### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 13

‐ 3838 & 14

‐ 3298

M ARYLEE A RRIGO

, Plaintiff

‐ Appellant

,

v.

J AY E. L INK and L INK S TOP

, I NC

., Defendants

‐ Appellees

.

____________________

Appeals from the United States District Court for the

Western District of Wisconsin.

Nos. 13 CV 00437 and 12 CV 00700

— Barbara B. Crabb

, Judge

.

____________________

A RGUED M AY 26, 2015

— D ECIDED S EPTEMBER 6, 2016

____________________

Before B AUER

, K ANNE

, and W ILLIAMS

, Circuit Judges

.

W ILLIAMS

, Circuit Judge

. Marylee Arrigo maintained in this

lawsuit that she was fired from her job for taking or request

‐ ing leave under the Family and Medical Leave Act. The jury

did not agree, and she appeals. Arrigo contends that her su

‐ pervisor’s notes from a meeting he requested before she re

‐

turned from medical leave were wrongly excluded from trial.

We conclude that the district court did not abuse its discretion

when it found the notes not relevant to the issues at trial, as2 Nos. 13

‐ 3838 & 14

‐ 3298

Arrigo’s only claim at trial was under the FMLA and the notes

do not suggest displeasure with Arrigo’s use of leave. She also

argues that the district court erred when it denied her motion

for leave to amend to add claims under Title VII and the

Americans with Disabilities Act, but she has not shown good

cause for filing the motion after the deadline. Finally, Arrigo

maintains that the district court should not have dismissed a

second lawsuit that she filed which alleged the same Title VII

and ADA claims for which she unsuccessfully sought leave to

amend in the first suit. Allowing the second lawsuit to pro

‐

ceed would undercut our decision to uphold the denial of

leave to amend to add these very claims. Therefore, we affirm

the judgment of the district court.

I. BACKGROUND

Marylee Arrigo was a long

‐ time employee of Link Stop, a

gas station and convenience store in northwest Wisconsin

owned by David Link. She first began working there from

1999 to 2002, took a break for school, and then resumed work

‐ ing in 2004, this time as Link Stop’s bookkeeper. Over time,

Arrigo took on bookkeeping for several of Link’s other busi

‐

nesses as well, including Grandma Link’s Restaurant &

Lounge, Ashland Lake Superior Lodge, and Gordon Pines

Golf Course. She also acquired some management responsi

‐

bilities, and her duties included paying bills and invoices and

generating monthly financial reports.

On Saturday, September 11, 2010, Arrigo suffered a severe

anxiety attack and was taken by ambulance to the emergency

room. Arrigo called Lydia Cook, Link’s long

‐ time assistant,

and informed her that she needed a period of medical leave.

Link later told her to take the time she needed, and ArrigoNos. 13

‐ 3838 & 14

‐ 3298 3

was paid during her leave. Her doctor authorized her to re

‐

turn to work on September 27, 2010. When she called Cook to

inform her of her return

‐ to

‐ work date, Cook told Arrigo to

call Link, which she did. He was out of town and said he

wanted to meet with her when he returned and before she be

‐

gan working.

Link testified at trial that he asked Arrigo to provide a re

‐

turn

‐ to

‐ work certification from her doctor before returning to

work. When she failed to do so, he briefly delayed her return

so he could meet with her before she returned to work. Arrigo

and Link met on Friday, October 8, 2010. Link took handwrit

‐

ten notes during the meeting, which he titled “10/8/10 Leave

of Absence Medical Review.” During the meeting, Link asked

Arrigo for details about her condition, diagnosis, and treat

‐

ment. Arrigo answered his questions and divulged infor

‐

mation including that she had been prescribed medications

and ordered to attend counseling. Link’s handwritten notes

from the meeting state:

10

‐ 8

‐ 10 Leave of Absence Medical Review

Marylee

‐ Hospital Sept. 11 th Doctor (Ambulance)

‐ known since April/Doctor says one year

Anixity [sic] issue

‐ Panic attack

– cold/sick/electric feeling

‐ Stress related

‐ Saratonin [sic] lacking (mood chemical)

– chemical imbalance

‐ Treating with

– ‘Paxil Drug’

‐ Former Zantax drug

– (not for two weeks)

– very addictive4 Nos. 13

‐ 3838 & 14

‐ 3298

Today feels normal

Exhausted

– 12hrs/day/7 days a week

‐ Learn to relax

– like her father

– brain does not shut off.

