TWG LLC| 28 is an “employer” as that term is defined in Government Code section 12926, subdivision (d). Complaint for Damages and Other Relief On information and belief, TWG LLC has, and at all times relevant to the claims raised herein has had: a direct or indirect responsibility for the payment of wages or other employment benefits and associated payroll taxes for and to employees working at the Franzia Winery; an ownership interest in some or all of the equipment necessary to the operation of Franzia Winery; an ownership interest in some or all of the locations where the operations of the Franzia Winery take place; authority to hire, transfer, promote, discipline or discharge employees working at the Franzia Winery; authority to establish work schedules and assignments for employees working at the Franzia Winery; discretion to determine salaries and benefits for employees working at the Franzia Winery; discretion to 10 determine the skill required of the work performed by employees working at the Franzia 11 Winery and the extent to which it is done under the direction of a supervisor; or other form 12 of control over the terms and conditions of employment of the employees working at the 13 Franzia Winery, including Mr. Garcia, such that under the totality of the cireumstances 14 TWG LLC was a joint employer of Mr. Garcia. 15 16. The true names and capacities, whether individual, corporate, associate or 16 otherwise of the defendants named herein as DOES 1 through 50, inclusive, are unknown to 17 Mr. Garcia at this time. Mr. Garcia therefore sues these defendants by fictitious names 18 pursuant to Code of Civil Procedure section 474. Mr. Garcia will seek to amend this 19 complaint to allege the true names and capacities of DOES 1 through 50, inclusive, when 20 their names are ascertained. Each of the DOE defendants is in some manner liable to Mr. 21 Garcia for the events and actions alleged herein. 22 17. Each defendant was in some manner responsible for the acts and damages 23 alleged herein, or is indebted to Mr. Garcia as alleged herein, and each defendant 24 participated in the acts alleged herein and, in participating in such acts, each defendant was 25 the agent and co-conspirator of each other defendant and was acting in the course and scope 26 of such agency and conspiracy. 27 18. In addition, or in the alternative, on information and belief, TWG INC is 28 the alter ego of TWG LLC. The unity of interest and ownership between the two entities Complaint for Damages and Other Relief is such that neither entity has a separate personality, and allowing either to avoid the debts and obligations of the other would be inequitable. JURISDICTION AND VENUE 19. Under article VI, section 10 of the California Constitution and section 12965 of the Government Code, this Court has jurisdiction over the subject matter of this case. 20. Under section 12965 of the Government Code, venue is proper in this Court because the unlawful practices alleged herein were committed in the County of Fresno, and Mr. Garcia would have continued to work for TWG at the Franzia Winery in the County of Fresno but for Defendants’ unlawful practices. 10 21. The amount in controversy in this matter exceeds the sum of $25,000.00, 11 exclusive of interest and costs. 12 ADMINISTRATIVE EXHAUSTION 13 22. On or about August 21, 2018, by and through counsel, Mr. Garcia filed an 14 administrative complaint against TWG alleging disability discrimination and related 15 violations with the Department of Fair Employment and Housing and obtained an 16 immediate right to sue notice. That same day, a copy of the Notice of Filing of 17 Discrimination Complaint, a copy of the Notice of Case Closure and Right to Sue, and a copy 18 of the administrative complaint was served on TWG by certified mail. Copies of the same 19 documents are attached hereto as Exhibit 1. 20 FIRST CAUSE OF ACTION 21 DISABILITY DISCRIMINATION 22 [Gov. Code, § 12940, subd. (a)] 23 (Against all Defendants) 24 23. Mr. Garcia re-alleges and incorporates by reference each of the foregoing 25 allegations as though set forth herein. 26 Disparate Treatment 27 24. Defendants employed Mr. Garcia. 28 25. Prior to terminating Mr. Garcia’s employment, Defendants knew that Mr. Complaint forDamages and Other Relief Garcia had a disability, i.e., a physical condition that limited his ability to work. 26. At all relevant times, Mr. Garcia was able to perform his essential job duties with reasonable accommodation for his disability. 27. Mr. Garcia’s disability was a substantially motivating reason for Defendants’ decision to terminate his employment. Disparate Impact 28. At all relevant times, Defendants had an employment practice of imposing discipline, including termination, based on an employee’s drug test results that unreasonably and unlawfully interfered with the ability of employees with disabilities to 10 obtain leave and other reasonable accommodation. 