i'll be addressing three errors that the trial court level day that i believe each justified reversal and remand first the denial of a motion to amend the complaint add plaintiff's discrimination claims to her lawsuit second the dismissal of the second lawsuit where she brought those discrimination claims and third evidentiary errors that occurred at the trial that were significant and deprive the plaintiff of a fair trial first on the rule fifteen motion to a man this was a motion brought by the plaintiff on april first two thousand and thirteen was more than a year to the trial there were ten months of additional discovery to be done the court denied the motion on the basis that the plaintiff had waited six months to bring the motion after the filing of the complaint the delay is explained in the record is fully explainable  but irrespective of that less this case is controlled by dupes it spurs commonwealth the decision from this court in two thousand and four where an eight month delay which was completely unexplained was not enough to justify  nihil of a motion to amend i recognize that this is an abuse of discretion standard but given the fact that there was no prejudice and the plaintiff's delay was fully explained under the dupes this case this denial of the motion to aman would a stay of the very go one health there are who would have helped i don't know your honor here's what we have the cases that talk about the state are the herm ski case those cases are distinguishable for one fundamental reason those cases went to judgment on an underlying non discrimination claim and the plaintiff then later complained that they couldn't wrestled their discrimination claims away from the administrative agencies in time to bring them in this case we don't have a judgment and the court says when the plane of complaints well you should have brought a stay of the underlying action in this case we're a year away from trial in the underlying action it never dawned on me that we should bring a motion for a state we asked of the defendants for a tolling agreement they rejected that idea the same thing is accomplished by the tolling agreement and in any case we haven't proceeded to judgment on the underlying action we're a year away from judgment in the underlying action the skylar ski case controls the dismissal of the second actually brought the motion to amend the record will reflect that we brought the motion to amend three days before we got the right to sue letter from the e e o c we ask them to stipulate to the amendment earlier and we are waiting for and this is reflected in the record in the affidavit of bonnie smith that we were waiting for some reason the e e o c was delayed in understaffed at the time didn't give us the right to sue promised us the right to sue on march twenty eighth we immediately brought the motion to amend even before we had it in hand we got it you can't bring the discrimination claims without the right to sue it's just an administrative requirement so but in any case there is they have not identified  of additional discovery that would have been necessary and the motion for summary judgment was six weeks off in any case we had just amended the scheduling order there was ten months of additional discovery it was a year to trial there's no discernible basis for denying the motion to amend and then dismissal of the second action is clearly not barred by greece judicata we took these steps all the while in this honor we were trying to bring the claims efficiently fairly and together that's what we were trying to do we requested a tolling agreement in september of two thousand and twelve they denied that when we found out in the administrative agency in january of two thousand and thirteen that we couldn't get complete relief in the administrative agency because for some quirky reason they didn't have enough employees for the w f m ok but had enough employees for the f requested dismissal of the administrator proceeding and tried to bring all the claims together in federal court we asked the defendant to agree to an amendment of the complainant february twenty eighth two thousand and thirteen and we moved to amend t complaint of april first right had just as we were promised the right to sue which we got two days or three days later all this while we're trying to be efficient with the court's time and bring these claims fairly and together then at the trial of the court excluded large swaths of evidence and in part on the basis that she said at one point on the record that our critical evidence would have been great evidence if we had the discrimination claims but was not relevant not relevant to the f m l a claim and that was her ruling this these it's ironic that as we went through the trial where the court seemed to be suggesting we should be headed is proving the defendant's intent we had the best evidence of his intent you could possibly have we had handwritten notes that he took before he allowed the plaintiff to come back to the workplace which the court then excluded completely excluded as irrelevant under rule four zero two these notes show that the pla he delayed reinstatement so that he could analyze her so that he could analyze for himself to determine if she was of sound mind because after all it was his money and his company and this is what he said about the notes in his deposition he did not cheer what the doctor said it didn't matter to him what a doctor said and then he will testify at trial under oath that he was waiting for a doctor's certification of return to work this was directly contrary to his under oath testimony in his deposition we were not allowed to use that evidence because the trial court not only ruled that the october eighth notes were irrelevant she ruled that they did not exist a ruling which i have never seen before that notes of a meeting held by the defendant that directly contradicted twenty nine c f r eight thirty five three o five which is an f immolate