Arrigo, Marylee v. Link Stop, Inc.

Filing 27

Transmission of Notice of Appeal, Appeal Information Sheet, Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 25 Notice of Appeal. (Attachments: # 1 Appeal Information Sheet, # 2 Order, # 3 Judgment, # 4 Docket Sheet) (lak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MARYLEE ARRIGO,
OPINION AND ORDER
Plaintiff,
13-cv-437-bbc
v.
LINK STOP, INC.,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this case brought under Title VII of the Civil Rights Act and the Americans with
Disabilities Act, plaintiff Marylee Arrigo contends that her former employer defendant Link
Stop, Inc. discriminated against her because she was pregnant and because she had an
anxiety disorder. The case arises out of the same facts as Arrigo v. Link Stop, Inc., No. 12cv-700-bbc (W.D. Wis.), in which plaintiff contended that defendant (as well as several
other related companies) discriminated against her for taking medical leave, in violation of
the Family and Medical Leave Act. In both cases, plaintiff says that defendant mistreated
her and then fired her after she took medical leave for an anxiety disorder and then informed
defendant that she was pregnant.
Initially, plaintiff sought leave to amend her complaint in case no. 12-cv-700-bbc to
include claims for pregnancy and disability discrimination, but I denied that motion as
untimely and unfairly prejudicial to defendants. Now that plaintiff has filed a new lawsuit,

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defendant has filed a motion to dismiss it under the doctrine of claim preclusion and the rule
against claim splitting. Dkt. #4. In addition, defendant has filed a motion to take judicial
notice of various documents filed in case no. 12-cv-700-bbc, dkt. #5, which will be granted
as unopposed. Because I agree with defendant that plaintiff should have brought a timely
request to join all of her claims in the same lawsuit, I am granting the motion to dismiss as
well.

BACKGROUND
In February 2011, plaintiff submitted a complaint to the Wisconsin Department of
Workforce Development against defendant Link Stop, asserting claims for pregnancy and
disability discrimination under the Americans with Disabilities Act and Title VII of the Civil
Rights Act.

Around the same time, she filed an administrative complaint under the

Wisconsin Fair Employment Act and the Wisconsin Family and Medical Leave Act, also with
the Equal Rights Division. Plaintiff did not include a claim under the federal Family and
Medical Leave Act because that statute does not include an exhaustion requirement, as her
other federal claims do.
On May 8, 2012, plaintiff received a “probable cause” determination from the Equal
Rights Division. A hearing on her claims was scheduled for November 2012. Concerned
about the statute of limitations on her FMLA claim, plaintiff asked defendant in August
2012 to “toll” her FMLA claim so that she could bring all of her claims to court at the same
time, but defendant did not agree to this.

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In September 2012, plaintiff filed a complaint under the FMLA in this court. Arrigo
v. Link Stop, Inc., No. 12-cv-700-bbc (W.D. Wis.). In November 2012, the Equal Rights
Division held the hearing as scheduled, but then continued the hearing to February 2013
when it could not be completed in the allotted time.
In January 2013, after receiving certain documents from defendant, plaintiff
determined that defendant did not have a sufficient number of employees to be held liable
on her state law claims. As a result, in February 2013, plaintiff decided to dismiss all of her
claims pending before the Equal Rights Division. (Plaintiff does not say why she decided to
dismiss her federal claims along with her state law claims.)
In March 2013, plaintiff informed defendant that she intended to file an amended
complaint in case no. 12-cv-700-bbc to add claims for pregnancy discrimination under Title
VII and disability discrimination under the Americans with Disabilities Act. In response,
defendant stated that it would not stipulate to an amendment.
On April 1, 2013, plaintiff filed a motion for leave to amend her complaint in case
no. 12-cv-700-bbc to include the pregnancy and disability discrimination claims. On or
about April 4, 2013, the Equal Employment Opportunities Commission issued a “right to
sue” letter to plaintiff. In an order dated May 23, 2013, I denied plaintiff’s motion on the
grounds that plaintiff had waited to file the motion until only a few weeks before the
deadline for filing dispositive motions (four months after the deadline for amending the
complaint) and that allowing plaintiff to change the scope of the lawsuit at that late date
would unfairly prejudice defendants. Dkt. #79.

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In June 2013, plaintiff filed this lawsuit.

OPINION
Under the doctrine of claim preclusion, parties may not litigate claims that they raised
or could have raised in a previous lawsuit arising out of the same set of facts. Highway J
Citizens Group v. United States Dept. of Transportation, 456 F.3d 734, 741 (7th Cir.
2006). In this case, there is no dispute that plaintiff’s claims under Title VII and the ADA
relate to the same events at issue in her claims under the FMLA, but she argues that she was
unable to bring all of her claims at the same time. The reason is that Title VII and the ADA
require plaintiffs to exhaust their administrative remedies, 42 U.S.C. § 2000e-5; 42 U.S.C.
§ 12117(a); Teal v. Potter, 559 F.3d 687, 691-92 (7th Cir. 2009), and the deadline for filing
a lawsuit under those statutes is not set until the plaintiff receives a “right to sue” letter from
the EEOC. 42 U.S.C. § 2000e-5(f)(1). Because the FMLA does not include an exhaustion
requirement, Fialho v. Girl Scouts of Milwaukee Area, Inc., No. 06-C-1218, 2007 WL
1246433 (E.D. Wis. Apr. 30, 2007), the statute of limitations for an FMLA claim may run
before a claim under Title VII or the ADA, even though all the claims arise out of the same
events.
Plaintiff suggests in her briefs that the different limitation periods left her no choice
but to litigate her FMLA claim first without waiting until she completed the administrative
proceedings on her Title VII and ADA claims, but that is incorrect. In Herrmann v. Cencom
Cable Associates, Inc., 999 F.2d 223, 225 (7th Cir. 1993), the court explained exactly what

