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MARGARITA FRIAS
4940 Siesta Drive
Oceanside CA 92056
760-941-5924
Plaintiff

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

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MARGARITA FRIAS

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Plaintiff,
v.
VIASAT INC., SCOTT HANNUM
PRODUCTION SUPERVISOR FOR
VIASAT; HUMAN RESOURCE
SPECIALIST CANDICE BRENNER,
CAREY GUYETTE MANUFACTURING
ENGINEERING TECH DOE 1-100

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Defendants,
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Case No. 16CV1610 MMA JMA

[Superior Court of the State of California,
County of San Diego North County Division
Case No. 37-2016-00017070-CU-WT-NC]
Related Case Margarita Frias v. ViaSat, Inc.,
Workers Compensation Appeals Board
Case No. ADJ9883327 Filed: July 8, 2015
PLAINTIFFS MARGARITA FRIAS
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
DEFENDANT VIASAT et. seq., MOTION
TO DISMISS UNDER FRCP 12 (E) AND
12 (b) (6)
Judge :
Date :
Time :
Crtrm :

Hon. Michael M. Anello

08/01/2016
2:30 p.m.
3A

Complaint filed on 06/23/2016

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The defendants, VIASAT INC., SCOTT HANNUM, CANDICE BRENNER, and CAREY

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GUYETTE (collectively the Defendants) have filed a motion to dismiss under Rule 12 (b) (6);

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Motion for a More Definite Statement Rule 12 (e), plaintiffs first amended complaint on file

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herein. Defendants motion is a premature attempt to avoid judicial inquiry into the illegal actions

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against disabled employees, lack of Policies, Practices and Procedures to protect, accommodate

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and compensate employees for their work related injuries while working at ViaSat and wrongful

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termination when employees are found to have work related injuries instead of accommodations.

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Plaintiff opposes the Defendants Motion to Dismiss in its entirety.

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 1

MEMORANDUM OF POINTS AND AUTHORITIES

1.

INTRODUCTION

VIASAT INC., SCOTT HANNUM, CANDICE BRENNER, and CAREY GUYETTE

(collectively the Defendants) have filed a motion to dismiss under Rule 12 (b) (6); Rule 12 (e)

Plaintiffs Amended Complaint on file herein. The plaintiff, Margarita Frias, opposes defendants

motion in its entirety.

ARGUMENT

2.

THIS MOTION FAILS ON ITS MERITS

ALL OF PLAINTIFFS CLAIMS ARE UNDER THE CALIFORNIA

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FAIR EMPLOYMENT ACT

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All of Plaintiffs claims and entire complaint was filed in the Superior Court of the State of

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California North County Division. All claims and entire complaint are based on the violations of

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the state of California Fair Employment Housing Act. FEHA and its Anti-discrimination

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provisions not the ADA.1 In order to make a claim under the FEHA, Plaintiff Margarita Frias

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demonstrated that there was a causal relationship between an unlawfully motivated employment

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decision (i.e., discrimination) and/or workplace policy and the harm that Plaintiff has suffered.

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ViaSats discriminatory practices and wrongful termination has caused Plaintiff financial loss in

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the form of lost wages, medical benefits, dental insurance, life insurance, 401K, bonuses, and

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other benefits, injuries to which she should be able to recover money damages and other relief.

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Defendant ViaSat has made no attempt to interact, mitigate or compensate plaintiff for the

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work related injuries she suffered while employed at ViaSat. Instead ViaSat resorted to

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discriminatory harassment and wrongful termination. Leaving plaintiff without vital medical

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California Government Code section 12940(a) prohibits discrimination in hiring practices or treatment in the
workplace based upon: race, religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual
orientation of any person. In theory, discrimination in the work place is easy to allege: the employer simply treats
some people less favorably than others because of their race, color, religion, sex or national origin.Mixon v. Fair
Employment and Housing Com. 192 Cal.App.3d 1306, 1317 (1987). This, however, downplays the importance of a
causal connection between the injury suffered and the alleged discrimination.

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 2

insurance coverage to cover her medications, treatments and surgeries she requires as a result of

the work related injuries.

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A.

DISPARATE TREATMENT VERSUS DISPARATE IMPACT:

There are two methods in California for demonstrating that an employer harbors an

unlawful discriminatory motive: (1) Disparate Treatment; and (2) Disparate Impact. The facts

which must be proven to demonstrate discrimination vary depending on which of these theories

the employee pursues.

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An employee alleging disparate treatment must demonstrate that:

1. The defendant was an employer;
2. The plaintiff either was an employee of the defendant or had applied to a position offered
by the defendant
3. That the defendant either
Fired or refused to hire the plaintiff;
Subjected the plaintiff to an adverse employment action (an adverse employment
action is any action which materially and adversely affects the terms and conditions of
employment and includes things such as failure to hire, failure to promote, formal
disciplinary action, demotion, suspension, unpaid administrative leave, and termination);or
The plaintiff was constructively discharged (a constructive discharge occurs when an
employer makes continued employment so difficult as to constitute a coerced resignation)
4. The plaintiffs protected classification such as race, gender, or age was a motivating
reason for the adverse employment action;
5. That the plaintiff was harmed; and
6. That the defendant/employers conduct was a substantial factor in causing that harm.
Plaintiff Margarita Frias has provided a complete claim in which she meets all the required

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prongs under the, Disparate Treatment 1. ViaSat was her employer for over on or about 18-years.

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2. Plaintiff was an employee of ViaSat. 3. Plaintiff was fired, she was subjected to an adverse

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employment action. 4. Plaintiff is a person within the protected classification and the

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motivating reason for her termination was due to her disability and need for accommodations.

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5. Plaintiff was harmed by the actions of ViaSat employees and ViaSat wrongfully terminated her

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employment.

