1 Pursuant to Local Rule 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in Local

Rule 47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-30604

LYNN GANSAR ZATARAIN,

Plaintiff-Appellant,

VERSUS

W DSU-TELEVISION, INC. and JOHN F.

CARPENTER,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

February 7, 1996

Before KING, DAVIS and BARKSDALE, Circuit Judges.

PER CURIAM: 1

Lynn Gansar Zatarain appeals from the grant of summary judgment dismissing her

employment discrimination suit against W DSU-Television, Inc, Pulitzer Broadcasting Co.,

and John Carpenter. W e have jurisdiction, 28 U.S.C. § 1291, and we now affirm.2 I.

From 1983 to November 1992, W DSU employed Lynn Gansar Zatarain as a

reporter and news anchor. In 1990, Zatarain began anchoring the three evening

ne wscasts at 5:00 P.M., 6:00 P.M., and 10:00 P.M. As part of this schedule, Zatarain

arrived at work at 3:00 P.M. and remained there until after the 10:00 P.M. newscast. In

October 1990, Zatarain and W DSU entered into a personal services contract set to expire

on November 30, 1992.

In July 199 2, Zatarain, who suffered from infertility, began receiving medical

treatment for her condition. In October 1992, her doctor, David Curole of The Fertility

Institute, prescribed timed pergonal injections in order to increase Zatarain's chances to

conceive. Zatarain notified W DSU that she needed to go to her doctor's office in between

4:00 and 6:00 P.M. in order to receiv e the injections and W DSU agreed to allow her to

report for work late to allow her to visit the doctor's office before work. Zatarain continued,

however, to anchor all three evening newscasts.

On September 30, 1992, W DSU offered Zatarain a new contract with $168,000 as

an annual salary. After Zatarain rejected this offer, W DSU offered her a two-year contract

with a salary of $170,000 in the first year and $175,000 in the second. During this time

period, other networks evidently made competing offers to Zatarain.

In early November 1992, Dr. Curole recommended that Zatarain reduce the number

of newscasts she was performing in order to decrease her stress level. Zatarain informed

W DSU of her doctor' s recommendation and asked to be relieved of the 5:00 P.M.

newscast. In addition, she asked to go home after the 6:00 P.M. newscast and return at

9:00 P.M. for the 10:00 P.M. newscast. After Zatarain asked for this reduced work

schedule, W DSU retracted its offer and allowed her contract to expire on November 30,

1992.2 Zatarain amended her complaint on March 17, 1995 to name Pulitzer Broadcasting

Company, the parent of W DSU, as an additional defendant.

3 On December 30, 1992, Zatarain sued W DSU in Louisiana state court, alleging that

W DSU had violated Louisiana state anti-discrimination laws prohibiting pregnancy

discrim ination. On March 28, 1994, while the state court proceedings were pending,

Zatarain sued W DSU and its general manager, John Carpenter, in federal court. She

alleged that W DSU's dec ision to terminate her employment contract violated the

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and Title VII, 42 U.S.C.

§ 2000e et seq., as amended by the Pregnancy Discrimination Act of 1978, 42 U.S.C.

§ 2000e(k). 2

On December 6, 1994, W DSU and Carpenter moved for summary judgment on

Zatarain's ADA claim, arguing, first, that infertility is not a disability and, second, that the

ADA did not obligate W DSU to reasonab ly accommodate her desire to have children.

Carpenter sought dismissal on the grounds that he was not an "employer" subject to Title

VII or the ADA. On January 18, 1995, the district court granted both motions, dismissing

Zatarain's ADA claim against W DSU and bot h her Title VII and ADA claims against

Carpenter.

In April 1995, Zatarain's state court action went to trial. The jury returned a verdict

in favor of W DSU, and, on April 7, 1995, the court entered judgment against Zatarain on

her state employment discrimination claim. The court denied Zatarain's motion for a new

trial, and her appeal is now pending before the Louisiana Court of Appeals.

