Padilla v. New York City Department of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

ALBERT PADILLA, MEMORANDUM & ORDER

Plaintiff, 23-CV-8650 (NGG) (LB)

-against-

NEW YORK CITY DEPARTMENT OF

EDUCATION,

Defendant.

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Albert Padilla brings this action against his employer, the

New York City Department of Education (the “DOE”), for viola-

tion of the Uniformed Services Employment and Reemployment

Rights Act of 1994 (“USERRA”), 38 U.S.C. 88 4301-4335. (Com-

plaint (“Compl.”) (Dkt. 1).) Pending before the court is the DOE’s

motion to dismiss the Complaint with prejudice pursuant to Fed-

eral Rule of Civil Procedure 12(b)(6). (Motion to Dismiss

(“Mot.”) (Dkt. 17-3); Pl’s Opposition ““Opp.”) (Dkt. 17-6); Def.’s

Reply (“Reply”) (Dkt. 17-7).) For the reasons that follow, the

DOE’s motion to dismiss is GRANTED without prejudice to the

filing of an amended complaint.

I. BACKGROUND!

A. First Deployment

In August 2004, the DOE hired Albert Padilla as a Substitute Vo-

cational Teacher’s Assistant at one of its schools. (See Compl. 4

11.) The DOE eventually promoted Padilla to Vocational Instruc-

tor, which position he holds to this day. dd. § 12.) Throughout

1 The following facts are drawn from the Complaint and, for purposes of

this motion to dismiss, are assumed to be true. See Ark. Pub. Emps. Ret. Sys.

v. Bristol-Myers Squibb Co., 28 F.Ath 343, 349 (2d Cir. 2022).

his career with the DOE, Padilla has been enlisted in the United

States Armed Forces (“the Army”).? (Id. 44 13-14.)

On approximately July 18, 2016, the Army informed Padilla that

he was being deployed for one year starting on January 5, 2017,

with a required training in November 2016. (Id. 4 15.) Padilla

submitted a request for Miliary Leave with the DOE. (Id. { 16.)

The DOE confirmed receipt of Padilla’s request on October 6,

2016; however, it is unclear whether the DOE approved or de-

nied his request. (Id.) Padilla also requested that he assume the

same teaching assignment upon his return from deployment, alt-

hough it is unclear whether Padilla made this request separately

or as part of his request for Military Leave. (id. § 25.)

In November 2016, Padilla received a bill from a medical pro-

vider informing him that his DOE insurance plan did not apply

to certain treatment. (Id. { 17.) Upon further inspection, Padilla

discovered that the DOE had cancelled his health benefits. (Id. 4

18.) Padilla notified Katherine Rodi? of this issue on December

4, 2016, and Rodi explained that Padilla was ineligible for bene-

fits during pre-deployment training, but that he would receive

pay and benefits throughout his actual deployment. (Id. 19-

20.) Carla Torres, the school’s payroll secretary, confirmed the

same in January 2017. Ud. { 23.) After speaking with Rodi in

December 2016, Padilla contacted the Employer Support of the

Guard and Reserve (“ESGR”) to initiate a USERRA-based claim;

however, he ultimately abandoned the issue and reported for his

deployment. Ud. 21-22.)

Upon his return from deployment in December 2017, Padilla

“met with supervision at [the DOE] to discuss his reinstatement

? Although it is unclear from the Complaint, which ought to specify such

information, the court assumes that Padilla is enlisted in the United States

Army Reserve.

3 The Complaint does not explain who Katherine Rodi is, or her relation to

Padilla or the DOE.

to his pre-deployment position for the spring 2018 term, which

was confirmed at that meeting.” (Id. § 26.) When Padilla re-

turned to work on January 29, 2018, however, he recognized “a

discrepancy” regarding his teaching assignment and brought it to

his supervisor’s attention. (Id. □ 27.) Later that day, Padilla filed

a formal grievance. (Id. { 28.) According to the Complaint, all of

the issues stemming from Padilla’s first deployment—the pay and

benefits issue, the teaching assignment issue, and an allegation

of insubordination on the part of Padilla—were thereafter “seem-

ingly resolved.” Ud. { 29.) Padilla continued his employment

with the DOE from 2018 to 2022. (Id.)

B. Second Deployment

In January 2022, Padilla received new deployment orders and

submitted a request for Military Leave from January 16, 2022, to

April 1, 2022. (Compl. 4 30.) On March 22, 2022, the DOE ap-

proved Padilla for paid leave during this period. (Id. { 32.)

The following day, Padilla submitted a request to extend his paid

leave through June 30, 2022, so that he could undergo “major

[spinal] surgery required after his deployment.” (Id. {4 33, 52.)

Initially, the DOE approved Padilla’s request through June 28,

2022, using Cumulative Absence Reserve days (“CAR days”),

which apparently allowed Padilla to be paid for that time off. (Id.

{{ 33-34.) However, upon additional medical review, the DOE

extended Padilla’s leave to June 30, 2022, designating it as “leave

without pay, denying [his] use of CAR days without explana-

tion.” (Id. { 34.) Although he complained about the denial of pay

to Dermot Smyth, Mejia Ibeth, LeRoy Barr, and Amy Arundell,*

Padilla was ultimately “unable to use CAR days[,] and his leave

request was approved as unpaid.” (Id. 4] 35-38.)

4 The Complaint does not explain who these individuals are, or their rela-

tion to Padilla or the DOE.

Padilla contends that someone—the Complaint does not specify

who—instructed him to apply for a six-month health sabbatical,

which would include leave with pay, to allow him adequate time

to recover from surgery. (Id. 35-36, 39.) Specifically, approxi-

mately three weeks after his surgery, Padilla’s doctor, Dr. Thomas

Lee, confirmed that Padilla would require at least six months to

recover. (Id. { 39.) However, when Padilla had a medical

checkup four months after his surgery, Dr. Lee suggested that Pa-

dilla’s recovery could take up to one year and advised that

Padilla’s leave should extend to, at a minimum, October 20,

2022, or one full year from the date of his surgery, April 20,

2023. (Id. 14 40-41.)

