Newman v. Lehman Brothers Holdings Inc.

United States Court of Appeals
For the First Circuit

No. 15-2239

BARBARA NEWMAN,

Plaintiff, Appellant,

v.

LEHMAN BROTHERS HOLDINGS INC.,
GROUP BENEFITS PLAN, ET AL.,

Defendants, Appellees,

METROPOLITAN LIFE INSURANCE COMPANY, ET AL.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Torruella, Lynch, and Kayatta,
Circuit Judges.

Jason P. Steed, with whom Kilpatrick Townsend & Stockton LLP
was on brief, for appellant.
David W. Robinson, with whom Ruberto, Israel & Weiner PC was
on brief, for appellees.

August 20, 2018
 TORRUELLA, Circuit Judge. This case concerns the

requirement that administrative remedies be exhausted before a

claim under the "whistleblower" protection provisions of the

Sarbanes-Oxley Act of 2002 ("SOX"), 18 U.S.C. § 1514A, can reach

federal court. Plaintiff Barbara Newman ("Newman") claims to have

suffered retaliation for reporting violations of federal laws and

regulations at her workplace, Lehman Brothers, Inc. ("Lehman

Brothers") in 2008. The district court dismissed these claims

pursuant to Fed. R. Civ. P. 12(b)(6). Newman appeals the dismissal

of her claims as it pertains to a handful of the original

defendants, namely: Lehman Brothers Holding Inc. Group Benefits

Plan ("the Plan"), and a group of five corporations affiliated

under the name Neuberger Berman ("the Neuberger defendants"). We

affirm.

I. Background

In reviewing a district court's dismissal of a complaint

for failure to state a claim, "we accept the [complaint's] well-

pleaded facts as true and indulge all reasonable inferences

therefrom in the plaintiff's favor." Jorge v. Rumsfeld, 404 F.3d

556, 559 (1st Cir. 2005). We may also "augment those facts with

facts extractable from documentation annexed to or incorporated by

reference in the complaint." Id.

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A. Factual Background

In May 2007, Newman began working in the corporate

communications department of Lehman Brothers. Her job was to

draft communications that would "raise the profile" of both Lehman

Brothers and of Neuberger Berman, which was then a wholly-owned

subsidiary of Lehman Brothers and today is a small constellation

of distinct corporations that together comprise the Neuberger

defendants.1

While at Lehman Brothers, Newman noticed that her

coworkers were engaged in conduct that she suspected to be in

violation of federal securities law. She reported these concerns

to the Lehman Brothers "Alert Line" and to her supervisors.

Subsequently, Newman was ostracized at work and ultimately

terminated from her employment.

Simultaneous to her whistle blowing activity, Newman

requested disability benefits through the benefits plan

administered by the Plan. Newman was approved for short-term

disability benefits, but experienced difficulty in obtaining long-

term and supplemental long-term disability benefits. Newman was

terminated from her employment while on short-term disability

benefits.

1 These include: Neuberger Berman, LLC; Neuberger Berman, Inc.;
Neuberger Berman Management, LLC; Neuberger Berman Group, LLC; and
Neuberger Berman Management, Inc.

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 On July 23, 2008, Newman filed a complaint ("the OSHA

complaint") under § 806 of SOX with the Occupational Safety and

Health Administration ("OSHA").2 The OSHA complaint states that

Newman was submitting a written complaint "within [ninety] days of

the adverse action under [SOX]" because she was "retaliated against

by Lehman Brothers Inc. through termination on April 23, 2008 via

a phone call."

The OSHA complaint then listed ten retaliatory actions

that Newman accused Lehman Brothers of having taken against her.

