Borodaenko v. Twitter, Inc.

• Court: District Court, N.D. California
• Decided: August 21, 2024
• Docket: 3:22-cv-07226
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DMITRY BORODAENKO, et al., Case No. 22-cv-07226-AMO

8 Plaintiffs, ORDER RE MOTION TO DISMISS 9 v. AND MOTION TO STRIKE

10 TWITTER, INC., et al., Re: Dkt. No. 47 Defendants. 11

12 13 This is a putative class action involving claims of employment discrimination. Before the 14 Court is Defendants Twitter, Inc.’s and X Corp.’s motion to dismiss the Second Amended 15 Complaint and to strike portions thereof. The matter is fully briefed and suitable for decision 16 without oral argument. Accordingly, the hearing set for June 20, 2024, was VACATED. See Civ. 17 L.R. 7-1(b). Having read the parties’ papers and carefully considered their arguments and the 18 relevant legal authority, and good cause appearing, the Court hereby GRANTS the motion to 19 strike in part and GRANTS the motion to dismiss, for the following reasons. 20 I. BACKGROUND 21 A. Factual Background1 22 Dimitry Borodaenko is a former Engineering Manager who worked at Defendant Twitter, 23 Inc., from June 2021 until November 2022. Second Am. Compl. (“SAC,” ECF 42) ¶ 13. 24 Borodaenko, a cancer survivor, is particularly vulnerable to COVID-19, and he is unable to work 25 26

27 1 Unless otherwise noted, the Court accepts Plaintiff’s allegations in the SAC as true and construes 1 in an office due to his disability. SAC ¶ 36. Hana Thier is a former Senior Software Engineer that 2 worked at Twitter from May 2021 until November 2022.2 SAC ¶ 14. 3 Musk completed his purchase of Twitter in late October 2022 and immediately began a 4 reduction-in-force (“RIF”), laying off more than half of its workforce. SAC ¶¶ 4, 24, 33. On 5 November 9, 2022, Musk announced that he was ending Twitter’s remote work policy effective 6 immediately and that all employees who did not return to the office would be terminated, with 7 exceptions made for only “exceptional people.” SAC ¶¶ 29-31. 8 After Musk acquired Twitter, he was openly hostile toward disabled employees and 9 insinuated that they were lazy. SAC ¶ 32. For example, Musk tweeted that a disabled former 10 Twitter employee used his disability as an excuse not to work, and he also joked about an 11 employee having Tourette’s syndrome. SAC ¶ 32. Musk also described employees who worked 12 from home as “morally wrong.” SAC ¶ 32. 13 Twitter’s sudden reversal of its previously liberal remote work policy, requiring employees 14 to report to physical offices or face termination, disparately affected disabled employees. SAC 15 ¶¶ 30-32, 34, Counts I, III. For example, Borodaenko, who has a cancer-related disability that 16 makes him vulnerable to COVID-19, was promised when he joined Twitter that he would always 17 have the option to work remotely. SAC ¶¶ 35-36. Shortly after Musk announced that he was 18 ending Twitter’s remote work policy, Borodaenko informed his manager of his disability and 19 stated that he would continue to work from home. SAC ¶¶ 37-41. Twitter terminated Borodaenko 20 on November 15, 2022, explaining that “[his] recent behavior has violated company policy.” SAC 21 ¶¶ 41-42. 22 After Musk acquired Twitter, he made clear that continuing to work for Twitter would 23 demand extraordinary effort and long work hours. SAC ¶¶ 43-45. Employees were observed 24 working twelve-hour shifts, seven days a week, sleeping in Twitter offices, and working nonstop 25 to complete certain projects. SAC ¶ 44. Borodaenko’s workload ballooned, and his number of 26 direct reports increased from approximately ten to 16. SAC ¶ 46. On November 16, 2022, Musk 27 1 informed his employees that continuing to work for Twitter would require “working long hours at 2 high intensity” and being “extremely hardcore,” and that only those employees who demonstrate 3 “exceptional performance” would pass muster. SAC ¶¶ 47-48. Employees were told that if they 4 did not opt in to Musk’s “hardcore” conditions by November 17, 2022, at 5:00 p.m., they would 5 be laid off. SAC ¶¶ 47-48. 