On September 5, 2022, Padilla submitted another request for a

health sabbatical from August 1, 2022, to January 31, 2023;

however, his request was denied because he “did not meet re-

quired number of years of appointed service” to qualify for a

health sabbatical. (id. 49 42-43.) Subsequently, Padilla received

an email from the principal of his school, Steven Jackson, ex-

plaining that he expected Padilla to report to work given that his

health sabbatical was denied. (Id. 4 44.)

On September 13, 2022, the DOE reopened Padilla’s health sab-

batical request and ultimately approved his application for a six-

month period ending on January 31, 2023. Ud. "9 45, 47.) On

January 27, 2023, Padilla submitted a request to extend his

health sabbatical from February 1, 2023, to July 31, 2023; how-

ever, the DOE again denied his application on the ground that

Padilla failed to meet the requisite years of appointed service to

qualify for a health sabbatical. (id. {{ 48-49.) Thereafter, Padilla

amended his request and asked that his leave end on April 21,

2023, one year after his surgery, which the DOE ultimately ap-

proved without pay. Ud. 1149, 51.) When Padilla contacted Ms.

Arundell regarding his frustrations, she “provided [Padilla] with

three options he could utilize, of which he chose the option that

exhausted all his sick time.” Ud. 99 52-53.)

On April 10, 2023, Padilla received four notices regarding his

leave requests: (1) a “partial approval for his request for health

sabbatical from April 4, 2022, through July 31, 2022, stating that

leave would be denied from June 29, 2022, through July 31,

2022, indicating that CAR days would apply”; (2) a partial ap-

proval of Padilla’s request for a health sabbatical from August 1,

2022 to January 31, 2023, “stating that his request was approved

from September 6, 2022, through April 21, 2023, but denied

from August 1, 2022, to September 5, 2022, and later yet another

approval indicating that CAR days would also apply to this re-

quest”; (3) an approval of his “restoration of health leave

request,” approving Padilla for leave without pay “from February

1, 2023, to February 1, 2023”5; and (4) an approval of Padilla’s

request for restoration of his health sabbatical from April 2, 2023,

to June 30, 2023, using CAR days. (Id. 49 54-57.)

On April 20, 2023, “while his wife was pregnant,” Padilla’s health

insurance companies notified him that his coverage would termi-

nate on April 22, 2023. Ud. § 58.) Padilla contacted Ms. Arundell

regarding this information, and she explained that “she had al-

ready told the Leaves Department of [Padilla’s] intent to extend

his leave and, consequently, his health insurance through July

31, 2023.” Ud.) On May 5, 2023, the DOE approved Padilla’s

health leave extension through June 30, 2023. Ud. 14 58-59.)

Upon request for additional documents regarding his diagnosis

and prognosis, the DOE approved Padilla’s request for a health

sabbatical through July 31, 2023. (Id. § 60.)

On May 26, 2023, the school’s payroll secretary informed Padilla

that the DOE’s internal system indicated he was on leave without

5 The court presumes that this short date range is the result of a typo in the

Complaint.

pay. (id. { 61.) Padilla responded, informing her that his health

benefits “had also not been corrected and had been suspended

since February 2023.” Cd.) To date, Padilla alleges that his

“health benefits and pay have not been reinstated and have

caused significant financial hardship, stress, and emotional dis-

ruption for him and his family.” (Ud. 4 64.)

C. Procedural History

Padilla filed the instant Complaint on November 21, 2023, alleg-

ing that the DOE failed to reinstate his former teaching

assignment and wrongfully withheld his pay and benefits in vio-

lation of USERRA, specifically 38 U.S.C. 88 4311(a)-(c) and

4312(a), (b). (Compl. {{ 69-77.) Padilla seeks damages, attor-

neys’ fees, and interest. (Id. 1 76-77.)

The Complaint’s “Jurisdiction” section does not cite any jurisdic-

tional statute nor explicitly state the basis for the court’s

jurisdiction. (Id. {{ 1-2.) Rather, it simply states that “[t]his is an

action seeking equitable and legal relief for violation of the Uni-

formed Services Employment and Reemployment Rights Act,

United States Code, Title 38, Ch. 43 et seq.” Ud. € 1.) While the

court questions whether this statement satisfies the requirements

of Rule 8(a), see Fed. R. Civ. P. 8(a)(1), the civil cover sheet

demonstrates that Padilla intends to invoke the court’s federal

question jurisdiction under 28 U.S.C. § 1331. (Civil Cover Sheet

(Dkt. 1-1) at 1.)

On October 25, 2024, the court granted the DOE’s request to file

a motion to dismiss the Complaint. (Min. Entry Dated

10/25/2024.) On December 18, 2024, the DOE filed its fully

briefed motion to dismiss the Complaint pursuant to Federal Rule

of Civil Procedure 12(b) (6). (See Mot.)

On February 5, 2025, the court directed the parties to submit

supplemental briefing addressing the issue of the court’s subject-

matter jurisdiction over this action. (Text Order Dated

2/5/2025.) The DOE and Padilla submitted their supplemental

briefs on February 6 and March 5, respectively, in which they

agreed that USERRA’s jurisdictional section—38 U.S.C. §

4323(b)—grants the court subject-matter jurisdiction over this

action. (DOE SMJ Br. (Dkt. 18); Padilla SMJ Br. (Dkt. 19).)

If. LEGAL STANDARDS

To survive a motion to dismiss under Rule 12(b) (6), “a complaint

must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)).° “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the mis-

conduct alleged.” Id. A complaint must contain facts that do more

than present a “sheer possibility that a defendant has acted un-

lawfully.” Id. In deciding a motion to dismiss, the court accepts

all factual allegations in the complaint as true and draws all rea-

sonable inferences in the plaintiffs favor. See Fink v. Time Warner

Cable, 714 F.3d 739, 740-41 (2d Cir. 2013). However, allega-

tions that “are no more than conclusions [ ] are not entitled to

the assumption of truth.” Hayden v. Paterson, 594 F.3d 150, 161

(2d Cir. 2010). Dismissal for failure to state a claim is appropriate

if it is clear from the face of the complaint that a claim is barred

as a matter of law. Biocad JSC v. F. Hoffmann-La Roche, 942 F.3d

88, 93 (2d Cir. 2019).