‐ Sleeping issues for five years

‐ Kelly’s mother’s death

Treatment

‐ Paxil working quickly

‐ Released to go back to work

‐ Physical therapy

– every three weeks

– ‘or as needed’

‐ Rest

‐ Sleeping aid

Suggest to stop smoking File Personell [sic]

Suggest exercise “Marylee”

JLJ

11

‐ 5

‐ 10

The next page had three lines, which said:

‐ Need to change Christa

– more training

‐ Quit being a control freak

Idea’s [sic] to ChangeNos. 13

‐ 3838 & 14

‐ 3298 5

Arrigo returned to work on Monday, October 11, 2010. She

says Link told her about several changes he was implement

‐ ing, including her office relocation to the basement of his of

‐

fice/residence at Bond Lake. According to Arrigo, he also said

that she would be moving away from her management role

and focusing on financial reports. Arrigo maintains that Link

treated her differently when she returned from medical leave;

for example, she says, he no longer greeted her upon her arri

‐

val, and he instituted new work requirements. Link also told

Arrigo she needed to complete the monthly financial reports

by the first of the following month, something he conceded

“can’t be done.”

About six weeks after her return to work, on November

22, 2010, Arrigo was in a car accident on the way to work. She

was not seriously injured but went to the hospital, and she

learned there that she was pregnant. As a result, her doctor

directed her to stop taking her anti

‐ anxiety medication. She

suffered withdrawal symptoms that landed her in urgent care

on a Saturday, and the doctor told her to take two days off

work the following week. According to Arrigo, she informed

Link that Monday that she was pregnant, to which he re

‐ sponded that she had missed enough work and needed to get

back to work. Link, however, says Arrigo did not tell him then

that she was pregnant. Arrigo returned to work the following

day.

In early December, Link issued Arrigo the first written

performance warning she had received during her time work

‐ ing for him. The warning cited untimely financial reports,

which Arrigo maintains was partly because of her medical

leave a few months earlier. Link and Arrigo met about the

memorandum, and Link says they discussed a number of6 Nos. 13

‐ 3838 & 14

‐ 3298

things that in his view needed improvement: work hours,

availability, attitude, insubordination, getting along with

other employees, and the timeliness of her financial reports.

The memorandum expressed optimism that Arrigo would

improve, stating in part, “To be realistic, I estimate that such

improvement will take no time at all to become visible. Given

your excellent performance record in the past, there is no rea

‐

son to assume anything but success.”

On Monday, January 24, 2011, Arrigo emailed Link that

her year

‐ end reports would be completed by Wednesday and

that she and another employee intended to take Thursday and

Friday off from work. Link responded that day in an email:

“Marylee, a few days notice for two of my staff to take time

off at the same time is not fair. We have a process in place to

take time off, you know. If there is some emergency, please

advise

... .” Link wrote the next day, “Looking back, it seems

you do not have any vacation time. Are you requesting time

off without pay?” Arrigo responded that she had three weeks

of vacation time. She did not hear further from Link. 1 Arrigo

did not work that Thursday and Friday. The following Mon

‐ day, Link terminated Arrigo’s employment.

Arrigo filed administrative complaints in Wisconsin as

‐ serting violations of the Wisconsin state Family and Medical

Leave Act and pregnancy and discrimination claims under

Wisconsin state law. She also filed a charge of discrimination

with the EEOC asserting pregnancy and disability claims un

‐

der Title VII and the ADA. While Title VII and ADA claims

require a right

‐ to

‐ sue letter before such claims can be asserted

1 Arrigo then followed up with Cook, who said, “If I were you, I

would just go.” The jury did not hear about this exchange with Cook.Nos. 13

‐ 3838 & 14

‐ 3298 7

in federal court, Houston v. Sidley & Austin

, 185 F.3d 837, 838–

39 (7th Cir. 1999), the FMLA has no comparable requirement.

