Mehrotra v. U.S. Dep’t of Lab.

23-7798
Mehrotra v. U.S. Dep’t of Lab.

United States Court of Appeals
For the Second Circuit

August Term 2024

Submitted: October 28, 2024
Decided: August 11, 2026

No. 23-7798

SHASHI MEHROTRA,

Petitioner,

v.

UNITED STATES DEPARTMENT OF LABOR,
G
ENERAL ELECTRIC COMPANY, GE POWER, GENERAL
ELECTRIC INTERNATIONAL, INC.,

Respondents.

On Petition for Review of the Final Decision
and Order of the United States Department of
Labor’s Administrative Review Board, ARB
No. 2022-0060 (ARB Sep. 21, 2023).

Before: S
ULLIVAN, PARK, and ROBINSON, Circuit Judges.

Petitioner Shashi Mehrotra seeks review of a September 21, 2023 final
decision and order of the Administrative Review Board (“ARB”) of the United
States Department of Labor (“DOL”), affirming an administrative law judge’s
order ruling in favor of Mehrotra’s former employer, the General Electric

2

Company (“GE”), on his whistleblower-retaliation claims under the Sarbanes–
Oxley Act (”SOX” or the “Act”), 18 U.S.C. § 1514A. Upon review, we conclude
that the ARB did not err in finding that the allegedly discriminatory acts Mehrotra
complains of occurred outside the 180-day window allowed by SOX. And we see
no basis for applying equitable tolling to Mehrotra’s untimely claims. We
therefore DENY the petition for review.

Judge Robinson concurs in part as to the outcome only and dissents in part
in a separate opinion.

P
ETITION DENIED.

Shashi Mehrotra, pro se, Niskayuna, NY.

Simon D. Jacobs, Attorney; Seema Nanda,
Solicitor of Labor; Jennifer S. Brand, Associate
Solicitor; Sarah K. Marcus, Deputy Associate
Solicitor; Megan E. Guenther, Counsel for
Whistleblower Programs, for Julie Su, Acting
Secretary of Labor, Washington, DC, for
Respondent United States Department of Labor.

David J. Rowland, Jules A. Levenson, Seyfarth
Shaw LLP, Chicago, IL, for Respondents General
Electric Company, GE Power, General Electric
International, Inc.

R
ICHARD J. SULLIVAN, Circuit Judge:
Petitioner Shashi Mehrotra seeks review of a September 21, 2023 final
decision and order of the Administrative Review Board (“ARB”) of the United
States Department of Labor (“DOL”), affirming an administrative law judge’s
order ruling in favor of Mehrotra’s former employer, the General Electric

3

Company (“GE”), on his whistleblower-retaliation claims under the Sarbanes–
Oxley Act (”SOX” or the “Act”), 18 U.S.C. § 1514A. Upon review, we conclude
that the ARB did not err in finding that the allegedly discriminatory acts Mehrotra
complains of occurred outside the 180-day window allowed by SOX. And we see
no basis for applying equitable tolling to Mehrotra’s untimely claims.
We
therefore DENY the petition for review.
I. B
ACKGROUND
In October 2018, Mehrotra, then a project manager at GE’s Power division,
filed two internal complaints regarding compliance concerns. On April 29, 2019,
Mehrotra was informed that he was subject to a reduction in force (a “RIF”) and
that he would be laid off effective June 21, 2019. Mehrotra lodged an internal
complaint with GE on June 20, 2019, alleging that his RIF selection was in
retaliation for, among things, the fact that he previously raised compliance
concerns; following investigation, GE determined that there was “no evidence” of
retaliation and that his layoff was fair. J. Suppl. App’x at 142.
After his layoff on June 21, 2019, Mehrotra was retroactively placed on short-
term disability leave through the end of 2019; he was then granted a further
“protected service period” until June 30, 2020, during which time he was

4

permitted to apply for other positions at GE and, if rehired, could continue his
employment without a break in service for purposes of his pension benefits.
During that leave period, Mehrotra unsuccessfully applied for at least fifty open
positions at GE, prompting him to file an internal complaint on March 16, 2020
because he had not been rehired. On June 23, 2020, after submitting “66
applications” without any offers, Mehrotra submitted another complaint with GE,
this time specifically alleging that he had “been blacklisted as a snitch for reporting
compliance violations.” Id. at 152. GE again investigated Mehrotra’s claims,
reviewing the applications he had submitted over the prior year and obtaining
more than seventy witness statements; ultimately, GE “found no evidence that
Mehrotra’s past compliance concerns played any role in the decision-making
process for the jobs at issue.” Id. at 146.
On December 17, 2020, Mehrotra filed his SOX whistleblower complaint
with the Occupational Safety and Health Administration (“OSHA”), which is a
part of the Department of Labor. Id. at 5–7. He alleged that on September 29, 2020,
GE “black list[ed]” him from the company in retaliation for his reporting
compliance violations; Mehrotra also alleged that GE terminated him, denied his
benefits, failed to rehire him, harassed and intimidated him, failed to promote him,

5

and gave him a negative performance evaluation in retaliation for his
whistleblowing. Id. at 5.
After OSHA dismissed his complaint in its entirety as untimely filed,
Mehrotra sought review and a hearing before an administrative law judge (“ALJ”)
as to his blacklisting and termination claims. Following a hearing on the timeliness
issue, the ALJ dismissed Mehrotra’s claims, concluding that they were untimely
and that equitable tolling of his filing deadline was not warranted. Mehrotra then
appealed the ALJ’s decision to the ARB, which affirmed the dismissal of
Mehrotra’s claims.
Mehrotra now seeks review of the ARB’s decision in our Court, pursuant to
18 U.S.C. § 1514A(b)(2)(A) and 49 U.S.C. § 42121(b)(4)(A).