On April 13, 1995, following the entry of the state court judgment, W DSU and

Pulitzer moved for summary judgment in federal court on Zatarain's remaining Title VII and

PDA claims. Specifically, they claimed that the state court judgment was res judicata and

that, consequently, her federal claims were barred by the state court judgment. The district4

court agreed and, on May 12, 1995, entered final judgment dismissing all of her federal

claims. This timely appeal followed.

Zatarain makes two arguments on appeal. First, she alleges that the district court

erred in dism issing her ADA claim. Specifically, she claims that she suffers from a

disability since infertility is an "impairment that substantially limits one or more the major

life activities" as defined by the ADA. Second, she argues that the district court erred in

holding that the pr ior state court judgment barred her Title VII and PDA claims against

W DSU and Pulitzer. W e agree that the state court judgment barred the subsequent

litigation of her federal claims in federal court. Moreover, because the preclusive effect

of the state court judgment also encompasses her ADA claim, we affirm the dismissal of

Zatarain's ADA claim against W DSU and do not reach the merits of her ADA argument.

II.

Federal courts, asked to give res judicata effect to a state court judgment, must give

the same preclusive effect to the state court judgment as that state's courts would give to

it. 28 U.S.C. § 1738; K remer v. Chemical Construction Corp. , 456 U.S. 461, 466 (1982);

Hernandez v. City of Lafayette

, 699 F.2d 734, 736 (5th Cir. 1983). In this suit, Louisiana

law governs the res judicata effect of the prior judgment rendered by the Louisiana Civil

District Court.

In 1990, Louisiana amended its res judicata statute to provide:

Except as otherwise provided by law, a valid and final judgment is conclusive

between the same parties, except on appeal or other direct review, to the

following extent:

* * *

(2) If the judgment is in favor of the defendant, all causes of action existing

at the time of final judgment arising out of the transaction or occurrence that

is the subject matter of the litigation are extinguished and the judgment bars

subsequent action on those causes of action.

LSA-R.S. 13:4231. The consequence of this statute is that "all actions arising out of the

same transaction or occurrence must be brought together or be subject to a pl ea of res5

judicata." E verything on Wheels Subaru, Inc. v. Subaru, Inc.

, 616 So.2d 1234, 1238 (La.

1993).

Zatarain does not dispute that her federal and state court actions arose out of the

same transaction or occurrence. Indeed, Zatarain's Title VII and PDA claims both arose

from W DSU's refusal to renew her contract. Although the district court dismissed her ADA

claims on different grounds prior to the state court rendering its judgment, the prior state

court judgment also bars the ADA claim since it too arose from the same underlying facts.

Zatarain responds that no preclusive effect attaches to t he state court judgment

because her appeal from that judgment is still pending. W e disagree.

U nder Louisiana law prior to 1991, no res judicata effect attached to state cou r t

judgments while an appeal was pending. S ee Byrne, Vance & Co. v. Prather

, 27 La. 539,

539, 14 La. Ann. 653 (1859). The 1990 amendment to Louisiana's res judicata statute

marked a change in Louisiana law regarding the effect of a pending appeal. As the

comments to the new statutory language make clear, "the preclusive effect of a judgment

attaches once a final judgment has been signed by the trial court and would bar any action

filed thereafter unless the judgment is reversed on appeal." LSA-R.S. 13:4231 comment

d; see also Centanni v. Ford Motor Co.

, 636 So.2d 1153, 1155 (La. Ct. App.), writ denied

,

644 So.2d 656 (La. 1994). In this case, the Louisiana state court judgment's preclusive

effect attached when the trial court rendered its judgment. Although its preclusive effect

would lapse if it is reversed by the Louisiana court of appeals, Allen v. Louisiana State Bd.

of Dentistry

, 603 So.2d 238, 243 (La. Ct. App. 1992), its preclusive effect remains until that

eventuality, which may never occur, comes to pass.