Arrigo asked the defendants to agree to toll the statute of lim

‐

itations on her FMLA claims until the conclusion of the ad

‐

ministrative proceedings, but they declined.

Arrigo filed suit in federal court in September 2012 assert

‐ ing that she was fired for taking federal FMLA leave. Six

months later, she moved for leave to amend her complaint to

add pregnancy and disability claims under Title VII and the

ADA. The district court denied that request, finding that

Arrigo’s motion, filed four months after the deadline for

amending pleadings, came too late. Arrigo filed a separate

federal suit in September 2013 alleging the same Title VII and

ADA claims, and the district court granted the defendants’

motion to dismiss the second suit.

The first case proceeded to trial in the spring of 2014 on

the FMLA interference claim. The district court granted the

defendants’ request to exclude Link’s handwritten notes from

the October 8 meeting, as it found them irrelevant to Arrigo’s

claims. The parties agreed before trial that Arrigo’s anxiety

condition and her medication withdrawal in November 2010

were serious health conditions that entitled her to FMLA

leave.

The jury heard about other direct reports of Link who had

taken medical leave without being retaliated against or termi

‐

nated. Cook took a four or five week medical leave in 2005, a

medical leave in 2006, and a third medical leave in 2012. She

also took maternity leaves of sixteen and twelve weeks while

working for Link. Marilyn Lehman took frequent medical

leaves to care for her newborn daughter in 2007, to care for

her sick mother in 2011 and 2012, and to care for her husband8 Nos. 13

‐ 3838 & 14

‐ 3298

following surgery in 2013. Michael Bobin, a previous Link

Stop manager, took a four or five month medical leave due to

a heart condition. The jury also heard about performance is

‐

sues that Link believed existed with Arrigo.

After a five

‐ day trial, the jury returned a verdict against

Arrigo. It answered “no” to the question of whether she had

proven that one of the reasons Link terminated her was that

she took or requested medical leave in the fall of 2010 or that

she had notified him that she needed to take maternity leave.

So the jury did not reach the question of whether the defend

‐

ants had proven Link would have terminated Arrigo even if

she had not taken or requested medical leave or notified him

she would need to take medical leave. Arrigo appeals.

II. ANALYSIS

A. Exclusion of Evidence from Trial

We turn first to Arrigo’s contention that the district court

wrongly excluded evidence from trial that was relevant to her

FMLA claim. The FMLA provides that an employer may not

“interfere with, restrain, or deny the exercise of or the attempt

to exercise” any rights provided under the FMLA. 29 U.S.C.

§ 2615(a)(1). One of these is an employee’s right to take twelve

weeks of unpaid leave during a year for certain medical rea

‐

sons. Id. § 2612. Another is the right following leave “to be

restored by the employer to the position of employment held

by the employee when the leave commenced” or to an equiv

‐

alent position. Id. § 2614(a)(1). Arrigo maintained at trial that

she was fired for taking FMLA leave, requesting such leave,

or notifying her employer that she would be needing leave.Nos. 13

‐ 3838 & 14

‐ 3298 9

Evidence is relevant when “it has any tendency to make a

fact more or less probable than it would be without the evi

‐

dence,” and “the fact is of consequence in determining the ac

‐

tion.” Fed. R. Evid. 401. We review the district court’s eviden

‐ tiary rulings during trial or beforehand on motions in limine

for an abuse of discretion. Jenkins v. Chrysler Motors Corp.

, 316

F.3d 663, 664 (7th Cir. 2002). In doing so, “[d]ecisions to ex

‐

clude evidence are given considerable deference.” Lewis v.

City of Chi. Police Dep’t

, 590 F.3d 427, 440 (7th Cir. 2009). And

even if the district court erred in excluding evidence, “[a] new

trial is warranted only if the error has a substantial and inju

‐

rious effect or influence on the determination of a jury and the

result is inconsistent with substantial justice.” Id.

In this case, the parties agreed, and the jury verdict form

reflected, that the threshold question the jury had to answer

was whether Arrigo had “proven by a preponderance of the

evidence that one of the reasons that Defendant Jay E. Link

terminated her was that she took or requested medical leave

in the fall of 2010 or that she had notified Defendant Link that

she would need to take maternity leave.” 2 Only this FMLA

claim was at issue in the trial. There was no claim under the

ADA. Arrigo contends that the district court kept out evi

‐

dence that was relevant to the question the jury had to an

‐

swer.