II. STANDARD OF REVIEW
We review the ARB’s final decision and order regarding a SOX
whistleblower-retaliation claim in accordance with the rules and procedures set
forth in the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06. See
18 U.S.C. § 1514A(b)(2)(A); 49 U.S.C. § 42121(b)(4)(A). “We will uphold a decision
by the ARB if it is not ‘arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.’” Bechtel v. Admin. Rev. Bd., 710 F.3d 443, 445 (2d Cir.

6

2013) (quoting 5 U.S.C. § 706(2)(A)). And while we review de novo the ARB’s legal
conclusions, including its application of a statute of limitations, see Aleutian Cap.
Partners, LLC v. Scalia, 975 F.3d 220, 229 (2d Cir. 2020), we must uphold the ARB’s
factual findings if they are supported “by substantial evidence,” Metro-N.
Commuter R.R. Co. v. U.S. Dep't of Lab., 886 F.3d 97, 106 (2d Cir. 2018) (quoting 5
U.S.C. § 706(2)(E)). “The mere ‘possibility of drawing two inconsistent
conclusions from the evidence’ does not render an agency’s finding unsupported
by substantial evidence.” Metro-N. Commuter R.R. Co., 886 F.3d at 106 (quoting
Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 523 (1981)).
III. D
ISCUSSION
Under SOX, an employee must file his whistleblower complaint with the
Secretary of Labor “not later than 180 days after . . . the date on which the
employee became aware of the violation.” 18 U.S.C. § 1514A(b)(2)(D); see 29 CFR
§ 1980.103(d). Because Mehrotra filed his OSHA complaint on December 17, 2020,
the alleged retaliatory acts – namely, (i) GE’s termination of Mehrotra’s
employment and (ii) its subsequent refusal to rehire him – must have occurred on
or after June 20, 2020. They did not.

7

The ARB properly concluded that Mehrotra’s wrongful-termination claim
accrued on April 29, 2019, the date on which he received written notice from GE
of his imminent layoff. “[A]n ordinary wrongful-discharge claim accrues – and
the limitations period begins to run – when the employer notifies the employee he
is fired, not on the last day of his employment.” Green v. Brennan, 578 U.S. 547, 564
(2016) (citing Del. State Coll. v. Ricks, 449 U.S. 250, 258–59 (1980)); see also Coppinger-
Martin v. Solis, 627 F.3d 745, 749 (9th Cir. 2010) (explaining, in the SOX context,
that petitioner’s “claim similarly accrued, and the statute of limitations began to
run, when she learned of the actual injury, i.e., that [her employer] had decided to
terminate her employment”). Thus, as the ARB correctly noted, “the time for filing
a complaint begins when the employee knew or should have known of the adverse
action, regardless of the effective date.” J. Suppl. App’x at 501 (internal quotation
marks omitted); see Chardon v. Fernandez, 454 U.S. 6, 8 (1981). And while Mehrotra
contends, as a factual matter, that his effective termination date was June 30, 2020
(the date his protected-services period ended) and not June 21, 2019 (his layoff date
and the day he stopped working), he does not meaningfully dispute that he
received notice of his layoff on April 29, 2019. As a result, Mehrotra was obliged

8

to bring his wrongful-termination claim 180 days later – that is, by October 26,
2019 – making his December 17, 2020 OSHA complaint plainly untimely.
Mehrotra’s retaliatory refusal-to-rehire claim fares no better. As the ARB
correctly explained, where the alleged adverse action is a blacklisting or company-
wide refusal to rehire, an employee is unlikely to receive definitive and
unequivocal notice of the adverse action taken against him. In such cases, the
claim accrues when it “was apparent or should have been apparent that a
complainant’s former employer was refusing to rehire [him].” J. Suppl. App’x
at 502–03; see, e.g., Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (“Under
federal law, . . . a claim generally accrues once the plaintiff knows or has reason to
know of the injury which is the basis of his action.” (internal quotation marks
omitted)); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999) (analyzing, in
employment-discrimination context, “when [plaintiff] knew or had reason to
know of the injury serving as the basis for his claim”). Based on the record before
them, the ALJ and ARB properly concluded that Mehrotra knew or should have
known of GE’s refusal to rehire him by March 16, 2020 – the date on which he filed
an internal complaint with GE after unsuccessfully applying to fifty open
positions.

