18-2201-cv(L)
Hannah v. Walmart

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
3rd day of February, two thousand twenty.

Present:    GUIDO CALABRESI,
            ROSEMARY S. POOLER,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________________________

KIM HANNAH, ZENA M. IRVING, as personal representative of the
estate of Tom Irving, MICHAEL BARHAM,

                                Plaintiffs-Appellants-Cross-Appellees,

                        v.                                                 18-2201-cv;
                                                                           18-2206-cv;
                                                                           18-2346-cv

WALMART STORES, INCORPORATED, WALMART STORES EAST, LP,

                        Defendants-Appellees-Cross-Appellants.1
_____________________________________________________

Appearing for Appellants-Cross-Appellees: Kristan L. Peters-Hamlin, Peters Hamlin LLC,
                                          Norwalk, CT.

Appearing for Appellees-Cross-Appellants: Craig T. Dickinson, Littler Mendelson, P.C., New
                                          Haven, CT.


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    The Clerk of Court is directed to amend the caption as above.
Appeal from the United States District Court for the District of Connecticut (Bolden, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the orders and judgment of said District Court be and they hereby are
AFFIRMED.

        Appellants-Cross-Appellees Kim Hannah, Zena Irving as personal representative of the
estate of Tom Irving, and Michael Barham (collectively, “Employees”) appeal from various
orders and entries of judgment of the United States District Court for the District of Connecticut
(Bolden, J.), including the partial grant of summary judgment for Appellees Walmart Stores,
Inc., and Walmart Stores East, LP, (collectively, “Walmart”), several evidentiary rulings, jury
instructions in Barham’s trial, the grant of directed verdict to Walmart on Hannah’s failure to
rehire claim, the denial of leave to amend the complaint, and the order of sanctions on
Employees’ counsel for the filing of a premature appeal. Walmart cross-appeals from the district
court’s award of attorneys’ fees and costs, backpay award, and order of reinstatement. We
assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review.

  I.      Hannah, Irving, and Barham’s Appeal

        Employees’ complaint alleges, in relevant part, that Walmart terminated their
employment and failed to rehire them because of racial discrimination and in retaliation for
reporting racial discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. Based on our review of the record, we conclude that Employees have
made no meritorious argument on appeal.

       A. Summary Judgment and Directed Verdict

         We review de novo a district court’s grant of summary judgment. See Jova v. Smith, 

, 414 (2d Cir. 2009). To make out a prima facie case of retaliation under Title VII, an
employee must show that “(1) she was engaged in an activity protected under Title VII; (2) the
employer was aware of plaintiff’s participation in the protected activity; (3) the employer took
adverse action against plaintiff based upon her activity; and (4) a causal connection existed
between the plaintiff’s protected activity and the adverse action taken by the employer.”
Cosgrove v. Sears, Roebuck & Co., 

, 1039 (2d Cir. 1993). “Once a prima facie case
is made out, the burden shifts to defendant to demonstrate a legitimate nondiscriminatory reason
for its decision. If such a reason is articulated, plaintiff must then prove that the proffered reason
was a pretext for retaliation and that defendant’s real motivation was the impermissible
retaliatory motive.” Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 

, 634 (2d
Cir. 1996).

        We have explained that a Title VII plaintiff can demonstrate causation “indirectly, by
showing that the protected activity was followed closely by discriminatory treatment, or through
other circumstantial evidence such as disparate treatment of fellow employees who engaged in
similar conduct.” Gordon v. N.Y.C. Bd. of Educ., 

, 117 (2d Cir. 2000). While “[t]he
lack of knowledge on the part of particular individual agents [of the defendant] is admissible as



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some evidence of a lack of a causal connection,” a plaintiff can establish retaliation “even if the
agent denies direct knowledge of a plaintiff’s protected activities, . . . so long as the jury finds
that the circumstances evidence knowledge of the protected activities or the jury concludes that
an agent is acting explicitly or implicit[ly] upon the orders of a superior who has the requisite
knowledge.” 

original).

       On appeal, Hannah contends that the district court erred in granting summary judgment
for Walmart on her retaliatory termination claim. We conclude that the district court did not err.
Hannah has shown no direct or indirect evidence that the Walmart employees involved in
making job termination decisions in connection with Walmart’s reorganization, Project Apple,
knew of Hannah’s protected activity, or were acting on the orders of a superior who was aware.
Thus, Hannah’s retaliatory termination claim was rightfully dismissed on summary judgment.

