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 ELECTRON IC 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 Unite d States Court of Appeals for th e Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
3 rd day of February, two thousand twenty.

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

.

_____________________________________________________

KIM HANNAH, ZENA M. IRVING, as pe rsonal representative of the
estate of Tom Irvi ng, 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-Appe llants: Craig T. Dickins on, Littler Mendelson, P.C., New Haven, CT.

1 The Clerk of Court is directed to amend the caption as above.2 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 repr esentative of the estate of Tom Irving, an d Michael Barham (collectively, “E mployees”) appeal from various orders and entries of judg ment of the United States District C ourt for the District of Connecticut (Bolden, J. ), including the partial grant of summar y judgment for Appell ees Walmart Stores, Inc., and Walmart Stores East, LP, (collectively, “Walmart”), seve ral evidentiary rulings, jury instructions in Barham’s trial, the grant of di rected 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 cr oss-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, proce dural history, and specification of
issues for review.

I. Hannah, Irving, and Barham’s Appeal

Employees’ complaint alleges, in releva nt 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 th e 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 ar gument on appeal.

A. Summary Judgment and Directed Verdict

We review de novo a district cour t’s grant of summary judgment. See Jova v. Smith , 582 F.3d 410, 414 (2d Cir. 2009). To make out a prima facie case of retaliation under Title VII, an employee must show that “(1) sh e was engaged in an activity prot ected 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 protect ed activity and the adverse ac tion taken by the employer.” Cosgrove v. Sears, Roebuck & Co. , 9 F.3d 1033, 1039 (2d Cir. 1993). “Once a prima facie case is made out, the burden shifts to defendant to demonstrate a legitimate n ondiscriminatory reason for its decision. If such a reason is articulated, plai ntiff must then prove th at the proffered reason was a pretext for retaliation and that defendant’s real mo tivation was the impermissible retaliatory motive.” Donato v. Plainview-Old Bethpage Cent. Sch. Dist. , 96 F.3d 623, 634 (2d Cir. 1996).

We have explained that a Title VII plain tiff can demonstrate causation “indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparat e treatment of fellow em ployees who engaged in
similar conduct.” Gordon v. N.Y.C. Bd. of Educ. , 232 F.3d 111, 117 (2d Cir. 2000). While “[t]he lack of knowledge on th e part of particular individual agents [of the defendant] is admissible as3 some evidence of a lack of a causal connection,” a plaintiff can establish re taliation “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 th e jury concludes that an agent is acting explicitly or implicit[ly] upon the orders of a superior who has the requisite knowledge.” Id. (emphasis in original).

On appeal, Hannah contends that the distri ct 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 eviden ce 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 acti ng on the orders of a superior who was aware. Thus, Hannah’s retaliatory ter mination claim was rightfully di smissed on summary judgment.

Employees also contend that the district court erred in granting summary judgment on all of Irving’s and most of Hannah a nd 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 th e district court articula ted in its February and
June 2016 decisions. Hannah v. Wal-Mart Stores, Inc. , No. 12-cv-01361, 2016 WL 554771 (D. Conn. Feb. 11, 2016), on reconsideration in part , 2016 WL 3101997 (D. Conn. June 2, 2016).

Lastly, Hannah challenges the district cour t’s order of a directed verdict for Walmart under Rule 50(a)(1) on her retaliat ory failure to rehire claim. “We review the granting of a judgment as a matter of law de novo.” Moretto v. G & W Elec. Co. , 20 F.3d 1214, 1219 (2d Cir. 1994). We conclude that the distri ct 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 ev idence is sufficient to ove rcome the lack of direct or indirect evidence that the Walmart recruiter employees that scre ened the job applicati ons 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 su fficient evidentiary basis,” Fed. R. Civ. P. 50(a)(1), to find “a causal conne ction” between Hannah’s protect ed activity and Walmart’s failure to re-hire her, Cosgrove , 9 F.3d at 1039.

B. Evidentiary Rulings

“We review a district court’s evidentiary ru lings for abuse of disc retion, and will reverse only for manifest error.” Manley v. AmBase Corp. , 337 F.3d 237, 247 (2d Cir. 2003) (citations omitted). On appeal, Hannah contests (1) the dist rict 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, 2017 WL 1042057 (D. Conn. Mar. 17, 2017); (2) the district court’s partial grant of
Walmart’s motion in limine to exclude testimony about Employ ees’ retaliatory termination, Hannah v. Wal-Mart Stores, Inc. , No. 12-cv-01361, 2017 WL 690179 (D. Conn. Feb. 21, 2017); and (3) the district court’s partial grant of Wa lmart’s motion in limine to exclude the testimony of various Walmart managers, Hannah v. Wal-Mart Stores, Inc. , No. 12-cv-01361, 2017 WL 10966338 (D. Conn. Mar. 31, 2017). 2