9

This reading of section 1514A(b)(2)(D) aligns with the Supreme Court’s
interpretations of analogous statute-of-limitations provisions in SOX. For
example, in Merck & Co. v. Reynolds, the Supreme Court interpreted SOX’s fraud-
based statute-of-limitations provision, found in 28 U.S.C. § 1658(b), to mean “that
a cause of action accrues (1) when the plaintiff did in fact discover, or (2) when a
reasonably diligent plaintiff would have discovered, ‘the facts constituting the
violation’ – whichever comes first.” 559 U.S. 633, 637–38 (2010) (emphasis added)
(quoting 28 U.S.C. § 1658(b)(1)). Significantly, the text of the statute-of-limitations
provision at issue in Merck substantively mirrors the provision we are being asked
to interpret. Compare 28 U.S.C. § 1658(b) (statute of limitations expires “2 years
after the discovery of the facts constituting the violation” (emphasis added)), with
18 U.S.C. § 1514A(b)(2)(D) (statute of limitations expires “not later than 180 days
after the date on which the violation occurs, or after the date on which the
employee became aware of the violation” (emphasis added)).
Mehrotra – and our dissenting colleague – disagree, arguing that GE’s
failures to hire him for four positions after June 20, 2020 constituted discrete
retaliatory acts that occurred within the statutory period. In doing so, they rely
principally on language from the Supreme Court’s decision in National Railroad

10

Passenger Corp. v. Morgan, which treated an employer’s “refusal to hire” as a
“discrete act[]” and stated that “[e]ach discrete discriminatory act starts a new
clock for filing charges alleging that act.” 536 U.S. 101, 113–14 (2002); see also Conc.
& Diss. Op. at 11–13. But as we have since explained, Morgan does not displace
the rule announced in Ricks that “a ‘delayed, but inevitable, consequence of the’”
discriminatory or retaliatory action is insufficient to revive an otherwise untimely
claim. Alleyne v. Am. Airlines, Inc., 548 F.3d 219, 221 (2d Cir. 2008) (quoting Ricks,
449 U.S. at 257–58). As a result, Mehrotra may not pin his claim on refusals to
rehire “that fell within the limitations period to pull in the time-barred
discriminatory act” of blacklisting. Morgan, 536 U.S. at 113 (discussing Ricks, 449
U.S. at 257).
Mehrotra attempts to sidestep this result by arguing that his blacklisting
falls under “the continuing[-]violation doctrine.” Mehrotra Br. at 21–23; see also
Tassy v. Buttigieg, 51 F.4th 521, 532 (2d Cir. 2022) (“The continuing[-]violation
doctrine, where applicable, provides an exception to the normal knew-or-should-
have-known accrual date.” (internal quotation marks omitted)); see also Gonzalez v.
Hasty, 802 F.3d 212, 220 (2d Cir. 2015) (The doctrine “applies to claims composed
of a series of separate acts that collectively constitute one unlawful practice.”

11

(alteration adopted and internal quotation marks omitted)). But the Morgan
“Court unanimously rejected the . . . view that a series or pattern of related discrete
acts could constitute one continuous unlawful employment practice for purposes
of the statute of limitations.” Tassy, 51 F.4th at 532 (internal quotation marks
omitted). Indeed, we have cabined the doctrine “exclusively ‘to claims that by their
nature accrue only after the plaintiff has been subjected to some threshold amount
of mistreatment.’” Id. (emphasis added) (quoting Lucente v. Cou nty of Suffolk, 980
F.3d 284, 309 (2d Cir. 2020)).
Blacklisting is no such claim.
1
See Lucente, 980 F.3d at 309 (continuing-
violation doctrine does not apply “to discrete unlawful acts, even where those
discrete acts are part of ‘serial violations’” (emphasis added) (quoting Morgan, 536

1
The dissent contends that “blacklisting” only occurs when an employer “‘publishes’” (or
otherwise “‘communicate[s]’”) to “another employer” the negative information about the employee
“for the purpose of preventing [the backlisted employee] from getting a job” somewhere else.
Conc. & Diss. Op. at 3 (first quoting Ct. Gen. Stat. § 31-51; and then quoting Az. Rev. Stat. § 23-
1361(A)); see also id. (maintaining that Mehrotra’s “factual allegations do not describe blacklisting
as that term is generally understood in the law”). But Black’s Law Dictionary defines “to
blacklist” as an 18th-c entury verb that means: “To put the name of (a person) on a list of those
who are disfavored and are therefore to be avoided or punished <the firm blacklisted the former
employee>.” To Blacklist, Black’s Law Dictionary 209 (11th ed. 2019). The dissent points to no
evidence that the ALJ or the ARB understood “blacklisting” as anything other than precisely the
definition that Black’s puts forward. See App’x at 395 (ALJ understanding Mehrotra to have been
on notice that he was blacklisted after he was “denied employment after 50 attempts with the same
employer” (emphasis added)); id. at 498 (ARB understanding Mehrotra’s allegation to be “that his
job was terminated and he was blacklisted from rehire by GE due to his protected activity”
(emphasis added)).

12

U.S. at 114–15)). To hold otherwise would permit an employee to revive a stale
blacklisting claim simply by filing a new job application, even though he was on
notice of the employer’s retaliation for well over 180 days. Such a rule would make
the 180-day limitation meaningless and encourage employees, as well as OSHA,
to delay “resolv[ing] the controversy on its merits.” See Daly v. Citigroup Inc., 939
F.3d 415, 428 n.14 (2d Cir. 2019) (internal quotation marks omitted).
Mehrotra also asserts that the ARB failed to consider two additional discrete
violations of the Act after June 20, 2020 – namely, that GE engaged in a “sham
investigation of his blacklisting complaint” and “block[ed]” his complaint from
reaching GE’s board of directors. Mehrotra Br. at 10. But, as Mehrotra’s own brief
suggests, these actions were not independently retaliatory but instead part-and-
parcel of GE’s alleged blacklisting more broadly. See id. at 18 (describing “[GE
Corporate’s alleged] active involvement in blacklisting, fraud, fabricating
pretextual reasons for refusal to rehire, and depriving [Mehrotra of] whistleblower
protection under the scrutiny of independent directors”); see also Morse v. Univ. of
Vt., 973 F.2d 122, 125 (2d Cir. 1992) (“The fact that [an entity] . . . undertook an
internal administrative review of its allegedly discriminatory decision has no
effect on when the statute of limitations period begins to run.”). Accordingly, we