         Employees also contend that the district court erred in granting summary judgment on all
of Irving’s and most of Hannah and Barham’s retaliatory failure to rehire claims. Here, we agree
with the district court that Employees failed to provide sufficient direct or indirect evidence of
retaliation, for substantially the same reasons that the district court articulated in its February and
June 2016 decisions. Hannah v. Wal-Mart Stores, Inc., No. 12-cv-01361, 

(D.
Conn. Feb. 11, 2016), on reconsideration in part, 

(D. Conn. June 2, 2016).

         Lastly, Hannah challenges the district court’s order of a directed verdict for Walmart
under Rule 50(a)(1) on her retaliatory failure to rehire claim. “We review the granting of a
judgment as a matter of law de novo.” Moretto v. G & W Elec. Co., 

, 1219 (2d Cir.
1994). We conclude that the district court correctly directed a verdict for Walmart on Hannah’s
retaliatory failure to rehire claim. While Hannah again cites circumstantial evidence of
retaliation, none of this evidence is sufficient to overcome the lack of direct or indirect evidence
that the Walmart recruiter employees that screened the job applications Hannah submitted knew
of Hannah’s protected activity, or were acting on the orders of a superior who was aware. Thus,
“a reasonable jury would not have a legally sufficient evidentiary basis,” Fed. R. Civ. P.
50(a)(1), to find “a causal connection” between Hannah’s protected activity and Walmart’s
failure to re-hire her, 

.

    B. Evidentiary Rulings

        “We review a district court’s evidentiary rulings for abuse of discretion, and will reverse
only for manifest error.” Manley v. AmBase Corp., 

, 247 (2d Cir. 2003) (citations
omitted). On appeal, Hannah contests (1) the district court’s denial of her motion to preclude the
testimony of seven of Walmart’s proposed witnesses, Hannah v. Wal-Mart Stores, Inc., No. 12-
cv-01361, 

(D. Conn. Mar. 17, 2017); (2) the district court’s partial grant of
Walmart’s motion in limine to exclude testimony about Employees’ retaliatory termination,
Hannah v. Wal-Mart Stores, Inc., No. 12-cv-01361, 

(D. Conn. Feb. 21, 2017);
and (3) the district court’s partial grant of Walmart’s motion in limine to exclude the testimony
of various Walmart managers, Hannah v. Wal-Mart Stores, Inc., No. 12-cv-01361, 

(D. Conn. Mar. 31, 2017).2
2
      Hannah also argues that the district court erred in excluding evidence of “Hannah’s
complaints to the highest levels of Walmart’s Human Resources department of discrimination


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        We conclude that Hannah’s arguments are without merit for substantially the same
reasons as the district court set out in each of its decisions. First, though Walmart failed initially
to disclose the names of the seven witnesses, Walmart’s trial memorandum filed in August 2016
provided Employees with ample notice in advance of trial that Walmart sought to call the
witnesses. Thus, Walmart’s initial failure to identify the witnesses was harmless for purposes of
Federal Rule of Civil Procedure 37(c)(1). Second, the district court was correct to exclude
testimony tending to support only claims already dismissed on summary judgment or that
concerned the actions of Walmart employees not alleged to have been decision-makers in
Hannah’s case. Lastly, the district court was correct to exclude the deposition testimony of
Walmart managers who had no personal knowledge of Walmart’s failure to rehire Hannah.
Hannah cites no testimony from the Walmart managers that merits setting aside the district
court’s factual findings as manifest error.

   C. Jury Instructions

         “A jury charge is erroneous if it misleads the jury as to the correct legal standard, or if it
does not adequately inform the jury of the law. As an appellate court, this Court need only satisfy
itself that the instructions, taken as a whole and viewed in light of the evidence, show no
tendency to confuse or mislead the jury as to principles of law which are applicable.”
Schermerhorn v. Local 100, Transp. Workers Union of Am., AFL-CIO, 

, 322 (2d Cir.
1996) (internal quotation marks, brackets, and citations omitted). On appeal, Barham contends
that the district court erred in directing the jury that it could consider solely Barham’s application
to a Walmart position in February 2011 for purposes of his retaliatory failure to rehire claim,
primarily arguing that the district court never dismissed the three job applications Barham
submitted before his termination from the case. Barham’s argument fails because it is flatly
contradicted by the record: the district court’s opinion partially granting reconsideration of
summary judgment to Walmart explicitly stated that only one job application survived summary
judgment for purposes of Barham’s retaliatory failure to rehire claim. See Hannah v. Wal-Mart
Stores, Inc., No. 12-cv-01361, 

, at *5 (D. Conn. June 2, 2016).