Additionally, a federal court has an independent obligation to as-

sure itself of its own jurisdiction. Arnold v. Lucks, 392 F.3d 512,

517 (2d Cir. 2004). “If the court determines at any time that it

lacks subject-matter jurisdiction, the court must dismiss the ac-

tion.” Fed. R. Civ. P. 12(h)(3); Oscar Gruss & Son, Inc. v.

© When quoting cases, unless otherwise noted, all citations and internal

quotation marks are omitted, and all alterations are adopted.

Hollander, 337 F.3d 186, 193 (2d Cir. 2003) (“Failure of subject

matter jurisdiction ... may be raised at any time by a party or by

the court sua sponte.”). Federal subject-matter jurisdiction is pre-

sent only when a “civil action[] aris[es] under the Constitution,

laws, or treaties of the United States,” see 28 U.S.C. § 1331, or

when the parties are completely diverse and the amount in con-

troversy exceeds $75,000, see 28 U.S.C. § 1332. “[W]hen federal

law creates a private right of action and furnishes the substantive

rules of decision, the claim arises under federal law, and district

courts possess federal-question jurisdiction under § 1331.” Mims

v. Arrow Fin. Servs., LLC, 565 U.S. 368, 378-79 (2012). That prin-

ciple applies “unless Congress divests federal courts of their §

1331 adjudicatory authority.” Id. at 379. Courts must generally

consider jurisdictional questions first, before turning to the mer-

its of a case. United States ex rel. Hanks v. United States, 961 F.3d

131, 137 (2d Cir. 2020) (“There are a few recognized exceptions

to the otherwise solid rule that subject-matter jurisdiction must

be decided first.”).

Ill. DISCUSSION

A. Subject-Matter Jurisdiction

“Section 4323 of title 38 governs jurisdiction over claims

brought under USERRA.” Cresci v. Mohawk Valley Cmty. Coll.,

693 F, App’x 21, 23 (2d Cir. 2017) (summary order). Section

4323 provides, in pertinent part:

(b) Jurisdiction.—

(1) In the case of an action against a State (as an employer)

or a private employer commenced by the United States, the

district courts of the United States shall have jurisdiction

over the action.

(2) In the case of an action against a State (as an employer)

by a person, the action may be brought in a State court of

competent jurisdiction in accordance with the laws of the

State.

(3) In the case of an action against a private employer by a

person, the district courts of the United States shall have ju-

risdiction of the action.

38 U.S.C. § 4323(b). For purposes of Section 4323, “the term

‘private employer’ includes a political subdivision of a State.” Id.

§ 4323(i). Additionally, USERRA defines a “State” as “each of the

several States of the United States . . . (including the agencies

and political subdivisions thereof).” Id. § 4303(14).

Read together with the relevant definitions, Section 4323 pro-

vides that actions brought by persons against States and state

agencies “may be litigated only in state courts,” whereas actions

brought by persons against political subdivisions of a State may

be brought in state or federal court. Cresci, 693 F. App’x at 23;

see also Rivera v. Cnty. of Suffolk, No. 21-CV-5439 (GRB), 2023

WL 2403616, at *2 (E.D.N.Y. Mar. 8, 2023) (holding that the

federal court had subject-matter jurisdiction over suit by individ-

ual against Suffolk County, a political subdivision of New York

State). In this case, the question is whether the DOE is a “state

agency” or “political subdivision” for purposes of USERRA. If it is

a state agency, then the court lacks subject-matter jurisdiction

pursuant to Section 4323 (b)(2). If it is a political subdivision,

then the court has subject-matter jurisdiction pursuant to Sec-

tions 4323(b)(3) and (i).

The parties agree that the DOE is a “political subdivision” of New

York State, making it a “private employer” for purposes of Sec-

tion 4323. (DOE SMJ Br.; Padilla SMJ Br.) The DOE relies on

three categories of cases to support its position: (1) USERRA

cases featuring the DOE as a defendant which were litigated by

a federal court on the merits but did not address the issue of ju-

risdiction; (2) USERRA cases that did not feature the DOE as a

defendant but did address the issue of jurisdiction; and (3) cases

where federal courts determined, in different statutory contexts,

that the DOE is a political subdivision of New York State. (DOE

SMJ Br. at 2-3.) Padilla’s submission cites no caselaw or statutory

authority; it simply agrees with the DOE’s submission. (Padilla

SMJ Br. at 1-2.)

With regard to the USERRA cases featuring the DOE as a defend-

ant, while each of those cases reached the merits, none actually

addressed the issue of jurisdiction. See Dilfanian v. N.Y.C. Dep’t of

Educ., 700 F. App’x 5, 6-9 (2d Cir. 2017) (summary order) (ad-

dressing merits of case; no mention of jurisdiction); Hunt v. Klein,

476 F. App’x 889, 890-92 (2d Cir. 2012) (summary order)

(same); Byfield v. N.Y.C. Dep’t of Educ., No. 22-CV-5869 (KPF),

2023 WL 8435183, at *7-8 (S.D.N.Y. Dec. 5, 2023) (same).

“[W]hen questions of jurisdiction have been passed on in prior

decisions sub silentio,” the court is not bound by those decisions

“when a subsequent case finally brings the jurisdictional issue [to

the forefront].” Hagans v. Lavine, 415 U.S. 528, 533 n.5 (1974);

Idaho Potato Comm’n v. M & M Produce Farm & Sales, 335 F.3d

130, 137 n.7 (2d Cir. 2003) (“We are not at all sure that a prior

decision . . . in another case can create binding precedent for us

on [an] issue when that decision does not mention the issue or

the underlying facts.”). In such circumstances, the court may ap-

proach the jurisdictional question “as an open one[,] calling for

a canvass of the relevant jurisdictional considerations.” Hagans,

415 U.S. at 533 n.5. Thus, because these cases do not address the

jurisdictional issue, they provide little guidance to the court on

this issue.