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B. THE SHIFTING BURDEN OF PROOF IN EMPLOYMENT DISCRIMINATION

CASES:
Employment discrimination cases progress in a way that involves burden-shifting, where
different parties bear the burden of proof on different issues. To prove a viable
discrimination case, one looks at a couple of the foundational cases for claims brought

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 3

under the Fair Employment and Housing Act (FEHA, California Government Code
section 12900 et seq.).

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In California, there are three steps wherein the burden of proof starts with the employee,

shifts to the employer, and ends with rebuttal by the employee. The basic evidentiary burden for a

discrimination case was outlined in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. The

guidelines are very similar to the elements necessary to make a disparate treatment claim outlined

above. Employees alleging discrimination have the burden to prove that they:

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Belong to the protected class of individuals;

Were subjected to an adverse employment action;

The adverse employment action was motivated by the protected classification; and

The employee was harmed by the adverse employment action.

"Because of the similarity between state and federal employment discrimination laws,

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California courts look to pertinent federal precedent when applying our own statutes." (Guz v.

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Bechtel National, Inc. (2000) 24 Cal. 4th 317, 354 [100 Cal.Rptr.2d 352, 8 P.3d 1089] (Guz).) (2)

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California has adopted the three-stage burden-shifting test for discrimination claims set forth in

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McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668, 93 S.Ct. 1817]. (Guz,

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supra, 24 Cal.4th at pp. 354-356.) "This so-called McDonnell Douglas test reflects the principle

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that direct evidence of intentional discrimination is rare, and that such claims must usually be

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proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows

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discrimination to be inferred from facts that create a reasonable likelihood of bias and are not

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satisfactorily explained." (Guz, supra, 24 Cal.4th at p. 354; see also Mixon v. Fair Employment &

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Housing Com. (1987) 192 Cal. App. 3d 1306, 1317 [237 Cal.Rptr. 884] ["In most cases, the

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complainant will be unable to produce direct evidence of the employer's intent. Consequently

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certain rules regarding the allocation of burdens and order of presentation of proof have

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developed in order to achieve a fair determination of the elusive factual question of intentional

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discrimination.' [Citation.]"].)

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Often it is not necessary to prove that one indisputably belongs to a protected class, but
merely that one is perceived as (and discriminated against because of) belonging to that class.

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 4

While the elements of a plaintiffs prima facie case can vary considerably, generally an employee

need only offer sufficient circumstantial evidence to give rise to a reasonable inference of

discrimination. Once this much has been established, the burden of proof shifts to the employer to

provide a legitimate non-discriminatory reason for the adverse employment action. Sandell v.

Taylor-Listug, Inc. 188 Cal. App. 4th 297, 310 (2010). So long as the injury a person has suffered

is due to being perceived as holding the status that was the basis of employer discrimination, a

person is protected by the FEHA. Once the complainant establishes a prima facie case, the

defendant employer has the burden of proving that there was a legitimate reason for the adverse

treatment of the plaintiff.2

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The Prudence Kay Poppink Act of 2000 (Stats. 2000, c. 1049 (A.B. 2222), 6; Gov. Code,

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12926, 12926.1 & 12940); The California Supreme Courts decision in Green v. State of

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California (2007) 42 Cal. 4th 254 (Green); and The Genetic Information Non-discrimination Act

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of 2008 (GINA) (Stats. 2008, c. 10 (A.B. 1543), 13) (Pub. Law 110-233).1 The Prudence Kay

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Poppink Act (PKP Act) affirmed that the California Legislature intended the FEHA to provide

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wider coverage and stronger protections to Californian applicants and employees with disabilities

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than the Americans with Disabilities Act of 1990 (ADA) (Public Law 101-336) (42 U.S.C.A.

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12101 et seq.). The PKP Act also made the failure to engage in the interactive process a separate

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violation. Once again Plaintiff claim has meet the prongs to advance and adjudicate the claims she

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has brought forth. Further ViaSat has failed to engage in an interactive process or response.

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The 2000 legislation stated that the ADA provided the floor of protection but not a

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ceiling for disability rights in employment. When the PKP Act made the failure to engage in the

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interactive process a separate violation, it adopted the Equal Employment Opportunity

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Commissions (EEOC) interpretative guidance on the interactive process3. The primary object of

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FAIR EMPLOYMENT AND HOUSING COMMISSION DISABILITY REGULATIONS INITIAL STATEMENT

OF REASONS CALIFORNIA CODE OF REGULATIONS Title 2. Administration Div. 4. Fair Employment &
Housing Commission Chapter 1. Administration Subchapter 9. Disability Discrimination 7293.5 General
Prohibitions Against Discrimination on the Basis of Disability These regulations interpret the disability discrimination
provisions of the Fair Employment and Housing Act (FEHA) (Gov. Code, 12900 et seq.),
3 Accordingly, these regulations also conform, to the extent permitted by California law, to the ADA, as amended by
the ADA Amendment Act of 2008 (ADAAA) (Public Law 110- 325), and to the EEOCs recently revised ADAAA
interpretative regulations (29 C.F.R. pt. 1630, et seq, eff. May 24, 2011) to ensure that the FEHA meets their floor of
protection, and to allow 1 The Commission adopted these proposed amended disability regulations on October 3,

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 5

attention in cases brought under the ADAAA (29 C.F.R. pt. 1630.1, subd. (c)(4) should be

whether covered entities have complied with their obligations and whether discrimination has

occurred, not whether the individual meets the definition of disability.

III.

LEGAL STANDING
It appears ViaSat alleges that the entity is immune and that its employees are immune from

liability because the conduct alleged occurred within the course and scope of Plaintiffs

employment (page 1 of Motion to dismiss line 1-19). Neither ViaSat nor its agents / Defendants

are public agencies nor an arm of the state if they were Plaintiff would be addressing the doctrine

of Ex Parte Young, 209 U.S. 123 (1908) and the Seminole Tribe v. Florida, 116 S. Ct. 1114

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(1996).4
A.