Among the list of "unfavorable employment actions" were "Discharge

or layoff," "Blacklisting," "Disciplining," and "Denial of

benefits." The OSHA complaint also provided a list of around

thirty individuals accused of having violated SOX's whistleblower

protection provision. The complaint concluded with a brief list

of contradictory factual statements as to Newman's termination

date, such as that "[o]n March 12, 2008, I was effectively

terminated from Lehman Brothers when I took a sick day" but also

2 "An employee seeking § 1514A protection must first file an
administrative complaint with the Department of Labor." Day v.
Staples, Inc., 555 F.3d 42, 52 (1st Cir. 2009). However, the
Secretary of Labor has delegated responsibility for receiving and
investigating whistleblower complaints to OSHA, an agency within
the Department of Labor. See Carnero v. Bos. Sci. Corp., 433 F.3d
1, 3 n.1 (1st Cir. 2006); Delegation of Authority and Assignment
of Responsibility to the Assistant Secretary for Occupational
Safety and Health, 67 Fed. Reg. 65,008, (Oct. 22, 2002); see also
29 C.F.R. § 1980.103(c).

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that "[o]n April 23, 2008, I was terminated from Lehman Brothers."

In September 2008, Newman supplemented her OSHA complaint with an

interview with OSHA ("the OSHA interview"). See 29 C.F.R.

§ 1980.104(e) (stating that a complaint may be "supplemented as

appropriate through interviews of the complainant").

B. Procedural Background

In January 2012, Newman's case began its tortuous path

through the federal judiciary. We need not dwell on the details

of this journey; it suffices to say that Newman began as a pro se

plaintiff, and later acquired counsel and filed the operative

Second Amended Complaint ("SAC"), which pursued claims under SOX

and the Employment Retirement Income Security Act (ERISA), 18

U.S.C. § 502(a)(1)(B), against a large number of defendants.

These claims have largely been dismissed or moved to other courts.3

What remains of those claims is that which is before us now: an

appeal from the district court's dismissal of Newman's SOX claim

against the Neuberger Defendants and the Plan pursuant to Rule

12(b)(6).4

3 Newman's claim against Lehman Brothers, which is not at stake
in this appeal, is currently stayed under 11 U.S.C. § 362(a) since
that entity is in bankruptcy.
4 Newman's claim under ERISA against MetLife and the Plan was
dismissed on September 16, 2015. Newman v. Metro. Life Ins. Co.,
No. CV 12-10078-DJC, 2015 WL 5447613, at *1 (D. Mass. Sept. 16,
2015). Newman has not appealed this ruling.

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 The district court dismissed Newman's SOX claim, finding

that Newman had failed to exhaust her administrative remedies prior

to bringing her SOX claim to federal court because (1) she did not

file her OSHA complaint within the ninety-day deadline and (2) she

also failed to name the defendants in her written OSHA complaint.

This timely appeal followed, focused solely on the dismissal of

Newman's SOX claim against the Plan and the Neuberger defendants.

II. Discussion

This court reviews the grant of Rule 12(b)(6) motions de

novo. MacDonald v. Town of Eastham, 745 F.3d 8, 11 (1st Cir.

2014). In doing so, the court is "not bound by the district

court's reasoning but, rather, may affirm an order of dismissal on

any ground evident from the record." Id. (citations omitted).

Ordinarily, we consider only the "facts alleged in the complaint,

and exhibits attached thereto." Freeman v. Town of Hudson, 714

F.3d 29, 35 (1st Cir. 2013). However, there are some "narrow

exceptions" in which a court may, if it chooses, consider extrinsic

documents, such as "documents the authenticity of which are not

disputed by the parties; . . . official public records; . . .

documents central to the plaintiff's claim; [and] . . . documents

sufficiently referred to in the complaint" without turning the

12(b)(6) motion into a motion for summary judgment. Id. at 36

(alteration in original)(citing Watterson v. Page, 987 F.2d 1, 3

(1st Cir. 1993)).

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 Particularly when "a complaint's factual allegations are

expressly linked to -- and admittedly dependent upon -- a document

(the authenticity of which is not challenged), that document

effectively merges into the pleadings," thereby giving the court

the discretion to consider such additional material. Trans-Spec

Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir.

2008). While we retain discretion to affirm or deny on any basis

in the record, this Court generally reviews "only those documents

actually considered by the district court in its 12(b)(6) analysis

unless we are persuaded that the court below erred in declining to

consider proffered documents." Id.

Based on these materials, we assess whether there are

sufficient facts "to raise a right to relief above the speculative

level on the assumption that all allegations in the complaint are

true." Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 8 (1st

Cir. 2011) (citing Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007)).

