Borodaenko v. Twitter Inc.

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DMITRY BORODAENKO, et al., Plaintiffs, v. TWITTER, INC., Defendant.

No. 22-cv-07226-HSG

United States District Court, N.D. California

May 5, 2023

ORDER GRANTING MOTION TO COMPEL ARBITRATION AND GRANTING MOTION TO DISMISS

Re: Dkt. Nos. 14, 15

HAYWOOD S. GILLIAM, JR., DISTRICT JUDGE

Pending before the Court are Defendant Twitter, Inc.'s motion to compel arbitration and motion to dismiss. Dkt. Nos. 14, 15. The Court finds these matters appropriate for disposition without oral argument and the matters are deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed below, the Court GRANTS the motion to compel arbitration and GRANTS the motion to dismiss.

I. BACKGROUND

Plaintiffs Dmitry Borodaenko and Abhijit Mehta initially filed this putative class action in November 2022, Dkt. No. 1, and amended their complaint a month later in December 2022. See Dkt. No. 8 (“FAC”). Plaintiffs seek to represent a class of former Twitter employees who (1) are disabled, or were either on leave or preparing to take family medical leave at the time Elon Musk purchased the company, and (2) were either terminated or constructively discharged due to Twitter's new workplace policies. See id. at ¶¶ 2, 17. According to the complaint, Twitter employees had historically been permitted to work remotely, but shortly after purchasing the company, Mr. Musk announced that working remotely would only be permitted “for ‘exceptional' employees that Musk himself would have to approve.” See id. at ¶¶ 5-6, 28-30. Mr. Musk also announced that employees would be expected to work longer hours and “at high intensity” moving forward. See id. at ¶¶ 8, 41-43, 45-46. These new policies, Plaintiffs contend, made it impossible for many disabled employees to continue working for Twitter and many felt forced to resign as a result. See id. at ¶¶ 7-9, 32, 46-48. At the same time, the company also began laying off a substantial portion of its workforce. See id. at ¶¶ 3, 10, 31. Plaintiffs contend that these layoffs disproportionately affected employees who were on or intending to take family or medical leave. See id. at ¶¶ 4, 49-52.

Based on these allegations, Plaintiffs bring causes of action for discrimination in violation of (1) the Americans with Disabilities Act (“ADA”); (2) the California Fair Employment and Housing Act (“FEHA”); and for violations of (3) the Family and Medical Leave Act (“FMLA”); and (4) the California Family Rights Act (“CFRA”). Plaintiffs seek to represent a class of “all similarly situated Twitter employees across the United States who are either disabled or have taken, or planned soon to take, a family or medical leave, and whose jobs have been affected by the company's layoffs, terminations, and heightened demands on the workforce.” Id. at ¶ 17.

Defendant moves to compel arbitration of Plaintiff Abhijit Mehta and to dismiss the FAC in its entirety. Dkt. Nos. 14, 15. Plaintiffs agree that Mr. Mehta did not opt out of Defendant's arbitration agreement and that his claims should be compelled to arbitration. See Dkt. No. 20. The Court accordingly GRANTS the motion to compel arbitration and STAYS the action as to Mr. Mehta's claims. The Court therefore limits its analysis below to the motion to dismiss Plaintiff Borodaenko's claims. Any references to “Plaintiff” refer to Mr. Borodaenko unless otherwise specified.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A defendant may move to dismiss a complaint for failing to state a claim upon which relief can be granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In reviewing the plausibility of a complaint, courts “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)).

III. DISCUSSION

A. ADA and FEHA Discrimination Claims i. Administrative Exhaustion

As an initial matter, Defendant argues that the Court lacks subject matter jurisdiction over Plaintiff's ADA and FEHA discrimination claims because Plaintiff did not exhaust his administrative remedies before filing this case. See Dkt. No. 15 at 6-8. Specifically, Plaintiff did not obtain right-to-sue notices from either the U.S. Equal Employment Opportunity Commission or the California Department of Fair Employment & Housing. Id. However, after briefing on the motion to dismiss was complete, Plaintiff received notices from both entities. See Dkt. No 25-1, Ex. A; Dkt. No. 25-2, Ex. B.