regulation which says that the defendant cannot read the labor reinstatement without written notice to the  doing his own examination of fitness he contradicted twenty nine c f r eight twenty five three ten which says under the f m a law and employer cannot do their own examination of fitness of the individual the employer can't second guess the reason for the f m l a leave which is exactly what was happening here the notes also have a section on the no it's called ideas for change ideas for change and he changes her duties a media lipan her return taking her away from management and having your work on financial statements these changes in her duties are directly in making these rulings that trial the court denies the plaintiff the right to prove a discrimination claim in the only two ways a plate of can by direct evidence of his handwritten notes and his thinking at the time or circumstantial evidence proving that the reasons that he offered were pretextual were faults now we don't have a case where we have one reason or two reasons for discharge we have eight years of reasons here eight years including not showing up for work being insubordinate not paying bills on time let me take that example not paying bills on time the evidence at trial would have shown had we been allowed to put in this evidence that at different points in time there was no money in the account we were not allowed to put in evidence that there was no money in the account because mr link was not copy on the e mail so this extension of the link to link foundational requirement that was asked for by the court got to that level we were not mr lincoln plain that the plaintiff was late for trial for work every day we were not allowed to show by independent witness testimony that the plan to show up for work every day at ni but not at that place of employment because mr link wasn't there at the time so what we got at trial was the exclusion of this key indirect evidence  lydia cook's e mail showing that the doctor had in fact cleared the plaintiff to return to work so they knew that she had been cleared to return to work and mr link's testimony at trial that he did not have a doctor's certification was faults mr lydia cook's permission for the plaintiff to go on vacation which mr link described as the last her going on vacation was the last straw and was the final justification for terminations this cook gave his assistant as she routinely did gave a pla permission to go on that vacation that was not permitted at as evidence at trial that she didn't pay bills on time when there was no money in the account that she arrived there a day at work at nine am was excluded because she went to a different place and not to mr link's residence that she made repeated efforts to do the inventory that was strange when there were changes or were location i mean yes the reason why she was showing up for work at about eleven o'clock in the morning is she had several businesses that she was running and so she would go to the other business and then go to mr link's house so she showed up for him at mr link's house and about eleven o'clock in the morning he changed her duties are and changed her location of work so that he could keep an eye on her that's what he said in his deposition at trial he had a different story he testified at trial that the reason why he moved her to his house was so that he could help her succeed she made repeated efforts to do an inventory that in fact she was criticized for not doing and we were not allowed to cross examine tammy gregory with the possibility that she had gotten every bit of help that she want so that in the two ways a plaintiff can prove her case by direct there are as mr castor points out three primary issues to be tried by you or decided by you today two of those issues are an abuse of discretion standard and one of you don't know about the few that are abuse of discretion standard relate to the motion to amend as well as to the of ensuring decisions made during the trial itself this court reviews the decision to dismiss a rigo two on a day no basis i will first address misery goes attempts to bring her motion to a man and judge crabs decision on that motion to amend which mr caster suggests was an abuse of discretion and can you go t itself specifically at the time that the decision was rendered the briefing on summary disposition had already been fully completed in addition all of the depositions or principally all of the depositions that were to be taken in the case had been taken so the discovery was just cleanup discovery that was left was discovery hadn't closed tatty that's correct the read and the only reason that discovery had not closed at that point was because of a change in the scheduling order very shortly before the decision on the motion to amend was rendered it had been already pending for a number of months six months in fact before they even brought the motion to a man and i believe it was close by the that the decision on the motion to a man was rendered the case have been pending for over a year the decision to not bring the motion to amend earlier was a tactical litigation decision that was made by the plains of missouri go in this case it wasn't an attempt to try and get all of our claims before the court in one form in fact misery go filed all claims including the discrimination claim she sought to attach to the f m l a case with the state equal rights division nearly two years prior in january of two thousand and eleven had she wanted to bring these claims with the federal f m l a claim before the district court she could have easily sought a right to sue letter any point after one hundred eighty days has expired from january from i think she filed  claim in february of two thousand and eleven to any point prior to september of two thousand and thirteen when she commenced the f m l a case but she did not in fact the thing that is most telling about this being a litigation strategy that