"If the factual allegations in the complaint are too meager, vague,

or conclusory to remove the possibility of relief from the realm

of mere conjecture," we will affirm the dismissal. Morales-Cruz

v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012) (citing S.E.C.

v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc)).

A. Newman's Termination Claim

For a SOX claim of workplace retaliation to proceed in

federal court, the plaintiff must first file a complaint with the

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Department of Labor through OSHA. 18 U.S.C. § 1514A(b). At the

time relevant to this case, Newman was required to file her OSHA

complaint "[w]ithin 90 days after an alleged violation of the Act."

29 C.F.R. § 1980.103(d)(2011); see also 18 U.S.C. § 1514A(b)

(2)(D)(2006).5 If after 180 days the Department of Labor has not

issued a final decision on an administrative complaint, the

plaintiff may file an action in federal court. 18 U.S.C.

§ 1514A(b)(2)(D). Here, because the Department of Labor did not

issue a final decision within 180 days, Newman filed her complaint

in federal court. We now review the dismissal of her SOX claim

pursuant to Rule 12(b)(6).

Newman alleges that she was terminated from her job in

retaliation for her whistleblower activity. For this claim to

proceed, Newman was required to first exhaust the available

administrative remedies by, inter alia, filing an OSHA complaint

within ninety days of the alleged retaliatory action. In

considering administrative exhaustion requirements in similar

statutes, we have held that such requirements are mandatory, though

not jurisdictional, and "akin to a statute of limitations."

Bonilla v. Muebles J.J. Álvarez, Inc., 194 F.3d 275, 278 (1st Cir.

1999); cf. Farris v. Shinseki, 660 F.3d 557, 563 (1st Cir. 2011)

5 Congress has since extended this ninety-day statute of
limitations to 180 days. See 18 U.S.C § 1514A; Pub. L. No. 111-
203, title IX, §§ 922(b),(c), 929A, 124 Stat. 1376 (2010).

-8-
(noting that "failure to comply with an agency's applicable time

limit may expose the plaintiff's federal law suit to dismissal"

for a case proceeding under the Americans with Disabilities Act);

Franceschi v. U.S. Dep't. of Veterans Affairs, 514 F.3d 81, 85

(1st Cir. 2008) (confirming the same for claims under Title VII of

the Civil Rights Act of 1964). Like a statute of limitations,

unexcused non-compliance with prescribed time limits of

administrative remedies "bars the courthouse door" for a would-be

federal plaintiff. Bonilla, 194 F.3d at 278; see also Jorge, 404

F.3d at 564 (describing "the timely filing of a charge with the

[Equal Employment Opportunity Commission]" as one of "two key

components" for administrative exhaustion in a Title VII case).

Accordingly, the district court sought to determine the

date of Newman's termination in order to ascertain whether her

OSHA complaint was timely. Finding no express date in Newman's

SAC,6 the district court consulted the OSHA complaint, which the

SAC indicates is the administrative charge underlying this case.

As noted above, in the OSHA complaint Newman twice stated that she

was terminated on April 23, 2008. That means, thus, that Newman's

employment was terminated ninety-one days before filing her OSHA

6 The operative complaint states that "Newman filed claims
regarding the retaliation with [OSHA] . . . [and] was soon after
terminated." It also states that "Newman was terminated while on
short term disability."

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complaint on July 23, 2008 -- or one day beyond the statutorily

permitted filing time. See Fed. R. App. P. 26(a) (computing time);

Day, 555 F.3d at 53 ("An employee must file a complaint with [OSHA]

no later than ninety days after the date on which the alleged

violation occurred.").

Newman argues that this was improper fact-finding on the

part of the district court, and that, instead, the district court

should have found that she was terminated sometime after filing

her OSHA complaint, as stated in her SAC. We disagree.