6 This ultimatum and Musk’s behavior deterred disabled employees from feeling that they 7 could continue to work at the company. SAC ¶ 50. For example, Thier has been diagnosed with 8 depression, and following Musk’s ultimatum, she felt that she could no longer work at Twitter 9 given her disability. SAC ¶¶ 51-52. Thier needed a stable work environment with clear and 10 reasonable expectations as an accommodation for her disability. SAC ¶ 52. As such, she did not 11 click yes on the ultimatum link that Musk sent employees on November 16, 2022, and on the next 12 day, Twitter laid her off. SAC ¶¶ 52-53. 13 B. Procedural History 14 Plaintiff Borodaenko filed this class action lawsuit on November 16, 2022, asserting class 15 claims for discrimination in violation of the Americans with Disabilities Act (“ADA”), the 16 California Fair Employment and Housing Act (“FEHA”), and the Declaratory Judgment Act, 28 17 U.S.C. §§ 2201-02. Plaintiffs filed an Amended Class Action Complaint (“FAC,” ECF 8) on 18 December 7, 2022, adding Abhijit Mehta as a plaintiff and asserting additional class claims for 19 violations of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., and 20 California Family Rights Act (“CFRA”), Gov. Code. § 12945.2. 21 On May 5, 2023, the Honorable Haywood S. Gilliam, Jr., granted Twitter’s motion to 22 dismiss Plaintiff Borodaenko’s claims and compelled Plaintiff Mehta’s claims to arbitration. ECF 23 35. In his Order, Judge Gilliam stated that “Plaintiff may file an amended complaint within 21 24 days of the date of this order.” ECF 35 at 8. 25 Plaintiffs filed their Second Amended Complaint on May 26, 2023, soon after this case 26 was transferred to the undersigned. ECF 42. The Second Amended Complaint (“SAC”) added an 27 additional plaintiff, Hana Thier, in order to address a number of issues that led the court to dismiss 1 Twitter engaged in sex discrimination in violation of Title VII. SAC, Count II. To summarize, 2 the SAC advances the following claims: 3 • Count 1: Discrimination in violation of the ADA, 42 U.S.C. §§ 12101, et seq. (Borodaenko 4 and Thier); 5 • Count 2: Discrimination in violation of Title VII, 42 U.S.C. §§ 2000e, et seq. (sex 6 discrimination), (Thier); and 7 • Count 3: Discrimination in violation of FEHA, Cal. Gov’t Code § 12940 (Borodaenko). 8 See generally SAC (ECF 42). 9 II. DISCUSSION 10 Twitter moves to dismiss all the three counts listed above. In addition, it moves to strike 11 substantial parts of the SAC, including the new allegations associated with the new Plaintiff, 12 Thier, and class claims. Because it shapes the scope of the motion to dismiss, the Court first 13 considers the motion to strike. 14 A. Motion to Strike 15 Twitter moves to strike two substantial portions of the SAC: the newly presented 16 allegations of Thier, and the allegations regarding class claims. 17 1. Striking Thier’s Allegations 18 Twitter argues that Thier must be stricken from the SAC because the unauthorized addition 19 of a new plaintiff, with an entirely new theory of discrimination, violates Federal Rule of Civil 20 Procedure 15 and exceeds the scope of the earlier order of dismissal. 21 After the time for amending as-of-right has passed, “a party may amend its pleading only 22 with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. Pro. 15(a)(2). Courts 23 generally limit leave to amend a complaint to circumstances where additional allegations are 24 consistent with, not contradictory to, the allegations in the original complaint. United States v. 25 Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011). As recognized by another court in one of 26 the Twitter cases brought by Plaintiffs’ counsel, “[C]ourts in this district consistently strike or 27 dismiss parties and claims that exceed the scope of an order granting leave to amend.” Strifling v. 1 cases and striking a newly-added plaintiff along with her newly-presented claims of 2 discrimination). 3 Here, Judge Gilliam compelled Plaintiff Mehta’s claims to arbitration and stated, “The 4 Court also GRANTS the motion to dismiss as to Plaintiff Borodaenko’s claims. [Citation.] 5 Plaintiff may file an amended complaint within 21 days of the date of this order.” ECF 35 at 8. 