2 If the jury answered “yes,” it would have then had to answer

whether the defendants had proven that “Defendant Link would have ter

‐

minated Link even if she had not taken or requested medical leave in the

fall of 2010 or had not notified him that she would need to take maternity

leave.” Because the jury answered “no” to the first question, it did not

reach the second question.10 Nos. 13

‐ 3838 & 14

‐ 3298

1. Notes from October 8 Meeting

Arrigo first argues that Link’s handwritten notes from the

October 8 meeting were wrongly excluded. The district court

ruled that the notes were irrelevant to Arrigo’s claim at trial,

explaining: “This exhibit is not relevant because it doesn’t go

to what [Link’s] frustration was allegedly about her having

taken any FMLA leave. Now there might have been a great

claim about his antipathy toward people that have mental

problems, but that’s not this lawsuit.” The effect of the ruling

excluding the October 8 meeting notes from trial was that

Arrigo also could not introduce evidence that the meeting

notes had been placed in her personnel file, which was the

first time notes had been placed in her file during her time

there.

In contending that the notes were relevant in this trial,

Arrigo first argues that the notes are evidence of Link’s anti

‐

FMLA animus. She maintains they show he was evaluating

her because of her FMLA leave since the purpose of the meet

‐ ing was to “review,” per Link’s handwritten “Leave of Ab

‐

sence Medical Review” title on the notes, Arrigo directly fol

‐ lowing her leave. We have said before that “remarks and

other evidence that reflect a propensity by the decisionmaker

to evaluate employees based on illegal criteria will suffice as

direct evidence of discrimination.” Whitfield v. Int’l Truck &

Engine Corp.

, 755 F.3d 438, 443 (7th Cir. 2014) (quotations

omitted) (finding word “black” written on file direct evidence

of discrimination in race discrimination claim). But the notes

do not suggest that she was being evaluated for having taken

leave. The notes contain details about Arrigo’s anxiety, medi

‐

cations, and symptoms, but not about any leave. The onlyNos. 13

‐ 3838 & 14

‐ 3298 11

time the word “leave” appears on the notes is in the title (and

it is factually true that Arrigo had taken leave). There is noth

‐ ing in the notes discussing the leave itself or anything that

foresees the potential for future leave.

In a similar vein, Arrigo argues that the evidence was also

relevant because it demonstrated that the leave was weighing

on Link’s mind. She contends a jury could infer from the notes

and other evidence that Arrigo’s leave concerned Link

enough that he wanted a record of it, that Link evaluated

Arrigo differently following her leave, and/or that the leave

impacted how he thought about Arrigo. She also argues that

a jury could infer from Link’s questions about Arrigo’s anxi

‐

ety that he was concerned about future leave. Arrigo does not,

however, identify any part of the notes that demonstrate con

‐

cern Link had about her use of leave. The notes focus exclu

‐ sively on the details Arrigo provided about her mental health,

including her anxiety attack, diagnosis, and her current con

‐

dition. They do not say anything about, for example, whether

Arrigo’s doctor expected that she might experience another

anxiety attack requiring additional time off in the future, nor

do they contain any mention of the expected duration of any

future medical leave.

Arrigo also points to the last line in the notes, which states,

with nothing below it, “Idea’s [sic] for Change.” Although

Arrigo argues that the FMLA does not permit changing of du

‐

ties after leave, the meeting notes do not suggest that Link

was contemplating any change of duties. There is nothing un

‐

derneath the phrase to which she points, and no indication

that the “change” concerns a change in duties rather than, for

example, lifestyle issues such as learning to relax and exercise

that are mentioned elsewhere in the notes.12 Nos. 13

‐ 3838 & 14

‐ 3298

Arrigo also argues that the notes demonstrate Link de

‐ layed her return to work in a veiled attempt to interfere with

her use of leave, and that the notes are therefore impeachment

of Link’s trial testimony that he delayed Arrigo’s return be

‐

cause she had not provided the required certification from her

doctor. We agree with Link that the notes do not impeach this

testimony because they do not suggest that Link’s true reason

for delaying Arrigo’s return was anything other than what he

testified: Arrigo had not produced a certification, so he

wanted to meet with her.