RULE 12 (b)(6).
The main purpose of a Rule 12 (b) (6), motion allows the defendant to postpone the answer

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to the complaint. See, e.g., Brown v. Crawford County, 960 F.2d 1002, 1010 (11th Cir. 1992)

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(pointing out that a Rule 12(b)(6) motion preempts the necessity of a defendant's filing an answer

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until the motion is decided by the district court). Under the simplified pleading, cases were

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expected to turn on their substantiate merits rather than on the lawyers, technical and tactical

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skills as had been the case under the common law system. FRIEDENTHAL ET AL., supra note

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11, 5.1, at 237-238. Neitzke v. Williams, 490 U.S. 319, 330 (1989) ("A complaint filed in forma

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2011, before new amendments to the FEHA covering genetic characteristics and genetic information went into effect.
(See Stats. 2011, c. 261 (S.B. 559), referred to as Cal-GINA and modeled after the federal Genetic Information
Nondiscrimination Act of 2008 (GINA), which the Commission had followed in crafting language about genetic
information.) The Commission intends to incorporate any further changes necessitated by S.B. 559 into subsequent
amendments to these regulations after considering public comments it receives on this issue. For ease of reference,
this Initial Statement of Reasons references the current, 2012 Government Code subsection numbers listed in section
12926, rather than the subsection numbers in effect when the Commission adopted these regulations in 2011. There
were no substantive amendments to these definitional subsections.
4
Under the Eleventh Amendment Immunity, a state is not subject to suit by its own citizens in federal court. United
States Constitution Amend. XI; Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). Congress can, however abrogate a
states immunity to suit, or the state can waive it. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 240-41 (1985).
Congress properly abrogated the immunity of the state from suit by applying Seminole Tribe v. Florida, 116 S. Ct.
1114 (1996). The Seminole test contains two parts. (a) Whether Congress has unequivocally expressed its intent to
abrogate the immunity, and (b) whether Congress has acted pursuant to a valid exercise of power in abrogating the
immunity. Id. At 1123 (quoting Green v. Mansour, 474 U.S. 64, 68 (1985).

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MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 6

pauperis is not automatically frivolous within the meaning of 1915(d) because it fails to state a

claim."). A claim cannot be resolved at the pleading stage and satisfy justice. CHARLES A.

WRIGHT, LAW OF FEDERAL COURTS, 68, at 440 (1983).

Justice can be broken down into substantiate justice and procedural justice Procedural

policies are supported by a speedy and inexpensive measures FED. R. Civ. P. 1 which only favor

defendant corporations. In a substantiate justice one needs to look at substantiate laws and

policies, under a substantiate justice a plaintiff must show good faith to seek legal relief in this

regard the applicable standard is sustained in rule 8 (a) which required that a pleading contain a

statement of the claim showing that a pleader is entitled to relief. FEDERAL PROCEDURE, L.

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ED., 62:464 at 575 (THOMAS G. GOGER ed., 1984). 1993].

Plaintiff Margarita Frias has done just that she set out her claims in good faith, with

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substantiate facts of law in compliance with California court rules and guidelines when she filed

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her Complaint in the Court of the State of California and rules of the court and in compliance with

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the Federal Rule of Civil Procedure Rule 8(a). Plaintiff is asking this court for substantiate justice

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and to look beyond the pro se pleadings bias.

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The Supreme Court held in Haines v. Kerner 404 U.S. 519, (1972) Id., at 520,. Cf.infra

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notes 114-116 and accompanying text.) that pro se complaints are to be measured against less

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stringent standards than formal pleadings drafted by lawyers. If a pro se case is to be judged less

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stringently, it is illogical for a court to use stringent standards simply because defendants want a

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speedy dismissal denying the plaintiff access to justice. 4 CEPLA & PALMER, supra note 4,

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14.152, at 236. (citing Haines v. Kerner, 404 U.S. 519 (1972)).

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If plaintiff has clarified the basic kind of nature A jurisdiction adopted the term "true nature

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of the claim" under modern pleading. VA. CT. R. 1:4(d). It provides that every pleading shall state

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the facts on which the party relies, and it shall be sufficient if it clearly informs the opposite party

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of the true nature of the claim. Ian James Wilson & William Louis Payne, Note, The Specificity of

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Pleading in Modern Civil Practice: Addressing Common Misconceptions, 25 U. RICH. L. REv.

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135 (1990). Or context of law suit, the complaint should be deemed as stated essential elements.

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MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 7

The complaint in Dioguardi v Durning 139 F.2d 774 (2d Cir. 1944). Revealed the basic nature of

the dispute. FRIEDENTHAL ET AL., supra note 11, 5.8, at 254.

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Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the form and sufficiency of a
statement of a claim under the liberalized pleading rule.
The purpose of Rule 12(b) (6) seems to conflict with the purpose of modern pleading. It is

said that only when the pleading fails to meet the liberal standard is it subject to dismissal under

Rule 12(b) (6). 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE

AND PROCEDURE 1356, at 296 (2d Ed. 1990). However, the notice pleading theory does not

need a 12(b) (6) motion. At first, Judge Clark, a drafter of the Federal Rules, favored eliminating

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pleading motions altogether. Michael E. Smith, Judge Charles E. Clark and The Federal Rules of

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Civil Procedure, 85 YALE L. J. 914, 927-28 (1976).

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Although the liberal pleading rule generally allows a plaintiff to set forth a claim in a short

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and plain statement, FED. R. Civ. P. 8 provides that a statement of a claim must be "simple,

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concise and direct, as positive, precise, and succinct as possible." See also 4 CEPLA

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and PALMER, CYCLOPEDIA OF FEDERAL PROCEDURE, 14.160, at 248 (3d ed. 1986).

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The Rules of Practice 3.11 (b)(2) require only that the complaint shall contain a clear

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and concise factual statement sufficient to inform each respondent with reasonable definiteness of

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the type of acts..alleged to be in violation of law.

