Won v. Amazon.com, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CAONAISSA WON, individually and on behalf

MEMORANDUM & ORDER

of other persons similarly situated,

21-CV-2867 (NGG) (RER)

Plaintiff,

-against-

AMAZON.COM, INC., AMAZON.COM

SERVICES LLC, AND AMAZON.COM SALES,

INC.,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

This case arises under the Uniformed Services Employment and

Reemployment Rights Act of 1994 (“USERRA”), which was en-

acted to fortify and expand employment protections for veterans

and uniformed military service members.

Plaintiff Caonaissa Won, a former employee in an Amazon ware-

house and an Army reservist, alleges that Amazon.com, Inc.,

Amazon.com Services LLC, and Amazon.com Sales, Inc. (collec-

tively, “Amazon”) violated 38 U.S.C. § 4316(b) by adopting

employment policies disfavoring servicemembers taking short-

term leaves of absence for military training. Amazon moves to

dismiss Won’s Amended Complaint pursuant to Federal Rule of

Civil Procedure 12(b)(1), for lack of standing, and Rule

12(b)(6), for failure to state a claim. Amazon also moves to dis-

miss on the grounds that Won’s suit is duplicative of an earlier

suit she brought against the company. Finally, Amazon seeks to

dismiss two entities as improperly named defendants.

For the following reasons, Amazon.com, Inc. and Amazon.com

Sales, Inc. are each DISMISSED from the case without prejudice,

and Won’s claims for injunctive and declaratory relief are DIS-

MISSED. The motion to dismiss is otherwise DENIED.

BACKGROUND

Won worked at an Amazon warehouse in New York from July 1,

2019, until about September 6, 2019, earning $17.50 an hour.1

(Am. Compl. (Dkt. 18) ¶ 49.) At the same time, she was an active-

duty member of the United States Army Reserve, which required

periodic and mandatory trainings. (Id. ¶ 51.) To complete those

trainings, she took two short-term leaves of absence while em-

ployed by Amazon. (Id. ¶¶ 51-52.) The first was from August 11

to August 21, 2019, and the second from August 22 to September

6, 2019. (Id. ¶ 52.)

Around the time of these absences, Amazon informed Won that

she was not entitled to her full pay while on military leave, but

that she would be eligible for differential pay – i.e., her normal

Amazon wages deducted by the amount of pay she received from

the Army during the period of leave. (Id. ¶ 56.) Though Amazon

initially failed to pay Won anything at all while she was away, it

eventually corrected what it describes as an administrative error,

mailing her a check for the differential pay the company’s bene-

fits policy provided. (Id. ¶ 57; Mem. of Law in Supp. of Defs.’ Mot.

to Dismiss (“Defs.’ Mot.”) (Dkt. 22-1) at 1, 4, 6.)

Won argues that 38 U.S.C. § 4316(b) entitles her and other sim-

ilarly situated employees to full pay while on military leave,

rather than the differential pay Amazon provided. She claims

that Amazon continues to violate USERRA by failing to pay em-

ployees who take short-term military leaves of 30 days or fewer

(“military leave”) to the same extent it pays employees taking

other kinds of leaves, like jury duty or bereavement leave, be-

cause the benefits provided to employees on those comparable,

non-military leaves include full pay. (Am. Compl. ¶¶ 5-7, 57-77.)

1 The following facts are taken from the Amended Complaint, which the

court accepts as true at this procedural posture. See Harris v. Mills, 572

F.3d 66, 71 (2d Cir. 2009).

She brings this action on behalf of herself and a putative class

comprised of current and former Amazon employees throughout

the United States who took short-term military leaves from Oc-

tober 10, 2004, to the present. (Id. ¶¶ 39-47.) Won seeks

damages, a declaratory judgment, and injunctive relief mandat-

ing modification of the allegedly discriminatory policies. (Id. at

14.)

Amazon moves to dismiss under Rules 12(b)(1) and 12(b)(6).

(See Defs.’ Mot. at 5-24.) The company argues that (1) Won does

not have standing because she does not allege a live case or con-

troversy; (2) USERRA does not reach military leave as a

“benefit”; (3) the non-military leave benefits Amazon provides

are not comparable to military leave; (4) Won has impermissibly

split her claims across two lawsuits; and (5) two of the corporate

entities named should be dismissed as defendants. Id.

LEGAL STANDARD

Rule 12(b)(1) requires dismissal where the court lacks subject

matter jurisdiction, including for lack of Article III standing. See

Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992). To establish

standing, “a plaintiff must show (i) that he suffered an injury in

fact that is concrete, particularized, and actual or imminent; (ii)

that the injury was likely caused by the defendant; and (iii) that

the injury would likely be redressed by judicial relief.” TransUn-

ion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).2 A plaintiff has

the burden to demonstrate standing, a standard that escalates

depending on the stage of the litigation. Lujan, 504 U.S. at 561.

On a motion to dismiss, standing may be established by making

“general factual allegations of injury resulting from the defend-

ant’s conduct.” Id.

2 When quoting cases, unless otherwise noted, all citations and quotation

marks are omitted, and all alterations are adopted.

Rule 12(b)(6) requires dismissal for failure to state a claim. See

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). A plaintiff

need not provide “detailed factual allegations” at the pleading

stage, but the facts alleged must “raise a right to relief above the

speculative level.” Id. The pleadings must therefore at least “raise

a reasonable expectation that discovery will reveal evidence”

needed to prove the legal elements of the claim. Id.

In evaluating the legal sufficiency of the plaintiff’s claim, the

court must “accept as true all material factual allegations in the

complaint.” Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129,

131 (2d Cir. 1998). It “constru[es] the complaint liberally, ac-

cepting all factual allegations in the complaint as true, and

drawing all reasonable inferences in the plaintiff’s favor.” Cham-

bers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The

court’s role is to “assess the legal feasibility of the complaint; it is

not to assess the weight of the evidence that might be offered on

either side.” Lynch v. Cty. of N.Y., 952 F.3d 67, 75 (2d Cir. 2020).

The essential question is whether the complaint has provided

“enough facts to state a claim to relief that is plausible on its

face.” Twombly, 550 U.S. at 570.

DISCUSSION

USERRA is an anti-discrimination statute: it mandates that, at

virtually all U.S. employers, employees with military status must

be treated equally to other similarly situated employees when it

comes to certain employment rights and benefits. As interpreted

by the Department of Labor’s implementing regulations, where

an employer provides “benefits,” including pay, to employees on

a leave of absence, USERRA requires that employers offer the

“most favorable treatment accorded to any comparable form of

leave when [an employee] performs service in the uniformed ser-

vices.” 20 C.F.R. § 1002.150(b). This case principally addresses

whether USERRA requires any paid leave for military absences

at all, and, if so, whether Amazon violates USERRA with the par-

ticular “benefits” it provides for military leaves as compared with

other, comparable kinds of leave. The court begins with standing,

proceeds to those statutory questions, and then addresses claim

splitting and which defendants have been properly named.

A. Justiciability

As a threshold matter, Amazon makes two arguments as to Won’s

Article III standing. First, it contends that Won’s claim was

mooted when the company corrected its administrative error and

tendered Won the differential pay that Amazon provides for mil-

itary leave. Second, it argues that Won has not suffered an injury

“even under her own theory,” i.e., that USERRA entitles her to

full pay. (Defs.’ Mot. at 6.) The court rejects both arguments, but

concludes nonetheless that Won has failed to demonstrate stand-

ing as to her claims for injunctive and declaratory relief. Those

claims are therefore DISMISSED.

1. Mootness

As to Amazon’s first argument, the company argues that Won’s

claim was mooted when it paid her the differential pay it gener-

ally provides eligible employees for military leaves. (See Defs.’

