Case 4:22-cv-07226-DMR Document 1 Filed 11/16/22 Page 1 of 12
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`
`
`SHANNON LISS-RIORDAN (SBN 310719)
`(sliss@llrlaw.com)
`THOMAS FOWLER (pro hac vice forthcoming)
`(tfowler@llrlaw.com)
`LICHTEN & LISS-RIORDAN, P.C.
`729 Boylston Street, Suite 2000
`Boston, MA 02116
`Telephone:
`(617) 994-5800
`Facsimile:
`(617) 994-5801
`
`Attorneys for Plaintiff Dmitry Borodaenko,
`on behalf of himself and all others similarly situated
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`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
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`
`
`
`DMITRY BORODAENKO, on behalf of
`himself and all others similarly situated,
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`
` Plaintiff,
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` v.
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`TWITTER, INC.
`
`
` Defendant
`
`
`
`Case No. 3:22-cv-7226
`
`CLASS ACTION COMPLAINT AND
`JURY DEMAND
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`
`1. DISCRIMINATION IN VIOLATION
`OF THE AMERICANS WITH
`DISABILITIES ACT,
`42 U.S.C. §§ 12101, et seq.
`2. DISCRIMINATION IN VIOLATION
`OF THE CALIFORNIA FAIR
`EMPLOYMENT AND HOUSING
`ACT, Gov. Code § 12940
`3. DECLARATORY JUDGMENT ACT,
`28 U.S.C. §§ 2201-02
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`Case 4:22-cv-07226-DMR Document 1 Filed 11/16/22 Page 2 of 12
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`I.
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`INTRODUCTION
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`1.
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`Plaintiff Dmitry Borodaenko files this Class Action Complaint against Defendant
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`Twitter, Inc. (“Twitter”), on his own behalf and on behalf of other disabled Twitter employees
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`across the country who have been discharged or constructively discharged from their jobs during
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`the chaotic weeks since multi-billionaire Elon Musk purchased the company.
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`2.
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`Plaintiff brings claims of discrimination under the Americans With Disabilities
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`Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and (for employees who worked out of California)
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`California Fair Employment and Housing Act (“FEHA”), Gov. Code § 12940, challenging the
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`company’s termination, or constructive termination, of employees with disabilities who can
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`perform their jobs with or without reasonable accommodation but who were not permitted to
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`continue their jobs, either through termination or forced resignation after being required to accept
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`working under unreasonable circumstances for an employee with a disability.
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`3.
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`As described further below, shortly after Elon Musk completed his purchase of
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`Twitter, he immediately began laying off half of its workforce.
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`4.
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`Many of the employees who have lost their jobs since Musk’s purchase of the
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`company are disabled.
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`5.
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`Prior to Musk’s purchase of the company, Twitter employees were permitted to
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`work remotely. In fact, over the spring and summer of 2022, Twitter reassured employees that,
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`following Musk’s purchase of the company, they would be permitted to continue working
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`remotely for at least a year.
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`6.
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`However, shortly after Musk completed the purchase of Twitter, he declared that
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`working remotely would no longer be allowed and that all remaining employees would need to
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`work out of a company office – with only rare exceptions for “exceptional” employees, that
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`Musk himself would have to approve.
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`CLASS ACTION COMPLAINT
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`Case 4:22-cv-07226-DMR Document 1 Filed 11/16/22 Page 3 of 12
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`7.
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`Many disabled employees were able to perform their jobs adequately with the
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`reasonable accommodation of working remotely, rather than from a physical Twitter office.
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`Musk’s declaration, however, that almost all employees would need to work out of physical
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`offices made it not possible or viable for many disabled employees to continue their jobs.
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`8.
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`In addition, Musk declared that, in order to remain employed at Twitter,
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`employees would have to “work[] long hours at high intensity.” Any employees who did not
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`agree to this mandate would have to resign.
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`9.
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`Many disabled employees who have, and could continue to, perform their jobs
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`effectively have felt that, because of their disability, they will not be able to meet this new
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`heightened standard of performance and productivity. Thus, many disabled employees have felt
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`forced to resign.