6 This followed an earlier note that “[a]ny references to ‘Plaintiff’ refer to Mr. Borodaenko unless 7 otherwise specified.” Id. at 2. Twitter avers that Judge Gilliam’s order was limited to granting 8 Borodaenko (not Mehta nor any other potential new plaintiff) leave to amend to allow him an 9 opportunity to cure the defects identified with the originally-pleaded disability discrimination 10 claims. Borodaenko and Thier counter that the order did not impose any limitations on the 11 amended complaint and that the addition of Thier addresses issues identified by the court 12 regarding the deficiencies in alleging disability discrimination in the FAC. 13 Judge Gilliam’s order is sufficiently clear that Borodaenko was the sole remaining 14 Plaintiff, particularly given the preceding six pages’ stated focus on the claims of Borodaenko as 15 the remaining Plaintiff. See generally ECF 35. The court granted a single Plaintiff, Borodaenko, 16 leave to amend to address the deficiencies highlighted earlier in the order. The addition of another 17 plaintiff and another theory of discrimination does not comport with the court’s instruction. 18 Thier’s allegations of sex-based discrimination have no basis in the previous two iterations of the 19 complaint, which concerned disability discrimination. Plaintiffs’ introduction of Thier absent 20 consent of Twitter or leave of court therefore falls outside the permission granted and violates 21 Rule 15(a)(2). See also Strifling, 2024 WL 54976, at *1. The Court therefore strikes Plaintiff 22 Thier and her allegations. 23 2. Striking of Class Claims 24 The function of a motion to strike under Rule 12(f) is to “avoid the expenditure of time and 25 money that must arise from litigating spurious issues by dispensing with those issues prior to 26 trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (citation and 27 internal quotation marks omitted). A court may “strike class allegations prior to discovery if the 1 Supp. 2d 1123, 1146 (N.D. Cal. 2010); Sanders v. Apple Inc., 672 F. Supp. 2d 978, 990 (N.D. Cal. 2 2009); see Fed. R. Civ. P. 23(d)(1)(D) (a court may “require that the pleadings be amended to 3 eliminate allegations about representation of absent persons and that the action proceed 4 accordingly.”). However, motions to strike class allegations are disfavored because a motion for 5 class certification is a more appropriate vehicle for arguments pertaining to the class allegations. 6 See Thorpe v. Abbott Laboratories, Inc., 534 F. Supp. 2d 1120, 1125 (N.D. Cal. 2008); Azad v. 7 Tokio Marine HCC-Med. Ins. Servs. LLC, No. 17-CV-00618-PJH, 2017 WL 3007040, at *8 (N.D. 8 Cal. July 14, 2017); see also In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 9 609, 614-15 (N.D. Cal. 2007) (“Generally, courts review class allegations through a motion for 10 class certification.”). The decision whether to strike allegations is a matter within the court’s 11 discretion. Biggins v. Wells Fargo & Co., 266 F.R.D. 399, 406 (N.D. Cal. 2009). 12 Twitter argues that Borodaenko’s proposed class claims should be stricken because they 13 require highly individualized assessments to determine class membership. But here, Borodaenko 14 alleges that Twitter’s ultimatum had a discriminatory effect on workers with disabilities. See SAC 15 ¶¶ 30-53. Whether those allegations are sufficient to state a claim remains a question to be tested, 16 but it is inappropriate to determine their applicability across a putative class at the pleading stage. 17 To the extent Twitter challenges the putative class definition as indefinite, questions about 18 ascertainability of the class are “best decided at the class certification stage with the benefit of 19 more complete briefing and development of the record.” TopDevz, LLC v. LinkedIn Corp., 2021 20 WL 3373914, at *12 (N.D. Cal. Aug. 3, 2021). Twitter’s argument is properly resolved at the 21 class certification stage, and the Court accordingly denies the motion to strike the class allegations 22 at the pleading stage. 