11 29. Defendants’ employment practice had a disproportionate adverse effect on 12 employees with physical disabilities, including those like Mr. Garcia who have physical 13 conditions and associated chronic pain that limits their ability to work. 14 30. Defendants’ employment practice was a substantially motivating reason for 15 Defendants’ decision to terminate Mr. Garcia’s employment. 16 Damages 17 31. As a result of being subjected to disability discrimination and having his 18 employment terminated, Mr. Garcia has suffered special and general damages in an amount 19 to be proven at trial. 20 32. Mr. Garcia has and continues to suffer lost wages and other benefits of 21 employment in an amount to be proven at trial. 22 33. Mr. Garcia has and continues to suffer emotional distress, anxiety, 23 humiliation, frustration, mental anguish and nervousness in an amount to be proven at trial 24 34- Defendants’ conduct was a substantial factor in causing Mr. Garcia’s damages. 25 35. An award of exemplary and punitive damages against Defendants in an 26 amount to be proven at trial is justified because Defendants’ conduct constitutes oppression, 27 fraud or malice. 28 /// -6- Complaint for Damages and Other Relief SECOND CAUSE OF ACTION FAILURE TO ACCOMMODATE DISABILITY [Gov. Code, § 12940, subd. (m)] (Against all Defendants) 36. Mr. Garcia re-alleges and incorporates by reference each of the foregoing allegations as though set forth herein. 37. Defendants failed to provide reasonable accommodation for Mr. Garcia’s disabling physical condition and associated chronic pain. 38. As a result of Defendants’ failure to provide reasonable accommodation, Mr. 10 Garcia has suffered special and general damages in an amount to be proven at trial. 11 39. Mr. Garcia has and continues to suffer lost wages and other benefits of 12 employment in an amount to be proven at trial. 13 40. Mr. Garcia has and continues to suffer emotional distress, anxiety, 14 humiliation, frustration, mental anguish and nervousness in an amount to be proven at trial 15 41. Defendants’ conduct was a substantial factor in causing Mr. Garcia’s damages. 16 42. An award of exemplary and punitive damages against Defendants in an 17 amount to be proven at trial is justified because Defendants’ conduct constitutes oppression, 18 fraud or malice. 19 THIRD CAUSE OF ACTION 20 FAILURE TO ENGAGE IN GOOD FAITH INTERACTIVE PROCESS 21 [Gov. Code, § 12940, subd. (n)] 22 (Against all Defendants) 23 43. Mr. Garcia re-alleges and incorporates by reference each of the foregoing 24 allegations as though set forth herein. 25 44. Mr. Garcia effectively requested that Defendants make reasonable 26 accommodation for his disabling physical condition and associated chronic pain by putting 27 Defendants on notice that he was taking pain medication on the advice of his doctor. 28 45. Mr. Garcia was willing to participate in an interactive process to determine Complaint for Damages and Other Relief whether reasonable accommodation could be made. 46. Defendants failed to participate in a timely good-faith interactive process with Mr. Garcia to determine whether reasonable accommodation could be made. 47. As a result of Defendants’ failure to participate in a timely good-faith interactive process, Mr. Garcia has suffered special and general damages in an amount to be proven at trial. 48. Mr. Garcia has and continues to suffer lost wages and other benefits of employment in an amount to be proven at trial. 49. Mr. Garcia has and continues to suffer emotional distress, anxiety, 10 humiliation, frustration, mental anguish and nervousness in an amount to be proven at trial 11 50. Defendants’ conduct was a substantial factor in causing Mr. Garcia’s damages. 12 51. An award of exemplary and punitive damages against Defendants in an 13 amount to be proven at trial is justified because Defendants’ conduct constitutes oppression, 14 fraud or malice. 15 FOURTH CAUSE OF ACTION 16 VIOLATION OF RIGHT TO PRIVACY: INTRUSION INTO PRIVATE AFFAIRS 17 (Against all Defendants) 18 52. Mr. Garcia re-alleges and incorporates by reference the allegations set forth in 19 paragraphs 1 through 21 above. 20 53. Mr. Garcia has, and at all times relevant to the claims raised herein has had, a 21 reasonable expectation of medical privacy, autonomy, dignity and sovereignty over himself 22 and his body. 23 54. Defendants intentionally intruded on Mr. Garcia’s medical privacy, autonomy, 24 dignity and sovereignty over himself and his body by requiring him to take a post- 25 employment drug test as a condition of continued employment. 26 55- Defendants’ intrusion was serious and would be highly offensive to a 27 reasonable person. 