Chris Lazarini Provides Insight on Administrative Remedies in Whistleblower Retaliation Case

November 13, 2018
Securities Online Litigation Alert

Bass, Berry & Sims attorney Chris Lazarini provided insight about a Sarbanes-Oxley whistleblower retaliation case brought by a plaintiff claiming she was unjustly terminated. Finding the plaintiff did not timely file an OSHA complaint and therefore did not exhaust all administrative remedies before seeking relief in court, the district court dismissed the case.

Chris provided the analysis for Securities Online Litigation Alert (SOLA). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SOLA, please visit the SOLA website to sign up for the newsletter.

Newman vs. Lehman Brothers Holdings, Inc., No. 15-2239 (1st Cir., 8/20/18)

Requirements that administrative remedies be exhausted before seeking relief in court are akin to statutes of limitations and may serve as an absolute bar to a would-be federal court action.

Plaintiff brought this Sarbanes-Oxley (“SOXA”) whistleblower retaliation case, alleging she was ostracized at work, denied disability benefits, and ultimately terminated after advising her supervisors of her concerns about her co-coworkers’ activities. The district court dismissed, finding Plaintiff failed to exhaust her administrative remedies.

Before filing a SOXA claim in federal court, a plaintiff must first file an OSHA complaint within 90 days after the alleged violation (the time limit is now 180 days). If the Department of Labor (“DOL”) does not issue a final decision on the administrative complaint within 180 days, the plaintiff may file in federal court. Not hearing from the DOL within 180 days of her OSHA filing, Plaintiff filed this action.

Examining Plaintiff’s OSHA complaint, which was an exhibit to the federal court complaint, the Court notes Plaintiff twice stated she was terminated on April 23, 2008. The Court finds the OSHA complaint was not filed until July 23, 2008, or 91 days after termination, making it untimely and barring Plaintiff from proceeding with her case. The Court rejects Plaintiff’s efforts to convince it to calculate the time differently. First, Plaintiff points to her federal court complaint where she alleges her termination was “soon after” she filed the OSHA complaint. The Court finds this nonsensical because, under that rationale, the OSHA filing would not have exhausted administrative remedies for a retaliatory act that had not yet occurred. Moreover, the Court finds Plaintiff’s intentionally vague federal court allegations are trumped by the definitive statements in the OSHA complaint.

The Court declines to consider Plaintiff’s argument that she did not learn of her termination until April 24, 2008, and was still unsure of her employment status in September 2008, because Plaintiff had not raised those arguments before the district court. Finally, the Court rejects Plaintiff’s argument that her OSHA complaint was timely filed, because she did not learn that her request for disability benefits had been rejected until months after her termination. The Court refuses to consider the argument, again, because Plaintiff failed to raise it with the district court.