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`10.
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`Twitter has stated that these employees would receive severance agreements
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`shortly. Plaintiff is very concerned that employees will be asked to sign away their rights without
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`notice that they have legal claims of discrimination and that these legal claims have already been
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`filed on their behalf.
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`11.
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`Indeed, another company owned by Elon Musk, Tesla, recently engaged in mass
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`layoffs without notice. That company attempted to obtain releases from laid off employees
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`without informing them of their rights under the federal or California WARN Acts. A federal
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`court subsequently ordered the company to provide employees notice of the claims that had been
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`filed on their behalf. See Lynch v. Tesla, Inc., 2022 WL 42952953, at *6 (W.D. Tex. Sept. 16,
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`2022).
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`12.
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`Plaintiff files this action, bringing claims of disability discrimination, under
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`federal and California law, and seeks to ensure that Twitter not solicit releases of claims of any
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`such employees without informing them of the pendency of this action and their right to pursue
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`these claims.
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`Case 4:22-cv-07226-DMR Document 1 Filed 11/16/22 Page 4 of 12
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`13.
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`Plaintiff seeks immediate injunctive relief, as well as a declaratory judgment
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`under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, on behalf of himself and all
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`similarly situated employees.
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`II.
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`PARTIES
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`14.
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`Plaintiff Dmitry Borodaenko is an adult resident of Scotts Valley, California,
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`where he worked for Twitter from June 2021 until November 2022.
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`15.
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`Plaintiff brings this lawsuit as a Rule 23 class action on behalf of all similarly
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`situated disabled Twitter employees across the United States whose jobs have been affected by
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`the company’s layoffs, terminations, and heightened demands on the workforce.
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`16.
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`Defendant Twitter, Inc. (“Twitter”) is a Delaware corporation, headquartered in
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`San Francisco, California.
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`III.
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`JURISDICTION
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`17.
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`This Court has jurisdiction over this proceeding pursuant to 28 U.S.C. § 1331 and
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`29 U.S.C. § 2104(a)(5).
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`18.
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`This Court has supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiff’s
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`state law claims, because those claims derive from a common nucleus of operative facts with
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`Plaintiff’s federal claims.
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`19.
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`This Court has personal jurisdiction over Twitter, as it is headquartered in this
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`District and conducts substantial business operations in this District.
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`IV.
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`STATEMENT OF FACTS
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`20.
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`Twitter is a social media company that employs thousands of people across the
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`United States.
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`21.
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`In April 2022, it was announced that multi-billionaire Elon Musk would be
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`purchasing the company.
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`22.
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`Following this announcement, many employees raised concerns regarding the
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`company’s policies following this anticipated acquisition.
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`23.
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`In order to allay employees’ concerns and try to prevent them from leaving
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`Twitter to work at other companies, Twitter made various promises to employees.
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`24.
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`One of the promises was that employees would be able to continue working
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`remotely, for at least a year after Musk’s acquisition of the company. This promise was made
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`repeatedly to employees by managers, the CEO, and other staff.
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`25.
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`However, following the purchase of the company by Elon Musk in late October
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`2022, Twitter openly reneged on this promise.
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`26.
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`On the evening of November 9, 2022, Musk announced that all employees were
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`expected to begin reporting to Twitter offices immediately.
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`27.
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`At a meeting with Twitter employees on November 10, 2022, Musk reiterated that
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`employees needed to return to the office full time. He told employees: “if you can show up at an
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`office and you do not show up at the office, resignation accepted -- end of story.” He elaborated:
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`“Let me be crystal clear, if people do not return to the office when they are able to return to the
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`office -- they cannot remain at the company.” Victor Ordonez and Stephanie Wash, Exclusive
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`audio: Musk talks potential Twitter bankruptcy, return to office meeting, ABC News (November
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`11, 2022), https://abcnews.go.com/Business/exclusive-audio-elon-musk-tells-twitter-employees-
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`return/story?id=93087987.
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`28. Musk further stated that exceptions to this policy would be made only for
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`“exceptional people”.