The district court did not engage in improper fact-

finding. A finding that Newman exhausted the administrative

remedies available to her is a statutory prerequisite for her

complaint to proceed. 18 U.S.C. § 1514A. Newman's SAC makes

explicit reference to her OSHA complaint. Her "complaint's

factual allegations are expressly linked to . . . and admittedly

dependent upon" the OSHA complaint. Trans-Spec Truck Serv., Inc.,

524 F.3d at 321; see also Fed. R. Civ. P. 10(c) ("A copy of a

written instrument that is an exhibit to a pleading is a part of

the pleading for all purposes."). Therefore, the district court

was correct to consider the OSHA complaint, particularly given the

lack of clarity the SAC provided on this important matter. And

our own look at the OSHA complaint leads us to conclude, as did

the district court, that it was filed outside the requisite

timeframe.

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 Newman urges us to focus our gaze instead on the

background section of her SAC, which states that Newman was

terminated from her job "soon after" filing her OSHA complaint.

This is unhelpful. If Newman was terminated after the filing of

her OSHA complaint, it is difficult to make sense of either the

content of her OSHA complaint -- which twice alleges that her

employment was terminated on April 23, 2008, ninety-one days before

she filed the OSHA complaint -- or how the OSHA complaint could

have exhausted the administrative remedies of a retaliatory act

that had not yet occurred. Moreover, the mere inclusion of a

vague statement in the pleading does not preclude the district

court's fair consideration of an incorporated, uncontested

document. See Clorox Co. P.R. v. Proctor & Gamble Commercial Co.,

228 F.3d 24, 32 (1st Cir. 2000) (considering a 12(b)(6) motion to

dismiss a claim of false advertising in light of advertising copy

contained in record); see also Yacubian v. United States, 750 F.3d

100, 108 (1st Cir. 2014) ("[I]t is a well-settled rule that when

a written instrument contradicts allegations in the complaint to

which it is attached, the exhibit trumps the allegations." (citing

Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 229 n.1 (1st Cir.

2013))); Ogden Martin Sys. of Indianapolis, Inc. v. Whiting Corp.,

179 F.3d 523, 529 (7th Cir. 1999) ("[A] plaintiff may plead himself

out of court by attaching documents to the complaint that indicate

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that he or she is not entitled to judgment." (citing In re Wade,

969 F.2d 241, 249 (7th Cir. 1992))).

In a final effort to establish the timeliness of her

OSHA complaint, Newman invites us to ignore the dates she provided

in the written OSHA complaint, as well as the timeframe hinted at

in her SAC, in favor of her statements during her OSHA interview.

There, Newman stated that she may have been terminated on April 23,

but did not learn about this until April 24, and that she remained,

at the time of her OSHA interview in September, still unsure about

the actual date of her termination.

We decline this invitation. Newman did not raise this

argument to the district court, and, therefore, it has been waived.

See Iverson v. City of Bos., 452 F.3d 94, 102 (1st Cir. 2006)

("[T]heories not squarely and timely raised in the trial court

cannot be pursued for the first time on appeal."). In Newman's

memorandum in opposition to defendants' motion to dismiss the SAC,

she simply asserted a right to discovery, arguing that because her

first amended complaint survived a 12(b)(6) motion,7 her second

must as well. 8 In a similar fashion, during the hearing on

7 The district court found that Newman's SOX claim was not time-
barred precisely because her complaint stated that her termination
date was April 24, 2008. Given the opportunity to amend, Newman
removed this date from what became the operative complaint.
8 This is incorrect. "An amended complaint, once filed, normally
supersedes the antecedent complaint. Thereafter, the earlier
complaint is a dead letter and no longer performs any function in

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defendants' motion to dismiss, plaintiff's counsel argued that

Newman did not know the date of her termination, and should not

"be expected" to know the date. Setting the merits of these

arguments aside, it is clear that Newman did not argue to the

district court that the facts supporting the timeliness of her

OSHA complaint were contained in her OSHA interview. As such,

this argument was not properly raised below and cannot be raised

for the first time here. Id.

We are sensitive to the challenges that pro se plaintiffs

face in pleadings and do not condemn inexperienced plaintiffs to

be forever bound by their clerical errors and minor factual slip-

ups. See Boivin v. Black, 225 F.3d 36, 43 (1st Cir. 2000)

("[C]ourts hold pro se pleadings to less demanding standards than

those drafted by lawyers . . . [and] endeavor, within reasonable

limits, to guard against the loss of pro se claims due to technical

defects."). But here, however, the lack of precision about

Newman's date of termination is no minor factual slip up. Rather,

Newman's counsel removed from the operative complaint any mention

of an exact date of termination and substituted it with a

temporally imprecise contention that she was terminated "soon

after" filing her complaint to OSHA about her termination.

the case." Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir.
2008) (citations omitted). Accordingly, our only concern is the
SAC and the arguments made about it.

