Wal-Mart Loses Bid to Overturn Retaliation Verdict

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By Jon Steingart

May 25 — Wal-Mart Stores Inc. lost its bid to set aside a jury's finding that it retaliated against an assistant store manager in New Jersey who took medical leave to care for a leg ulcer, a federal appeals court ruled in a nonprecedential opinion.

Litigants often move for judgment as a matter of law strategically, arguing that no reasonable jury could find for the opposing side based on the evidence. Even if the trial judge denies the motion, the denial provides a basis for appeal.

Barry Boles also prevailed on his claim that the company failed to accommodate his disability, Judge Marjorie O. Rendell wrote for the U.S. Court of Appeals for the Third Circuit. Both claims were brought under the New Jersey Law Against Discrimination, she said in her May 24 opinion.

Boles's doctor initially expected he could return to work after recovering for 12 calendar days, Rendell said. On his doctor's recommendation, he didn't go back for five months because the wound didn't heal properly.

When Boles returned to work, he was told he had been terminated a few days earlier. The jury's verdict that the company mistreated him was reasonable in light of the timing of his termination and internal e-mails in which Wal-Mart supervisors discussed the possibility of firing him over his lengthy leave, Rendell said.

Wal-Mart's contention that indefinite leave isn't a reasonable accommodation had merit, Rendell said. But it failed because the argument incorrectly discussed that in the context of whether taking medical leave can form the basis of a retaliation lawsuit.

“Indeed, they are separate claims,” Rendell said.

Judges D. Michael Fisher and Maryanne Trump Barry joined in the opinion.

Berkowitz, Lichtstein, Kuritsky, Giasullo & Gross LLC represented Boles. Fox Rothschild LLP and Hangley Aronchick Segal Pudlin & Schiller PC represented Wal-Mart.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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