Zatarain next claims that, even if preclusive effect attaches, the state court litigation

does not bar Zatarain claims "[i]f

. . . the court in the first action would clearly not have had

jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly

have declined to exercise it as a matter of discretion)." Appellant's Brief at 30 (quoting3 Zatarain claims that, by the time she received the right to sue letter, she could amend

her complain only by leave of court or by written consent of the adverse party. S ee LSAC.C.P. art. 1151. Zatarain argues that leave of the court was unavailable since

6 Reeder v. Suc cession of Palm er , 623 So.2d 1268 (La. 1993)). Although Zatarain

concedes, as she must, that the Louisiana state courts have concurrent jurisdiction over

Title VII and ADA claims, Yellow Freight Systems, Inc. v. Donnelly

, 494 U.S. 820, 826

(1990) (Title VII); Krouse v. American Sterilizer Co. , 872 F.Supp. 203, 205-06 (W .D. Pa.

1994) (ADA), Zatarain argues that she could not have brought her Title VII or ADA claims

in state court because she had to await the EEOC right-to-sue letter before filing those

claims.

W e are not persuaded that the requirement that she await receipt of the right-tosue letter re moved her from the ambit of Louisiana's res judicata statute. In F leming v.

Travenol Laboratories, In c. , 707 F.2d 829, 831 (5th Cir. 1983), we held that a prior

judgment barred a subsequent Title VII action, even though the plaintiff had to await the

EEOC right-to-sue letter. W e noted that, to avoid the preclusive effect of the first

judgment, the proper procedure for the plaintiff was to amend the complaint i n the first

action to add the Title VII claim. I d. at 834. Similarly, in M iller v. Unit ed States Postal

Service , 825 F.2d 62, 64 (5th Cir. 1987), we expressly rejected the argument that the

failure to exhaust administrative remedies and receive the EEOC right-to-sue letter

immunized the plaintiff from the preclusive effect of a prior judgment.

In this suit, Zatarain filed her complaint with the EEOC on December 18, 1992. She

did not receive the right-to-sue letter until March 17, 1994, well after she had commenced

the state court litigation. That Zatarain was unable to bring her Title VII and ADA claims

prior to the issuance of the EEOC's right-to-sue letter does not mean that the state court

was without jurisdiction to hear those claims. To the contrary, Zatarain could have

amended her state court complaint to include the Title VII and ADA claims once she

received the right-to-sue letter. 3 Alternatively, if she preferred a federal forum, she couldher ADA claim asserts a different demand from the relief sought by her state pregnancy

discrimination claim and presents different substantive issues. W e disagree.

In Louisiana, the decision whether to grant l e ave to amend is within the sound

discretion of the trial court. F irst Guaranty Bank v. Pineywood Partnership

, 569 So.2d 209,

212 (La. Ct. App. 1990). Zatarain did not even attempt to amend her state court complaint.

7 have awaited the right-to-sue letter before filing all of her claims, state and federal alike,

in federal court. Indeed, she does not allege that the statute of limitations would have run

on her state pregnancy discrimination claim had she waited until the receipt of the right-tosue letter. In short, that federal law requires Zatarain to await a right-to-sue letter from the

EEOC does not permit her to file her state law claims in state court and later file her Title

VII and ADA claims in federal court, even though all her c laims arise from the sam e

occurrence or transaction.

Finally, in a related argument, Zatarain claims that her Title VII severance pay claim

is not precluded because the Louisiana courts prevented her from litigating that claim in

state court trial. Specifically, Zatarain alleges that on the eve of the state court trial, the

Louisiana court of appeals issued a supervisory writ directing the trial court not to admit

evidence of discrimination regarding W DSU's grant of severance pay.

We are not persuaded that the Louisiana court of appeals prohibited the state trial

court from adjudicating a claim that was before it. Rather, the Louisiana court of appeals

directed the trial court to exclude evidence of an arbitrator's opinion, an opinion regarding

whether severance pay was due Zatarain, "[b]ecause no cla im for severance pay is

pending before the district court." W e read the court of appeals' decision as holding that

there was no Title VII severance claim before the state trial court, not that the district court

was without jurisdiction to hear such a claim had Zatarain actually brought it as part of the

state court litigation. Zatarain failed to bring a Title VII claim as part of her state court

complaint. She cannot now complain of the effects of her decision to split her claims.

III.8

Zatarain decided to s plit her claim s arising out of W DSU's term ination of her

employment in November 1992. Res judicata prohibits such strategic manipulation of the

litigation process. W e AFFIRM the judgment of the district court.