Arrigo’s rationale for wanting the notes admitted further

supports the conclusion that the district court did not abuse

its discretion when it excluded the notes. Federal Rule of Evi

‐

dence 403 warns against the “danger of

... unfair prejudice,

confusing the issues, undue delay, [and] wasting time.”

Arrigo’s counsel told the district court that he wanted to use

the notes to argue to the jury that Link had a bias against

Arrigo’s particular serious medical condition. Arrigo’s coun

‐

sel said, for example: “I think these notes 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.” But any bias Link had toward Arrigo’s

medical condition was not at issue in this trial, where the only

claim was that Link fired Arrigo for using or wanting to use

medical leave. There was no claim at trial that Link discrimi

‐

nated against her on the basis of her anxiety. That is, the issue

was not whether Link had a bias against a particular condi

‐

tion, but whether Link had a bias toward the use of leave. So

the district court did not abuse its discretion when it excluded

the notes.Nos. 13

‐ 3838 & 14

‐ 3298 13

2. Other Evidentiary Issues

Arrigo maintains the district court excluded multiple

other pieces of relevant evidence. She argues that she should

have been allowed to offer additional testimony regarding

her January 2011 vacation request, and specifically that she

spoke with Cook, who encouraged her to take the vacation

even without Link’s approval. Before the district court, Arrigo

sought to introduce this testimony to show Arrigo’s “state of

mind at the time she took the vacation. That’s all.” Although

there was no evidence Link was aware of the conversation,

Arrigo argued that because Link and Cook spoke about many

business

‐ related matters, the jury could assume that Cook

must have disclosed this conversation to him as well.

The relevant question is what Link believed when he de

‐

cided to fire Arrigo. “The proper inquiry mandates looking at

[the plaintiff’s] job performance through the eyes of her su

‐ pervisors at the time of her suspension and termination.”

Gates v. Caterpillar

, Inc.

, 513 F.3d 680, 689 (7th Cir. 2008). The

pretext inquiry asks not whether an employer correctly be

‐

lieved an employee was performing poorly, but rather

whether the employer honestly believed so. Liu v. Cook Cty.

,

817 F.3d 307, 316 (7th Cir. 2016). So Arrigo’s state of mind and

whether Arrigo believed she could take the vacation do not

matter here. In addition, with no evidence that Cook had dis

‐

closed the conversation in question to Link, it was not an

abuse of discretion for the district court to preclude testimony

on the subject.

For similar reasons, the district court did not abuse its dis

‐

cretion when it excluded testimony from a manager and two

of Arrigo’s subordinates who she says would have testified

about her positive performance as a general manager of Link14 Nos. 13

‐ 3838 & 14

‐ 3298

Stop. The district court limited their testimony about Arrigo’s

performance and their opinions of it to what they communi

‐

cated to Link and Cook. Again, these employees’ belief as to

whether Arrigo was a good manager are not relevant here.

Link’s honest belief is what matters. And the question is not

whether Link was correct to believe that Arrigo performed

poorly, but rather whether he honestly believed that she did.

See Little v. Ill. Dep’t of Revenue

, 369 F.3d 1007, 1012 (7th Cir.

2004).

Arrigo also contends that she was wrongly precluded

from introducing evidence about her arrival and regular

hours. But Krista Schaaf testified that she and Arrigo drove to

work together at 9:00 a.m., that they typically arrived at the

Bond Lake office around 10:30 a.m., and that Link saw them

when they arrived. The district court precluded testimony

from Schaaf about how Schaaf and Arrigo spent the time be

‐

tween 9:00 a.m. and their arrival at the Bond Lake office, but

Arrigo testified about how she spent the time. She said she

arrived at Grandma Link’s Restaurant between 9:00 and 10:00

a.m., would then go to Link Stop, and would arrive at the

Bond Lake office around 10:00 or 11:00 a.m. Precluding fur

‐

ther testimony on the subject was not an abuse of discretion.