   D. Denial of Leave to Amend the Complaint

         “The district court has discretion whether or not to grant leave to amend, and its decision
is not subject to review on appeal except for abuse of discretion.” Ruffolo v. Oppenheimer & Co.,

, 131 (2d Cir. 1993) (internal quotation marks, alteration, and citation omitted).
Under Federal Rule of Civil Procedure 15(a)(2), “[t]he court should freely give leave when
justice so requires.” “In the absence of any apparent or declared reason,” including “undue delay,
bad faith or dilatory motive on the part of the movant, . . . the leave sought should, as the rules
require, be ‘freely given.’” Foman v. Davis, 

, 182 (1962). We conclude that the
district correctly denied Employees’ motion for leave to amend because Employees have


and retaliation.” Appellants’ Br. at 49. Because Hannah provides no citation to relevant parts of
the record or to the relevant decision below, we do not address this argument. See Norton v.
Sam’s Club, 

, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are
considered waived and normally will not be addressed on appeal.”).


                                                  4
provided no reason for their undue delay in filing their motion for leave to amend over four years
after their complaint was first filed.

       E. Sanctions on Attorney Kristan Peters-Hamlin

        We review a district court’s imposition of attorney sanctions for abuse of discretion,
assessing if the sanctions are based on “an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Schlaifer Nance & Co., Inc. v. Estate of Warhol, 

, 333
(2d Cir. 1999) (internal quotation marks and citation omitted). “An assessment of the evidence is
clearly erroneous where the reviewing court is left with the definite and firm conviction that a
mistake has been committed.” Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 

, 113
(2d Cir. 2009) (internal quotation marks and citation omitted).

       28 U.S.C. § 1927 provides that “[a]ny attorney . . . who so multiplies the proceedings in
any case unreasonably and vexatiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” “To
impose sanctions under § 1927, a court must find clear evidence that (1) the offending party’s
claims were entirely without color, and (2) the claims were brought in bad faith—that is,
motivated by improper purposes such as harassment or delay.” Huebner v. Midland Credit
Mgmt., Inc., 

, 55 (2d Cir. 2018), cert. denied sub nom. Huebner v. Midland Credit
Mgmt., 

(2019) (internal quotation marks, brackets, and citation omitted).

        We conclude that the district court correctly found that Attorney Peters-Hamlin’s filing of
Irving’s premature appeal was without color, lacking “any legal or factual basis.” Wolters

. We also conclude that the district court did not clearly err in finding
that Attorney Peters-Hamlin acted in bad faith by seeking to delay the litigation through filing
the premature appeal. Opposing counsel repeatedly informed Attorney Peters-Hamlin that the
appeal was premature. And, even assuming arguendo that the appeal caused no actual delay,
Attorney Peters-Hamlin nevertheless argued to the district court that the pending appeal was a
basis for a trial continuance. Based on this record, we cannot conclude that the issuance of
sanctions constituted an abuse of discretion.

 II.      Walmart’s Cross-Appeal

        On cross-appeal, Walmart contends that the district court erred in its calculation of
attorney’s fees and costs and Barham’s award of backpay, as well as in ordering that Barham be
reinstated to a position as a Market Asset Protection Manager (“MAPM”) at Walmart.

       A. Backpay and Order of Reinstatement

        We review the district court’s award of back pay under Title VII for abuse of discretion.
See Saulpaugh v. Monroe Cmty. Hosp., 

, 145 (2d Cir. 1993). “The purpose of back
pay is to completely redress the economic injury the plaintiff has suffered as a result of
discrimination.” 

marks and citation omitted). On cross-appeal, Walmart
challenges the district court’s award of back pay to Barham, arguing primarily that the district




                                                5
court erred in concluding that if Barham had been hired for the MAPM position he would have
been paid the same amount as in his previous MAPM position.