13

do not agree that these allegations restarted the statute of limitations for
Mehrotra’s refusal-to-rehire claim.
Nor are we persuaded by Mehrotra’s assertion that he did not know of GE’s
retaliatory non-hiring until late June 2020, when he discovered that several of his
applications had been rejected at the initial screening stage and concluded that it
was the result of “blacklisting.” Under the applicable substantial-evidence
standard, our review is limited to “whether a reasonable mind might accept a
particular evidentiary record as adequate to support a conclusion.” Dickinson v.
Zurko, 527 U.S. 150, 162 (1999) (internal quotation marks omitted); Metro-N.
Commuter R.R. Co., 886 F.3d at 106 (“The mere possibility of drawing two
inconsistent conclusions from the evidence does not render an agency’s finding
unsupported by substantial evidence.” (internal quotation marks omitted)).
The ALJ and ARB’s finding that Mehrotra was (or should have been) on
notice that GE was refusing to rehire him by March 16, 2020 more than satisfies
this standard. By that time, Mehrotra had unsuccessfully applied to at least fifty
open positions at GE, many of which he believed he was well-qualified for; more
importantly, after applying to a dozen more jobs, he followed-up by also filing an
internal complaint with GE regarding the company’s failure to rehire him, which

14

he attributed to the fact that he was a whistleblower. J. Suppl. App’x at 144, 375;
Sp. App’x at 63–64. This months-long failure to obtain re-employment with GE,
moreover, occurred after Mehrotra had previously complained in June 2019 that
his initial layoff had been retaliatory. J. Suppl. App’x at 140–42. As a result, even
if it could be argued that Mehrotra’s position “is not without some support in the
record, that is insufficient to overturn the agency’s conclusion under our
deferential standard of review.” Unified Turbines, Inc. v. U.S. Dep’t of Lab., 581 F.
App’x 16, 19 (2d Cir. 2014) (citing Bechtel, 710 F.3d at 446). We thus see no reason
to disturb the DOL’s finding that Mehrotra knew or should have known about
GE’s alleged refusal to rehire him before June 20, 2020. See Bechtel, 710 F.3d at 450.
Finally, Mehrotra argues that he was entitled to “equitable relief” from the
limitations period because GE “fraudulently concealed [the] facts of
discrimination from him on multiple occasions.” Mehrotra Br. at 25. As an initial
matter, Mehrotra seems to conflate the related-but-distinct concepts of “equitable
estoppel” and “equitable tolling.” As the ARB correctly noted, equitable estoppel
applies when a respondent “prevents ‘a complainant from suing in time by, for
example, promising not to plead the limitations defense or by presenting
fabricated evidence to negate any basis for a claim.’” Sp. App’x at 66 (quoting

15

Martin v. Paragon Foods, ARB No. 2022-0058, 2023 WL 4560920, at *4 (Admin. Rev.
Bd. June 8, 2023)). By contrast, equitable tolling applies when “(1) the defendant
wrongfully concealed material facts relating to defendant’s wrongdoing; (2) the
concealment prevented plaintiff’s discovery of the nature of the claim within the
limitations period; and (3) plaintiff exercised due diligence in pursuing the
discovery of the claim during the period plaintiff seeks to have tolled.” Ellul v.
Congregation of Christian Bros., 774 F.3d 791, 801 (2d Cir. 2014) (internal quotation
marks omitted). In a nutshell, equitable tolling “is invoked in cases where the
plaintiff is ignorant of his cause of action because of the defendant’s fraudulent
concealment, [while] equitable estoppel is invoked in cases where the plaintiff
knew of the existence of his cause of action but the defendant’s
[misrepresentations] caused him to delay in bringing his lawsuit.” Id. at 802
(internal quotation marks omitted).
But whether Mehrotra intended to invoke the doctrine of equitable estoppel
or the doctrine of equitable tolling (or both), we see no abuse of discretion in the
ARB’s conclusion that Mehrotra “failed to establish any situation that would
warrant an extension of the filing deadline” for his claims. J. Suppl. App’x at 507;
see Ahmed v. Holder, 624 F.3d 150, 155 (2d Cir. 2010) (reviewing agency’s denial of