23 B. Motion to Dismiss 24 With the elimination of Thier, the remaining claims of disability discrimination must be 25 tested for their pleading sufficiency. 26 1. Legal Standard 27 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal 1 Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that a complaint include a 2 “short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. 3 P. 8(a)(2), a complaint may be dismissed under Rule 12(b)(6) if the plaintiff fails to state a 4 cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory. 5 Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). 6 While the court is to accept as true all the factual allegations in the complaint, legally 7 conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft 8 v. Iqbal, 556 U.S. 662, 678-79 (2009). The complaint must proffer sufficient facts to state a claim 9 for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 558-59 10 (2007) (citations and quotations omitted). 11 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 12 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 13 Iqbal, 556 U.S. at 678 (citation omitted). “[W]here the well-pleaded facts do not permit the court 14 to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not 15 ‘show[n]’ – that the pleader is entitled to relief.” Id. at 679. Where dismissal is warranted, it is 16 generally without prejudice, unless it is clear the complaint cannot be saved by any amendment. 17 Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 2005). 18 2. Disability Discrimination Under the ADA and FEHA 19 “A disability discrimination claim may be based on ‘one of three theories of liability: 20 disparate treatment, disparate impact, or failure to make a reasonable accommodation.’” Payan v. 21 Los Angeles Cmty. Coll. Dist., 11 F.4th 729, 738 (9th Cir. 2021) (citing Davis v. Shah, 821 F.3d 22 231, 260 (2d Cir. 2016)). The parties do not dispute that the pleading standard for disability 23 discrimination remains the same under both the ADA and FEHA. Humphrey v. Memorial 24 Hospitals Ass’n, 239 F.3d 1128, 1133 (9th Cir. 2001). 25 Although not specified in the SAC, Borodaenko argues that he states a claim for disability 26 discrimination under both disparate treatment and disparate impact theories. See Opp. at 7. The 27 Court elects to review the sufficiency of the allegations under a theory of disparate treatment 1 a. Disparate Treatment 2 Disparate treatment occurs “where an employer ‘treat[s] [a] particular person less 3 favorably than others because of’ a protected trait.” Ricci v. DeStefano, 557 U.S. 557, 577 (2009) 4 (quoting Watson v. Forth Worth Bank & Tr., 487 U.S. 977, 985-86 (1988)). “To establish a prima 5 facie case, plaintiffs must offer evidence that gives rise to an inference of unlawful 6 discrimination,” which they may do with “circumstantial evidence by showing: (1) that they are 7 members of a protected class; (2) that they were qualified for their positions and performing their 8 jobs satisfactorily; (3) that they experienced adverse employment actions; and (4) that similarly 9 situated individuals outside their protected class were treated more favorably, or other 10 circumstances surrounding the adverse employment action give rise to an inference of 11 discrimination.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) (citations, 12 internal quotation marks, and brackets omitted). In support of the final element, a plaintiff must 13 allege that “the defendant had a discriminatory intent or motive” in taking an adverse employment 14 action against them. Watson, 487 U.S. at 986. Thus, “[i]t is insufficient for a plaintiff alleging 15 discrimination under the disparate treatment theory to show the employer was merely aware of the 16 adverse consequences the policy would have on a protected group.” Wood v. City of San Diego, 17 678 F.3d 1075, 1081 (9th Cir. 2012) (quoting Am. Fed’n of State, Cnty., & Mun. Emps. v. 18 Washington, 770 F.2d 1401, 1405 (9th Cir. 1985)). 