With regard to the USERRA cases featuring entities other than

the DOE, those cases contain no reasoning as to why the partic-

ular entity qualified as a state agency or political subdivision.

Cresci, 693 F. App’x at 23 (noting, without reasoning or explana-

tion, that the Mohawk Valley Community College is a “state

10

agency”); Rivera, 2023 WL 2403616, at *2 (citing a Seventh Cir-

cuit case holding that Chicago is a “political subdivision” of

Illinois and likewise concluding that Suffolk County is a “political

subdivision” of New York State);” see also Oliver v. N.Y. State Po-

lice, No. 19-CV-233 (BKS) (DJS), 2020 WL 1849484, at *6 n.7

(N.D.N.Y. Apr. 13, 2020) (noting, without reasoning or explana-

tion, that the New York State Police is a “state agency”). The DOE

is not exactly akin to a city or county within a state, or to a state

police agency. Nor is it clear how the court might analogize the

DOE to any of these entities when the decisions classifying those

entities as state agencies or political subdivisions provide no rea-

soning on the subject. See Cresci, 693 F. Appx at 23.

Consequently, these cases are also unhelpful.

Finally, with regard to the cases where courts characterized the

DOE as a “political subdivision” in other statutory contexts, to the

extent those cases bear any relevance outside their respective

statutory contexts, they contain no reasoning or explanation that

the court might apply here. Rubin v. N.Y.C. Bd. of Educ., No 20-

CV-10208 (LGS) (KHP), 2023 WL 1972729, at *21 (S.D.N.Y.

Jan. 6, 2023) (noting that, in New York Labor Law context, it is

“well established that the DOE is a ‘political subdivision’ of New

York State”), report and recommendation adopted, 2023 WL

2344731 (S.D.N.Y. Mar. 3, 2020); see also Rollins v. N.Y.C. Dep’t

of Educ., Nos. 5-CV-10482 (LBS), 6-CV-3657 (LBS), 2008 WL

2736018, at *7 (S.D.N.Y. July 8, 2008) (holding, without any

7 Further highlighting the confusion in this area of the law, a different East-

ern District of New York decision determined that the federal court lacked

subject-matter jurisdiction over Suffolk County. Veronko v. Suffolk Cnty.,

561 F. Supp. 3d 341, 342 (E.D.N.Y. 2021) (“Congress has directed that an

employee of a State, or any agency or political subdivision of a State, may

bring claims under USERRA to redress alleged grievances, but such cases

may be litigated only in state courts.”). Veronko, unlike Rivera, did not cite

to Section 4323(i), which provides that “the term ‘private employer’ in-

cludes a political subdivision of a State.” Id.; 38 U.S.C. § 4323(i). This

omission might explain the different results.

11

reasoning or explanation, that in the Labor Management Rela-

tions Act context, the DOE “is a political subdivision of the State

of New York”). As such, these cases provide little guidance in de-

ciding this issue.

In sum, the court is faced with USERRA cases against the DOE

that have not addressed the jurisdictional issue, USERRA cases

against other entities that addressed the jurisdictional issue but

contain no reasoning the court might map onto this scenario, and

cases characterizing the DOE as a political subdivision in other

statutory contexts, with no reasoning or explanation. In these cir-

cumstances, the court may approach the jurisdictional question

“as an open one[,] calling for a canvass of the relevant jurisdic-

tional considerations.” Hagans, 415 U.S. at 533 n.5.

Statutory interpretation questions begin “with a careful examina-

tion of the ordinary meaning and structure of the law itself.” New

York v. Nat'l Highway Traffic Safety Admin. (“NHTSA”), 974 F.3d

87, 95 (2d Cir. 2020); Hartford Underwriters Ins. Co. v. Union

Planters Bank, N.A., 530 U.S. 1, 6 (2000) (“[W]e begin with the

understanding that Congress says in a statute what it means and

means in a statute what it says there.”). To assess “ordinary

meaning,” the court considers “the commonly understood mean-

ing of the statute’s words at the time Congress enacted [it], and

with a view to their place in the overall statutory scheme.”

NHTSA, 974 F.3d at 95. “If the meaning is unambiguous, that is

the end of [the] inquiry.” Id. “If, however, the terms are ambigu-

ous or unclear, [the court] may consider legislative history and

other tools of statutory interpretation.” Nwozuzu v. Holder, 726

F.3d 323, 327 (2d Cir. 2013).

The court begins with the “ordinary meaning” of USERRA’s text.

NHTSA, 974 F.3d at 95. As noted above, whether the court has

subject-matter jurisdiction over this action depends on whether

the DOE qualifies as a “state agency” or “political subdivision” of

New York State. USERRA does not define either of these terms,

12

except as to classify state agencies and political subdivisions as

“States,” and to simultaneously classify political subdivisions as

“private employers.” See 38 U.S.C. 88 4303(14), 4323(b) and (i).

Black’s Law Dictionary defines a “government agency” as a “gov-

ernmental body with the authority to implement and administer

particular legislation.” Agency (3), Black’s Law Dictionary (7th

ed. 1999).8 And it defines a “political subdivision” as a “division

of a state that exists primarily to discharge some function of local

government.” Political Subdivision, Black’s Law Dictionary (7th

ed. 1999). Using the “commonly understood meaning[s]” of

these terms “at the time Congress enacted the statute,” NHTSA,

974 F.3d at 95, the DOE appears more akin to a political subdi-

vision than it does to a state agency because it “exists primarily

to discharge some function of local government,” i.e., the admin-

istration of New York City schools. See Political Subdivision,

Black’s Law Dictionary.