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 In sum, Newman's SAC failed to plead sufficient facts to

raise a plausible claim for relief under SOX, as she untimely filed

her OSHA complaint, and failed to exhaust her administrative

remedies.

B. Newman's Other SOX Claims

Newman further contends that the district court erred by

granting dismissal without addressing the other retaliatory acts

raised in her SAC. Retaliatory termination was not the only SOX

claim in Newman's complaint; she also alleged that the defendants

interfered with her rights to certain disability benefits. In

this sense, Newman is correct in stating that the district court

erred insofar as it considered Newman's administrative complaint

as to this claim to be time-barred along with her termination

claim. This is so because Newman's OSHA complaint was filed within

ninety days of the last retaliatory act with regard to her

disability benefits, which occurred months after her termination.

However, in our review of the district court's doing, we

"may affirm an order of dismissal on any ground evident from the

record." MacDonald, 745 F.3d at 11. And the record is clear that

nowhere before the district court did Newman rely on additional

retaliatory acts like the denial of disability benefits to contest

defendants' motion to dismiss. Although Newman's SAC did allege

the denial of benefits as part of her SOX claim, her memorandum in

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opposition to defendants' motion to dismiss put forward no

arguments about this or any other acts of retaliation.

In an apparent attempt to provide a lifeline to her

arguments about these other acts, Newman now contends that she did

not have to address the additional instances of retaliation in her

opposition to defendants' motion because the defendants only moved

to dismiss the retaliation claim related to termination. But this

is incorrect. In their 12(b)(6) motion, defendants moved to

dismiss the entirety of Newman's SOX claim, which encompassed both

her allegations about termination and the subsequent denial of

benefits. Newman then did not argue in her opposition that the

denial of benefits was an actionable act of retaliation from which

the ninety-day deadline must be calculated. Rather, her counsel

expressly argued that the ninety days ran "from the date

of...termination." Thus, Newman waived her opportunity to argue

on appeal about additional acts of retaliation like the alleged

denial of benefits, and we may not entertain such arguments. See,

e.g., Lawton v. State Mut. Life Assurance Co. of Am., 101 F.3d

218, 222 (1st Cir. 1996) ("No precept is more firmly settled in

this circuit than that theories not squarely raised and seasonably

propounded before the trial court cannot rewardingly be advanced

on appeal."); but cf. N.J. Carpenters Pension & Annuity Funds v.

Biogen IDEC Inc., 537 F.3d 35, 54 (1st Cir. 2008).

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C. Newman's Motion to Reconsider

Lastly, Newman asks us to review the district court's

denial of her motion to reconsider its dismissal of her complaint,

on the basis of purportedly new evidence that contradicts the

district court's findings. We review a district court decision

on a motion to reconsider for abuse of discretion. Bennett v.

Saint-Gobain Corp., 507 F.3d 23, 34 (1st Cir. 2007).

Newman's allegedly new evidence consists of benefit

statements secured through the Pension Benefit Guaranty

Corporation, which she claims show that Newman was considered a

Lehman Brothers employee until January 2009, and other evidence

that purports to dispute the court's conclusion that she was

terminated on April 23. Newly discovered evidence could certainly

justify a district court's reconsideration of its judgment. Id.

However, Newman's motion to reconsider recognized that

she was in possession of the evidence she has now put forth since

February 2014 -- months before the defendants sought dismissal of

her SAC. Therefore, Newman's "additional evidence was merely

newly proffered, not newly discovered." Id. Newly proffered

evidence "hardly qualifies as newly discovered evidence."

Rodríguez v. Fullerton Tires Corp., 115 F.3d 81, 86 (1st Cir.

1997).

Thus, the district court did not abuse its discretion in

declining to reconsider its holding.

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 III. Conclusion

For the aforementioned reasons, the district court's

judgment is affirmed.

Affirmed.

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