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an employee should do if he finds himself in a situation like plaintiff’s: “the employee can
sue on his other claims, ask the court . . . to stay the proceedings until the Title VII
administrative process is complete, and then if the process does not end in a way that
satisfies him amend his complaint to add a Title VII count.” The court rejected the view
that principles of claim preclusion apply differently simply because claims that should be
brought together might have different limitation periods. Id.
The court reaffirmed this conclusion recently in Czarniecki v. City of Chicago, 633
F.3d 545 (7th Cir. 2011). The plaintiff argued that claim preclusion should not apply to a
Title VII claim that arose out of the same facts as a previously litigated 42 U.S.C. § 1983
claim, again on the ground that the administrative proceedings related to the Title VII claim
prevented him from bringing the claim at the same time as the § 1983 claim. The court
rejected the plaintiff’s argument as “meritless,” observing that “[p]laintiffs in the same
situation as Czarniecki—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.” Id. at 550. See
also Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337, 339 (7th Cir. 1995)
(“Brzostowski could have . . . 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 separate bases for multiple suits.”).
Like the plaintiff in Czarnieki, plaintiff did not ask the court to stay case no. 12-cv700-bbc until she was finished with the administrative proceedings for her other claims and

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she did not inform the court that she intended to amend her complaint to include additional
claims at some point down the road so that the case schedule could be adjusted accordingly.
Further, she does not explain why she ignored the instructions that the court of appeals has
given in multiple cases since 1993. Under these circumstances, I see no reason why claim
preclusion should not apply in this case.
The one difference between Czarnieki and this case is that the plaintiff in Czarnieki
did not file the second lawsuit until after the court had entered judgment in the first case,
whereas case no. 12-cv-700-bbc is still open and proceeding to trial. Plaintiff points out that
one element of claim preclusion is “a final judgment on the merits” in the earlier case,
Bernstein v. Bankert, 702 F.3d 964, 995 (7th Cir. 2012), an element that plaintiff says
cannot be met while case no. 12-cv-700-bbc remains open. In response, defendant argues
that the court’s decision to deny plaintiff’s motion for leave to amend her complaint in case
no. 12-cv-700-bbc satisfies the “final judgment” requirement. E.g., Anderson v. Guaranteed
Rate, Inc., 13 C 431, 2013 WL 2319138 (N.D. Ill. May 28, 2013) (“[A] court's decision to
deny a litigant an opportunity to amend his complaint to add new claims constitutes a final
judgment on those putative new claims for res judicata purposes.”)(citing Landscape
Properties v. Whisenhunt, 127 F.3d 678, 683 (8th Cir. 1997); Huck v. Dawson, 106 F.3d
45, 49–50 (3d Cir. 1997); King v. Hoover Group, Inc., 958 F.2d 219, 222–23 (8th Cir.
1992); Johnson v. SCA Disposal Services, 931 F.2d 970, 974–76 (1st Cir. 1991)).
Alternatively, defendant argues that the court should apply the rule against “claim splitting,”
which “bars a party from maintaining a suit that arises from the transaction or events

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underlying a previous suit simply by changing [her] legal theory.” Id. at *4.
Neither side cites any cases in which the Court of Appeals for the Seventh Circuit has
determined whether the denial of a motion for leave to amend a complaint may qualify as
a judgment on the merits for the purpose of claim preclusion or whether a party may assert
claim splitting as a defense separate from claim preclusion under federal law. (Defendant
cites Johnson v. Cypress Hill, 641 F.3d 867 (7th Cir. 2011), for the former proposition and
Carr v. Tillery, 591 F.3d 909, 913–14 (7th Cir. 2010), for the latter, but in neither case did
the court discuss the issue for which defendant cites the case.) However, regardless whether
I view the issue as one of claim preclusion or claim splitting, it makes no sense to allow this
case to proceed further. Trial in case no. 12-cv-700-bbc is scheduled for May 2014 while
trial in this case is scheduled for February 2015. Thus, if I concluded in this order that case
no. 12-cv-700-bbc could not have preclusive effect until judgment was entered in that case,
dismissal of this case would be inevitable, just delayed. Thus, denying defendant’s motion
on the ground that no judgment has been entered yet in case no. 12-cv-700-bbc 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 related claims in two different lawsuits proceeding on different
schedules would be even more prejudicial than permitting the untimely amendment.
Alternatively, plaintiff argues that neither claim preclusion nor the rule against claim

