Borodaenko v. Twitter, Inc.

Background

This putative class action concerns alleged employment discrimination by Twitter, Inc. and X Corp. Dimitry Borodaenko, a former Engineering Manager, alleged that he was vulnerable to COVID-19 because of a cancer-related disability and could not work in an office. He alleged that Twitter terminated him after he said he would continue working from home following Elon Musk’s announcement ending Twitter’s remote-work policy.

Hana Thier, a former Senior Software Engineer, alleged that she had depression and needed a stable work environment with clear and reasonable expectations as an accommodation. She alleged that she did not accept a demand for employees to work long hours at high intensity and was laid off the next day.

The Second Amended Complaint asserted disability-discrimination claims under the Americans with Disabilities Act and California’s Fair Employment and Housing Act, as well as a sex-discrimination claim under Title VII on Thier’s behalf. It also included proposed class claims.

Motion to Strike

Twitter argued that Thier was added without Twitter’s consent or the court’s permission and that her sex-discrimination theory went beyond the earlier order allowing Borodaenko to amend. The court agreed. It interpreted the earlier order as allowing Borodaenko, the sole remaining plaintiff at that point, to amend to address defects in his disability-discrimination claims. The court therefore granted the motion to strike in part and struck Thier and her allegations from the Second Amended Complaint.

Twitter also sought to strike Borodaenko’s proposed class allegations, arguing that determining class membership would require individualized assessments. The court denied that request at the pleading stage. It stated that the allegations were not appropriately evaluated across a proposed class before class certification and further development of the record.

Motion to Dismiss

After removing Thier, the court considered whether Borodaenko adequately pleaded disability discrimination under both the Americans with Disabilities Act and the Fair Employment and Housing Act. A motion under Federal Rule of Civil Procedure 12(b)(6) tests whether a complaint states a legally recognized claim supported by enough factual allegations to make liability plausible.

The court considered both disparate treatment and disparate impact theories. Disparate treatment means treating a person less favorably because of a protected characteristic. The court held that Borodaenko had not adequately alleged that Twitter treated disabled employees differently from similarly situated employees, treated others more favorably, singled him out, or otherwise acted in a way supporting an inference of discriminatory intent. The court concluded that Musk’s alleged comments about disabled employees could support an inference of hostility but did not show that the return-to-office and increased-workload policies treated disabled employees differently. The court therefore dismissed the disability claims to the extent they relied on disparate treatment.

Disparate impact concerns a facially neutral employment practice that has a significant discriminatory effect on a protected group. The court held that Borodaenko still had not provided factual support showing that Twitter’s policies disproportionately affected disabled employees. The court found that allegations stating that many disabled employees were forced out or were disparately affected were conclusions without supporting facts. It therefore dismissed the disability claims to the extent they relied on disparate impact.

Disposition

The court granted Twitter’s motion to strike in part and granted Twitter’s motion to dismiss. Specifically, it granted the request to strike Thier and her allegations, denied the request to strike the class allegations at the pleading stage, and granted dismissal of Borodaenko’s remaining disability-discrimination claims under both disparate treatment and disparate impact theories.

Borodaenko may file an amended complaint concerning his disability-discrimination claims within 28 days of the order. The order states that no additional parties or claims may be added without the court’s permission or Twitter’s stipulation.