The history and structure of the DOE confirm the court’s under-

standing. The New York State Legislature created the Board of

Education for the City of New York (the “BOE”) in 1901 as a pub-

lic corporate entity separate and distinct from New York City,

with the purpose of managing New York City’s public schools.

1901 N.Y. Laws pp. at 593-99 (Greater New York Charter of 1901

§§ 1055-1062); Bylaw 1.1, Bylaws of the Panel for Educational

Policy of the City School District of the City of New York, New York

8 The 7th Edition of Black’s Law Dictionary does not define the term “state

agency.” See generally Black’s Law Dictionary (7th ed. 1999). “Government

agency” is the closest analogy the court could find.

Additionally, the court refers to the 7th Edition of Black’s Law Dictionary

because its publication year—1999—is the closest in time to the 1998

amendments to USERRA which adopted the version of Section 4323 at

issue in this case. See generally H.R. Rep. No. 105-448, at 5-6 (1998) (dis-

cussing relevant amendments to USERRA). By contrast, the 6th Edition of

Black’s Law Dictionary was published in 1990. See generally Black’s Law

Dictionary (6th ed. 1990).

13

City Department of Education (amended Sept. 25, 2024),

https://www.schools.nyc.gov/ get-involved/families/panel-for-

. education-policy/bylaws [https://perma.cc/BYP8-SPV4]. Prior

to 2002, the BOE was a “semi-autonomous agency.” Matson v.

Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 76 (2d Cir.

2011) (Straub, J., concurring in part). In 2002, legislative re-

forms transferred control of the BOE to the Mayor of New York

City, stripping the BOE of its semi-autonomous agency status and

creating a 13-member board consisting of the Chancellor, one

member appointed by each of the five borough presidents, and

seven members appointed by the Mayor. N.Y. Educ. L. § 2590-

b(1)(a) (eff. July 1, 2002); see also Education—Reorganization

of New York City School Construction Authority, Education and

Community Boards, ch. 91, A. 11627 (2002). While the 2002 re-

forms made no specific reference to a “Department of

Education,” the bylaws subsequently adopted by the BOE pro-

vided that the BOE shall be “known as the Panel for Educational

Policy,”? which, together with “the Chancellor, superintendents,

community and citywide education councils, principals, and

school leadership teams . . . shall be designated as the Depart-

ment of Education of the City of New York.” Bylaw 1.3, Bylaws of

the Panel for Educational Policy of the City School District of the

City of New York. Thus, the BOE created the DOE to serve as the

“governance structure responsible for the City School District of

the City of New York.” Id. This is a quintessential “function of

local government.” See Political Subdivision, Black’s Law Diction-

ary. As such, applying the ordinary meaning of the statute’s terms

and analyzing the history and structure of the DOE, the court

? Although it was rebranded as PEP, the BOE remains in existence. N.Y.

Educ. L. § 2590-b(1) (a) (“The board of education of the city school district

of the city of New York is hereby continued.”).

14

concludes that the DOE is a political subdivision and thus a pri-

vate employer subject to suit in federal court pursuant to Section

4323(b)(3).

While the above analysis ends the inquiry, see NHTSA, 974 F.3d

at 95, it is worth mentioning that the legislative history of

USERRA also supports the court’s conclusion that the DOE is a

political subdivision, rather than a state agency.

The legislative history of USERRA indicates that one issue preoc-

cupied Congress in its drafting of Section 4323(b): state

sovereign immunity. Originally, USERRA provided that a state

could be sued in “any district in which the State exercises any

authority or carries out any function,” and a private employer

could be sued in “any district in which the private employer . . .

maintains a place of business.” Pub. L. No. 103-353, 108 Stat.

3149, 3165 (1994) (original version of Section 4323(b)). How-

ever, following USERRA’s enactment, several states and district

courts took the position, based on Seminole Tribe of Fla. v. Florida,

517 US. 44 (1996),"° that the Eleventh Amendment completely

barred private USERRA actions against states and state agencies. :

H.R. Rep. No. 105-448, at 3-5 (1998). Congress felt that this

“threaten[ed] not only a long-standing policy protecting individ-

uals’ employment right, but also raise[d] serious questions about

the United States[’] ability to provide for a strong national de-

fense.” Id. at 5. So, based on its understanding of then-current

Eleventh Amendment jurisprudence, Congress amended Section

4323(b) to limit private suits against states and state agencies to

10 In Seminole Tribe, the Supreme Court held “that notwithstanding Con-

gress’ clear intent to abrogate the States’ sovereign immunity, the Indian

Commerce Clause does not grant Congress that power,” and “[t]he Elev-

enth Amendment prohibits Congress from making the State of Florida

capable of being sued in federal court” pursuant to 25 U.S.C. § 2710(d) (7).

517 US. at 47, 76.

15

state courts.'! Jd. at 5-6. Congress’s concern with state sovereign

immunity aligns with the idea that an entity like the DOE would

be subject to suit in state and federal court, since “the Eleventh

Amendment does not extend its immunity to units of local gov-

ernment.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 369 □

(2001); Gorton v. Gettel, 554 F.3d 60, 62 (2d Cir. 2009) (“[Elev- .

enth Amendment] immunity does not extend to suits against

municipal corporations or other governmental entities which are

not arms of the State.”). In other words, Congress did not think

to cabin private suits against local entities like the DOE to state

courts, because state sovereign immunity did not apply to those

entities.

11 Congress’s understanding of state sovereign immunity turned out to be

incorrect, at least in this context. In Alden v. Maine, the Supreme Court

clarified that states are immune from private suit without their consent in

both federal and state courts. 527 U.S. 706, 754 (1999) (“[W]e hold that

the States retain immunity from private suit in their own courts.”). But that

immunity is subject to a notable exception: when the federal power pursu-

ant to which Congress enacts a statute is “complete in itself, and the States.

consented to the exercise of that power—in its entirety—in the plan of the

convention,” then the States “implicitly agreed that their sovereignty

would yield to that of the Federal Government.” Torres v. Tex. Dep’t of Pub.