19 Twitter attacks the sufficiency of pleading on the fourth element, arguing that Borodaenko 20 still fails to allege how Twitter’s post-RIF policies specifically impacted employees with 21 disabilities rather than Twitter’s employees broadly. See SAC ¶ 29 (“On the evening of 22 November 9, 2022, Musk announced that all employees were expected to begin reporting to 23 Twitter offices immediately”). The Court agrees. Borodaenko fails to show how employees with 24 disabilities were treated differently by Twitter’s broad return-to-the-office policy and increased 25 workload. Borodaenko’s theory improperly relies on the assumption that all employees with 26 disabilities necessarily required remote work as a reasonable accommodation. Borodaenko 27 attempts to show that the elimination of remote work had an impact on other disabled employees, 1 fails to show a disparity between employees with disabilities and others similarly situated. See 2 ECF 35 at 5. 3 Plaintiffs aver that Musk’s hostile comments towards and concerning persons with 4 disabilities demonstrate animus to support their claim of disparate treatment. For example, they 5 allege that Musk has been “openly hostile toward disabled employees and insinuated they are 6 lazy,” and that Musk had “tweeted that a disabled former Twitter employee used his disability as 7 an excuse not to work.” SAC ¶ 32. Plaintiffs also allege that Musk joked about employees having 8 Tourette’s Syndrome and that he “chastised employees who work from home for being ‘morally 9 wrong.’”3 SAC ¶ 32. While the comments referenced above may contribute to a showing of 10 animus, they fall short of illustrating how the new return-to-the-office and increased workload 11 policies treated employees with disabilities differently than similarly-situated employees. 12 Borodaenko fails to allege that others were treated more favorably, that he was singled out in some 13 way, or that his treatment gives rise to an inference of discrimination. The Court therefore 14 dismisses Borodaenko’s disability discrimination claims to the extent they are founded on a theory 15 of disparate treatment. 16 b. Disparate Impact 17 Both the ADA and FEHA prohibit facially neutral practices that have a significantly 18 discriminatory impact on a protected group and that are not justified by business necessity. See, 19 e.g., Freyd v. Univ. of Oregon, 990 F.3d 1211, 1224 (9th Cir. 2021); Mahler v. Jud. Council of 20 Cal., 67 Cal. App. 5th 82, 112-13 (2021). “To state a claim for disparate impact discrimination 21 under Title VII, a plaintiff must allege (1) a significant disparity with respect to employment for 22 the protected group, (2) the existence of a specific employment practice or set of practices, and 23 (3) a causal relationship between the identified practice and the disparity.” Liu v. Uber Techs. 24 Inc., 551 F. Supp. 3d 988, 990 (N.D. Cal. 2021) (citing Freyd, 990 F.3d at 1224). “At the 25

26 3 There is no need to proceed through the analysis of whether these comments constituted “stray remarks” by an executive that may be interpreted as discriminatory animus. See, e.g., Nesbit v. 27 Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (holding that a comment “uttered in an 1 pleading stage, the complaint need only allege facts giving rise to plausible inferences that the 2 disparity exists and is caused by the identified practice.” Liu, 551 F. Supp. 3d at 990 (collecting 3 cases). In Liu, the plaintiff alleged that Uber’s termination of drivers for low ratings had a 4 disparate impact on racial minorities, but the court found that the allegations fell short of plausibly 5 alleging the existence of a disparity where he offered a relatively sparse description of his own 6 experience. Id. at 990-91. 7 Plaintiffs’ First Amended Complaint was dismissed because Plaintiffs had not plausibly 8 alleged that the policies in question resulted in a disparity that impacted Twitter’s disabled 9 employees – the Court could not draw an “inference of disparity” from the “single data point” of 10 Plaintiff Borodaenko’s termination. ECF 35 at 6 (citing Liu, 551 F. Supp. 3d at 991). In response, 11 Plaintiffs’ SAC attempted to add a “second data point” with Thier’s allegations, but those 12 allegations are unhelpful given their elimination, as explained above. Borodaenko additionally 13 alleges in this iteration of the pleading that Musk’s decree for almost all employees to work out of 14 physical offices “made it clear that Twitter was not interested in accommodating disabled 15 employees, or even engaging in a discussion about a reasonable accommodation.” SAC ¶ 8. 