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 
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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] wellpleaded 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 longterm 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). 
-5- 

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. 
-6- 

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)). 
-7- 

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). 
-9- 

(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 factfinding. 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 timebarred 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 slipups. 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. 
-14- 

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 
-15- 

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.