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splitting should apply, either because defendant waived a claim preclusion defense or because
plaintiff’s “right to pursue her [Title VII and ADA] claims was expressly preserved below in
the ERD proceedings.” Plt.’s Br., dkt. #6, at 19. Neither argument is persuasive.
Like any other affirmative defense, claim preclusion can be waived if it is not asserted,
Kratville v. Runyon, 90 F.3d 195, 198 (7th Cir. 1996), though the Court of Appeals for the
Seventh Circuit has suggested that a district court’s interest in managing its own docket may
allow a court to raise the defense regardless of waiver. Arrow Gear Co. v. Downers Grove
Sanitary District, 629 F.3d 633, 638 (7th Cir. 2010) (claim preclusion “serves institutional
as well as private interests—interests similar to those served by forbidding piecemeal appeals.
. . . [Its] aim [is to] forc[e] closely related claims to be consolidated in a single proceeding,
whether original or appellate, in order to economize on the expenditure of judicial resources
for which litigants don't pay.”). In any event, it is difficult to see how defendant could have
waived its defense when it filed its motion to dismiss less than a month after plaintiff filed
this case.
Plaintiff says that defendant “consented” to defending split claims when it “declined
Plaintiff’s offer to toll her FMLA claims in August 2012,” when it failed to object to
plaintiff’s voluntary dismissal of her claims before the Equal Rights Division and when it
opposed plaintiff’s motion for leave to amend her complaint in case no. 12-cv-700-bbc.
Plt.’s Br., dkt. #6, at 11-13.

Although defendant could be accused of being

unaccommodating, none of the actions plaintiff cites can be characterized fairly as “consent”
or “waiver.”

Plaintiff cites several cases in support of her far-fetched theory, but each of

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them is readily distinguishable. Rosado v. General Electric Circuit Breakers, Inc., 805 F.2d
1085, 1086 (1st Cir. 1986) (defendant waived claim preclusion defense when it led plaintiff
to believe that she should dismiss one case so that she could litigate another case already
pending in another forum); Cowan v. Ernest Codelia, P.C., 149 F. Supp. 2d 67, 76-77
(S.D.N.Y. 2001) (defendant waived claim preclusion defense by failing to raise it before
judgment); Stulberg v. Intermedics Orthopedics, Inc., 997 F. Supp. 1060, 1065 (N.D. Ill.
1998) (defendant waived claim preclusion defense by failing to plead it and allowing second
case to proceed for several months without objecting).
Plaintiff’s position seems to be that, by refusing her requests for accommodation,
defendant “forced” her to split her claims into multiple lawsuits, so defendant should be
estopped from objecting now.

However, as discussed above, the court of appeals has

instructed parties in plaintiff’s situation how to preserve their claims, so plaintiff was not at
the mercy of defendant.
With respect to plaintiff’s argument that she “preserved” her Title VII and ADA
claims in the Equal Rights Division, she quotes a line from the order dismissing those claims
that the order “shall not be construed as interfering, in any way with Complainant’s rights
to prosecute her claim in another forum.” Case No. 12-cv-700-bbc, dkt. #25-9. And she
cites Central States, Southeast and Southwest Areas Pension Fund v. Hunt Truck Lines, Inc.,
296 F.3d 624, 629 (7th Cir. 2002), for the proposition that “a litigant's claims are not
precluded if the court in an earlier action expressly reserves the litigant's right to bring those
claims in a later action.”

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Plaintiff does not cite authority for the proposition that an order of the Equal Rights
Division could bind a federal court, but even if it could, plaintiff’s reliance on the order is
misplaced. It was not plaintiff’s decision to dismiss her claims before the Equal Rights
Division that created the preclusion problem; it was her decision to litigate her FMLA claim
in federal court without a timely request to join it with her Title VII and ADA claims. Thus,
barring plaintiff from litigating the later claims now does not contradict the Equal Rights
Division order.
Finally, plaintiff says that applying claim preclusion in this case would “contravene
the policies behind claim preclusion,” which are to protect against duplicative litigation and
promote judicial economy. Torres v. Rebarchak, 814 F.2d 1219, 1226 (7th Cir. 1987).
However, I do not see how allowing plaintiff to litigate two cases about the same events
could help further any of the purposes of the doctrine. Again, plaintiff seems to put the
blame on defendant for failing to agree to extend the limitations period on her FMLA claim,
but, as discussed above, plaintiff had other options she could have employed. Accordingly,
I am granting defendant’s motion to dismiss the case with prejudice.

ORDER
IT IS ORDERED that
1. Defendant Link Stop, Inc.’s motion to take judicial notice of documents filed in
case no. 12-cv-700-bbc, dkt. #5, is GRANTED as unopposed.
2.

Defendant’s motion to dismiss under Fed. R. Civ. P. 12(b)(6), dkt. #4, is

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GRANTED. Plaintiff Marylee Arrigo’s complaint is DISMISSED WITH PREJUDICE.
3. The clerk of court is directed to enter judgment in favor of defendant and close
this case.
Entered this 20th day of November, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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