While Arrigo also argues that she should have been per

‐

mitted to testify further about her condition, her treatment,

and the underlying reasons for her FMLA leave, the district

court did not abuse its discretion here either. Arrigo testified

to the jury that she had an anxiety attack that resulted in emer

‐

gency medical care, had a prescription for anxiety medication,

and was instructed by her doctor to take some time away

from work. Significantly too, the parties had stipulated beforeNos. 13

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‐ 3298 15

trial that Arrigo’s anxiety condition was a “serious health con

‐

dition” under the FMLA that entitled her to leave, and the

jury was instructed on this fact. The district court acted within

its discretion when it excluded additional testimony about

Arrigo’s condition when the only issue for the jury was

whether Link fired her because of her use of protected leave.

Arrigo’s brief contains a list of other evidence that she be

‐

lieves was improperly excluded from trial as well. We do not

find that the exclusion of any of the other evidence warrants

a new trial. Cf. United States v. Berkowitz

, 927 F.2d 1376, 1384

(7th Cir. 1991) (perfunctory and undeveloped arguments are

waived).

B. Denial of Leave to Amend Complaint to Add Title

VII and ADA Claims

Arrigo’s complaint in federal district court did not include

claims under Title VII or the ADA. Four months after the

deadline for amendment of the pleadings that had been

jointly proposed by the parties, Arrigo filed a motion for leave

to amend her complaint to add claims that the defendants had

discharged and discriminated against her on the basis of her

sex and pregnancy, in violation of Title VII, and also on the

basis of a disability, in violation of the ADA. We review the

district court’s denial of that motion for an abuse of discretion.

Bell v. Taylor

, 2016 WL 3568139, at *3 (7th Cir. July 1, 2016). We

may affirm the district court’s denial of a motion for leave to

amend on any ground that is supported by the record. Sanders

v. Venture Stores, Inc.

, 56 F.3d 771, 773–74 (7th Cir. 1995).

Delay alone is usually not sufficient to deny a motion for

leave to amend. See Dubicz v. Commonwealth Edison Co.

, 377

F.3d 787, 793 (7th Cir. 2004). But when the motion for leave to16 Nos. 13

‐ 3838 & 14

‐ 3298

amend is filed after the deadline for such motions, “the gen

‐

erous standard in Rule 15(a)(2) for allowing amendments ‘is

in some tension with’ Rule 16(b)(4), which governs schedul

‐ ing orders and requires a showing of good cause to justify

modifying time limits.” Adams v. City of Indianapolis

, 742 F.3d

720, 734 (7th Cir. 2014) (quoting Alioto v. Town of Lisbon

, 651

F.3d 715, 719 (7th Cir. 2011)); see Fed. R. Civ. P. 16(b)(4) (“A

schedule may be modified only for good cause and with the

judge’s consent.”). “To amend a pleading after the expiration

of the trial court’s scheduling order deadline to amend plead

‐ ings, the moving party must show ‘good cause.’” CMFG Life

Ins. Co. v. RBS Secs., Inc., 799 F.3d 729, 749 (7th Cir. 2015) (quo

‐

tation omitted). We have upheld denials of motions for leave

to amend filed months after the deadline where the plaintiffs

did not demonstrate good cause. See Bell

, 2016 WL 3568139, at

*4 (eight months); Adams

, 742 F.3d at 733 (six months).

Arrigo explains that she did not seek to add Title VII and

ADA claims earlier because she was pursuing her sex and dis

‐ ability discrimination claims at the state administrative level,

along with claims under Wisconsin’s Family and Medical

Leave Act. Arrigo says she learned in early 2013 that the de

‐

fendants did not employ a sufficient number of employees to

be covered by Wisconsin’s FMLA (the defendants assert that

they had argued since 2011 that the Wisconsin FMLA did not

cover them), and that she then withdrew all her claims that

were pending before the state administrative forum. She

asked the defendants to stipulate to allowing her to add Title

VII and ADA claims in the instant lawsuit, but they declined.