        Based on our review of the record, we cannot conclude that the district court abused its
discretion in its calculation of Barham’s back pay award. Barham had substantially more
experience as an MAPM than did the individual Walmart eventually hired for the role. Further,
Lauri Canales, a Walmart employee whom Walmart itself cites as an authority for Barham’s
back pay calculation, testified that Barham “would have probably been hired back at the same
pay that he was hired in before.” Dkt. 710 at 215. Other parts of Canales’ testimony, including
that Walmart increased her base salary to make up for the elimination of geographical pay and
that her higher base salary had a commensurate increase in potential bonus, undermine
Walmart’s arguments on appeal.

        We review the district court’s decision to grant or deny an equitable remedy for abuse of
discretion. See Serricchio v. Wachovia Sec. LLC, 

, 193 (2d Cir. 2011). We have
explained that “[u]nder Title VII, the best choice [of remedy] is to reinstate the plaintiff, because
this accomplishes the dual goals of providing make-whole relief for a prevailing plaintiff and
deterring future unlawful conduct.” Reiter v. MTA N.Y.C. Transit Auth., 

, 230 (2d
Cir. 2006). “We have recognized, however, that reinstatement is not always feasible for instance,
because no position may be available.” Banks v. Travelers Cos., 

, 364 (2d Cir.
1999). “In such situations, the district court is empowered to order a reasonable monetary award
of front pay, that is, an award of future lost earnings.” 

marks and citations
omitted).

         We cannot conclude that the district court abused its discretion in ordering that Barham
be reinstated as an MAPM in Connecticut. Walmart provides no basis to conclude that the
district court’s determination that Walmart had flexibility to make personnel changes and that
Walmart has had openings for the MAPM position in Connecticut was clearly erroneous. We
thus do not disturb the district court’s order that Barham be reinstated to an MAPM position in
Connecticut or to a job “comparable to the positions Mr. Barham would have been hired for
apart from the retaliation in the State of Connecticut.” Barham v. Wal-Mart Stores, Inc., No. 12-
cv-1361, 

, at *3 (D. Conn. June 29, 2018).

   B. Attorney’s Fees and Costs Award

        Title VII, 42 U.S.C. § 2000e-5(k), authorizes a district court to, “in its discretion, . . .
allow the prevailing party . . . a reasonable attorney’s fee.” “Because Title VII entrusts the
awarding of attorney’s fees to the discretion of the district court, we will not disturb the court’s
calculation of reasonable fees absent an abuse of that discretion or an error of law.” Quaratino v.
Tiffany & Co., 

, 425 (2d Cir. 1999). “[A] district court necessarily abuses its
discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the record.” Farbotko v. Clinton Cty. of New York, 

, 208 (2d Cir.
2005) (internal quotation marks and citation omitted).

         A district court’s calculation of attorney’s fees using the lodestar method, in which the
district court multiplies the “number of hours reasonably expended on the litigation times a



                                                  6
reasonable hourly rate,” is given the “strong presumption that [it] represents a reasonable fee.”

n.1, 425 (internal quotation marks and citations omitted). We
conclude that Walmart has not met its burden to establish that a reduction of the presumptively
reasonable lodestar amount was justified. See U.S. Football League v. Nat’l Football League,

, 413 (2d Cir. 1989). The district court carefully considered the parties’ submissions
and other cases from the District of Connecticut to determine the market rate of counsel, and
reduced the total number of billable hours to account for the lack of success of Irving and
Hannah’s claims. In the circumstances of this case, Walmart’s citation to other, potentially
comparable cases from the District of Connecticut does not suffice to establish clear error.

        Walmart also challenges the district court’s award of costs for transcripts of depositions
of various Walmart managers and officers, arguing primarily that these individuals had no
reporting relationships with Barham or a role in the denial of his job application. The lack of
reporting relationship or connection to his job application is insufficient in itself to establish that
the award of these costs constituted an abuse of discretion, however, where, as here, Walmart has
neither established nor argued that the testimony had no relevance to Barham’s case generally.
Indeed, the district court eliminated from its award of costs to Barham those costs associated
with work performed exclusively for Irving and Hannah.

       We have considered the remainder of Employees’ and Walmart’s arguments and find
them to be without merit. Accordingly, the orders and judgment of the district court hereby are
AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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