28 56. Mr. Garcia’s interests in medical privacy, autonomy, dignity and sovereignty -8- Complaint for Damages and Other Relief over himself and his body outweigh Defendants’ reasons or justifications for requiring the drug test. 57- As a result of Defendants’ intrusion on Mr. Garcia’s privacy interests, he has suffered special and general damages in an amount to be proven at trial. 58. Mr. Garcia has and continues to suffer lost wages and other benefits of employment in an amount to be proven at trial. 59. Mr. Garcia has and continues to suffer emotional distress, anxiety, humiliation, frustration, mental anguish and nervousness in an amount to be proven at trial. 60. Defendants’ conduct was a substantial factor in causing Mr. Garcia’s damages. 10 61. An award of exemplary and punitive damages against Defendants in an 11 amount to be proven at trial is justified because Defendants’ conduct constitutes oppression, 12 fraud or malice. 13 FIFTH CAUSE OF ACTION 14 WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY 15 (Against all Defendants) 16 62. Mr. Garcia re-alleges and incorporates by reference each of the foregoing 17 allegations as though set forth herein. 18 63. Defendants’ violation of the public policy against discrimination on the basis of 19 disability embodied in the Fair Employment and Housing Act was a substantial motivating 20 reason for Mr. Garcia’s discharge. 21 64. Defendants’ violation of the public policy against unwarranted intrusion on the} 22 autonomy privacy interests of the individual, including but not limited to the right to privacy] 23 under the California constitution, was a substantial motivating reason for Mr. Garcia’s 24 discharge. 25 65. As a result of Mr. Garcia’s discharge, he has suffered special and general 26 damages in an amount to be proven at trial. 27 66. Mr. Garcia has and continues to suffer lost wages and other benefits of 28 employment in an amount to be proven at trial. Complaint for Damages and Other Relief 67. Mr. Garcia has and continues to suffer emotional distress, anxiety, humiliation, frustration, mental anguish and nervousness in an amount to be proven at trial 68. Defendants’ conduct was a substantial factor in causing Mr. Garcia’s damages. 69. An award of exemplary and punitive damages against Defendants in an amount to be proven at trial is justified because Defendants’ conduct constitutes oppression, fraud or malice. PRAYER FOR RELIEF WHEREFORE, Mr. Garcia hereby prays that the Court enter judgment in his favor and against Defendants, and each of them, as follows: 10 A An award of special damages according to proof; 11 B An award of general damages according to proof; 12 Cc An award of exemplary and punitive damages; 13 An award of prejudgment interest according to law; 14 An order providing declaratory relief; 15 Costs of suit, including attorney’s fees authorized by statute; and 16 Any other and further relief that the Court considers just and proper. 17 DEMAND FOR JURY TRIAL 18 Mr. Garcia hereby demands trial by jury on all issues triable by jury. 19 20 DATED: July 19, 2019 BROOKS LAW, PC 21 B Michael Brooky 22 Michael T. Brooks Attorney for Plaintiff 23 CRESCENCIANO GARCIA 24 25 26 27 28 -10- Complaint for Damages and Other Relief Exhibit 1 i) on “y ‘STATE OF CALIFORNIA | Business. Consumer Services and Housing Agency GOVERNOR EDMUND G_ BROWN (m DIRECTOR KEVIN KISH DEPARTMENT OF FAIR EMPLOYMENT & HOUSING tN, 2218 Kausen Drive, Suite 100 | Elk Grove { CA | 95758 MSee (800) 884-1684 | TDD (800) 700-2320 http:/www.dfeh.ca.gov | email: contact.center@dfeh.ca.gov August 21, 2018 RE: Notice of Filing of Discrimination Complaint DFEH Matter Number: 201808-03291420 Right to Sue: Garcia / The Wine Group, Inc. et al. To All Respondent(s): Enclosed is a copy of a complaint of discrimination that has been filed with the Department of Fair Employment and Housing (DFEH) in accordance with Government Code section 12960. This constitutes service of the complaint pursuant to Government Code section 12962. The complainant has requested an authorization to file a lawsuit. This case is not being investigated by DFEH and is being closed immediately. A copy of the Notice of Case Closure and Right to Sue is enclosed for your records. Please refer to the attached complaint for a list of all respondent(s) and their contact information. No response to DFEH is requested or required. Sincerely, Department of Fair Employment and Housing nd Hous GOVERNOR EDMUND G_ BROWN JR. IRECTOR KEVIN KISH DEPARTMENT OF FAIR Emp LOYMENT & HousinG 2218 Kausen Drive, Suite 100 | Elk Grove | CA1 95758 (800) 884-1684 | TDD (800) 700-2320 http:/Awww.dfeh.ca.gov | email: contact.center@dfeh.ca.gov August 21, 2018 Crescenciano Garcia Parlier, California RE: Notice of Case Closure and Right to Sue DFEH Matter Number: 201808-03291420 Right to Sue: Garcia / The Wine Group, Inc. et al. Dear Crescenciano Garcia, This letter informs you that the above-referenced complaint was filed with the Department of Fair Employment and Housing (DFEH) has been closed effective August 21, 2018 because an immediate Right to