Safety, 597 U.S. 580, 589 (2022). In such circumstances, the States “simply

have no immunity left to waive or abrogate.” Id. In Torres, the Supreme

Court held that USERRA fell within this exception because the States

“waived their immunity under Congress’ Article I power to raise and sup-

port Armies and provide and maintain a Navy’—the powers pursuant to

which Congress enacted USERRA. Id. at 594, Thus, in the USERRA context,

there is no state sovereign immunity to waive or abrogate. Id.

Importantly, Torres did not eliminate or invalidate Section 4323(b). See id.

at 595 (recognizing that “USERRA suits [against states] must be brought

in state (rather than federal) court”). Rather, it simply held that states and

state agencies cannot claim sovereign immunity in private USERRA ac-

tions. Thus, while the sovereign immunity concerns undergirding Section

4323(b) are no longer relevant, the requirements of that section remain in

effect.

16 .

In sum, the court concludes that, for purposes of USERRA, the

DOE is a political subdivision of New York State, making it a pri-

vate employer subject to suit in federal court. 38 U.S.C. §§

4323(b)(3) and (i). Therefore, the court has subject-matter juris-

diction over this action pursuant to 28 U.S.C. § 1331.

B. Rule 12(b)(6) Motion

Padilla’s sole cause of action is for an alleged violation of

USERRA Sections 4311(a)-(c) and 4312(a) and (b). (Compl. {{

69-77.) Padilla alleges that the DOE violated USERRA: (1) after

his first deployment, when his “teaching assignment was not re-

instated, nor was his return from deployment noted by [the DOE] □

with regard to his return to work”; and (2) when the DOE “con-

tinuously and repeatedly denied [Padilla] pay and benefits

entitled to him by USERRA.” (Id. {{ 73-74.)

The DOE moves to dismiss the Complaint with prejudice on sev-

eral grounds. First, the DOE argues that Padilla has conceded

that all issues relating to his first deployment were resolved, and

that his request for Military Leave for his second deployment was,

in fact, approved. (Mot. at 8-9.) Second, the DOE adds that alt-

hough Padilla claims that his requests for medical leave in

connection with his surgery were only partially granted, Padilla

does not allege that his surgery was actually connected to his mil-

itary service. (Id. at 9.) Third and finally, even if Padilla’s surgery

were connected to his military service, the DOE argues that “dis-

crimination based on a service-related disability, as opposed to

_ military status, does not form a cause of action under USERRA.”

(id.): Thus, the DOE requests that the court dismiss the Complaint

with prejudice.

Padilla opposes the DOE’s motion. First, Padilla argues that he

properly linked his surgery to his military service when he alleged

that he “request[ed] . . . restoration of health leave... due toa

major surgery required after his deployment.” (Opp. at 2 (quot-

ing Compl. {4 33) (bolding omitted).) Second, Padilla contends

17

that he has adequately alleged discrimination on the basis of mil-

itary service, not disability, pointing to four allegations in

particular: (1) that the DOE cancelled his health benefits without

proper authorization when he requested Military Leave in con-

nection with his first deployment; (2) that the DOE instructed

him to use his military benefits, not DOE benefits, during his

training period; (3) that the DOE “failed to remedy this [benefits]

issue even when [Padilla] engaged the assistance of his ESGR

ombudsman”; and (4) that Padilla complained to Ms. Arundell

regarding the hoops he was made to jump through “due to

NYCDOF’s inconsistencies and refusal to provide benefits due to

his military service.” Ud. at 3-4 (citing Compl. {4 18, 20-22, 52

(bolding omitted).) Padilla requests that the court deny the

DOE’s motion to dismiss, or, in the alternative, grant him leave

to file an amended complaint. (Zeitz Affirmation (Dkt. 17-5) {{

7, 16.)

As noted above, Padilla alleges that the DOE violated USERRA:

(1) after his first deployment, when his “teaching assignment was

not reinstated, nor was his return from deployment noted by [the

DOE] with regard to his return to work”; and (2) when the DOE

“continuously and repeatedly denied [Padilla] pay and benefits

entitled to him by USERRA.” (Compl. "4 73-74.) With respect to

the first alleged violation, as the DOE points out, Padilla admits

that all issues pertaining to his first deployment were “resolved”

and that that he “continued his employment with NYCDOE be-

tween 2018 and 2022,” in his same, pre-deployment position.

(id. { 29; Mot. at 8.) Thus, there appears to be no live controversy

as to this alleged violation, and the court will not discuss it fur-

ther because it is moot. See Ferreira v. United States, 354 F. Supp.

2d 406, 409 (S.D.N.Y. 2005) (“The mootness doctrine... re-

quires that federal courts may not adjudicate matters that no

longer present an actual dispute between parties.”). As to the sec-

ond alleged violation, Padilla claims that, “[t]o date, [he] has not

been made whole from NYCDOEF’s wrongful denial of pay and

18

benefits.” (Compl. 75.) This issue presents a live controversy,

and the court will address the alleged violations of USERRA Sec-

tions 4311(a)-(c) and 4312(a) and (b) as to this issue in turn.

1. Section 4311(a)

USERRA Section 4311(a) is an antidiscrimination provision; it

prohibits discrimination in “initial employment, reemployment,

retention in employment, promotion, or any benefit of employ-

ment by an employer” on the basis of a person’s “membership [in

a uniformed service], . . . performance of service, . . . or obliga-

tion.” 38 U.S.C. § 4311(a); see also Warren v. Int'l Bus. Machs.

Corp., 358 F. Supp. 2d 301, 309-10 (S.D.N.Y. 2005) (explaining

certain key provisions of USERRA). An employer violates Section

4311(a) if the person’s service membership or obligation “is a

motivating factor in the employer’s action, unless the employer

can prove that the action would have been taken in the absence

of such membership, . . . or obligation for service.” 38 U.S.C. §

4311(c)(1) (emphasis added).