apparently backfired rico is the party's rule twenty six pretrial scheduling report the parties jointly filed as required by the federal rules of civil procedure a twenty six hour pretrial report that can be found at in the record it are sixteen in our sixteen in that report the parties specifically identified the pending discrimination both disability and pregnancy before the state agency and noted not withstanding the fact that they noted those pending claims before the state agency ms original specifically stated and i quote for the part when they submitted the report stated the parties do not anticipate an amendment amending the pleadings she had made a strategic litigation decision she wanted to pursue her claims in the state agency and that's fine she's entitled to do that and if she wants to amend the complaint to add these claims then the court had set an order that they had proposed that the parties have proposed together by when any amendments should be place and that order the rule  twenty six of pretrial reports specifically stated december eleventh would be our amendment day that was a date that both parties proposed for amendments and then that date was adopted by the court order at  eighteen which is in the record as well the court scheduling order which specifically said december eleventh as the date for amendment of the pleadings the amendment of the pleading in this case did not take place until april or wasn't even until april of two thousand and twelve i'm sorry of twenty fourteen and what additional discovery would you have pursued had that in and granted because as i understand her deposition testimony there was lots of cross examination on and not cross examination but lots of them nation on her condition and her medical condition and that all came out so what will or would have been done sure there is as the court knows the f m l a claim deals with leaving the interference with leave and retaliation for taking leave and the a b a claimed guild dealt with disability and particularly disability as a related to a mental health condition which was exactly the pregnancy claim deals with obviously pregnancy there were depositions that would need to have been retaken particularly of third party witnesses that weren't are in our control particularly as it related to what other sorts of disability leaves or disability accommodations had been made by the defendants in other occasions because as this court knows one way that a plaintive proves a discrimination claim is to show substantially similar people being treated dissimilar well you would have those had to discover and explore and develop all of our evidence that relates to the fact that they were treated similarly unfortunately a number of these employees were not our employees any further so we would have had to elicit testimony from them about their treatment and things of that nature similarly we would have had to had discovery that was related to pregnancy leave in pregnancy treatment and how those employees who again no longer within our control  needed to be deposed again or addressed again so there was those depositions that would also have been necessary in addition there was discovery on damages the damage is recoverable under the f m a layer limited to backpay and then liquidated damages pursuant to the same statute that applies to the fair labor vanderjagt whereas the damage is recoverable on a pregnancy discrimination claim title seven as well as the americans with disability exact claim relate to emotional distress  at no point had anybody in gauged in the discovery necessary nor did anybody have any experts at this point relative to emotional distress or any claims of emotional distress the court specifically found that those issues the additional prejudice to the defendants were were issues that would justify denying the motion and cian gage in an analysis that she is entitled to do and this court has said on a number of occasions in fact in the cases that ms are regal principly sites for her appeal in this issue this court has said that we will look to the district court because it's sitting in a much better position to evaluate what prejudice may befall the parties involved in the litigation but court also identified the waste of judicial resources that were going to be expended if she allowed amendment at that point and she talked about the fact that there was another set of summary judgment briefing etc that would have had to have occur on the new claims this all assumes that only rule fifteen applies here but in fact as i've pointed out already rule sixteen applies here as well and it was rule sixteen that both the court and the parties also discuss while not identifying it by number but by utilizing the language justification because there is already a court order here a scheduling order that this court has said should be provided with the treatment that all court orders should receive for example we have summary judgment local court orders and this court has routinely stated that failure to comply with that court order may allow for an admission to be taken based on a failure to respond to for example or proposed finding of fact this is no different we have a court order in place that court orders specifically stated file amendments by december eleventh and the plaintiff in this matter did not do that did not even seek to attempt to do that back to the standing order there were comments by in the briefing and from the district court as to justification but i do not recall specifically as i stand here today whether anybody specifically identified with the rule twenty six asked scheduling because six rule sixteen applies to this question although misery go has asserted that the defendants have waived arguing rule sixteen i would suggest that that's in fact not sell that's not so for a couple of reasons first  both the parties on the court address justification and its underlying analysis which is essentially the same thing