16 Borodaenko alleges further, “many disabled employees . . . were forced out of their jobs,” (SAC 17 ¶ 10), and “Twitter’s new requirement that employees report to physical offices, as well as 18 rampant termination and layoffs have disparately affected disabled employees” (SAC ¶ 34). 19 Borodaenko avers that these new allegations are sufficient on a few bases. First, he 20 contends that these new allegations offer more detail about what happened with the departures of 21 disabled employees from Twitter, detail that fills the gaps highlighted by the court in Liu. Opp. at 22 8. Second, Borodaenko cites to an amicus brief submitted by the EEOC in the Ninth Circuit 23 appeal of Liu in which the EEOC argues that “a plaintiff who lacks pre-discovery access to 24 information about the employer’s workforce could identify the challenged practice and point to 25 real-world conditions suggesting that the practice will result in a disparity” in order to allege 26 plausibly disparate impact. Opp. at 9-11 (citing Liu, EEOC Amicus Brief, 2023 WL 2898556, at 27 *13). Finally, Borodaenko contends that the allegations were sufficient in the first instance, and 1 requirements for a disparate impact claim in dismissing Plaintiffs’ First Amended Complaint.” 2 Opp. at 11. 3 The Court takes up these arguments in reverse order for ease of analysis. First, the court 4 was not “too stringent” in its order dismissing the FAC, because Borodaenko, similar to the 5 plaintiff in Liu, fails to provide factual support for the policy’s disparate impact on a protected 6 class of employees beyond the limited facts of his own departure. Second, the amicus brief filed 7 by an agency in a separate case on a topic outside its purview (federal court pleading standards) is 8 barely persuasive and need not be relied on here. See, e.g., Alaska v. Fed. Subsistence Bd., 544 9 F.3d 1089, 1095 (9th Cir. 2008) (agency position entitled to “no deference” where is it not the 10 result of “any legally-binding regulation or in any official agency interpretation of the 11 regulation”); United States v. Trident Seafoods Corp., 60 F.3d 556, 559 (9th Cir. 1995) (“No 12 deference is owed when an agency has not formulated an official interpretation of its regulation, 13 but is merely advancing a litigation position.”). Finally, the additional allegations presented in the 14 SAC are nothing more than conclusions devoid of factual support. The SAC still lacks factual 15 allegations that employees with disabilities were laid off at disproportionate rates or that they were 16 denied reasonable accommodations from the new return-to-the-office and increased workload 17 policies. The new allegations fail to move the needle to plead a plausible disparate impact claim. 18 The Court therefore dismisses Borodaenko’s disability discrimination claims to the extent they are 19 founded on a theory of disparate impact. 20 III. CONCLUSION 21 For the reasons stated above, the Court hereby GRANTS Twitter’s motion to strike Thier 22 and her allegations from the SAC because Plaintiffs reached beyond the leave to amend granted in 23 the court’s initial order of dismissal, and the Court DENIES Twitter’s motion to strike class 24 claims at the pleading stage because that action is disfavored. The Court GRANTS Twitter’s 25 motion to dismiss the remaining disability discrimination claims on both theories – disparate 26 treatment and disparate impact. Borodaenko may file an amended complaint regarding his 27 // 1 disability discrimination claims within 28 days from the date of this Order. No additional parties 2 || or claims may be added without leave of Court or stipulation of Defendant. 3 4 IT IS SO ORDERED. 5 Dated: August 21, 2024 6 □ 7 . ARACELI MARTINEZ-OLGUIN 8 United States District Judge 9 10 11 12

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