Section 4311(a) claims “are evaluated using Title VII standards

and case law.” Hughes v. City of New York, No. 20-CV-3341

(AMD) (RLM), 2021 WL 7542440, at *6 (E.D.N.Y. Aug. 25,

2021). To survive a motion dismiss, “a plaintiff must allege suffi-

cient facts to establish ‘a prima facie case of discrimination by

showing that his protected status was a substantial or motivating

factor in the adverse employment action.” Hunt v. Klein, No. 10-

CV-2778 (GBD), 2011 WL 651876, at *3 (S.D.N.Y. Feb. 10,

2011) (quoting Gummo v. Vill. of Depew, 75 F.3d 98, 106 (2d Cir.

1996)), affd, 476 F. App’x 889 (2d Cir. 2012). “A motivating fac-

tor... is not necessarily the sole cause of the action, but rather

it is one of the factors that a truthful employer would list if asked

for the reasons for its decision.” Fink v. City of New York, 129 F.

Supp. 2d 511, 520 (E.D.N.Y. 2001). It is “something that the de-

fendant relied on, took into account, considered, or conditioned

its decision on that consideration.” Hunt, 2011 WL 651876, at

19

*3. It “may be proven through direct or circumstantial evidence.”

Woodard v. N.Y. Health & Hosps. Corp., 554 F. Supp. 2d 329, 348

(E.D.N.Y. 2008). Even if the plaintiff carries his initial burden,

however, “the employer may nonetheless escape liability by

showing .. . that it would have made the same decision without .

regard to the employee’s protected status.” Gummo, 75 F.3d at

106.

The court must determine whether the Complaint plausibly al-

leges that Padilla’s status or conduct as a servicemember was a

substantial or motivating factor in the DOEF’s “continuous[] and

repeated[] . . . denial of pay and benefits.” (Compl. □□ 74-75.)

The Complaint’s allegations of discrimination are limited to three

sentences. The first alleges that Padilla emailed Ms. Arundell

with a “summary of the multiple denials, approvals, and hoops

he was made to jump through while in the midst of recovery from

an intensive spinal surgery due to the NYCDOF’s inconsistencies

and refusal to provide benefits due to his military service.” (Id. {

52.) The second alleges that Padilla “suffered and continues to

suffer injuries and damages” as a “direct and proximate result of

NYCDOE’s disparate treatment, discrimination, retaliation,

and/or hostile work environment harassment against Plaintiff,

on the basis of his military status and/or military service.” (Id. {

65.) And the third alleges that “NYCDOE’s disparate treatment,

discrimination, retaliation, and/or hostile work environment har-

assment against Plaintiff, on the basis of his military status

and/or military service, was malicious, willful, outrageous, and

conducted with full knowledge of wrongdoing.” (Id. { 66.)

These allegations are no more than “threadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements,” which “do not suffice” to state a claim upon which

relief can be granted. Carlin v. Davidson Fink LLP, 852 F.3d 207,

212 (2d Cir. 2017) (quoting Iqbal, 556 U.S. at 678). Padilla’s

Complaint describes various requests for and denials of pay and

20

benefits, and notes that these requests were related to a surgery

required after his deployment. Nowhere does Padilla allege, in a

non-conclusory fashion, that the DOE denied him pay or benefits

on the basis of his military service, status, or obligations. The Com-

plaint provides no direct or circumstantial evidence of a

discriminatory motive; indeed, Padilla “never articulates a reason

to conclude that any [] action taken against him was motivated

by discriminatory animus.”!* Hunt, 2011 WL 651876, at *4.

“Simply noting that he is a service member and asserting that

various [] actions violated USERRA is insufficient.” Id. And

“fnjone of the many facts provided by [Padilla] regarding the

circumstances that led to each [denial of pay and benefits], even _

when liberally construed and accepted as true, indicate that he

was [denied pay and benefits] because of his status or obligations

as a military service member.” Id. (emphasis added).

Moreover, even accepting that Padilla’s surgery and the related

complications were linked to his military service, “discrimination

based on a service-related disability, as opposed to military sta-

tus, does not form a cause of action under USERRA.” Rivera,

2023 WL 2403616, at *2; Hughes, 2021 WL 7542440, at *6

(same); see also Donley v. Vill. of Yorkville, N.Y., No. 14-CV-1324

(MAD) (ATB), 2019 WL 3817054, at *7 (N.D.N.Y. Aug. 13,

2019) (dismissing USERRA claim because “Plaintiff has not ar-

gued that he was discriminated against on the basis of his

12 To the extent Padilla claims—for the first time in his opposition papers—

that he “has provided counsel with emails and documentation directly cit-

ing his military service as the reason for [the denials of pay and benefits],”

(see Zeitz Affirmation 4 14), it is well-settled that “a party is not entitled to

amend [his] complaint through statements made in motion papers,” Soules

v. Conn., Dep’t of Emergency Servs. & Pub. Prot., 882 F.3d 52, 56 (2d Cir.

2018) (emphasis omitted). Even if the court were to consider this state-

ment, it would not change the analysis, because it is another conclusory

allegation bereft of any factual details. Padilla will have the opportunity to

attach and/or describe these documents in his amended complaint; for

now, they have no impact on the instant motion to dismiss.

21

military service, only that he was discriminated against on the

basis of his service-related disability”). Thus, Padilla’s “conclu-

sory allegations that various employment actions taken against

him violated USERRA [are] insufficient to state a claim” because

he provides “no supporting facts upon which it could plausibly

be inferred that his military service ... was a substantial or moti-

vating factor in the adverse employment actions.” Hunt v. Klein,

476 F. App’x at 891 (emphasis added). The USERRA discrimina-

tion claim is dismissed.

2. Section 4311(b)

USERRA Section 4311(b) is an anti-retaliation provision; it pro-

hibits retaliation against an employee for, among other things,

attempting to enforce their rights under USERRA. 38 U.S.C. §

4311(b). An employer violates Section 4311(b) □□□ action taken

by the employee to enforce their rights under USERRA “is a mo-

tivating factor in the employer’s action, unless the employer can

prove that the action would have been taken in the absence of

such person’s enforcement action.” 38 U.S.C. § 4311(c)(2) (em-

phasis added).