Reply (Dkt. 22-6) at 6.) Believing that USERRA requires nothing

more, Amazon argues that Won has received what she is due and

any claim she may have had arising from the company’s earlier

administrative error is now moot.

This argument, however, badly disfigures Won’s USERRA claim,

which is that she should retain her full Amazon pay while on mil-

itary leave because employees on comparable leaves retain

theirs. (Pl.’s Opp’n. (Dkt. 22-5) at 9.) That injury has not been

mooted for the simple reason that Won never received the full

pay she claims she is entitled to; instead she received lesser, dif-

ferential pay. The fact that, before she amended her complaint,

she was also seeking the differential pay Amazon had mistakenly

failed to remit is of no moment. See Woodard v. New York Health

& Hosps. Corp., 554 F. Supp. 2d 329, 354 (E.D.N.Y. 2008) (rea-

soning that a post hoc offer of monetary relief can only moot a

legal claim if “there is no injury that remains to be redressed”).

Her claim for damages has not been mooted because she

properly amended her complaint to seek pay she has undisput-

edly not received.

2. Standing

a. Won’s Claim for Damages

For similar reasons, as to her claim for those damages, Won has

pleaded a concrete injury in fact: she received less pay than she

alleges she is entitled to. To state an injury under USERRA, Won

need only allege that Amazon is a qualifying employer under 38

U.S.C. § 4303(4)(A) and that she has been plausibly denied

“rights and benefits” that the company provides to non-military

employees on comparable types of leave, in violation of

§ 4316(b). See 38 U.S.C. § 4316(b)(1)(B) (requiring employers

to provide the same benefits “as are generally provided by the

employer of the person to employees having similar seniority,

status, and pay who are on furlough or leave of absence under a

contract, agreement, policy, practice, or plan in effect”). Accord-

ingly, Won must allege that another kind of leave is plausibly

comparable to short-term military leave and the benefits pro-

vided to non-military employees for those leaves are more

favorable.3 She has done so by alleging that Amazon provides “a

3 USERRA’s implementing regulations, promulgated by the Department of

Labor after notice and comment rulemaking, require that

If the non-seniority benefits to which employees on fur-

lough or leave of absence are entitled vary according to

the type of leave, the employee must be given the most

favorable treatment accorded to any comparable form of

non-seniority right or benefit of paid short-term leave to employ-

ees for nonmilitary reasons such as bereavement or jury duty

service, but denies this benefit and right to employees taking

short term-leave in order to perform military service.” (Am.

Compl. ¶ 81.) She has further alleged that Amazon “pays employ-

ees who take short-term sick leave, bereavement, or jury leave

their full pay during those leaves (up to a certain duration), but

it only pays employees who take military leave differential pay,”

and that those other leaves “are comparable to military leave

with respect to the duration of these leaves and their nature.” (Id.

¶ 62-73.) The court addresses below whether these allegations

are legally viable as matter of statutory interpretation; but as a

matter of Article III standing, the court finds that Won has alleged

a concrete injury by identifying a monetary loss she actually in-

curred, of a benefit she is arguably entitled to by statute. See

TransUnion, 141 S. Ct. at 2200, 2205 (“Only those plaintiffs who

have been concretely harmed by a defendant’s statutory violation

may sue that private defendant over that violation in federal

court.”); 38 U.S.C. § 4323(d) (providing a statutory cause of ac-

tion).4

leave when he or she performs service in the uniformed

services.

20 C.F.R. § 1002.150(b) (emphasis added). Amazon does not dispute any

aspect of the Department’s regulations.

4 Indeed Amazon barely disputes this point, contesting standing only in

footnote, and “[i]t is well settled . . . that a court need not consider argu-

ments relegated to footnotes.” F.T.C. v. Tax Club, Inc., 994 F. Supp. 2d 461,

471 (S.D.N.Y. 2014) (collecting cases); (Defs.’ Mot. at 6 n.2.). Amazon is

wrong in any event. The company argues, previewing its statutory argu-

ments infra, that Won cannot have standing even under her own theory of

USERRA because the company’s comparable jury duty leave benefit is

capped at ten days and, if Amazon was required to provide military leave

comparable to jury duty, it too would be capped – leaving Won worse-off,

and therefore uninjured for Article III purposes. (Defs.’ Mot. at 6 n.2.) But

b. Won’s Claims for Injunctive and Declaratory Relief

Won’s standing when it comes to her claims for injunctive and

declaratory relief, however, are less secure. Though neither party

raised the point, the court has an independent obligation to en-

sure that it has subject matter jurisdiction over all claims. See

Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011)

(“federal courts have an independent obligation to ensure that

they do not exceed the scope of their jurisdiction, and therefore

they must raise and decide jurisdictional questions that the par-

ties either overlook or elect not to press”). Standing must be

that assumes the outcome of a comparability analysis that has not been,

and cannot be, conducted at this stage. Even if the conclusion of such an

analysis did leave a hypothetical military leave policy capped, nothing in

the pleadings supports Amazon’s critical assumption that the cap would

apply to total annual leave rather than per instance of leave. And even if

the cap did apply annually, the difference between full and differential pay

might still be so high as to offset its effect.

Moreover, as to the specific personal injury Won alleges, Amazon’s own

submission in reply if anything supports Won’s plausible injury because

Amazon’s jury leave policy appears to apply per instance of leave. (See

Defs.’ Reply Ex. 2 (Dkt. 22-9) at ECF p. 3.) Where the cap applies per in-

stance of leave, assuming Won was paid for five weekdays of leave each

week during the two 2019 periods alleged in the complaint, only the most

incredible assumption about her military pay would have left Won unin-

jured (because a 10-day cap would only have had any effect for two days

across her 8-day leave and 12-day leave). (Am. Compl. ¶¶ 52, 62.) On

every other day, the full pay she seeks would have been by definition

greater than differential pay. Because Amazon does not proffer evidence

that “contradict[s] [the] plausible allegations” in Won’s complaint, the

court treats its 12(b)(1) motion as a facial (rather than fact-based) chal-

lenge to Won’s standing. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57

(2d Cir. 2016) (“plaintiffs are entitled to rely on the allegations in the

Pleading if the evidence proffered by the defendant is immaterial because

it does not contradict plausible allegations that are themselves sufficient to

show standing”). The court is therefore required to draw all reasonable

inferences in Won’s favor, id. at 56-57, and has little trouble concluding

she has met the injury-in-fact requirement when doing so.

assessed, moreover, for each remedy sought. City of Los Angeles

v. Lyons, 461 U.S. 95, 111-12 (1983).

Here, Won seeks – as USERRA provides, see 38 U.S.C. § 4323(e)

– an injunction requiring Amazon to “to pay its employees during

short-term military leave in the future to the same extent that

Amazon pays for other comparable short-term nonmilitary

leaves.” (Am. Compl. at 14.) Statutory standing, however, does

not necessarily entail Article III standing, and although a shift in

the company’s policies may have broader future consequences

for members of the putative class, Won must also personally sat-

isfy standing as the class’s putative representative. See Warth v.

Seldin, 422 U.S. 490, 502 (1975) (named plaintiffs “must allege

and show that they personally have been injured, not that injury

has been suffered by other, unidentified members of the class to

which they belong and which they purport to represent”). Alt-

hough a class has not yet been certified in this case, the court

cannot defer standing where “the standing of the named plain-

tiffs is in question.” Kassman v. KPMG LLP, 925 F. Supp. 2d 453,

465 (S.D.N.Y. 2013).