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`29.
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`In addition to requiring remaining employees to work at physical offices, Musk
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`also immediately began a mass layoff that has been reported to have affected half of Twitter’s
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`workforce. See Kate Conger, Ryan Mac, and Mike Isaac, Confusion and Frustration Reign as
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`Elon Musk Cuts Half of Twitter’s Staff, NEW YORK TIMES (November 4, 2022),
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`https://www.nytimes.com/2022/11/04/technology/elon-musk-twitter-layoffs.html.
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`30.
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`Twitter’s new requirement that employees report to physical offices, as well as
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`rampant terminations and layoffs, have affected disabled employees, including Plaintiff Dmitry
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`Borodaenko.
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`31. Mr. Borodaenko worked as an Engineering Manager. Throughout his employment
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`at Twitter, he worked remotely from his home. Indeed, when he was hired in June 2021, he was
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`assured that he would always have the option to work remotely.
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`32. Mr. Borodaenko has a disability that makes him vulnerable to COVID-19. Thus,
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`working from an office while the pandemic is still ongoing would create an unacceptable risk to
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`his health and life.
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`33. Mr. Borodaenko informed his manager of his disability and how it prevented him
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`from working out of a company office.
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`34.
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`Following Musk’s announcement that employees would have to work out of
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`company offices, Mr. Borodaenko wrote to his manager: “In case I didn't mention it before, as
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`[a] cancer survivor I'm at extra risk from Covid (it also counts as a disability), so I’m definitely
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`not working from [the] office until the pandemic is over.”
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`35. Mr. Borodaenko was not given any information about how formally to request an
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`“exception” to the return to the office policy that Musk instituted at Twitter.
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`36.
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`Not long after sending this message to his manager, Mr. Borodaenko was
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`terminated.
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`37.
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`On November 15, 2022, Mr. Borodaenko received an email from Twitter Human
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`Resources that stated: “Hi, We regret to inform you that your employment is terminated effective
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`immediately. Your recent behavior has violated company policy.”
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`38. Mr. Borodaenko had not received any notice of behavior he was alleged to have
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`engaged in that violated company policy, nor did he engage in any behavior that would appear to
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`him to have violated company policy (other than informing his manager that he could not
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`comply with Musk’s demand that employees begin working out of company offices).
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`39.
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`In addition to the requirement that employees begin working out of company
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`offices, Musk also made clear that working for Twitter would demand extraordinary effort and
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`long work hours.
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`40.
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`Following Musk’s purchase of the company, employees have been reported to
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`have worked 12 hour shifts, 7 days a week. Some employees were told: “The expectation is
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`literally to work 24/7 to get this out.” Some employees slept in Twitter offices while being
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`required to work around the clock. Grace Dean, Twitter staff have been told to work 84- weeks
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`and managers slept at the office over the weekend as they scramble to meet Elon Musk’s Tight
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`deadlines, reports say, BUSINESS INSIDER (Nov. 1, 2022), https://www.businessinsider.com/elon-
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`musk-twitter-staff-layoffs-long-hours-shifts-work-jobs-2022-11.
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`41.
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`These demands occurred while the company was in the process of mass layoffs,
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`thus signaling to employees that these extraordinary efforts were required in order to keep their
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`jobs.
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`42.
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`Indeed, Mr. Borodaenko’s workload vastly increased following the beginning of
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`Twitter’s mass layoffs. As a manager, the number of employees assigned to report to him
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`increased from about 10 to 16.
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`43.
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`On November 16, 2022, Musk sent the following email to remaining Twitter
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`employees:
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`Going forward, to build a breakthrough Twitter 2.0 and succeed in an increasingly
`competitive world, we will need to be extremely hardcore. This will mean working long
`hours at high intensity. Only exceptional performance will constitute a passing grade.
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`Case 4:22-cv-07226-DMR Document 1 Filed 11/16/22 Page 8 of 12
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`Twitter will also be much more engineering-driven. Design and product management will
`still be very important and report to me, but those writing great code will constitute the
`majority of our team and have the greatest sway. At its heart, Twitter is a software and
`servers company, so I think this makes sense.