The Complaint’s allegations of retaliation are limited to two sen-

tences. The first alleges that Padilla “suffered and continues to

suffer injuries and damages” as a “direct and proximate result of

NYCDOE’s disparate treatment, discrimination, retaliation,

and/or hostile work environment harassment against Plaintiff,

on the basis of his military status and/or military service.”

(Compl. { 65.) And the second alleges that “NYCDOE’s disparate

treatment, discrimination, retaliation, and/or hostile work envi-

ronment harassment against Plaintiff, on the basis of his military

status and/or military service, was malicious, willful, outrageous,

and conducted with full knowledge of wrongdoing.” Ud. § 66.)

Neither party mentions retaliation anywhere in their respective

motion papers. (See generally Mot.; Opp.; Reply.)

22

As with Padilla’s discrimination claim, the allegations of retalia-

tion are no more than “threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements,”

which “do not suffice” to state a claim upon which relief can be

granted. Carlin, 852 F.3d at 212 (quoting Iqbal, 556 U.S. at 678).

It is unclear whether Padilla took any of the protected actions

listed in Section 4311(b), although the Complaint does allege

that he contacted the ESGR to initiate a USERRA-based claim and

that he repeatedly complained to DOE staff about the pay and

benefits issues. (See, e.g., Compl. {4 21, 27.) However, even as-

suming that Padilla engaged in protected action, the Complaint

“lacks any factual allegations’—even on information and be-

lief—“indicating that [Padilla’s] protected conduct was [a]

motivating factor” in the denials of pay and benefits. Hunt, 2011

WL 651876, at *5. Thus, Padilla’s “conclusory allegations that

various employment actions taken against him violated USERRA

[are] insufficient to state a claim” because he provides “no sup-

porting facts upon which it could plausibly be inferred that .. .

any protected activity was a substantial or motivating factor in

the adverse employment actions.” Hunt, 476 F. App’x at 891. The

USERRA retaliation claim is dismissed.

3. Section 4312(a) and (b)

Finally, USERRA “Section 4312 provides that any person whose

absence from a position of employment is necessitated by service

in the uniformed services is entitled to reemployment rights” if,

among other things, the employee provides advance written or

verbal notice to their employer. Warren, 358 F. Supp. 2d at 310;

see also 38 U.S.C. § 4312(a)(1). Advance notice is not required,

however, “if the giving of such notice is precluded by military

necessity or, under all of the relevant circumstances, the giving

of such notice is otherwise impossible or unreasonable.” 38

U.S.C. § 4312(b) (1); see also id. § 4312(b)(2) (listing instances

23

in which a determination of military necessity “shall” be made

for purposes of § 4312(b)(1)).

Although Padilla “identified a discrepancy with his teaching as-

signment” upon his return from his first deployment, he concedes

that all issues pertaining to his first deployment were “resolved.”

(Compl. {| 27, 29; Mot. at 3, 8, 13.) Thus, the Complaint does

not actually allege that the DOE denied Padilla his reemployment

rights after his first or second deployments. As a result, the Com-

plaint fails to state a claim under Section 4312(a), and the .

USERRA reemployment claim is dismissed.

C. Leave to Amend

Padilla requests that the court grant him leave to amend the

Complaint in the event that the court grants the DOE’s motion to

dismiss. (Zeitz Affirmation {{ 7, 16.) The DOE contends that Pa-

dilla’s proposed amendments would be futile. (Reply at 6-7.)

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides

that a court “should freely give leave [to amend] when justice so

requires,” Fed. R. Civ. P. 15(a)(2). However, “leave to amend a.

complaint need not be granted when amendment would be fu-

tile.” Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003). “An

amendment is considered futile if it could not defeat a motion to

dismiss for failure to state a claim or for lack of subject matter

jurisdiction.” Huang v. iTV Media, Inc., 13 F. Supp. 3d 246, 264

(E.D.N.Y. 2014) (citing Ricciuti v. N.Y.C. Transit Auth., 941 F.2d

119, 123 (2d Cir. 1991)). Ultimately, “[t]he decision to grant or

deny leave to amend rests within the discretion of the trial court.”

N. Assurance Go. of Am. v. Square D Co., 201 F.3d 84, 87 (2d Cir.

2000).

The court cannot conclude that amendment would be futile in

these circumstances. Counsel for Padilla represents that he has

“emails and documentation directly citing [Padilla’s] military ser-

vice as the reason for [the denials of pay and benefits].” (Zeitz

24

Affirmation { 14.) Such emails and documentation, if summa-

rized within or appended to an amended complaint, might

render Padilla’s allegations of discrimination on the basis of his

military status plausible. As such, the court grants Padilla’s re-

quest for leave to file an amended complaint. Padilla is warned,

however, that the court will not grant further leave to amend

“unless [he] provide[s] a detailed indication of what facts [he]

would add to cure the pleading’s defects ... with an explanation

of why the amendment would not be futile.” Schiro v. Cemex,

S.A.B, de C.V., 396 F. Supp. 3d 283, 309 (S.D.N.Y. 2019); see also

FS Cap. v. Pappas, 856 F.3d 61, 90 (2d Cir. 2017) (leave to

amend properly denied where plaintiff failed to “explain how it

proposed to amend the complaint to cure its defects”); Loreley

Fin. Versey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190

(2d Cir, 2015) (leave to amend properly denied where the re-

quest gives no clue as to how the complaint’s defects would be

cured”).

IV. CONCLUSION

For the foregoing reasons, the DOE’s motion to dismiss is

GRANTED without prejudice to the filing of an amended com-

plaint. Padilla shall file his amended complaint within 30 days of

the issuance of this opinion. Failure to file an amended complaint

within the specified time period will result in the court entering

an order dismissing this case with prejudice.

SO ORDERED.

Dated: Brooklyn, New York

May | 6, 2025

s/Nicholas G. Garaufis

HICHOLAS G. GARAUFIS

nited States District Judge

25