She then filed a motion requesting leave to amend in the dis

‐

trict court to add federal claims to the current lawsuit. She

maintains that all along, she was trying to efficiently bring her

claims.Nos. 13

‐ 3838 & 14

‐ 3298 17

We have addressed similar situations before, when for ex

‐ ample a plaintiff argues that he was not able to obtain a right

‐

to

‐ sue letter from the EEOC, see 42 U.S.C. § 2000e

‐ 5(f)(1), be

‐

fore the statute of limitations expired on another claim. And

we have said, for many years now, “Plaintiffs in the same sit

‐

uation as [here]—seeking relief under § 1983 and Title VII or

other federal employment discrimination statutes for the

same adverse employment action—routinely ask district

courts to stay the first lawsuit until they obtain a right

‐ to

‐ sue

letter.” Czarniecki v. City of Chicago

, 633 F.3d 545, 550 (7th Cir.

2011); see Barr v. Bd. of Trs. of W. Ill. Univ.

, 796 F.3d 837, 840

(7th Cir. 2015); Palka v. City of Chicago

, 662 F.3d 428, 438 (7th

Cir. 2011); Brzostowski v. Laidlaw Waste Sys., Inc.

, 49 F.3d 337,

339 (7th Cir. 1995) (stating plaintiff “could have delayed the

filing of his first suit or requested that the court postpone or

stay the first case. What he cannot do, as he did here, is split

causes of action and use different theories of recovery as sep

‐

arate bases for multiple suits.”); Herrmann v. Cencom Cable As

‐

socs.

, 999 F.2d 223, 225 (7th Cir. 1993).

Arrigo could have taken the same course here. She knew

about her sex and discrimination claims from the outset but

gives no good cause for why she did not seek a stay, a course

of action we have suggested for many years. Arrigo’s decision

not to bring a motion for leave to amend earlier or to seek a

right

‐ to

‐ sue letter earlier was a tactical litigation decision. In

‐

deed, the parties filed a joint Federal Rule of Civil Procedure

26(f) pretrial report that noted the pending state claims, but

nonetheless said, “The parties do not anticipate amending the

pleadings.” A litigation decision to pursue claims in another

forum without seeking a stay in federal court is not good

cause for seeking leave to amend after the deadline to do so.18 Nos. 13

‐ 3838 & 14

‐ 3298

The defendants also assert that had the motion to add the

new claims been granted, they would have needed additional

discovery and therefore been prejudiced. The FMLA claim

concerned only the use of leave, while the disability claim

dealt with mental health and the Title VII claim concerned

Arrigo’s pregnancy. The defendants would have needed ad

‐

ditional depositions of employees, many of whom are no

longer with the company, regarding how they were treated in

instances of disability and pregnancy. The discovery on dam

‐

ages also would have been different, as FMLA damages don’t

include emotional distress and punitive damages, while ADA

and Title VII claims do. See Xin Liu v. Amway Corp.

, 347 F.3d

1125, 1133 n.6 (9th Cir. 2003); Cianci v. Pettibone Corp.

, 152 F.3d

723, 728–29 (7th Cir. 1998). We decline to set aside the district

court’s decision denying leave to amend to add claims after

the deadline.

C. Dismissal of Second Lawsuit

After the district court denied Arrigo’s motion for leave to

amend to add Title VII and ADA claims, she filed a new law

‐

suit asserting those same claims. Arrigo contests the district

court’s dismissal of this second suit. We review a district

court’s grant of a motion to dismiss de novo. Hyson USA, Inc.

v. Hyson 2U, Ltd.

, 821 F.3d 935, 939 (7th Cir. 2016).

Arrigo argues that the district court dismissed her second

lawsuit on res judicata grounds and that doing so was im

‐

proper because there was not a final judgment on the merits.

Res judicata, and in particular claim preclusion, bars claims

that were litigated or could have been litigated in a previous

proceeding when three elements are met: (1) identity of the

parties or their privies between the two actions; (2) a finalNos. 13

‐ 3838 & 14

‐ 3298 19

judgment on the merits in an earlier proceeding; and (3) iden

‐ tity of the causes of action. Palka

, 662 F.3d at 437. The doctrine

“promotes predictability in the judicial process, preserves the

limited resources of the judiciary, and protects litigants from

the expense and disruption of being haled into court repeat

‐ edly.” Id.