Defendant nevertheless argues that the Court should disregard these notices because Plaintiff did not seek leave to file them on the docket. See Dkt. No. 26. However, under the circumstances, the Court declines to elevate form over substance in this way. The Court would have granted leave to file the notices, which establish that Plaintiff has administratively exhausted his ADA and FEHA claims. See Wrighten v. Metro. Hosps., Inc., 726 F.2d 1346, 1351 (9th Cir. 1984) (finding that “subsequent issuance of the ‘right to sue' letters cured any jurisdictional defects”). Despite Defendant's urging, it was not “sandbagged,” as it responded to Plaintiff's filing anyway. See Dkt. No. 26 at 2. The Court therefore DENIES the motion to dismiss on this basis. The parties are nevertheless cautioned that the Court expects counsel will scrupulously comply with the Federal Rules of Civil Procedure and the Civil Local Rules moving forward.

ii. Failure to State a Claim

More substantively, Defendant argues that Plaintiff Borodaenko has failed to state a plausible claim for disability discrimination under either the ADA or FEHA. See Dkt. No. 15 at 8-11. Plaintiff confirms that he intends to bring claims for both disparate treatment and disparate impact under these statutes. See Dkt. No. 21 at 12-16. But Defendant contends that Plaintiff does not offer sufficient factual support for these claims.^[1] See Dkt. No. 15 at 8-11.

a. Disparate Treatment

The parties appear to agree that the elements of a disparate treatment claim under the ADA and FEHA are largely the same. Compare Dkt. No. 15 at 8-10, with Dkt. No. 21 at 14-16. Disparate treatment occurs “where an employer has treated [a] particular person less favorably than others because of a protected trait.” Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (quotation omitted); see also Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 355 (Cal. 2000) (looking to federal law when applying FEHA and requiring that “circumstance[s] suggest[] discriminatory motive” to establish FEHA claim). “A disparate-treatment plaintiff must establish that the defendant had a discriminatory intent or motive for taking a job-related action.” Ricci, 557 U.S. at 577 (quotation omitted). “A discriminatory motive may be established by the employer's informal decisionmaking or ‘a formal, facially discriminatory policy,' but ‘liability depends on whether the protected trait . . . actually motivated the employer's decision.'” Wood v. City of San Diego, 678 F.3d 1075, 1081 (9th Cir. 2012) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).

The Court agrees with Defendant that Plaintiff has not adequately alleged that Twitter terminated Plaintiff-or any other member of the putative class-because of a disability. Rather, the FAC states that Twitter's policies that required workers to return to work and to work “at high intensity” applied to all employees. For example, according to the FAC, “shortly after Musk completed the purchase of Twitter, he declared that working remotely would no longer be allowed and that all remaining employees would need to work out of a company office ....” See FAC at ¶ 6 (emphasis added); see also id. at ¶ 28 (“On the evening of November 9, 2022, Musk announced that all employees were expected to begin reporting to Twitter offices immediately.”). The FAC also states that “Musk declared that, in order to remain employed at Twitter, employees would have to ‘work[] long hours at high intensity.'” Id. at ¶ 8. And “[a]ny employees who did not agree to this mandate would have to resign.” Id. (emphasis added); see also id. at ¶ 45 (noting that Musk emailed all “remaining Twitter employees” that “working long hours at high intensity” was the new expectation).

In opposition, Plaintiff points to the timing of his own termination. After receiving the November 9 notification that employees had to return to work, Plaintiff emailed his manager that because he is a cancer survivor, he “definitely [is] not working from [the] office until the pandemic is over.” See id. at ¶¶ 35-36. Plaintiff contends that approximately a week after sending this message to his manager, he “received an email from Twitter Human...