16

equitable-estoppel claim for abuse of discretion); Xanthopoulos v. United States
Dep’t of Lab., 991 F.3d 823, 831 (7th Cir. 2021) (same, with respect to ARB’s denial
of equitable tolling). As noted above, substantial evidence supports the ARB’s
finding that – well before June 20, 2020 – Mehrotra knew of his termination, was
on notice of GE’s refusal to rehire him, and had reason to believe that retaliation
for his whistleblowing activity was the reason behind both. Because Mehrotra
knew the operative facts necessary to bring his claims and has not meaningfully
explained how any conduct by GE improperly prevented him from doing so in a
timely manner, we cannot say that the ARB erred in rejecting his claim. See Ellul,
774 F.3d at 801–02.
Mehrotra primarily contends that GE fraudulently concealed the material
facts of its retaliation (particularly its refusal to rehire him) and that he first learned
of that scheme in February 2021 during OSHA’s investigation of his whistleblower
complaint. But Mehrotra’s own OSHA complaint – filed in December 2020 –
undercuts his assertion that he lacked sufficient information to bring his claims
until February 2021. That Mehrotra may have later learned additional details
regarding the particulars of how or why GE was refusing to rehire him – i.e., facts
that “would enhance [his] ability to prevail as to [his] cause of action” – is of no

17

moment, since “the existence of [his] cause of action” was already known to him
and therefore not “fraudulent[ly] conceal[ed].” Pearl v. City of Long Beach, 296 F.3d
76, 84 (2d Cir. 2002) (emphasis added). Nor does he identify any facts to suggest
that GE made misrepresentations that “caused him to delay in bringing his
lawsuit,” Ellul, 774 F.3d at 802 (internal quotation marks omitted), either by
“promising not to plead the limitations defense or by presenting fabricated
evidence to negate any basis for a claim.” Sp. App’x at 66 (internal quotation
marks omitted). For these reasons, the ARB did not abuse its discretion in
declining to equitably suspend the limitations period.

IV. CONCLUSION
Accordingly, for the reasons stated above, we DENY the petition for review.

1
No. 23-7798
Mehrotra v. U.S. Dep’t of Lab.

BETH ROBINSON, Circuit Judge, concurring in part as to the outcome only,
dissenting in part. Mehrotra alleges that after he engaged in protected
whistleblower activity, GE retaliated by 1) terminating his employment and,
2) during his protected service period, declining to rehire him for dozens of other
open positions for which he applied and was qualified. He attributes GE’s
decisions to not rehire him for the various other positions he sought to GE’s
internal dissemination of untruthful, derogatory information about him to hiring
managers. He had no knowledge of this conduct at the time. He colloquially
describes this as a “scheme to blacklist” him. J. Suppl. App’x at 11.
In challenging OSHA’s dismissal of his claims as untimely, Mehrotra
specifically argued to the Administrative Law Judge (“ALJ”), with supporting
undisputed evidence, that based on a retaliatory motive GE declined to rehire him
on four occasions within the limitations period. Nevertheless, the ALJ—and, in
turn the Administrative Review Board (“ARB”), like the majority here—proceeded
as if Mehrotra’s cause of action for post-termination adverse actions arose solely
from GE’s uncommunicated intent not to rehire him and concluded that his claims
were untimely because he should have divined that intent sooner.

2
This approach ignores the record—which does not support the suggestion
that Mehrotra alleges a single “blacklisting” decision not to rehire him for any
position. And it flies in the face of the applicable law. A cause of action for
retaliation requires an adverse action and accrues when the employee learns of it,
and successive refusals to rehire are discrete events. For these reasons, I
respectfully dissent from the majority’s conclusion that all of Mehrotra’s failure-
to-rehire claims are time-barred.
1

I. The majority’s approach ignores the record.
First, the record. True, Mehrotra’s OSHA complaint includes “black listing”
in the list of alleged adverse employment actions. J. Suppl. App’x at 5. But it also

1
I concur in the majority’s conclusion that Mehrotra’s claim for retaliatory termination is time-
barred, but I reject the majority’s reasoning. The majority asserts that a cause of action for
wrongful termination under the Sarbanes-Oxley anti-retaliation statute accrues when the
employee “knew or should have known of the adverse action.” Maj. Op. at 7. That’s flatly counter
to the standard set forth in the SOX statute which, as set forth more fully below, provides that an
action alleging retaliatory discharge or other discrimination “shall be commenced not later than
180 days after the date on which the violation occurs, or after the date on which the employee
became aware of the violation.” 18 U.S.C. § 1514A(b)(2)(D) (emphasis added). Absent binding
precedent instructing us otherwise, the plain language of the statute governs. See, e.g., Feliciano
v. Dep’t of Transportation, 605 U.S. 38, 45 (2025) (“[T]hose whose lives are governed by law are
entitled to rely on its ordinary meaning, not left to speculate about hidden messages.”). The
majority’s reliance on Merck & Co. v. Reynolds to support its broader reading of § 1514A(b)(2)(D)
is unpersuasive for the reasons set forth below. See below, at pages 9–11. The majority’s
misstatement of the standard does not change the outcome of its analysis concerning the
timeliness of Mehrotra’s complaint regarding his termination, with which I concur. I likewise
concur in the result insofar as Mehrotra is barred from pursuing claims for retaliatory non-
rehiring arising from job applications rejected before June 20, 2020.