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Plaintiffs complaint meets this standard since it gave Defendant ViaSat and its defendant
employees notice of the charges against them. L.G. Balfour v. FTC, 442 F,3d (7th Cir. 1971). [*2].
Defendant ViaSat allegations are so vague and unstructured (page 2 line 7-11). It states,

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Where it appears to a reasonable certainty that Plaintiff is not entitled to the relief she seeks via

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her second cause of action under any set of probable facts, dismissal of this claim should be with

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prejudice and without leave to amend. Defendants do not provide a set of concrete facts or legal

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standing to support their allegations. The case citations provided by defendants have been

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overridden and are no longer precedent. Further citing Reddy v. Litton Inds. Inc., 912 F2d 291,

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296-97 (1990). Yet Reddy standard was defeated by James Shirley v. University of Idaho, 14-

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36108 (9th Cir. 2015). In delivering his opinion Justice Koziski stated, what I consider to be the

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 8

correct standard to review whether an amended complaint may be struck because it is factually

inconsistent with a prior complaint in the same case. Inconsistencyeven direct contradiction

between a current complaint and an earlier one is not a basis for dismissal. PAE Govt Servs., Inc.

v.MPRI, Inc., 514 F.3d 856, 859 (9th Cir. 2007). The fact that the earlier complaint is inconsistent

may have collateral consequences in the litigation, including possible sanctions under Rule 11 or

undermining the plaintiffs credibility, id. At 859 n.2, but it does not render the current complaint

legally insufficient under Rule 12(b), id. at 860. The district court relied in part on Reddy v. Litton

Industries, Inc., 912 F.2d 291 (9th Cir. 1990), to deny Shirleys motion to amend due to perceived

inconsistencies between his proposed complaint and his earlier complaints..

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B.

PLAINTIFFS PERTINENT BACKGROUND

Plaintiff was hired by ViaSat and worked at ViaSat for on or about 18-years. Plaintiff held

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the position of Phototype Lead Assembler. In those 18-years plaintiff received positive

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evaluations and bonuses. Defendants state that Plaintiff held this position, until her employment

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ended (pg. 2 line 22). Plaintiffs employment did not end she was wrongfully terminated,

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Further ViaSat defendants told plaintiff that she was not the right fit for the company and that they

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had pulled the employees and asked them one by one to pick a person who was not holding their

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own weight [the weaker employee] per defendant Candice Brenner conversation with plaintiff.

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ViaSat withheld Plaintiffs severance pay because ViaSat wanted plaintiff to sign a

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document that stated plaintiff would not sue ViaSat and that she did not have work related injuries.

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Plaintiff had on or about three Workers Compensation work related injuries that left plaintiff for

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the most part permanently disabled per doctors, specialists, MRIs, CT scans, x-rays, medical

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reports, evaluators, and several other medical experts. Plaintiff sustained permanent damages and

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injuries not only limited to and diagnosed as damage to: Radiculopathy lumber region, Chronic

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pain syndrome, Radiculopathy cervical region, Bursitis of shoulder, Neuralgia and neuritis,

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Radiculopathy that originates form the lower back, Rotator cuff, supraspinatus tendon, Biceps

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tendonitis. Plaintiff had surgery to her neck and shoulder rotator cuff. Plaintiff has further

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developed spurs from the injuries to her back. When ViaSat wrongfully terminated plaintiff

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employment Plaintiff was left with no health insurance to pay for the medications for the injuries

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 9

she sustained while she was an employee of ViaSat. The cost of plaintiffs prescriptions, doctors

visits and medical supplies are on or about as follow: $ 2018.00 for medications monthly doctors

and specialist $ 5,220 every two to three months. List of medications and doctors visits are:

Total of 10prescriptions
1.

60

Total cost of
medications
$ 78.00

2.

90

$ 120.00

3.

30

$ 40.00

4.

160

$ 160.00

5.

90

$ 390.00

6.

150

$ 250.00

7.

1% gel

$ 120.00

8.

8-patches

$ 440.00

9.

30

$ 320.00

10.

Cream

$ 100.00

$ 2018.00

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DOCTORS &
SPECIALISTS
Pain Doctor

$ 320.00

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Orthopedic

$ 150.00

Primary doctor every

other month
Physical therapy

$ 150.00

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Total cost $ 5,220

Acupuncture

$150.00 x 6 = $
900.00
$600.00 for 4-visits

Massage

$600.00 for 4-visits

MRI TESTS

Every two years

$ 1,000
5-per year $ 500.00

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X-RAYS
Equipment and
supplies
Shots

$ 500.00 every two

years
$ 500.00 each series of
3 every 2-years

NEED FOR
FURTHER SURGERY

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 10

Defendant further state, she never provided her then-supervisor Bryan Bloom, with any

restrictions (Dfts. Page 2-3 line 25-15). Defendant Candice Brenner had copies of Plaintiffs

Workers Compensation Claims and recommendations. Under the EMPLOYMENT AND

HOUSING COMMISSION DISABILITY REGULATIONS / CALIFORNIA CODE OF

REGULATIONS 7294.1, subd. (b)(2) Notice from Employers Knowledge of Limitations The

Commission added subpart (b)(2) to conform to Prilliman v. United Air Lines, Inc.,53 Cal. App.