Here, the trouble is that “a plaintiff generally lacks standing to

seek injunctive or declaratory relief against his or her former em-

ployer, as there is no prospect that he or she will be injured in

the future.” Kassman, 925 F. Supp. 2d at 465-66. Won is no

longer an employee of Amazon, and although a limited exception

might apply to employees who anticipate rejoining the company

or who seek reinstatement as part of the suit, id. at 465-69, nei-

ther is true here. Her claims for injunctive and declaratory relief

are therefore DISMISSED without prejudice.

The court recognizes the “growing consensus among district

courts that class certification is logically antecedent [to standing

analysis, and] where its outcome will affect the Article III stand-

ing determination, [] the weight of authority holds that in

general class certification should come first.” Blessing v. Sirius XM

Radio Inc., 756 F. Supp. 2d 445, 451 (S.D.N.Y. 2010). Here, the

court has not yet been asked to certify a class in this case. Should

Won go on to seek certification, it is possible another named

plaintiff with an injury arising from Amazon’s same conduct

would satisfy both Article III standing and Rule 23(b)(2). The

court therefore GRANTS leave for Plaintiff to amend her com-

plaint accordingly, subject to a Rule 15 analysis at a later stage.

See Fed. R. Civ. P. 15(c); see, e.g., In re Simon II Litig., 211 F.R.D.

86, 144 (E.D.N.Y. 2002) (applying “a liberal rule of relation

back” when adding plaintiffs).

B. The “Benefits” Protected by USERRA

Having swept away these threshold questions, the court arrives

at the core arguments Amazon makes in its motion to dismiss:

first, that USERRA does not mandate any paid leave for military

service; and second, that even if it did, Won cannot plausibly al-

lege a violation of the statute in Amazon’s policy of providing

only differential pay, rather than full pay, to employees taking

military leaves. Amazon’s first argument poses the key statutory

question: whether paid leave for uniformed servicemembers is

one of the “rights and benefits” protected by USERRA. The Third

and Seventh Circuits have recently held on analogous facts that

it is, and the court substantially agrees with their analyses. See

Travers v. Fed. Exp. Corp., 8 F.4th 198, 203 (3rd Cir. 2021); White

v. United Airlines, Inc., 987 F.3d 616, 625 (7th Cir. 2021). The

question is one of first impression in the Second Circuit.

1. Text

As it must, this court’s analysis begins with the text of the relevant

statutory provisions. 38 U.S.C. § 4316(b)(1) requires that:

[A] person who is absent from a position of employment

by reason of service in the uniformed services shall be—

(A) deemed to be on furlough or leave of absence

while performing such service; and

(B) entitled to such other rights and benefits not de-

termined by seniority as are generally provided by

the employer of the person to employees having sim-

ilar seniority, status, and pay who are on furlough or

leave of absence under a contract, agreement, policy,

practice, or plan in effect at the commencement of

such service or established while such person per-

forms such service.

38 U.S.C. § 4316(b)(1). The language of § 4316(b) is clear: it

establishes an “equality principle,” White, 987 F.3d at 624, that

requires an employer to treat uniformed service members

“deemed to be on furlough or leave” the same as it would non-

military service members on comparable leaves. 38 U.S.C.

§ 4316(b)(1)(A).

Specifically, the statute mandates that those on military leave be

“entitled to such other rights and benefits not determined by sen-

iority as are generally provided” to other employees of “similar

status.” 38 U.S.C. §§ 4316(a), (b). Congress then went on to spe-

cifically define “rights and benefits” in § 4303(2):

The term “benefit,” “benefit of employment” or “rights

and benefits” means the terms, conditions, or privileges

of employment, including any advantage, profit, privi-

lege, gain, status, account, or interest (including wages

or salary for work performed) that accrues by reason of

an employment contract or agreement or an employer

policy, plan, or practice and includes rights and benefits

under a pension plan, a health plan, an employee stock

ownership plan, insurance coverage and awards, bo-

nuses, severance pay, supplemental unemployment

benefits, vacations, and the opportunity to select work

hours or location of employment.

38 U.S.C. § 4303(2).

The court’s analysis proceeds first with this § 4303(2) definitional

provision, and then addresses the § 4316(b) operative provision.

Under either analysis the conclusion is the same: paid leave is a

benefit protected by the text of USERRA. Because Congress ca-

paciously defined “rights and benefits,” this court’s interpretation

follows its direction and recognizes paid leave as a “term, condi-

tion[], or privilege of employment.” That conclusion is bolstered

by the operation of § 4316(b), which would cease to function

sensibly on Amazon’s reading.

a. The § 4303(2) Definitional Provision

First, the court concludes that paid leave falls within the catego-

ries of rights expressly enumerated in the definition provided in

§ 4303(2). Where language in a statute is “clear and unambigu-

ous,” the court is “bound to read it exactly as it was written.”

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 439 (2002). An em-

ployee’s compensation while on leave falls squarely in the ambit

of the expansive terms invoked by the statute: “profit,” “privi-

lege,” “gain,” or “any advantage.” 38 U.S.C. § 4303(2). Profit, for

one, is defined as “an advantage, benefit, accession of good, gain,

or valuable return especially in financial matters,” and gain is de-

fined as “an increase in or addition to what is of profit,

advantage, or benefit.” Profit, Webster’s Third New International

Dictionary (1993); gain, id. It is therefore difficult to imagine

what may constitute “a valuable return” for employment or an

increase in “benefit,” if not the wages one receives, even if those

wages are an employment benefit conferred during a period of

leave. See Travers, 8 F.4th at 205 (“The ordinary understanding

of the words reaches a wide range of benefits, including payment

during leave.”).

Amazon responds that paid leave would have been explicitly

mentioned in the statutory definition had Congress intended it to

be provided. (See Defs.’ Mot. at 14.) This argument is rooted in

the expressio unius canon of construction, which provides that

when a statute specifically mentions one thing, all things not

mentioned are excluded from the provided set. See Antonin

Scalia & Bryan Garner, Reading Law: The Interpretation of Legal

Texts 96 (2012); see also White, 987 F.3d at 621 (discussing the

canon). It is clear, however, that Congress did not intend the

terms in § 4303(2) to be an exhaustive list of benefits that trigger

USERRA protection. They comprise, rather, a non-exhaustive

“laundry list.”

The text and structure of § 4303(2) demonstrates Congress’s in-

tent to provide a broad, non-exhaustive illustration of the kinds

of employment privileges and entitlements that might fall under

the category of “rights and benefits.” The provision is structured

as a list wherein each consecutive clause serves to further illus-

trate the breadth of what came before it. Congress defined “rights

and benefits” to mean three general, nonspecific categories: “the

terms, conditions, or privileges of employment.” 38 U.S.C.

§ 4303(2). This structure is repeated in the following clause,

where a series of examples is introduced by the word “including,”

which is “an expansive or illustrative term.” Bloate v. United

States, 559 U.S. 196, 207 (2010); see also Scalia & Garner, supra,

at 116 (explaining the principle that in “good English usage and

in textualist decision-making,” “include” is presumed to be used

in a nonexclusive manner). Further, the word “any” immediately

follows “including,” which emphasizes that the reach of “rights

and benefits” extends beyond those that are explicitly mentioned

in the statutory definition. See Smith v. Berryhill, 139 S. Ct. 1765,

1774 (2019) (noting that “any” is typically used expansively).

Further, Congress did not tether “any” or “including” to limiting

language, and therefore the terms should be read broadly. See

United States v. Gonzales, 520 U.S. 1, 5 (1997) (concluding that

“any” should be read broadly unless it is explicitly restricted by

“limiting language”).