While our circuit has not yet decided whether the denial

of a motion to amend constitutes a decision on the merits for

res judicata purposes, other circuits have uniformly found

that res judicata applies in such a situation. Christman v. Saint

Lucie Cty., Fla.

, 509 F. App’x 878, 879 (11th Cir. 2013) (un

‐ published); Hatch v. Trail King Indus.

, Inc.

, 699 F.3d 38, 45–46

(1st Cir. 2012); King v. Hoover Grp., Inc., 958 F.2d 219, 222–23

(8th Cir. 1992) (“It is well settled that denial of leave to amend

constitutes res judicata on the merits of the claims which were

the subject of the proposed amended pleading.”); see also, e.g.

, Huck v. Dawson

, 106 F.3d 45, 49–50 (3d Cir. 1997). Commenta

‐

tors agree as well:

An order that denies leave to amend the pleadings to

advance an additional part of a claim partially asserted

might seem to fall within the principle that a plaintiff

should be free to bring a second action on a theory that

could not be advanced in the first action. It appears

well

‐ settled, however, that claim preclusion bars a sec

‐

ond action on the part excluded from the first action.

This result is sound. The abstract theory that amend

‐

ment should be freely allowed is widely honored in

practice. There is likely to be good reason when the

court that has control of the first action concludes that

a party should not be allowed to advance matters so20 Nos. 13

‐ 3838 & 14

‐ 3298

closely related to the action as to be part of a single

claim.

18 Charles Alan Wright et al., Federal Practice and Procedure §

4412 (2d ed. 2016).

To allow the second lawsuit to continue would render

meaningless our decision to uphold the district court’s denial

of Arrigo’s motion for leave to amend to add the same claims.

Yet “[i]t is widely accepted that appeal is the plaintiff’s only

recourse” when a motion to amend is denied as untimely.

Johnson v. SCA Disposal Servs. of New Eng., Inc.

, 931 F.2d 970,

976 (1st Cir. 1991).

The district court’s reasoning here was sound:

... it makes no sense to allow this case to proceed fur

‐

ther. Trial in [Arrigo’s first lawsuit] is scheduled for

May 2014 while trial in [Arrigo’s second lawsuit] is

scheduled for February 2015. Thus, if I concluded in

this order that [the first lawsuit] could not have preclu

‐

sive effect until judgment was entered in that first case,

dismissal of [the second case] would be inevitable, just

delayed. Thus, denying defendant’s motion on the

grounds that no judgment has been entered yet would

serve no purpose but to waste more resources of both

the parties and the court.

Moreover, if plaintiff were allowed to litigate a new

lawsuit now, it would undermine the decision denying

plaintiff’s motion for leave to amend her complaint. I

denied the motion because it was untimely and would

cause unfair prejudice to defendant. Forcing defendant

to litigate claims in two different lawsuits proceedingNos. 13

‐ 3838 & 14

‐ 3298 21

on different schedules would be even more prejudicial

than permitting the untimely amendment.

And to the extent Arrigo is arguing that dismissal was

premature for lack of a final judgment, see Sklyarksy v. Means

‐

Knaus Partners, L.P.

, 777 F.3d 892 (7th Cir. 2015), it is unclear

what relief she is seeking. There is now unquestionably a final

judgment in the first suit, and as we explained recently in an

analogous situation:

Reversing the district court’s dismissal of the 2014 Case

would have no practical effect. It is undisputed that at

this point, the district court has entered final judgment

for defendants. Thus, even if we were to remand the

2014 Case to the district court, the court could simply

reissue the same opinion dismissing the 2014 Case

based on res judicata. We decline Bell’s suggestion that

we should use the limited resources of the judiciary in

this manner. Therefore, we affirm the district court’s

dismissal of the 2014 Case.

Bell

, 2016 WL 3568139, at *6.

Most importantly, allowing Arrigo to proceed here would

result in the very prejudice and inefficiency that the denial of

the untimely amendment, which we upheld, was intended to

avoid. To rule otherwise would undermine the principles an

‐ imating the doctrines of res judicata and claim splitting, as

well as our decision upholding on appeal the denial of the

motion for leave to amend. See Barr

, 796 F.3d at 840–41.

III. CONCLUSION

The judgment of the district court is AFFIRMED

.