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`If you are sure that you want to be part of the new Twitter, please click yes on the link
`below:
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`[LINK]
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`Anyone who has not done so by 5pm ET tomorrow (Thursday) will receive three months
`of severance.
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`Whatever decision you make, thank you for your efforts to make Twitter successful.
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`Elon
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`44.
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`This further ultimatum from Musk that working at Twitter will require “working
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`long hours at high intensity”, in which “[o]nly exceptional performance” will be acceptable, is
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`highly discriminatory against disabled employees.
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`45.
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`This ultimatum does not allow for employees who require reasonable
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`accommodation for their disabilities but who are nevertheless capable of adequately performing
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`their jobs.
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`46.
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`Further, this ultimatum, as well as Musk’s behavior since he took control of
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`Twitter, is clearly deterring disabled employees from feeling they can continue to work at the
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`company. Plaintiff asserts that Twitter’s requirements for employees, under Musk’s leadership,
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`will force many disabled employees to leave their jobs.
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`47.
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`As indicated in the November 16th email from Musk, Twitter has indicated that
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`employees who do not accept Musk’s ultimatum will receive a severance package. Plaintiff is
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`concerned that, absent court intervention, as part of that severance package, Twitter will seek
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`releases from employees without informing them of their rights, including their right to challenge
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`Twitter’s actions as discriminatory, or the pendency of this case. Plaintiff therefore seeks
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`immediate relief to ensure that Twitter does not violate the law and then seek to obtain releases
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`from the many employees who do not have notice of their rights or the pendency of the claims
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`brought here on their behalf.
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`48.
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`Indeed, Elon Musk engaged in similar behavior with respect to mass layoffs
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`conducted earlier this year at another company he owns, Tesla. In the summer of 2022, Tesla
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`engaged in mass layoffs without providing advanced written notice as required by the federal and
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`California WARN Acts. Former Tesla employees brought a suit against Tesla for these violations.
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`See Lynch et al. v. Tesla, Inc., Civ. Act. No., 1:22-cv-00597-RP (W.D. Tex.). Tesla sought to
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`obtain full releases of all federal and California WARN Act claims in exchange for small
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`severance payments for less than the employees were legally entitled to, as alleged in the federal
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`lawsuit. (Tesla offered one or two weeks’ severance pay, rather than the 60 days pay required to
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`satisfy the federal and California WARN Acts). See Lynch, 2022 WL 4295295, at *1-4.) A
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`federal court ruled that Tesla’s conduct was “misleading because [the separation agreements] fail
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`to inform potential class members of this lawsuit and the rights that they are potentially giving up
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`under the WARN Act.” Id. at *4.
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`49. With respect to employees who were laid off by Twitter following Musk’s
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`purchase of the company, Twitter stated that it would begin distributing severance agreements,
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`including releases of claims, beginning last week. However, after employees filed a class action
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`lawsuit and emergency motion seeking to block the distribution of releases without employees
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`being informed of their claims and the pendency of the case, see Cornet et al v. Twitter, Inc., C.A.
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`No. 3:22-cv-06857-JD (N.D. Cal.) (Dkts. 6 and 7), Twitter agreed not to distribute releases until
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`after the plaintiffs’ motion could be heard (assuming it could be heard promptly).
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`50.
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`In this case as well, Plaintiff seeks immediate relief to ensure that Twitter does
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`not violate the law and then seek to obtain releases from the many disabled Twitter employees
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`who do not have notice of their rights or the pendency of the claims brought here on their behalf.
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`Case 4:22-cv-07226-DMR Document 1 Filed 11/16/22 Page 10 of 12
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`COUNT I
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`Americans With Disabilities Act,
`42 U.S.C. §§ 12101, et seq.