3
lists “Failure to Hire/Re-Hire” among the allegedly discriminatory adverse
actions—a claim the agency essentially ignored in reducing his post-termination
retaliation claims to a single purported act of blacklisting.
Moreover, though he colloquially describes GE’s actions as “black listing,”
his factual allegations do not describe blacklisting as that term is generally
understood in the law. Mehrotra does not allege that GE communicated with
another employer for the purpose of preventing him from getting a job. Cf. Ct. Gen.
Stat. § 31-51 (employer who “blacklists any employee . . . or publishes or causes to
be published the name of any such employee . . . with the intent and for the
purpose of preventing such employee . . . from engaging in or securing
employment from any other person . . . ” is subject to fine) (emphasis added); Az.
Rev. Stat. § 23-1361(A) (“ ‘Blacklist’ means any understanding or agreement
whereby the names of any person or persons . . . shall be spoken, written, printed
or implied for the purpose of being communicated . . . between two or more
employers . . . whereby the laborer is prevented or prohibited from engaging in a
useful occupation.”) (emphasis added); Burba v. Rochester Gas and Elec. Corp., 90
A.D.2d 984, 984 (4th Dept. 1982)
2
(describing as “blacklist” published company

2
In quotations from caselaw, this dissent omits all internal quotation marks, footnotes, and
citations, and accepts all alterations, unless otherwise noted.

4
memorandum prohibiting plaintiffs’ employment on defendant’s property “by
defendant or any other individual” that induced contractors to decline employment
to the plaintiffs (emphasis added)).
Nor does he even suggest a single, uncommunicated company-wide
decision to disqualify Mehrotra from GE employment. Rather, Mehrotra alleges
that, with retaliatory animus, the GE human resources department conveyed
inaccurate, disparaging information about him to hiring managers, resulting in
their respective decisions to pass him over. Rather than a single corporate decision
not to rehire him, Mehrotra alleges conduct by individuals with retaliatory
motives that resulted in multiple no-hire decisions by various hiring managers.
Cf. Vasquez v. Empress Ambulance Service, Inc., 835 F.3d 267, 274–75 (2d Cir. 2016)
(concluding in Title VII case that employer was liable for adverse employment
decision resulting from false allegations by employer’s agent that were motivated
by impermissible retaliatory animus).
3

3
To the extent that the majority suggests that this dissent limits the concept of blacklisting to
inter-employer communications, it ignores this discussion. Maj. Op. at 11 n.1. What’s missing
here is an allegation of a definitive determination not to rehire Mehrotra under any circumstances.
At most, the allegations here posit dissemination of disparaging information that led various
hiring decisionmakers to decline to rehire Mehrotra.

5
II. The majority misapplies the law—three times.
A. An unexpressed intent not to rehire is not an adverse action.
Putting aside the record, even if Mehrotra had alleged that GE had made a
single, determinate, uncommunicated retaliatory corporate decision to decline to
rehire him, the agency’s legal analysis, adopted by the majority here, fails at
several junctures. First, the agency proceeds on the premise that such an
uncommunicated decision, in and of itself, constitutes a cause of action for
retaliation under the Sarbanes-Oxley Act (“SOX”) without regard to whether
Mehrotra actually applied for other positions following his layoff.
But SOX provides a remedy for materially adverse employment actions. See
18 U.S.C. § 1514A(a) (providing that a covered employer may not “discharge,
demote, suspend, threaten, harass, or in any other manner discriminate against an
employee in the terms and conditions of employment” because of the employee’s
protected activity (emphasis added)); see also id. § 1514A(b)(2) (incorporating by
reference rules and procedures set forth in 49 U.S.C. § 42121(b)); 49 U.S.C.
§ 42121(b)(2)(B)(i), (ii) (describing shifting burden of proof with respect to whether
protected activity was a contributing factor in “the unfavorable personnel action”).
A retaliatory, uncommunicated, and unexercised intent not to rehire
someone is a proverbial tree falling in the woods: nobody hears it. Evidence of

6
such an intent may establish the retaliatory motive for a refusal to hire, but where
that intent has not been communicated to the employee, some action, such as
passing over the employee in response to an actual application for a position, is an
essential element of a cause of action for retaliation under SOX. Until the
uncommunicated and unexercised intent leads to an actual adverse action, no
cause of action arises under SOX, and no limitations clock starts ticking.
B. The court applies the wrong accrual standard to its hypothetical blacklisting
claim.
That leads to the second legal problem here. Having conjured a
freestanding cause of action for “blacklisting” that does not exist on these facts, the
agency ignores the express terms of the SOX statute in determining when that
mythical claim accrues for purposes of the 180-day time limit. The statute leaves
no doubt as to when the clock starts ticking: “An action [alleging retaliatory
discharge or other discrimination] shall be commenced not later than 180 days
after the date on which the violation occurs, or after the date on which the employee
became aware of the violation.” 18 U.S.C. § 1514A(b)(2)(D) (emphasis added). The
ARB cites this statute but then asserts that “where no such notice was given, the
appropriate question for when the blacklisting for rehire claim accrues is when it
was apparent or should have been apparent that a complainant’s former employer

7
was refusing to rehire them.” J. Suppl. App’x 502–03. But that’s not what the
statute says. It specifically requires that the employee “became aware” of the
violation, § 1514A(b)(2)(D), and decidedly does not suggest that for purposes of
the limitations period the cause of action may accrue when the employee should
have become aware.
4

The majority adopts the agency’s approach, likewise departing from the
plain language of the statute. In doing so, the majority ignores the SOX statute at
issue here and instead relies on inapposite decisions involving claims under Title
VII, 42 U.S.C. § 1983, and securities fraud under 28 U.S.C. § 1658(b). Those
decisions are inapposite for a number of reasons.
“Within each body of law, there are different accrual rules depending on the
nature of the cause of action.” Olivieri v. Stifel, Nicolaus & Co., 112 F.4th 74, 87 (2d
Cir. 2024). None of the decisions relied upon by the majority arises in the context
of a statute like § 1514A(b)(2)(D).
In contrast to § 1514A(b)(2)(D), some of the decisions the majority cites
apply statutes that don’t purport to address the date of accrual when a plaintiff is

4
The ARB’s approach is inconsistent with at least some of its own caselaw on this point. See, e.g.,
Johnsen v. Houston NANA, Inc., ARB 2000-0064, ALJ No. 1999-TSC-00004, slip op. at 2, 5-6 (ARB
Jan. 27, 2003) (reissued Feb. 10, 2003) (claim arising from no-hire notice accrues from date of
plaintiff’s receipt of “definitive, final and unequivocal” notice).