The language used in § 4303(2) functions as a purposeful

acknowledgement that among the proliferation of possible

“rights and benefits” that are named, there may be others that

fall under the statute’s scope that were not mentioned; the list is

thus not an apt example of the expressio unius canon. See White,

987 F.3d at 621 (reasoning that the expressio unius canon breaks

down when a list is filled with expansive terms, as is the case with

§ 4303(2)); Scalia & Garner, supra, at 96 (“The doctrine properly

applies only when the unius . . . can reasonably be thought to be

an expression of all that shares in the grant or prohibition in-

volved. Common sense often suggests when this is or is not so.”).

The lack of limiting language in § 4303(2) is underscored by the

absence of any overt exceptions to what might constitute a

“term,” “condition,” or “privilege[] of employment,” but which

would not be included in § 4316(b)’s “rights and benefits.”

Amazon also argues that the parenthetical in § 4303(2) qualifies

the “rights and benefits” protected, reaching only those provided

in exchange for work performed. But one need not consult legis-

lative history to see that Congress’s words in § 4303(2)’s

parenthetical – “(including wages or salary for work performed)”

– sought to expand rather than contract the meaning of “rights

and benefits.” Congress amended this clause in 2010 to change

the parenthetical from “other than wages or salary for work per-

formed” to “including wages or salary for work performed.”

Compare Pub. L. No. 103-353, §2(A), 108 Stat. 3149, 3150

(1994), with Pub. L. No. 111-275, 124 Stat. 2887 (2010). The

2010 Amendment served to overrule an Eighth Circuit decision

which interpreted the statute to “condone wage discrimination.”

White, 987 F.3d at 622; see also Gagnon v. Sprint Corp., 284 F.3d

839, 853 (8th Cir. 2002) (the “term ‘benefit,’ as defined by the

USERRA, specifically excludes wages or salary for work per-

formed”). The phrase the Eighth Circuit held to be limiting

(“other than”) was erased and replaced with a new, expansive

word (“including”). That is: the parenthetical was revised pre-

cisely so that it would not function in the exclusionary way

Amazon suggests it does. See White, 987 F.3d at 623. Amazon’s

argument that the parenthetical acts as a qualifier distinguishing

between work performed for an employer versus work not per-

formed does not mesh with the plain text of the amended statute.

Further, as the Seventh Circuit noted in White, it is unimportant

that Congress chose not to erase the parenthetical altogether:

there is no significance in “Congress’s decision to fix the statute

one way (i.e., replacing ‘other than’ with ‘including’) instead of

another way (e.g., deleting the entire parenthetical).” Id. Ama-

zon’s attempt to create limitations in a provision specifically

designed to resist them is unavailing.

Section 4303(2) is a broad definition meant to provide full equal-

ity to service members in their places of work, including leave.

Where “Congress chooses not to include any broad exceptions to

a broad rule,” it is not the job of the court to invent one. Bostock

v. Clayton Cnty., 140 S. Ct. 1731, 1747 (2020). Rather, the court

must “apply the broad rule” as it stands. Id.

b. The § 4316(b) Operative Provision

Amazon makes two additional arguments about the text of the

USERRA’s operative provision: (1) that the proper inquiry should

be whether § 4303(2) covers “paid military leave” rather than

“paid leave”; and (2) that the word “generally” in § 4316(b) re-

quires only approximate parity between benefits. (See Defs.’ Mot.

at 8-16.) The court rejects both arguments because they too insist

on an exception to a broad rule that lacks any “textual basis.” See

City of New York v. U.S. Postal Serv., 519 F. Supp. 3d 111, 120

(E.D.N.Y. 2021) (reasoning that there must be “textual basis for

an exception” when the meaning of a “broad rule” is at issue).

First, Amazon’s assertion that there is a distinction between an

“abstract category of benefits” like “paid leave” and more specific

benefits like “paid military leave,” lacks any textual grounding.

(Defs.’ Mot. at 13.) As the Third Circuit explained in response to

an identical argument, the text of § 4316(b) protects against em-

ployees seeking to create entirely new benefits through levels of

linguistic abstraction. See Travers, 8 F.4th at 204. Section

4316(b) has a requirement that the benefit be actually “provided

by the employer to employees,” which “rules out illusory benefits

that exist in theory, not in practice.” Id. at 204. Similarly, forcing

the court to operate at the contrived level of generality Amazon

suggests here would “undermine the larger statutory scheme” of

USERRA, confusing courts by tempting them to compare types of

benefits rather than types of leave. Id. (reasoning that the “bene-

fit” is the “pay while on leave,” not the “label given to the leave”).

When it comes to leave, USERRA’s implementing regulations re-

quire courts to compare types of leaves, and it is impossible to do

this comparison when the type of leave is collapsed into “the def-

inition of the benefit.” Id. The court declines to adopt an

interpretation of USERRA that frustrates efforts to actually im-

plement it.

Second, Amazon’s emphasis on the word “generally” in

§ 4316(b) is also mistaken.5 The company claims that “gener-

ally” indicates that an employer has only a “flexible” obligation

to ensure approximate parity among benefits. (Defs.’ Mot. at 8-

9.) But “generally” in the statute modifies “provided,” and de-

scribes the kinds of benefits subject to USERRA – i.e., those

benefits employees are routinely eligible for. It does not describe

the equality principle, which is set forth in the language that re-

quires that military employees be “entitled to such other rights

and benefits” as non-military employees. 38 U.S.C. § 4316(b)(1);

see also 20 C.F.R. § 1002.150(b) (“the employee must be given

5 § 4316(b)(1) provides that employees with military status be “entitled to

such other rights and benefits not determined by seniority as are generally

provided by the employer of the person to [other] employees.” 38 U.S.C.

§ 4316(b)(1).

the most favorable treatment accorded to any comparable form

of leave”). The statutory scheme, then, requires courts to conduct

a comparability analysis for benefits that are “generally provided”

and, after that analysis, ensure equal treatment – not merely

“generally” equal treatment. And even if a “background [] legal

principle[]” exists that would enable the court to permit suffi-

ciently “trivial” inequality, (Defs.’ Mot. at 8), it could do so only

after the benefit of discovery that would include, e.g., the sources

and amounts of outside income for other kinds of leave, like New

York’s and other states’ compensation for jury duty, as well as

Amazon’s administrative costs entailed in offsetting the income

(to the extent the company chooses to provide only differential

pay across kinds of comparable benefits). The court therefore

finds no support in the word “generally” to dismiss the action.

2. History and Purpose

Even if all the foregoing textual ambiguities Amazon suggests

were plausible, reading the statute as the company does would

undermine the purposes of USERRA as well as the history of vet-

erans’ rights legislation. And even a strictly textualist analysis of

the statute must be informed by Congress’s purpose. See generally

John F. Manning, What Divides Textualists from Purposivists?, 106

Colum. L. Rev. 70, 84 (2006) (describing how Congress’s pur-

pose bears on the meaning of the words it uses).

The history of USERRA reflects Congress’s consistent intent to

broaden rights for veterans and active service members. Congress

first legislated to protect servicemembers after World War II,

when the struggles of military personnel reintegrating into soci-

ety were at their height, and again later legislated to incentivize

reserve service. See Monroe v. Standard Oil Co., 452 U.S. 549, 555

(1981) (describing the need to provide servicemembers with

statutory rights first in 1941, and then again in 1951 to

“strengthen the Nation’s Reserve Forces.”); see also H.R. Rep. No.

103-65(1) at 53 (1993) (explaining that later conflicts in the

“Persian Gulf in 1990 and 1991 underscore the need for military

personnel and employers to be able to understand clearly their

rights and responsibilities”).

