# Padilla v. New York City Department of Education

> District Court, E.D. New York · May 16, 2025

URL: https://www.frixlaw.com/law-library/cases/11053665

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 16, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11053665. Public record. Not legal advice.