8
unaware of an adverse action. Specifically, § 1983 does not address the accrual of
§ 1983 claims, and 42 U.S.C. § 2000e-5(e)(1) provides only that accrual begins when
the “alleged unlawful employment practice occurred.” In the cases cited by the
majority that involve these civil rights statutes, in the face of statutory silence on
the issue, this Court applied the general discovery rule when the adverse action
was unknown to the plaintiff. See, e.g., Cornwell v. Robinson, 23 F.3d 694, 703 (2d
Cir. 1994) (“Under federal law, which governs the accrual of claims brought under
§§ 1983 and 1985, . . . a claim generally accrues once the plaintiff knows or has
reason to know of the injury which is the basis of [the] action.”); Harris v. City of
New York, 186 F.3d 243, 247, 251 (2d Cir. 1999) (adopting same standard for
Americans with Disabilities Act and Title VII claims). Where plaintiffs face
“problems in discerning the fact and cause of their injuries,” this “more liberal
accrual standard” governs. Barrett v. United States, 689 F.2d 324, 327, 333 (2d Cir.
1982) (adopting rule for Federal Tort Claims Act and § 1983 claims); see also Saint-
Jean v. Emigrant Mortgage Co., 129 F.4th 124, 141, 141 n.6 (2d Cir. 2025) (discussing
the relationship between this accrual rule and equitable tolling in context of Fair
Housing Act claims). In the absence of statutory guidance or any Congressional

9
correction of these long-standing interpretations, courts continue to apply and
develop this knew-or-should-have-known accrual standard.
But in the provision of SOX at issue here, Congress did address the matter,
specifying that a claim accrued when the employee actually “became aware” of
the violation. 18 U.S.C. § 1514A(b)(2)(D). Judge-made rules under analogous
statutes that are silent on the matter cannot supplant the unequivocal terms of the
applicable statute here. Rather, “If the statutory terms are unambiguous, our
review generally ends and the statute is construed according to the plain meaning
of its words.” Tyler v. Douglas, 280 F.3d 116, 122 (2d Cir. 2001). Moreover, in the
context of Title VII and § 1983 claims, the knew-or-should-have-known standard
effectively extends the statutory limitations period in situations in which an
individual cannot reasonably ascertain the statutory injury; but applying the
standard in the context of these SOX claims would actually shorten the applicable
limitations period relative to the statutory prescription.
The decision the majority identifies as more squarely on point likewise
applies an inapposite statute. See Merck & Co. v. Reynolds, 559 U.S. 633 (2010). The
majority’s reliance on the Merck decision is unpersuasive because the statute of
limitations the Court applied in that case expressly references “the discovery” of

10
the facts constituting the violation. Id. at 644; see also 28 U.S.C. § 1658(b)(1)
(providing that a private right of action for certain claims relating to securities
fraud may be brought not later than the earlier of “2 years after the discovery of
the facts constituting the violation” or 5 years).
The Court acknowledged that “one might read the statutory words ‘after
the discovery of the facts constituting the violation’ as referring to the time a
plaintiff actually discovered the relevant facts.” Id. at 644. However, the Court
recognized that “in the statute of limitations context, the word ‘discovery’ is often
used as a term of art in connection with the ‘discovery rule,’ a doctrine that delays
accrual of a cause of action until the plaintiff has ‘discovered’ it.” Id. The Court
explained that as a term of art, the “discovery rule” encompasses “not
only . . . actual discovery, but also . . . the hypothetical discovery of facts a
reasonably diligent plaintiff would know.” Id. at 645.
By contrast, the language of the statute at issue here—which starts the
limitations clock on the date the employee “became aware” of the violation—does
not use the term “discovery” or otherwise imply incorporation of the well-
established discovery rule. 18 U.S.C. § 1514A(b)(2)(D). The Supreme Court’s
rationale for reading the statute at issue in Merck to start the clock when a diligent

11
plaintiff “should have” discovered the violation simply doesn’t apply to
§ 1514A(b)(2)(D). There is no reason to infer that “became aware” in
§ 1514A(b)(2)(D) means anything other than “became aware.”
C. Adverse acts within the limitations period are not barred.
Finally, wholly apart from any claim for what Mehrotra colloquially
described as “blacklisting,”
5
Mehrotra specifically based his SOX complaint on
GE’s repeated failures to rehire him—including four within the limitations period.
Despite Mehrotra’s repeated arguments that these four failures to rehire him
violated SOX, the agency considered these failures only as incidental to the legally
non-existent blacklisting claim, and it thus concluded that the time-bar on the
blacklisting claim precluded Mehrotra from pursuing relief for any of the allegedly
retaliatory failures to rehire.
But under well-established analogous law under other employment
discrimination statutes, each allegedly retaliatory decision not to rehire Mehrotra