In USERRA’s predecessor statutes, veterans’ rights provisions

were more confined in scope: they were focused on ensuring ser-

vicemembers kept their jobs, “designed to provide reemployment

for veterans on their return to civilian life.” Waltermyer v. Alumi-

num Co. of Am., 804 F.2d 821, 823 (3d Cir. 1986); Monroe, 452

U.S. at 555 (“Statutory re-employment rights for veterans date

from the Nation’s first peacetime draft law, passed in 1940,

which provided that a veteran returning to civilian employment

from active duty was entitled to reinstatement[.]”). Later amend-

ments to those laws, however, expanded both who was protected

under the statutes and the legal rights available to them, includ-

ing by instating a bar against discriminating among employees in

the workplace. See Waltermyer, 804 F.2d at 823. The first major

amendment, the VRR Act of 1968, was enacted to “encourage

noncareer service in the uniformed services by minimizing disad-

vantages to civilian careers and employment that could result

from such service.” Gummo v. Vill. of Depew, 75 F.3d 98, 104 (2d

Cir. 1996). Another, the Vietnam Era Veterans Readjustment As-

sistance Act of 1974 (“VRRA”), followed the VRR, requiring

certain employers to take “affirmative action” to hire veterans.

See generally 38 U.S.C. § 4212.

This expansionist narrative was disrupted only by Monroe v.

Standard Oil Co. in 1981, when the Supreme Court held that the

VRRA was intended to protect servicemembers against discrimi-

nation but “not to grant them preferential treatment.”

Waltermyer, 804 F.2d at 823 (citing Monroe, 452 U.S. at 558). As

such, the Court concluded that reservists taking leave were not

entitled to “all the incidents of employment accorded working

employees.” Id. But Congress overruled that decision: consistent

with the earlier history of veterans’ rights legislation, it adopted

USERRA “to replace the [VRRA] in order to ‘clarify, simplify, and

where necessary, strengthen the existing veterans’ employment

and reemployment rights provisions.’” Gummo, 75 F. 3d at 105

(quoting H.R. Rep. No. 65, 103d Cong., 2d Sess. 19 (1994)).

One of USERRA’s express, core purposes is “to encourage non-

career service in the uniformed services by eliminating or

minimizing the disadvantages to civilian careers and employ-

ment which can result from such service.” 38 U.S.C.

§ 4301(a)(1). Accordingly, Congress, when describing the reach

of “rights and benefits” entitled to USERRA protection, explained

that § 4303(2) was meant to be “illustrative and not intended to

be all inclusive.” H.R. Rep. No. 103-65(1) at 21. The terms pro-

vided in the definitional provision were made intentionally broad

to “include all attributes of the employment relationship which

are affected by the absence of a member of the uniformed ser-

vices because of military service.” Id. Accordingly, USERRA

requires more than just “general parity” in the benefits offered to

military service members compared with their non-military col-

leagues – contrary to what Amazon, relying on the same

outdated reasoning employed by the Monroe Court, suggests.

(See Defs.’ Reply at 6.) Consistent with the statutory scheme, the

Department of Labor interprets USERRA to require that employ-

ers provide the most “favorable treatment” to military

servicemembers on leave that they give to other employees on

comparable leaves. 20 C.F.R. § 1002.150(b).

Even if ambiguity persisted despite this overwhelming history,

the “Supreme Court has explained that reemployment protec-

tions for servicemembers are ‘to be liberally construed for the

benefit of those who left private life to serve their country.’” Ser-

ricchio v. Wachovia Sec. LLC, 658 F.3d 169, 175 (2d Cir. 2011)

(quoting Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S.

275, 284 (1946)). Congress expressly adopted that rule of con-

struction when it enacted USERRA. See H.R. Rep. No. 103-65(1)

at 19 (“[T]he Committee wishes to stress that the extensive body

of case law that has evolved over that period . . . remains in full

force and effect in interpreting these provisions. This is particu-

larly true of the basic principle established by the Supreme Court

that the Act is to be ‘liberally construed.’”). Thus, although the

court has no occasion to apply the Fishgold canon given the un-

ambiguous text of USERRA, if it came to choosing between an

interpretation that would deny a benefit to a servicemember and

an equally plausible interpretation that would grant a benefit, the

court would opt for the latter. See Hill, 252 F.3d at 312-13 (“Be-

cause USERRA was enacted to protect the rights of veterans and

members of the uniformed services, it must be broadly construed

in favor of its military beneficiaries.”).

Amazon’s final resort to elephants and mouseholes is also unper-

suasive. (See Defs.’ Mot. at 14-16.) The company argues, in short,

that the court should hesitate in its reading of the plain text be-

cause of the economic and political consequences it would entail.

See Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001)

(crafting a clear statement rule because Congress “does not alter

the fundamental details of a regulatory scheme in vague terms

or ancillary provisions”). But there is no elephant and § 4303(2)

is not a mousehole.

Construing paid leave as a “benefit” under USERRA would not

restructure employment relationships nationwide, as Amazon in-

sinuates, because USERRA establishes a nondiscrimination

principle that works within existing employment structures to

provide military service members benefits that are available to

employees similarly situated. Employers, then, decide which

“rights and benefits” to provide to employees. And even where

employers elect to provide various kinds of paid leave, the De-

partment of Labor has adopted 20 C.F.R. § 1002.150(b) to

ensure that equal treatment is demanded only after a multi-fac-

tor comparison between the characteristics of provided leaves

and an interrogation of the favorability of the benefits provided

to each. It is Amazon, and other employers, that construct the

stage on which USERRA performs.

Moreover, the consequences of the court’s common sense inter-

pretation are small, even assuming comparability – which, again,

remains for summary judgment or a jury. As Won notes, Ama-

zon’s “8,000 servicemembers served a total of 20,000 days in the

Reserve and national Guard in 2020. . . an average of just 2.5

days of leave per person per year.” (Pl.’s Mem. at 9.) Nationwide,

as the White court observed, “[l]ess than one percent of employ-

ees in the national economy are reservists” and “[o]f those, some

undoubtedly work for employers who do not provide compensa-

tion for comparable forms of nonmilitary leave, while others

work for employers who already provide paid military leave.”

White, 987 F.3d at 625. And, finally, the “mousehole” is itself not

small: USERRA expressly adopts a broad definition of “benefits,”

for which any commonsense understanding of “paid leave” fits

comfortably inside. Tellingly, Amazon relies only on the outdated

reasoning in Monroe, a case about USERRA’s more restrictive pre-

decessor statute, to claim that Congress intended a narrow

conception of “benefits” under § 4303(2). After the statute’s

amendment, even Amazon’s extratextual policy considerations

support the plain textual reading.

All of this evidence thus confirms the court’s reading of “rights

and benefits” in 38 U.S.C. § 4316(b) to encompass paid leave.

Amazon’s motion to dismiss on this basis is therefore DENIED.

C. The Differential Pay Provided by Amazon

Amazon’s motion next challenges whether Won has sufficiently

pleaded that (1) military leave is comparable to other kinds of

generally provided leave, like jury duty, sick, or bereavement

leave; and (2) the payment scheme offered to employees taking

those leaves (in some cases, full pay without an offset for an out-

side source of income) is more favorable than the differential pay

provided for military leave. (Defs.’ Reply. 9-15.) But both allega-

tions – which would establish elements of the USERRA claim –

are ultimately questions of fact for the jury (or the court, on sum-

mary judgment). Until then, at the motion to dismiss stage, the

court holds that Won has pleaded allegations sufficient to survive

Amazon’s 12(b)(6) motion.

1. Won has pleaded a plausible comparison between

jury duty and military leave.