as is there good cause to have delayed in bringing this this motion secondly this court has shown specifically this court because the commonwealth atterson case the case upon which mr regal relies most heavily that this court will affirm a denial of a motion to amend on any grounds supported by the record it need not be raised by the defendant or argued in the district court before hand in fact the court this court looked at any issue that wasn't even addressed by the district court in that case pacifically where it came up with that that that decision this was as i mentioned and a litigation strategy they could have done a number of things at the point in time when they sought to add if they had wanted to pregnancy in eighty eight claims and in fact at the time when the motion w and and the fact that i don't think there was a final judgment in the first case when the court issued its denial right in the first in the first oreo when there was not fight and are you speaking with respect to the motion to him entering now speaking to the motion to dismiss the motion to dismiss that with respect to rigo to there was not at the point in time when the motion to dismiss was brought to any final judgment in the reagle one that trial had not yet occurred in fact that case was dismissed i think it was february march was when it was brought in april  it was filed in the decision on that case was rendered i think sometime in november motion to dismiss them and if i recall correctly and then the appeal was shortly thereafter in the trial wasn't scheduled to does not apply because there was no final judgment in place on a regal one at the time that she filed a regal tip however the court's decision on the motion to amend wasn't based upon race judicata grounds at all the court noted that your respective of the lack of judgment i am exercising what the court has the inherent authority to do in order to manage or jacket with respect to giving effect to her orders and under rule one a court has the ability to manage its docket and judge crabbe said listen whether i grant the dismissal now or we wait until this trial is over in a few months and i have to grant that then it's your respective it's a issue resources this is what i addressed in the motion to him and you've not come forward with any justification whatsoever for waiting and delaying in this court and prejudicing the parties by so doing this and it was amazing that the flip in position that the plaintiffs took with respect to whether or not it was a waste of judicial resources and efficiency in one hand they argued that they should have been tried together because of judicial efficiency and then immediately upon a regal to their arguing it's judicially efficient to argue them separately i obviously circumstance had a lot to do with the basis of the argument but the court specifically held that it was  not based on race judicata based on inefficiencies in proceeding with two losses and what did the plane of misery go do when that decision was rendered she didn't seek an any emergency relief from this court and she could have that's allowed under the rules before this court and she didn't even seem to push the briefing on a regal to to have it resolved at some point more quickly in fact the parties submitted that the briefing should be delayed until after the trial on a regal one and that's what occur now that a regal one has been completed there is but no question that race judicata applies we have a final judgment on the same core facts involved in all claims with the same exact parties and so now this case is essentially or the appeal as to the dismissal is essentially moot because race judicata does clearly apply with respect to the trial errors were not harmless this court has said with respect to evan in cherry rulings made during the trial that in order to prove that it is not her malicious it is or it must be a significant chance existing that they affected the outcome of the truck ms a regal complains of two categories essentially of evidence excluded by the district court evidence going to her objective performance which she admit not communicated to mr lang and then certain evidence related to her medical condition i state certain evidence because mr rico was actually allowed to present a lot of medical evidence during the trial itself she was able to present  on the medical review notes or the october eighth meeting notes exhibit thirteen the court ruled that those notes were not relevant mr reagan was correct in our briefing that the court did not engage in a rule for all three balancing analysis and that's because the court had held that it wasn't relevant in the first instance the only word in the only time the word leave appears is at the very top when it says medical review lead i mean it i s what it is because she was coming back there is no evidence in the notes and we attach the notes to our briefing as part of the appellate appendix because the plaintiff misery go had not has no reference of issues with this that and the other thing there is nothing in there that talks about leave nothing that foresees potential for future legal whatsoever and the court went through a very careful analysis to determine whether or not it was relevant and ironically and i think very importantly it was never presented with the argument that there was animists intimated by virtue of the notes ms a rigo never argued before the district court that these notes illustrate animists to leave rather misery riegel argued to the court that these notes were relevant because it shows that a particular condition suffered by ms or regal was not light by mr light can i quote now directly from the arguments relative to exhibit thirteen at trial where mr caster is talking about the notes quote i think these notes and this meeting demonstrate that precisely what we've been arguing about is true that he had a bias against this particular condition this particular serious medical condition