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`Plaintiff and other employees with disabilities, or who have been perceived to be disabled,
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`who have worked for Twitter, and could perform the essential functions of their job with or
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`without reasonable accommodation, have been entitled to the protections of the Americans With
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`Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. Plaintiff is disabled, as defined by the
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`ADA, 42 U.S.C. § 12102, and could perform the essential functions of his job with the
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`reasonable accommodation of working remotely. Twitter required its employees, including
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`Plaintiff, to report physically to its offices, and terminated Plaintiff after he requested that he be
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`permitted to continue to work remotely on account of his disability. Twitter, through the rigid
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`enforcement of its return to office policy, as well as its unreasonable physical demands on
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`employees since Elon Musk’s purchase of the company, has discriminated against Plaintiff and
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`other disabled Twitter employees in violation of the ADA.
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`COUNT II
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`California Fair Employment and Housing Act,
`Gov. Code § 12940
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`Plaintiff and other employees with disabilities, or who have been perceived to be disabled,
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`who have worked for Twitter in California, and could perform the essential functions of their job
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`with or without reasonable accommodation, have been entitled to the protections of the
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`California Fair Employment and Housing Act (“FEHA”), Gov. Code § 12940. Plaintiff is
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`disabled, as defined by the FEHA, Gov. Code § 12926.1, and could perform the essential
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`functions of his job with the reasonable accommodation of working remotely. Twitter required
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`its employees, including Plaintiff, to report physically to its offices, and terminated Plaintiff after
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`he requested that he be permitted to continue to work remotely on account of his disability.
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`Twitter, through the rigid enforcement of its return to office policy, as well as its unreasonable
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`CLASS ACTION COMPLAINT
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`Case 4:22-cv-07226-DMR Document 1 Filed 11/16/22 Page 11 of 12
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`physical demands on employees since Elon Musk’s purchase of the company, has discriminated
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`against Plaintiff and other disabled Twitter employees who have worked in California in
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`violation of the FEHA.
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`COUNT III
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`Declaratory Judgment Act,
`28 U.S.C. §§ 2201-02
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`Plaintiff seeks a declaratory judgment and an injunction prohibiting Twitter from
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`soliciting disabled employees to sign separation agreements that release their discrimination
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`claims asserted herein, without first informing them of their rights under these statutes, the
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`pendency of this case filed on their behalf, and Plaintiff’s counsel’s contact information.
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`JURY DEMAND
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`Plaintiff requests a trial by jury on the claims asserted here.
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`WHEREFORE, Plaintiff requests that this Court enter the following relief:
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`a. Declare and find that Twitter is liable to Plaintiff and other similarly situated disabled
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`employees under the Americans With Disabilities Act, 42 U.S.C. §§ 12101, et seq.,
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`and, with respect to employees who have worked out of California, the Fair
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`Employment and Housing Act, Gov. Code § 12940;
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`b. Certify this case as a class action;
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`c. Enter declaratory relief and an injunction enjoining Twitter from seeking releases of
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`claims asserted herein from employees without first informing them of their rights
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`under the law, the pendency of this lawsuit, and contact information for Plaintiffs’
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`counsel;
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`11
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`Case 4:22-cv-07226-DMR Document 1 Filed 11/16/22 Page 12 of 12
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`d. Reinstate disabled employees who wish to return to their jobs with reasonable
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`accommodations;
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`e. Award compensatory and any other appropriate damages, in an amount according to
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`proof;
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`f. Award pre- and post-judgment interest;
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`g. Award reasonable attorneys’ fees, costs, and expenses; and
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`h. Award any other relief to which Plaintiff and other similarly situated Twitter
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`employees may be entitled.
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`Respectfully submitted,
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`Dated:
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`November 16, 2022
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`DMITRY BORODAENKO, on behalf of himself
`and all others similarly situated,
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`By his attorneys,
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`_/s/ Shannon Liss-Riordan____________
`Shannon Liss-Riordan, SBN 310719
`Thomas Fowler (pro hac vice forthcoming)
`LICHTEN & LISS-RIORDAN, P.C.
`729 Boylston Street, Suite 2000
`Boston, MA 02116
`(617) 994-5800
`Email: sliss@llrlaw.com; tfowler@llrlaw.com
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