4th 935, 952, 954-955 [describing employers accommodation duty as an affirmative duty and

rejecting employer's argument that the disabled employee must first come forward and request a

specific accommodation before the employer has a duty to investigate such accommodation.] and

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Faust v. California Portland Cement Co. (2007) 150 Cal. App. 4th 864, 882, 887 [[A]n employer

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knows an employee has a disability when the employee tells the employer about his condition, or

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when the employer otherwise becomes aware of the condition, such as through a third party or by

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observation.]. Consistent with the Legislatures instructions in Government Code section

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12926.1, subdivision (e), this addition also conforms to the EEOCs guidance on the interactive

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process. (The EEOCs Enforcement Guidance on Reasonable Accommodation and Undue

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Hardship Under the Americans with Disabilities Act (Notice 915.002) (Oct. 17, 2002) at Question

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40 [an employer should initiate the reasonable accommodation interactive process without

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being asked if the employer: (1) knows that the employee has a disability, (2) knows, or has reason

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to know, that the employee is experiencing workplace problems because of the disability, and (3)

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knows, or has reason to know, that the disability prevents the employee from requesting a

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reasonable accommodation After Plaintiffs work related injuries and surgeries she returned to

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work at ViaSat with a permanent disability license plate in the windshield of her vehicle. Pretty

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clear indication that she was disabled and that her disabilities were known to ViaSat employees

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including all defendants.

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C.

DEFENDANT VIASAT NEVER PROVIDED PLAINTIFF WITH

ACCOMODATIONS AS REQUIRED BY LAW

ViaSat does not understand the meaning of accommodations when an employer

accommodates an employee it provides the necessary venues for an employee to continue to

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 11

perform her job in the alternate to offer another position in the company. ViaSat defendant

CAREY GUYETTE would purposely not order the proper tools for plaintiff Margarita Frias to do

her tasks. Therefore, since there was a deadline and the projects needed to be completed plaintiff

had no option but to use alternative tools. As a result of Defendant CAREY GUYETTE deliberate

wrongful actions and harassment plaintiff sustain further permanent injuries. Plaintiff stated that

Defendant CAREY GUYETTE is the person responsible for ordering employee tools and

supplies. Defendant would order and provide the tools for other employees within a day or two

the other employees had the tools and supplies provided to them. However when plaintiff

requested tools and supplies Defendant CAREY GUYETTE would order the supplies weeks and

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months later AFTER plaintiff had already completed the projects with substitute tools.
Plaintiff addressed these issue with her supervisors for-years even in writing but Defendant

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CAREY GUYETTE continued her harassment of plaintiff as a result of not having proper tools

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and supplies plaintiff sustained permanent physical injuries.

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Most California companies are not negligent and do not want their employees to sustain

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injuries, however at ViaSat there are no specific policies, practices or procedures, to protect

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employees and to prevent injuries or in compliance with OSHA. Supervisor Scott Hannum refusal

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to provide assistance for plaintiff in the large cable projects is an example of deliberate negligent,

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discrimination and retaliation. Further when employees volunteered to assist plaintiff Defendant

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Scott Hannum would reprimand them and assign them to another project.

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In an employee accommodation under California Codes 7293.9, subd. (d)(4)

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Reassignment to a Vacant Position The Commission added this provision to conform to three

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separate legal authorities: (1) Government Code section 12926, subdivision (o)(2) [reassignment

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to a vacant position], (2) Prilliman v. United Airlines, Inc. (1997) 53 Cal. App. 4th 935, 950-951

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[an employer who knows of the disability of an employee has an affirmative duty to make known

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to the employee other suitable job opportunities with the employer and to determine whether the

26

employee is interested in, and qualified for, those positions, if the employer can do so without

27

undue hardship]; and (3) Spitzer v. The Good Guys, Inc. (2008) 80 Cal. App. 4th 1376, 1389

28

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 12

[Courts have made it clear that an employer has a duty to reassign a disabled employee if an

already funded, vacant position at the same level exists.].

The Commission anticipates that this addition will clarify the interested parties various

rights and responsibilities when reassignment is the reasonable accommodation, and reduce

litigation on this issue. 7293.9, subd. (b)(4)(A) If accommodation of current position is

impossible. The Commission added subpart (A), requiring exhaustion of efforts to accommodate

the employee in his or her own job before considering reassignment, to conform to Government

Code section 12926.1, subdivision (e), and the EEOCs guidance interpreting the ADA. (The

EEOCs Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the

10

ADA (Notice 915.02 at Reassignment) (10/17/02) [Reassignment is the reasonable

11

accommodation of last resort and is required only after it has been determined that: (1) there are

12

no effective accommodations that will enable the employee to perform the essential functions of

13

his/her current position...].) This allows interested parties to deal with familiar, consistent

14

provisions. The Commission adapted the provision from the EEOCs guidance interpreting the

15

ADA. (The EEOCs Appendix to Part 1630 Interpretative Guidance on Title I of the ADA

16

(7/1/09) (29 C.F.R. pt. 1630.2, app. 1630.2, subd. (o) [An employer may reassign an individual

17

to a lower graded position if there are no accommodations that would enable the employee to

18

remain in the current position and there are no vacant equivalent positions for which the individual

19

is qualified with or without reasonable accommodation.].) This allows interested parties to deal

20

with familiar, consistent provisions.

21

Defendant ViaSat also failed to accommodate plaintiffs disability, failed to provide

22

alternative positions within the company, failed to mitigate and resorted to wrongful termination

23

of plaintiffs employment when she asserted her need for accommodations. In the 18-years

24

plaintiff worked for ViaSat she always had positive reviews and always had bonuses. She never

25

received reprimands or written warnings of any wrongful conduct. When plaintiff asserted her

26

right for accommodations she was immediately terminated by ViaSat defendants HR Candice

27

Brenner and Supervisor Scott Hannum.

28

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 13

1
2

IV.

MOTION TO DISMISS FOR A MORE DEFINITE STATEMENT Rule 12 (e)

Standards Governing Motion to Dismiss. Rule 8(a)(2), Federal Rules of Civil Procedure,

requires that a pleading set forth a short and plain statement of the claim showing that the pleader

is entitled to relief. Under Rule 8(a)(2), a pleading must give fair notice and state the elements of

the claim plainly and succinctly. Jones v. Community Redevelopment Agency, 733 F.2d 646, 649

(9th Cir. 1984). However, before a district courts dismissal of a complaint without leave to

amend will be affirmed, the district court must have first adopted less drastic alternatives, such as

advising plaintiff of the deficiencies in the pleading and giving leave to amend to correct them.