not that he had a bias against leave that he had a bias against an anxiety disorder going on i think for that reason his concern about whether or not the anxiety issue was troubling to him a little bit later in that same argument it was a turning point in part because he was very much biased against this particular serious medical condition and he concludes with this shows and demonstrates a bias by mr link against this particularly serious medical condition we're not trying whether there was a bias against a particularly serious medical condition we were trying whether or not there was a bias against people taking leave and whether or not the use of leave led to the discharge in this case what mr or what inherent animus to use of leave before any should not be countenanced to argue it now for the first time on appeal when the court never had that argument before the performance of an insult touch on briefly but this court has routinely stated in any number of cases i'm sorry i'm done your honor if i might finish my thought go ahead this court has said routinely on a number of occasions that we will not look to the objective of whether or not it was right whether or not she was performing or not performing rather you must look to whether or not the decision maker in that case i mostly believed in the decision and its basis and whether or not had a good faith honest belief the dry case that we pointed out to the court that was decided just two weeks ago summarizes this rule of law and it's a rule of law that's not big or unfamiliar to anybody who practices in the circuit as you've identified that rule on a number of occasions and i think before your time thank you how much entered and the notion that the trial court did not dismiss these discrimination claims on the basis of race you to cut is fanciful this argument about rule one is a brand new argument they have never made that would happen now in light of the fact that there is a judgment after a trial in the first case as well that would the notion they've made this argument that we now have a final judgment right that kind of analysis transposing the finality of the judgment occurred i mean her elimination of the october eighth notes she says and we quote of this on the record this would have been great evidence had you had the discrimination claims but you don't and i'm not allowing it and then also the notion that i didn't argue that this related to leave we made several arguments positions on the record i made offers of proof regarding the october eighth notes i said from the beginning of the case before trial this was the central evidence in the case this was the centerpiece of the plaintiff's case without it we could not explain what happened at all they said also we were deprived of the right to offer to investigate and discover leave evidence they offered a plethora of leave evidence a trial they offered discrimination evidence we had to show that this leave was different these no it's clearly showed that and by doing his own analysis of leaves himself he was violating the fars that surround the a family what i'm saying here your honor is that there would be a newt there should be a new trial on the evidentiary rulings and in it may have been different we went way astray at trial because the court was excluding evidence that related to claims that she said she dismissed well while not allowing evidence that clearly we have overlapping concentric circles the evidence was related and relevant to both thank you if i understand if you're saying it went back on on to there would be different evidence that the judge admitted we would possibly come in and into that didn't come in well sure your honor and i mean i think for the same reason but this essential evidence was also relevant to the ethanol a claim and her disregard of that evidence is not in entitles the plaintiff to a new trial on the claim so we think that that if i'm ill a claim clearly entitles as i said before the plaintiff was it this isn't where we're complaining about random evidentiary rules we were disallowed from offering direct evidence and indirect evidence unless we could show that mr link was in the room at the time of the poor performance we could not offer that evidence we could not offer evidence that there was no money in the account when she was accused of not paying bills we could not offer evidence that she showed up for work on time the truth of the matter does contradict a person's statement they rely on honest belief cases well when we have a single instance where somebody is reported to have done something wrong in the employer believes that and maybe it turns out to be in error well maybe we have an honest belief argument we don't have that here we have eight years of performance issues everything  to being late to not performing duties on time to not doing in the tory m p duties the truth of the matter the actual truth of what happened contradicts the so called honest belief what they want to do is take the word honest out of the standard and make it something like bury your head in the sand belief that's what they are trying to do because you can't possibly apply that doctrine to these facts she's entitled to a new trial on the  claim the denial of the motion to amend was i'm an abuse of discretion and by the way the rule sixteen arguments were completely waived that is an argument they make by the very first time standing here and that cannot be done and the scheduling order was had just been amended to push trial off for a year the dismissal of the second lawsuit which we had to bring because we had a right to sue letter we had no choice but to bring it or it would be even though she warned us in her order on the motion to him and that she would look at that as ray's judicata we had to bring it he brought it her dismissal of the second lawsuit was an error of law that's all i have thank you thank you yes thanks to both counsel and the case will be taken under advice