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Ex-Wal-Mart Worker Wants Barnes & Thornburg Sanctioned

This article originally appeared on Law360, Los Angeles (February 26, 2016, 9:47 PM ET) — A former Wal-Mart worker suing the company for firing her after she took leave allegedly protected by the Family and Medical Leave Act urged a Michigan federal judge Friday to sanction Wal-Mart’s counsel Barnes & Thornburg LLP for supposed discovery abuses.

In a motion to compel discovery, extend a discovery deadline and for sanctions, Beth A. Warner accused Barnes & Thornburg of engaging in “gamesmanship” by repeatedly failing to produce attendance records that she says support her claims that Wal-Mart violated the FMLA.

Warner alleges she suffered a serious leg injury that required ongoing medical treatment and required her to miss work multiple times. Wal-Mart claims it fired her for absences before her FMLA leave was approved.

Warner on Friday accused Wal-Mart of sending a letter to a school where the plaintiff now works, demanding various records, without first getting a subpoena or copying Warner’s attorney on the request.

“Defendant’s actions reflect a pattern of discovery abuse constituting disdain for the discovery process, the court rules directing that process, the undersigned and the court,” the motion said.

Warner, who started working for Wal-Mart in February 2001, injured her leg on Feb. 18, 2014, according to court papers. Three days later, she allegedly told her employer that she was incapacitated as a result of the leg injury.

Warner allegedly provided a doctor’s note precluding work from Feb. 21 through Feb. 23 but was allegedly told by Wal-Mart that her absences wouldn’t be excused. After her leg injury worsened to include an infection and other issues, she was incapacitated again from March 4 to March 10, court papers said.

Warner claims Wal-Mart again told her that her absences wouldn’t be excused. The company also allegedly failed to tell her of her rights or obligations under the FMLA.

Warner allegedly received more treatment from March 28 through April 21, at which point Wal-Mart allegedly told her she could apply for FMLA leave. Wal-Mart allegedly said her previous absences weren’t protected by the law because she hadn’t missed at least four consecutive work days.

Wal-Mart fired Warner on June 6, saying she had violated its attendance program with the earlier absences, court papers said. Warner filed the instant suit in April of last year.

Warner said she filed her first motion to compel on Dec. 5 but that Wal-Mart ignored it until the court set a hearing for Feb. 8. Even then, Wal-Mart didn’t provide all the documents that Warner requested, according to Friday’s motion.

Warner further accuses Wal-Mart of delaying Warner’s requested depositions of workers, including her main supervisor and a personnel manager who apparently handled employee medical leave requests.

Warner asked the court for an order forcing Wal-Mart to produce attendance records from Oct. 1, 2012, through June 6, 2014, as well as documents that discuss the ways in which Wal-Mart implements its obligations under the FMLA.

Warner also asked for a 45-day extension of discovery, which is currently set to end March 28.

Attorneys for Barnes & Thornburg LLP and representatives for Wal-Mart didn’t immediately respond to requests for comment late Friday. An attorney for Warner didn’t immediately respond to a request for additional comment late Friday.

Warner is represented by Debra A. Freid of Freid Gallagher Taylor & Associates PC.

Wal-Mart is represented by Peter T. Tschanz and Susan M. Zoeller of Barnes & Thornburg LLP.

The case is Beth A. Warner v. Wal-Mart Stores East LP, case number 1:15-cv-11516, in the U.S. District Court for the Eastern District of Michigan, Northern Division.

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