5
The ALJ, the ARB, and the majority put undue emphasis on Mehrotra’s uncounseled description
of the nature of his claims in his SOX complaint and arguments before the agency. Despite his
use of the inapt term “blacklist,” Mehrotra plainly argued to the ALJ that his employer retaliated
against him by declining to rehire him on multiple distinct occasions. See J. Suppl. App’x at 11
(“At least four Job denials are adverse actions within the limitations period”). Moreover, after his
initial complaint to OSHA, Mehrotra was and is uncounseled. We should interpret his filings “to
raise the strongest claims they suggest.” Sharikov v. Philips Medical Systems MR, Inc., 103 F.4th
159, 166 (2d Cir. 2024).

12
was a discrete act triggering its own limitations calculation. See National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). In Morgan, a Title VII decision,
the Supreme Court distinguished between employment discrimination actions
based on discrete acts, such as failing or refusing to hire an individual, id. at 110–
11, and claims based on a hostile work environment, id. at 115. The Court
identified “refusal to hire” as an “easy to identify” discrete act. Id. at 114. And it
explained that each such refusal to hire “constitutes a separate actionable unlawful
employment practice” that “starts a new clock for filing charges alleging that act.”
Id. at 113, 114.
That’s true even if an employee’s timely claims for discrete adverse acts
follow an established pattern of such conduct. The Morgan Court explained that
the “existence of past acts and the employee’s prior knowledge of their
occurrence . . . does not bar employees from filing charges about related discrete
acts so long as the acts are independently discriminatory and charges addressing
those acts are themselves timely filed.” Id. at 113.
This authority under Title VII is persuasive here where, in contrast to the
accrual issue discussed above, the relevant text of the respective statutes is
essentially the same as the SOX statute. In Morgan, the Supreme Court relied

13
heavily on the language of Title VII requiring that a charge be filed within 180 days
“after the alleged unlawful employment practice” occurred. Id. at 109. The statute
here provides that the claim must be commenced not later than 180 days “after the
date on which the violation occurs, or after the date on which the employee became
aware of the violation.” 18 U.S.C. § 1514A(b)(2)(D) (emphasis added). The Court’s
reasoning in Morgan regarding the accrual of discrete violations thus applies as
well in this SOX case. Thus, here, t hough Mehrotra’s non-hire decisions may all
be “related discrete acts,” each individual non-hire decision is independently
motivated by retaliatory animus, so his claims arising from GE’s post-June 20,
2020, decisions not to hire him are not time-barred.
The majority resists this conclusion and suggests that the rule established
by the Supreme Court in Morgan gives way in this case to a very different principle
embraced by the Supreme Court in Delaware State College v. Ricks, 449 U.S. 250
(1980)—a decision that preceded Morgan by two decades and involved very
different circumstances. In Ricks, a Delaware State College tenure-track employee
alleged that he was denied tenure on grounds violative of Title VII and 42 U.S.C.
§ 1981. During the course of the internal grievance proceeding challenging Ricks’
denial of tenure, the College had informed him that he would be offered a one-

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year “terminal contract” to teach one additional year. 449 U.S. at 253. The College
made this offer pursuant to its established policy of not immediately discharging
junior faculty members who do not receive tenure.
The district court dismissed Ricks’ claims on the basis that the only unlawful
employment practice alleged—the College’s decision to deny Ricks tenure—
occurred more than 180 days before he filed his EEOC complaint and more than
three years before he filed his action asserting § 1981 violations. Id. at 255. The
Court of Appeals reversed, concluding that the Title VII requirement and the
statute of limitations for the § 1981 claim did not commence until Ricks’ “terminal
contract” had expired—an event that occurred within the relevant limitations and
filing periods. Id. The Supreme Court reversed, explaining that “the only alleged
discrimination occurred—and the filing limitations periods therefore
commenced—at the time the tenure decision was made and communicated to
Ricks.” Id. at 258. That was so “even though one of the effects of the denial of
tenure—the eventual loss of a teaching position—did not occur until later.” Id.
Ricks is inapposite. There is no “delayed, but inevitable, consequence” to
any decision that was “made and communicated” to Mehrotra. Id. at 257–58. The

15
only decisions communicated to him were each of the independently actionable
non-hire decisions, which had no delayed effect.
Here, as in Morgan, Mehrotra alleged multiple distinct retaliatory adverse
actions, including several that are not time-barred under SOX. The notion that the
invented “blacklisting” cause of action subsumes all his claims arising from
discrete adverse actions, rendering them untimely even if the adverse actions took
place within the limitations period, flies in the face of the Supreme Court’s holding
in Morgan. Just as characterizing a series of discrete adverse acts as a pattern or
practice cannot pull forward otherwise untimely discrete-act claims to render
claims based on those acts timely, characterizing a series of discrete adverse acts
as a pattern or practice—i.e., “blacklisting”—does not pull otherwise timely
discrete-act claims backward to render claims based on those acts untimely.
In sum, Mehrotra’s SOX complaint was timely with respect to the four
discrete adverse acts that occurred after June 20, 2020—GE’s alleged retaliatory
refusal to rehire him to positions for which he alleges he was qualified. For that
reason, I respectfully dissent.