Behind the policy there is a basic precept that the primary objective of law is to obtain a decision

10

on the merits of the claim; and that a cause should be tried substantially on the merits rather than

11

technically on the pleadings Rennie & Laughlin, Inc. v. Chrysler Corp., 242 F.2d 208, 213 (9th

12

Cir. 1957) (citing DeLoach v. Crowley's, Inc., 128 F.2d 378, 380 (5th Cir. 1942).

13

If the complaint lacks details which Defendants can mount a defense against Plaintiffs allegation,

14

but such details need to be given in the compliant. The Rules of Practice 3.11 (b)(2) require

15

only that the complaint shall contain a clear and concise factual statement sufficient to inform

16

each respondent with reasonable definiteness of the type of acts..alleged to be in violation of

17

law. Plaintiffs complaint meets this standard since it give Defendant ViaSat and its defendant

18

employees notice of the charges against them. L.G. Balfour v. FTC, 442 F,3d (7th Cir. 1971). [*2].

19
20
21

A. THE COURT MUST CONSIDER THE COMPLAINT IN ITS ENTIRETY

WHEN EVALUATING A MOTION TO DISMISS
Federal Rule of Civil Procedure 8(a) states that a complaint should contain a short and plain

22

statement of the claim showing that the pleader is entitled to relief, Fed. R. Civ. P. 8(a)(2), and

23

that [e]ach allegation must be simple, concise, and direct. Fed. R. Civ. P. 8(d)(1). The Supreme

24

Court has explained that a complaint need only give the defendant fair notice of what the

25

plaintiffs claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S.

26

506, 512 (2002); accord Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 568 n.15 (1987)

27

(under Federal Rule 8, claimant has no duty to set out all of the relevant facts in his complaint).

28

Specific facts are not necessary in a Complaint; instead, the statement need only give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests. Epos Tech.,

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 14

636 F. Supp.2d 57, 63 (D.D.C. 2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555

(2007)). Thus, the Federal Rules embody notice pleading and require only a concise statement

of the claim, rather than evidentiary facts.

Motions to dismiss for failure to state a claim under Federal Rules of Civil Procedure, Rule

12(b)(6) are viewed with disfavor, and, accordingly, dismissals for failure to state a claim are

rarely granted. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation

omitted). In deciding a motion to dismiss, the court must accept as true the allegations of the

complaint and draw reasonable inferences in the plaintiffs favor. Doe v. United States, 419 F.3d

1058, 1062 (9th Cir. 2005). Inquiry into the adequacy of the evidence is improper. Enesco Corp. v.

10

Price/Costco, Inc., 146 F.3d 1083, 1085 (9th Cir. 1998). In considering whether the complaint is

11

sufficient to state a claim, a court will take all material allegations as true and construe them in the

12

light most favorable to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986).

13
14

B.

PLAINTIFFS SECOND AND FOURTH CAUSES OF

ACTION ARE VIABLE CLAIMS.

15

As plaintiff clearly stated in her complaint Defendant Scott Hannum and Candice Brenner

16

conspired to terminate her employment. Further that Carey Guyette harassed and discriminated

17

against her for years. Defendants argue that, under both Reno v. Baird, 18 Cal. 4th 640, 663

18

(1998) and Jones v. Lodge at Torrey Pines Partnership, 42 Cal 4th 1158, 1162-67 (2008) no

19

individual liability for FEHA discrimination or retaliation claims. Therefore Plaintiffs second

20

cause of action [and fourth] fails as a matter of law with respect to all defendants and should be

21

dismissed without leave.

22

In Jones v. Lodge at Torrey Pines Partnership the California Supreme court began with this

23

paragraph, We granted defendants petition for review limited to the question whether

24

an individual may be held personally liable for retaliation under the FEHA.

25

In its decision the California Supreme Court cited, Communities, Inc. v. City of Los

26

Angeles, supra, 34 Cal.4th at p. 737.)

27
28

Reno was also discussed, intended only to ensure that employers will be held liable if
their supervisory employees take actions later found discriminatory, and that employers cannot

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 15

avoid liability by arguing that a supervisor failed to follow instructions or deviated from the

employers policy. (Reno, supra, 18 Cal.4th at p. 647, quoting Janken v. GM Hughes

Electronics (1996) 46 Cal.App.4th 55, 66 (Janken).)5 The California Supreme Courts opinion

was very narrow and only interpreted Retaliation. This opinion was at odds with previous

appellate rulings, US Supreme Court Rulings, US and California legislation, many precedent

doctrines like the Doctrine of Respondeat Superior, Ex Parte Young, ADA, IDEA, EEOC, FEHA,

Qualified and Sovereign Immunity doctrines and more.

The California Supreme Court never addressed employers liability or the doctrine of

Respondeat Superior6 or even how the other precedent doctrines would be affected by this

10

opinion. Most of the California Supreme Court decision ruling only addresses the hardship of an

11

individual supervisor to be liable under a suit.

12

Justice Morenos dissent argues, in part, that, a supervisor who is liable for harassment

13

should also be liable for retaliating against someone who opposes or reports that harassment.

14

This case does not present that situation. Although plaintiff included a cause of action for

15

harassment in his complaint, the trial court ruled, in a ruling long-since final and binding in this

16

case, that there was no actionable harassment. Therefore, Weiss is not liable for harassment.

