Marylee Arrigo v. JAY E. LINK and LINK STOP, INC.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13‐3838 & 14‐3298
MARYLEE ARRIGO,
Plaintiff‐Appellant,
v.
J AY E. LINK and LINK 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 MAY 26, 2015 — D ECIDED SEPTEMBER 6, 2016
____________________
Before BAUER , KANNE , and WILLIAMS, Circuit Judges.
WILLIAMS, 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, as

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2 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 Arrigo

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Nos. 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. 11th 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 addictive

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4 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 Change

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Nos. 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 of

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6 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.

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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 husband

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8 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.

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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.

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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 only

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Nos. 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.

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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.

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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 Link

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14 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 before

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Nos. 13‐3838 & 14‐3298 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 to

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16 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.

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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.

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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 final

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Nos. 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 so

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20 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 proceeding

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Nos. 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.

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