The court first considers whether Won has alleged a plausible

comparison between military leave (with differential pay) and

other kinds of generally provided leave (with full pay). To do so,

the court applies the Department of Labor’s implementing regu-

lations, which emphasize three factors to inform the

comparability analysis, including the “duration of the leave,” the

“purpose of the leave,” and “the ability of the employee to choose

when to take the leave.” 20 C.F.R. § 1002.150(b). Of these fac-

tors, “the most significant factor to compare” “may be” the

duration of the two leaves. Id. Neither party argues that 20 C.F.R.

§ 1002.150(b) is “arbitrary, capricious, or manifestly contrary” to

the purposes of USERRA, and so the court gives the regulation

“controlling weight.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Coun-

cil, Inc., 467 U.S. 837, 844 (1984). Thus, a claim alleging that an

employer violated USERRA § 4316(b) by denying those on mili-

tary leave the more favorable benefits it provides to those on

similar non-military absences must allege that the leaves in ques-

tion are of similar duration, that they share a common purpose,

and that in both circumstances an employee’s control over the

timing of the leave is restricted. See White, 987 F.3d at 625. To

survive a motion to dismiss, Won’s complaint need not defini-

tively prove that the two forms of leaves are comparable; rather,

the complaint must sketch a comparison that is plausible. See

Twombly, 550 U.S at 570; White, 987 F.3d at 625 (holding that

the comparability analysis is a fact-intensive inquiry requiring

discovery and that allegations of comparability suffice at the

pleading stage).

For now, the court will address the comparison drawn between

jury duty and military leave. The court focuses there because that

comparison is the most salient of the three made in the com-

plaint, and Won need only sufficiently demonstrate that there is

at least some other category of comparable leave that is treated

more favorably than military leave to plead that she has been

injured by Amazon’s policies. See Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (reasoning that the pleading standard created by

Rule 8(a) is sufficiency); Twombly, 550 U.S. at 563 (reasoning

that a complaint must only “meet the minimum standard of ade-

quate pleading”). This analysis leads the court to conclude that

Won has alleged sufficient facts that military leave is comparable

to at least one form of non-military leave generally available to

employees at Amazon.

As to duration, arguably the most significant factor, Won alleges

that military leave, like jury duty leave, lasts for fewer than 30

days and is short-term in nature. (See Am. Compl. ¶ 65.) For the

involuntariness factor, Won alleges that military leave, like jury

duty leave, is compulsory in that the “circumstances and condi-

tions necessitating these types of leave do not arise within an

employee’s discretion.” (Id. ¶ 64). As other courts have noted,

military leave is compulsory in the way described by Won be-

cause “guardsmen have no individual voice in selecting the

weeks they will be on active duty,” rather, “[m]ilitary superiors

set the time for training which is both compulsory and short.”

Waltermyer, 804 F.2d at 823. Finally, Won’s complaint plausibly

satisfies the “purpose” factor set out in 20 C.F.R. § 1002.150(b)

by alleging that jury duty and military service share the “common

objective of serving the public interest.” (Id. ¶ 66.)

Amazon disputes Won’s analysis of these factors. (See Defs.’ Mot.

at 17.) But the company notably commits a linguistic misstep in

distinguishing the duration of military leave from that of jury

duty leave: it equates duration, or the “a portion of time which is

measurable or during which something exists, lasts, or is in pro-

gress,” with frequency, “the number of repetitions of a periodic

process in a unit of time.” Duration, Webster’s Third New Inter-

national Dictionary (1993); frequency, id. Frequency is not

mentioned in 20 C.F.R. § 1002.150(b) and is not a synonym for

duration, but Amazon uses it interchangeably with duration

when discussing the amount of time Won must take off com-

pared with a typical juror. (See Defs.’ Mot. at 17.)

For example, Amazon notes that jury duty and military leave

each typically last fewer than two weeks, then shifts to point out

the aggregate number of days Won was required to take off be-

cause, in terms of frequency, she took leave on a “regular and

recurring basis.” Id. But 20 C.F.R. § 1002.150 does not instruct

employers to calculate the total number of days of leave an em-

ployee takes; it directs employers to compare the number of days

required per instance of leave, i.e., the duration of the military

and comparable non-military leaves. As Won notes, “[t]he whole

point of service in the armed forces is that servicemembers must

be prepared to serve whenever they are called up – whether that

need is occasional or frequent. Nothing in USERRA says that em-

ployers must provide equal treatment unless a servicemember

serves too much.” (Pl.’s Mem. at 14.)6 Moreover, even if military

leave sometimes did stretch for an extended period, the same

could be said for jury service. Although the record does not yet

6 Amazon’s conflation of frequency and duration creates dissimilarities

where there are none; but Amazon has no problem distinguishing between

frequency and duration when describing how favorable its differential pay

policy is for servicemembers. (Trans. of Mot. Hr’g. ¶¶ 7-8. (“Amazon pays,

up to 52 weeks per instance . . . ”) (emphasis added)).

permit a fulsome comparison as to duration, Won has plausibly

alleged one.7

Amazon next argues that Won’s application of the voluntariness

factor is inapt because military leave is the consequence of an

employee’s voluntary decision to serve in the armed forces in the

first place, whereas all American citizens are “subject to jury duty

simply by living in the United States.” (Defs.’ Mot. at 17.) This

point, however, reflects a misreading of 20 C.F.R. § 1002.150(b)

and a misunderstanding of the purpose of USERRA. The volun-

tariness factor is meant to trigger an evaluation of whether an

employee has control over when to take their leave, not whether

the employee has control over their status as a reservist. See

White, 987 F.3d at 625 (“Comparability analysis is not affected

by the fact that the service-member has voluntarily signed up for

military service . . . what matters is an employee’s control over

the timing of her leave of absence.”). To hold otherwise would

“impermissibly penalize[] servicemembers for joining the mili-

tary, in direct contravention of USERRA’s core purpose.” Id.; see

also 38 U.S.C. § 4301(a).

A full determination of whether the two leaves are comparable

awaits either summary judgment or a jury. At this stage, the court

must accept the plausible facts as Won pleads them. Rule 12 is

not a mechanism to displace discovery with speculation about

what might be later revealed. See Twombly, 550 U.S. at 556. Until

7 Amazon argues that “common sense” defies a comparison between jury

duty (supposedly short) and military leave (supposedly long), but offers

little evidence for either claim. The last three trials this court has held have

all lasted at least ten days. Amazon calls this “so rare . . . that New York

State will automatically disqualify a juror who serves for that long from

further service for eight years.” (Defs.’ Reply at 14.) But if anything that

observation supports the opposite of what Amazon says: extended service

may actually be so common that the State is forced to specifically account

for it to prevent jurors from being called for one extended trial after an-

other.

then, Won has alleged enough “factual content” for the court to

“draw a reasonable inference” that jury duty and military leave

are comparable. Iqbal, 556 U.S. at 678.

2. Whether the paid leave scheme Amazon provides

for jury duty is more favorable than the differential

pay it offers for military leave is an issue of fact.

Factual development similarly remains as to which leave pro-

vides more favorable benefits, if either. It is clear to the court,

however, that the evidence Amazon has provided does not refute

the plausibility of Won’s allegation that providing full pay for 10

days for employees on military leave is more favorable than the

company’s differential payment plan. (See Defs.’ Mot. 9-10; Ex. 1

(describing the experience of reservists employed at Amazon

during the COVID-19 pandemic, but not providing information

on how Amazon’s approach to military leave compares to their

approach to jury duty leave).) In particular, there is an ongoing

dispute about how Amazon’s time limitations on leave are oper-

ationalized; it is unclear whether the 10-day cap for jury duty

leave applies per instance or per year. (See Defs.’ Mot. at 17 (ex-

plaining that jury duty rarely lasts over 10 days without

elaborating on whether the 10-day cap is per instance of leave);

Pl.’s Mem. at 11 (noting that there is “nothing in the record to

clarify whether these caps apply per instance of leave, or on an

annual basis”).) Stopping this case from proceeding to discovery

would “cut off this analysis too soon.” White, 987 F.3d. at 625.