17

Because the issue is not presented, we express no opinion on whether an individual who

18

is personally liable for harassment might also be personally liable for retaliating against someone

19

who opposes or reports that same harassment. Justice Werdegars dissent asserts that, our

20
21
5

22
23
24
25
26
27
28

The question whether personal liability exists where the statutes prohibit discrimination by any person acting as an
agent of an employer ( 12926, subd. (d)) and by any person who aids and abets an unlawful employment
practice ( 12940, subd. (i)) which we resolved in Reno, supra, 18 Cal.4th 640 is similar to the question
presented here whether personal liability exists where the statute prohibits retaliation by any employer, labor
organization, employment agency, or person . . . . (Id., subd. (h).) We can and must analyze it similarly. In context,
the Legislature may have used the word person in subdivision (h) for reasons unrelated to a desire to make
individuals personally liable for retaliation.
Subdivision (h) is a catchall provision aimed at prohibiting retaliation against any person because the person has
opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in
any proceeding
6 The common-law doctrine of respondeat superior was established in seventeenthcenturyEngland to define the legal liability of an employer for the actions of an employee. Thedoctrine was adopted in
the United States and has been a fixture of agency law. Itprovides a better chance for an injured party to actually reco
ver damages, because underrespondeat superior the employer is liable for the injuries caused by an employee who isw
orking within the scope of his employment relationship.The legal relationship between anemployer and an employee i
s called agency. The employer is called the principal whenengaging someone to act for him. The person who does the

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 16

conclusion undermines the entire purpose of the FEHA. (Dis. opn. of Werdegar, J., post, at p. 2.)

Here, the jury awarded plaintiff a judgment of $1,395,000 against his employer, an award

no longer at issue in this case. Because the FEHA targets unlawful employment practices (

12940), we suggest that imposing a substantial judgment against the employer rather than a

nonemployer does not entirely undermine its purpose

V. FAIR EMPLOYMENT AND HOUSING COUNCILS AMENDED ITS FAIR

EMPLOYMENT AND HOUSING ACT REGULATIONS

To clarify the California Supreme Court decision in Jones v. Lodge at Torrey Pines

Partnership the California Councils Amendments to its Fair Employment and Housing Act

10

Regulations has been approved by the Office of Administrative Law and was filed with the

11

Secretary of State on December 9, 2015. The effective date of the regulations is April 1,

12

2016.

13

Authority cited: Section 12935(a), Government Code. Reference: Sections 12920 and

14

12921(a), Government Code. 11008. Definitions. As used in this chapter, the following

15

definitions shall apply unless the context otherwise requires:

16

(ad) Employer. Any person or individual engaged in any business or enterprise regularly

17

employing five or more individuals, including individuals performing any service under any

18

appointment, contract of hire or apprenticeship, express or implied, oral or written.

19

1. Regularly employing means employing five or more individuals for each working day in

20

any twenty consecutive calendar weeks in the current calendar year or preceding calendar

21

year regardless of whether the employees worksite is located within or outside of

22

California. While employees located outside of California are counted in determining

23

whether employers employ five or more individuals for coverage purposes, the employees

24

located outside of California are not themselves covered by the protections of the Act if

25

the wrongful conduct did not occur in California and it was not ratified by decision

26

makers or participants located in California.

27
28

work for the employer iscalled the agent. The theory behind respondeat superior is that the principal controls theagent'
s behavior and must then assume some responsibility for the agent's actions.

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 17

2. For purposes of counting the (five or more) employees, the individuals employed need

not be employees as defined below above; nor must any of them be full-time employees.

Employees on paid or unpaid leave, including CFRA leave, leave of absence, disciplinary

suspension, or other leave, are counted.

5
6

3. Any person or individual acting as an agent of an employer, directly or indirectly, is also

an employer.

4. Employer includes the State of California, any political or civil subdivision thereof,

counties, cities, city and county, local agencies, or special districts, irrespective of

whether that entity employs five or more individuals.

10
11
12
13
14
15

5. A religious association or religious corporation not organized for private profit is not an
employer under the meaning of this Act;.
6. Employer includes any non-profit corporation or non-profit association other than that
defined in subsection (5).
11009. Principles of Employment Discrimination.
(b) Liability of Employers. In view of the common law theory of respondeat superior and

16

its codification in California Civil Code section 2338, an employer or other covered entity shall be

17

liable for the discriminatory actions of its supervisors, managers or agents committed within the

18

scope of their employment or relationship with the covered entity or, as defined in section

19

11019(b), for the discriminatory actions of its employees where it is demonstrated that, as a result

20

of any such discriminatory action, the applicant or employee has suffered a loss of or has been

21

denied an employment benefit.

22

Article 2. Particular Employment Practices

23

11019. Terms, Conditions and Privileges of Employment.

24

(6) An employee who engages in unlawful harassment of a co-employee is personally liable for

25

the harassment, regardless of whether the employer knew or should have known of the conduct

26

and/or failed to take appropriate corrective action.

27
28

The California Councils Amendments to its Fair Employment and Housing Act Regulations
that took effect on April 1, 2016 clarifies and reaffirms Plaintiffs Margarita Frias claims and

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 18

causes of actions against ViaSat Inc., as well as ViaSat Supervisor Scott Hannum, Human

Resource Specialist Candice Brenner and Carey Guyette liability and viable causes of actions

against ViaSat and its employees as employers themselves. All named defendants are

personally liable for the harassment, regardless of whether the employer knew or should have

known of the conduct and/or failed to take appropriate corrective action. Plaintiff Margarita

Frias reaffirms and realleges that All of ViaSat defendants engaged and co conspired in the

wrongful acts and wrongful termination of plaintiff in one way of another.

VI.

