FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge]
P. Steed, with whom Kilpatrick Townsend & Stockton LLP
was on brief, for appellant.
W. Robinson, with whom Ruberto, Israel & Weiner PC was on
brief, for appellees.
Torruella, Lynch, and Kayatta, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
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.
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."
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.
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.
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
23, 2008, Newman filed a complaint ("the OSHA
complaint") under § 806 of SOX with the
Occupational Safety and Health Administration
("OSHA"). 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."
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 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
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.What remains of those claims is that which
is before us now: an ...