Until then, Won has sufficiently alleged plausible facts that Am-

azon treats certain non-military leaves more favorably than

military leave. The court therefore declines to dismiss the com-

plaint on this basis. Amazon’s motion is DENIED.

D. Claim Splitting

Amazon next moves to dismiss Won’s complaint for claim split-

ting because this action follows a separate suit Won previously

filed against Amazon. (See Defs.’ Mot. at 18-24.) The court has

previously deemed that case “related” to this one but has not con-

sidered the claim spitting issue. See Won v. Amazon Services, Inc.,

No. 20-CV-2811 (“Won I”) (E.D.N.Y. 2020).

The doctrine of claim splitting is designed to promote procedural

efficiency: it allows the district court to control its docket by pre-

venting concurrent duplicative actions. See Curtis v. Citibank,

N.A., 226 F.3d 133, 138 (2d Cir. 2000) (holding that as “part of

its general power to administer its docket, a district court may

stay or dismiss a suit that is duplicative of another federal court

suit”). Determining whether claim splitting has occurred is fact-

intensive and eschews a “rigid test,” instead requiring the court

“to consider the equities of the situation when exercising its dis-

cretion.” Curtis, 226 F.3d at 138. A colorable claim of duplicative

litigation demonstrates that there is substantial overlap between

the two cases such that it would be improvident to try them sep-

arately. See The Haytian Republic, 154 U.S. 118, 124 (1894). The

claim splitting inquiry requires the court to assess the similarities

between the two cases:

When the pendency of such a suit is set up to defeat an-

other, the case must be the same. There must be the

same parties, or, at least, such as represent the same in-

terests; there must be the same rights asserted and the

same relief prayed for; the relief must be founded upon

the same facts, and the title, or essential basis of the re-

lief sought must be the same.

Id. at 124. Thus, while claim splitting is a distinct doctrine from

res judicata because it does not require a final judgment on the

merits for the first filed suit, the two doctrines require similar

analyses. See Davis v. Norwalk Econ. Opportunity Now, Inc., 534

F. App’x 47, 48 (2d Cir. 2013) (noting that though the two doc-

trines are different, both ask whether the second suit arises from

the same transaction as the first).

Since Haytian Republic, the meaning of a claim has been broad-

ened and defined as a “transaction” which signifies a “factual

grouping” or events that form a “litigative unit or entity which

may not be split.” Restatement (Second) of Judgments § 24

(1982). This more encompassing notion of a “transaction” means

that certain successive acts that happen nearly simultaneously or

that are substantially similar and “similarly motivated” should be

tried in the same action. Id. Still, spatiotemporal proximity is not

dispositive in determining whether successive events are part of

the same transaction, nor is some degree of factual overlap. See

N.L.R.B. v. United Techs. Corp., 706 F.2d 1254, 1259 (2d Cir.

1983) (reasoning that “the circumstance that several operative

facts may be common to successive actions between the same

parties” does not mean that the later brought action is necessarily

precluded on claim splitting grounds); see also Curtis, 226 F. 3d

at 139 (reasoning that “claim preclusion depends” on both the

connectedness of the transactions at issue and whether “the same

proof is needed to support the claims in both suits”).

The more direct question is “whether the facts essential to the

second were present in the first.” United Techs. Corp., 706 F.2d at

1260. Two cases with separate operative facts that produce dis-

tinct causes of action can remain discrete. Cf. Restatement

(Second) of Judgments § 24(d) ill. (7) (explaining that a plaintiff

who was assaulted by his debtor would have two separate causes

of action: one to collect on the debt and the other seeking dam-

ages from the assault); see also Davis, 534 F. App’x at 48 (citing

Proctor v. LeClaire, 715 F.3d 402 (2d Cir. 2013) (claim preclusion

does not apply when the plaintiff is bringing two separate causes

of action)). In determining whether two separately filed actions

involve discrete transactions, the court should consider factors

including: “whether the underlying facts are related in time,

space, origin, or motivation, whether they form a convenient trial

unit, and whether their treatment as a unit conforms to the par-

ties’ expectations or business understanding or usage.”

Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir.

1997).

While it is not in dispute that both of Won’s actions filed in this

court spring from her employment at Amazon and from rights

protected under USERRA, there is disagreement over whether

the suits arise from different transactions. (See Defs.’ Reply at 15;

Pl.’s Mem. at 16.) In arguing that this action is duplicative of the

first suit, Amazon commits a similar analytical misstep that it

does in interpreting the text of 20 C.F.R. § 1002.150(b): it creates

factors that are not part of the claim splitting analysis to boot-

strap its own argument. Specifically, Amazon takes the

proposition that a claim will be precluded if it shares the same

operative facts with a previously filed suit and transforms it into

the proposition that two claims should be brought together if

they arise under the same statute. (Defs.’ Reply at 15 (arguing

that the rule against claim splitting applies here because “Ms.

Won has already sued the same defendant, in the same court, for

an alleged violation of the same law.”).) But there is nothing in

claim splitting doctrine that asserts that separate actions brought

under the same statute must be brought together. That makes

sense, because a statute like USERRA is intended to protect a va-

riety of different broadly defined rights; because of USERRA’s

scope, it is probable that under its protections, the same defend-

ant could have multiple viable causes of action. See, e.g., 38

U.S.C. §§ 4301-4335.

Applying the claim splitting factors to this case, Won’s previously

filed action is separate and distinct from the claims now pre-

sented to the court. In Won I, Plaintiff brought an unlawful

termination claim, alleging that Amazon wrongfully discrimi-

nated and retaliated against her based on her status as a

caregiver and as a uniformed member of the military. (See Rich-

man Decl. Ex. 2 (Dkt. 22-4) ¶¶ 1-2.) In the present action, Won,

on behalf of herself and a putative class, asserts that Amazon’s

leave policies constitute a violation of 38 U.S.C. § 4316(b). (Am.

Compl. ¶¶ 71-72.)

Despite Amazon’s assertions to the contrary, the two complaints

involved allege separate essential facts. (Defs.’ Mot. at 19-20.) It

is true that because both suits involve potential violations of

USERRA that happened while Won was employed at Amazon,

certain facts will necessarily overlap. Such an overlap, however,

is insufficient to trigger the claim splitting doctrine; the cases

must allege shared critical facts. United Techs. Corp., 706 F.2d at

1260. The chart of overlapping facts Amazon provides in support

of its claim splitting argument establish the basic circumstances

of Won’s employment at Amazon, including when she was em-

ployed, her wage, and the dates of the leaves she took while

employed. (See Defs.’ Mot. at 20.) Tellingly, absent from the

chart are the essential facts that Won provided in her two com-

plaints that are necessary to establish the separate causes of

action.

Inquiring into what was omitted from the chart reveals two dis-

tinct sets of facts that are integral to the unique causes of action

in the respective cases. The first suit requires evidence of poten-

tial animus to military service members, a discriminatory motive,

and evidence about the nature of Won’s termination. See, e.g.,

Staub v. Proctor Hosp., 562 U.S. 411, 131 (2011) (establishing an

unlawful termination claim under 38 U.S.C. § 4311 requires evi-

dence that an employer’s bias against service members was the

but-for motivation of an adverse employment action). Accord-

ingly, in Won I, Plaintiff alleges facts about her responsibilities as

a caregiver, her scheduling restraints, the quality of her work at

Amazon, her disciplinary record prior to termination, the hostile

treatment she received from Amazon’s HR representatives, how

that treatment affected her, and the nature of her termination.