ASSEMBLY BILL No. 987 AMENDED AND CLARIFIED RETALIATION

AND PERSONAL LIABILITY UPON AN EMPLOYER

10

In the summer of 2015, California Governor Jerry Brown signed Assembly Bill No. 987,

11

which, as of January 1, 2016, amended Californias Fair Employment and Housing Act

12

(Government Code section 12940 et seq.) (FEHA) to prohibit an employer from retaliating

13

and/or otherwise discriminating against a person for requesting an accommodation of his or her

14

disability or religious belief regardless of whether the request for accommodation was granted.7

15
16
7

17
18
19
20
21
22
23
24
25
26
27
28

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.
The Legislature finds and declares the following:
(a) A request for reasonable accommodation based on religion or disability constitutes protected activity under Section
12940 of the Government Code, such that when a person makes such a request, he or she is protected against
retaliation for making the request.
(b) The Legislature recognizes that federal law affords similar protection to a person making such a request, as
articulated by the Equal Employment Opportunity Commission in its interpretative guidance of the Americans with
Disabilities Act of 1990 (Public Law 101-336) and Title VII of the Civil Rights Act of 1964 (Public Law 88-352, as
amended). The Legislature affirms that the federal acts provide a floor of protection and that this states law has
always exceeded in the protections afforded.
(c) The law of this state contains similar protections for a person making a request for reasonable accommodation
under the Pregnancy Disability Leave Law (Section 12945 of the Government Code) and the California Family Rights
Act (Sections 12945.2 and 19702.3 of the Government Code). It is the intent of the Legislature for the protections
afforded a person making a request for accommodation on the basis of religion or disability to be consistent with the
provisions of the Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of
Title 2 of the Government Code).
(d) Notwithstanding any interpretation of this issue in Rope v. Auto-Chlor Sys. of Washington, Inc., (2013) 220 Cal.
App. 4th 635, the Legislature intends (1) to make clear that a request for reasonable accommodation on the basis of
religion or disability is a protected activity, and (2) by enacting paragraph (2) of subdivision (m) and paragraph (4) of
subdivision (l) of Section 12940, to provide protection against retaliation when an individual makes a request for
reasonable accommodation under these sections, regardless of whether the request was granted. With the exception of
its holding on this issue, Rope v. Auto-Chlor Sys. of Washington, Inc., (2013) 220 Cal. App. 4th 635 remains good
law.

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 19

The new law abrogates the 2013 holding in Rope v. Auto-Chlor System of Washington, Inc.,

220 Cal.App.4th 635 (2013), that a mere request for an accommodation, without more, does not

constitute a protected activity sufficient to support a claim of retaliation in violation of FEHA.

AB No. 987 now disposes of the Rope holding and expands the protection of FEHA to allow an

employee to use a mere request for an accommodation as evidence of engaging in a protected

activity for the purposes of bringing a retaliation and/or discrimination claim. See Govt. Code

12940(l)(4), 12940(m)(2).

8
9

With the California signed Assembly Bill No. 987, which is in effect, as of January 1, 2016
ratifies the protection for employees seeking remedies for a protected activity such as request of

10

accommodations as in plaintiffs case wrongful termination supporting her claim and causes of

11

actions a mere request for accommodations is sufficient to support a claim for retaliation in

12

violation of FEHA. In conjunction with the new FEHA regulation that took effect on April 1,

13

2016 affirming that ViaSat defendants are employers for the purpose of liability and personally

14

liable for the wrongful, violations, discrimination, harassment and retaliation and wrongful

15

termination of plaintiff Margarita Frias. All named defendants are personally liable for the

16

harassment, regardless of whether the employer knew or should have known of the conduct

17

and/or failed to take appropriate corrective action.

18

VII. CONCLUSION

19
20

Defendants Motion to dismiss should be denied as the arguments Defendants raise are

21

meritless. Analysis of the Complaint as a whole demonstrates that the Complaint contains a

22

detailed factual account that more than satisfies Fed. R. Civ. P. 8. Defendants attempt to have

23

Plaintiff Margarita Frias Complaint dismiss should be rejected.

24

For the foregoing reasons, Plaintiffs respectfully request that the Court deny Defendants

25

Motion to Dismiss in its entirety, or in the alternative grant leave to amend.

26

DATED: July 13, 2016

Respectfully submitted,

27
28

By:

________________________
Margarita Frias

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 20

1
2

VERIFICATION
United States District Court Southern District of California

3
4

I have read the foregoing MEMORANDUM OF POINTS AND AUTHORITIES IN

OPPOSITION TO DEFENDANTS MOTION TO DISMISS UNDER FRCP 12 (b) (6) and 12 (e)

and know its contents.

I am a party to this action. The matters stated in the foregoing document are true of my

own knowledge except as to those matters which are stated on information and belief, and as to

those matters I believe them to be true.

10

I declare under penalty of perjury under the laws of the State of California that the

11

foregoing is true and correct to the best of my knowledge.

12

Executed on July 13, 2016 at Oceanside Ca, California.

13
14

______________

___
_______________________

15

Margarita Frias

16
17
18
19
20
21
22
23
24
25
26
27
28

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 21

1
2
3

PROOF OR SERVICE
I, the undersigned, declare that I served the notice (s) bellow as indicated:
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO

DEFENDANTS MOTION TO DISMISS UNDER FRCP 12 (b) (6) and 12 (e)

The above described notice (s) were served on the following named parties in the matter set forth

below:

Name (s) : Attorney for ViaSat Inc. Lauren E. La Val (SBN 273990)
Address : 101 West Broadway, Ninth Floor San Diego Ca. 92101-8525
Name (s) : Attorney Mahdis Kaeni, Esq.
Address : 1516 N. Broadway, Santa Ana, CA 92706

8
9
10

[X]

1.

Personal Service

By delivering a copy of the notice (s) to

[ ]

2.

Constructive Service

each of the above personally:

11
12

[1]. On: July 13, 2016

13

[2]. At:__________________
14

[X]

4.

and thereafter emailing a copy to each said party [Mahdis Kaeni Esq] and by

15

depositing said copies by US Postal Mail on date: July 13 from city Oceanside CA in
16

a sealed envelope with postage fully prepaid, addressed, to each said party at
17

the place where the property is situated or:

18

At the time of service I was over the age of 18 years of age, I declare under penalty of perjury
19

that the forgoing is true and correct.

20

Person who served the papers:

21
22

Name: Silvia Peters

Address:

23

______________________________

Oceanside CA 92056

24
25
26
27
28

MPA in Opposition to Defts. Motion to Dismiss Under Rule 12 (b) (6); (e).

pg. 22