Sue notice was requested. DFEH will take no further action on the complaint. This letter is also your Right to Sue notice. According to Government Code section 12965, subdivision (b), a civil action may be brought under the provisions of the Fair Employment and Housing Act against the person, employer, labor organization or employment agency named in the above-referenced complaint. The civil action must be filed within one year from the date of this letter. To obtain a federal Right to Sue notice, you must contact the U.S. Equal Employment Opportunity Commission (EEOC) to file a complaint within 30 days of receipt of this DFEH Notice of Case Closure or within 300 days of the alleged discriminatory act, whichever is earlier. Sincerely, Department of Fair Employment and Housing COMPLAINT OF EMPLOYMENT DISCRIMINATION BEFORE THE STATE OF CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING Under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) In the Matter of the Complaint of Crescenciano Garcia DFEH No. 201808-03291420 Complainant, vs. The Wine Group, Inc. 4596 S Tracy Blvd Tracy, California 95377 10 The Wine Group, Limited Liability Corp 11 4596 S Tracy Blvd Tracy, California 95377 12 Respondents 13 14 1. Respondent The Wine Group, Inc. is an employer subject to suit under the 15 California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). 16 2. Complainant Crescenciano Garcia, resides in the City of Parlier State of California. 17 18 3. Complainant alleges that on or about August 25, 2017, respondent took the following adverse actions: 19 Complainant was harassed because of complainant's disability (physical or 20 mental). 21 Complainant was discriminated against because of complainant's disability 22 (physical or mental) and as a result of the discrimination was terminated, denied a work environment free of discrimination and/or retaliation, denied any employment 23 benefit or privilege, denied reasonable accommodation for a disability, denied work opportunities or assignments. 24 Complainant experienced retaliation because complainant requested or used a 25 disability-related accommodation and as a result was terminated, denied a work 26 ats 27 Complaint — DFEH No. 201808-03291420 28 Date Filed: August 21, 2018 environment free of discrimination and/or retaliation, denied any employment benefit or privilege, denied reasonable accommodation for a disability. Additional Complaint Details: On information and belief: Crescenciano Garcia ("Garcia") began working for The Wine Group ("TWG") in August 2005. Throughout the term of his employment with TWG, Garcia was routinely laid off and then recalled back to work depending on the production needs of the company. On or about June 16, 2017, TWG temporarily laid off Garcia. On or about August 23, 2017, TWG recalled Garcia back to work and required him to submit to a “pre-employment” drug screening. The drug test rendered a positive result for methadone. Garcia did not deny using methadone. He admitted to the 10 person performing the screening that he had recently used methadone on the advice 11 of his doctor. 12 Nevertheless, effective August 25, 2017, Garcia was fired because he tested positive for methadone. No good-faith, interactive process. No accommodation. 13 On or about August 29, 2017, a grievance was filed by Garcia’s union, United Food 14 & Commercial Workers Union (“UFCW’), regarding TWG’s decision to fire Garcia. 15 During the time the grievance was pending, TWG was provided with a letter from Garcia’s long-term treating physician explaining that Garcia had been advised by the 16 doctor to try methadone as a possible alternative to continued use of Norco for control of chronic pain. 17 18 On September 7, 2017, without any substantive discussion with Garcia regarding the doctor’s note or his apparent disability, TWG summarily re-affirmed its decision to 19 terminate Garcia for failing to pass the drug test. No good-faith, interactive process. No accommodation. 20 On or about October 19, 2017, TWG met with representatives of Garcia's union 21 regarding Garcia's termination but not with Garcia himself. As a result of that 22 meeting, still without any substantive discussion with Garcia regarding the doctor's note or his apparent disability, TWG again ratified its decision to terminate Garcia. 23 No good-faith, interactive process. No accommodation. 24 25 26 -2- 27 Complaint - DFEH No. 201808-03291420 28 Date Filed: August 21, 2018 VERIFICATION |, Michael Brooks, am the Attorney in the above-entitled complaint. | have read the foregoing complaint and know the contents thereof. The matters alleged are based on information and belief, which | believe to be true. On August 21, 2018, | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Visalia, CA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -3- 27 Complaint — DFEH No. 201808-03291420 28 Date Filed: August 21, 2018