(See Richman Decl. Ex. 2 ¶¶ 19-33, 38-57.)

By contrast, Won’s amended complaint in this case alleges that

Amazon’s leave policies violate 38 U.S.C. § 4316(b). Litigating

this case will require evidence that would not be provided in

Won’s first suit: e.g., evidence attesting to the comparability of

military leave and other kinds of leave, data accounting for

wages and leave timelines of the putative class, and evidence of

how Amazon’s leave policies have been operationalized since

2004 for military and non-military employees. (Pl.’s Mem. at 11-

14.) Therefore, the central facts Won pleads in the second suit

are different than those integral to the complaint filed in the first

suit: Won’s second filed complaint alleges facts about the nature

of Amazon’s leave policies, what Won was told about the leave

policies by those in control of the conditions of her employment,

and information about how Amazon compensated Won during

the leaves she took. (Am. Compl. ¶¶ 48-73.) In short, this suit’s

facts allege that Amazon’s policy is violative of § 4316(b),

whereas the first suit’s facts allege animus Won personally expe-

rienced because of her status as a caregiver and reservist. (Am.

Compl. ¶¶ 48-73; Richman Decl. Ex. 2 ¶¶ 19-33, 38-57.)

Further, the relief demanded in each suit is unique. Won I seeks

only relief specific to Won, because it seeks to redress the injuries

she personally suffered because of the discrimination and ad-

verse employment actions allegedly taken by Amazon. (See

Richman Decl. Ex. 2 at 13-14.) In the second suit, Won seeks re-

lief for the injuries caused to her and the putative class in the

form of unpaid wages and lost earnings, liquidated damages, pre-

and post-judgment interest, and attorneys’ fees and costs. Addi-

tionally, she sought (before the court dismissed the claims,

supra) a declaration that Amazon violated USERRA § 4316(b) in

failing to pay the putative class for the short-term military leaves

they took during the class period, as well as injunctive relief re-

quiring Amazon to amend its leave policies. (Am. Compl. ¶¶ 2-

4.)

Finally, whether the defendants in the two different suits are

identical or in privity is a nonissue because Won I and Won II

arise from separate causes of action. (See Defs.’ Mot. at 22-23.) A

privity analysis is necessary when it appears the plaintiff is at-

tempting to relitigate the same cause of action by suing a

defendant who was not named in the first suit but was in privity

with those named. Rezzonico v. H & R Block, Inc., 182 F.3d 144

(2d Cir. 1999) (holding that “res judicata bars subsequent litiga-

tion between the same parties and those in privity with them

involving the same cause of action”). Here, Won is asserting an

entirely different cause of action. Under Rule 18 of the Federal

Rules of Civil Procedure, a plaintiff is permitted but not required

to join “as many claims as it has against one party” in a single

suit. Fed. R. Civ. P. 18(a). Won thus may file and maintain sepa-

rate suits against Amazon, and the company’s motion to dismiss

the complaint on this basis is DENIED.

E. Proper Defendants

Finally, the court considers Amazon’s final motion that Ama-

zon.com, Inc. and Amazon.com Sales, Inc. be dismissed as

improper defendants. (Defs.’ Reply at 19-20.) The parties do not

dispute that Won has plausibly alleged that Amazon.com Ser-

vices, LLC was her employer and fits within the definition

provided in § 4303(4)(A). (Id. at 20.) The court concludes that

Amazon.com, Inc. and Amazon.com Sales, Inc. should be dis-

missed because Won failed to adequately plead that

Amazon.com Inc. and Amazon.com Sales, Inc. had some author-

ity over her employment, beyond factual “generalities,” In re

Parmalat Sec. Litig., 383 F. Supp. 2d 616, 619 (S.D.N.Y. 2005),

and descriptions of the parent-subsidiary relationship existing be-

tween the named defendants. (See generally Am. Compl. ¶¶ 13-

38.)

To be sure, the meaning of “employer” under USERRA is expan-

sive; Defendants need not be responsible for hiring or firing and

only must have control over some facet of “employment oppor-

tunities.” See 38 U.S.C. § 4303(4)(A)(i); H.R. Rep. No. 103-65(1)

at 21 (explaining that § 4303(2)’s definition of “employer” is in-

tended to be “broadly construed” and to encompass

nontraditional employer relationships including “those where

more than one entity may exercise control over different aspects

of the employment relationship”). While there is a “lack of a clear

standard for determining whether an entity is an ‘employer’

within the USERRA context,” the White court noted that there

must be specific evidence that a named Defendant had “some

measure of control for purposes of Section 4303(4)(A).” See

White, 987 F.3d at 627. Notably, the “presence of common offic-

ers . . . alone does not create liability” as between a parent

company and subsidiary. Id. (emphasis in original). The com-

plaint must allege that the parent was actively involved in some

facet of the plaintiff’s employment conditions. Id. (reasoning that

though the standard to be a qualifying employer under USERRA

requires that an employer had “control over the plaintiff’s em-

ployment opportunities writ large,” the complaint must still

evidence the active role all named defendants played in estab-

lishing conditions of employment that impacted the plaintiff).

Won asserts that all Defendants collectively had some “control

over” her and the rest of the putative class’s employment condi-

tions, as required by 38 U.S.C. § 4303(4)(A), but she does not

specifically allege particular aspects of control by each entity. Ra-

ther, Won collapses all three into one and then makes the general

claim that they “control the terms and conditions of their employ-

ment including but not limited to hiring, firing, promotions,

discipline, directing their work, [and] setting their rate of pay,

including pay for leaves of absences and setting their schedule.”

(Am. Compl. ¶ 31.) Even upon information and belief, the facts

alleged do not inform the court as to which “employment-related

responsibilities” correspond to which named defendant. 38

U.S.C. § 4303(4)(A)(i). Won instead argues that each entity

takes the same approach to their work and employees, because

they are all influenced by CEO Jeff Bezos’s “philosophies” and are

each bound to follow “employment initiatives.” (Id. ¶¶ 24, 27.)

The only particularized allegation that the Won makes is that

Amazon.com, Inc. and Amazon.com Sales, Inc. are properly

named because they share officers with Amazon.com Services,

LLC. (Id. ¶¶ 21-23.) Beyond this, Won does not plead any specific

information indicating the role these defendants played in Won’s

specific employment. The court therefore holds that the com-

plaint’s general, conclusory assertions about Amazon.com, Inc.

and Amazon.com Sales Inc. are insufficient to establish them as

parties to the case. See, e.g., McSweeney v. City of Bell, No. 08-CV-

7006 (JFW), 2009 WL 10700299 (C.D. Cal. Mar. 13, 2009) (a

USERRA violation does “not rely on group pleading allegations

but shall specifically allege the conduct of each defendant that

Plaintiff contends violates USERRA”).

Amazon.com Inc. and Amazon.com Sales Inc. are therefore DIS-

MISSED from the case without prejudice. Won is granted leave

to amend her complaint to name (or rename) the proper defend-

ants if other facts later emerge.

CONCLUSION

For the foregoing reasons, Amazon’s motion to dismiss Won’s

amended complaint is DENIED. Amazon.com Inc. and Ama-

zon.com Sales Inc. are DISMISSED from the case without

prejudice. Won’s claims for injunctive and declaratory relief are

both DISMISSED without prejudice.

SO ORDERED.

Dated: Brooklyn, New York

August 19, 2022

_/s/ Nicholas G. Garaufis_

NICHOLAS G. GARAUFIS

United States District Judge