2 Hannah also argues that th e district court erred in ex cluding evidence of “Hannah’s complaints to the highest levels of Walmart’s Human Resources department of discrimination4 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 memora ndum filed in August 2016 provided Employees with ample not ice in advance of trial that Walmart sought to call the witnesses. Thus, Walmart’s initia l failure to identify the witne sses was harmless for purposes of Federal Rule of Civil Procedure 37(c)(1). Seco nd, 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 ha ve been decision-makers in Hannah’s case. Lastly, the distri ct court was correct to exclud e the deposition testimony of Walmart managers who had no pe rsonal 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 le gal standard, or if it does not adequately inform the jury of the law. As an appellat e court, this Court need only satisfy itself that the instructions, ta ken 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, Trans p. Workers Union of Am., AFL-CIO , 91 F.3d 316, 322 (2d Cir. 1996) (internal quotation marks, br ackets, and citations omitted). On appeal, Barham contends that the district court erred in directing the jury that it could consider so lely Barham’s application to a Walmart position in February 2011 for purposes of his retaliatory failure to rehire claim, primarily arguing that the distri ct court never dismissed the th ree job applications Barham
submitted before his termination from the case . Barham’s argument fail s because it is flatly contradicted by the record: the district court’ s opinion partially gran ting reconsideration of summary judgment to Walmart explicitly stated th at only one job application survived summary judgment for purposes of Barham’s reta liatory failure to rehire claim. See Hannah v. Wal-Mart Stores, Inc. , No. 12-cv-01361, 2016 WL 3101997, 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 abus e of discretion.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (internal quotation marks, alteration, and citation omitted). Under Federal Rule of Civil Procedure 15(a)(2), “[t]he court should fr eely give leave when justice so requires.” “In the abse nce of any apparent or declar ed reason,” including “undue delay, bad faith or dilatory motive on th e part of the movant, . . . the leave sought should, as the rules require, be ‘freely given.’” Foman v. Davis , 371 U.S. 178, 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 , 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not su fficiently argued in the briefs are considered waived and normally wi ll not be addressed on appeal.”).5 provided no reason for their undue de lay 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 sanc tions for abuse of discretion, assessing if the sanctions are ba sed on “an erroneous view of th e law or on a clearly erroneous
assessment of the evidence.” Schlaifer Nance & Co., Inc. v. Estate of Warhol , 194 F.3d 323, 333 (2d Cir. 1999) (internal quotation marks and citation omitted). “An a ssessment of the evidence is clearly erroneous where the review ing court is left with the definite and fi rm conviction that a
mistake has been committed.” Wolters Kluwer Fin. Serv s., Inc. v. Scivantage , 564 F.3d 110, 113 (2d Cir. 2009) (internal quotati on marks and citation omitted).

28 U.S.C. § 1927 provides that “[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatious ly may be required by the cour t 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 cl ear 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 su ch as harassment or delay.” Huebner v. Midland Credit Mgmt., Inc. , 897 F.3d 42, 55 (2d Cir. 2018), cert. denied sub nom. Huebner v. Midland Credit Mgmt. , 139 S. Ct. 1282 (2019) (internal quotation ma rks, brackets, and citation omitted).

We conclude that the district court correctly found that Attorney Pete rs-Hamlin’s filing of Irving’s premature appeal was without colo r, lacking “any legal or factual basis.” Wolters
Kluwer , 564 F.3d at 114. We also conclude that the di strict 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 th e appeal caused no actual delay, Attorney Peters-Hamlin nevertheless argued to th e district court that the pending appeal was a
basis for a trial continuance. Based on this r ecord, we cannot conclude that the issuance of
sanctions constituted an abuse of discretion.

II. Walmart’s Cross-Appeal

On cross-appeal, Walmart contends that th e district court erred in its calculation of attorney’s fees and costs and Ba rham’s award of backpay, as well as in ordering that Barham be reinstated to a position as a Market Asse t Protection Manager (“MAPM”) at Walmart.

A. Backpay and Order of Reinstatement

We review the district court’ s award of back pay under Titl e VII for abuse of discretion. See Saulpaugh v. Monroe Cmty. Hosp. , 4 F.3d 134, 145 (2d Cir. 1993). “The purpose of back pay is to completely redress the economic inju ry the plaintiff has su ffered as a result of
discrimination.” Id. (internal quotation marks and citati on omitted). On cro ss-appeal, Walmart challenges the district court’s aw ard of back pay to Barham, argui ng primarily that the district6 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 co nclude that the distri ct court abused its
discretion in its calculation of Barham’s b ack 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 au thority 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 Ca nales’ 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 commen surate increase in potential bonus, undermine Walmart’s arguments on appeal.

We review the district court’s decision to gr ant or deny an equitable remedy for abuse of
discretion. See Serricchio v. Wachovia Sec. LLC , 658 F.3d 169, 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. , 457 F.3d 224, 230 (2d Cir. 2006). “We have recognized, however, that rein statement is not always feasible for instance, because no position may be available.” Banks v. Travelers Cos. , 180 F.3d 358, 364 (2d Cir. 1999). “In such situations, the district court is empowered to order a re asonable monetary award of front pay, that is, an awar d of future lost earnings.” Id. (internal quotation ma rks and citations omitted).

We cannot conclude that the di strict court abused its discre tion in ordering that Barham
be reinstated as an MAPM in Connecticut. Wa lmart provides no basis to conclude that the
district court’s determination th at Walmart had flexibility to ma ke personnel changes and that Walmart has had openings for the MAPM positi on in Connecticut was clearly erroneous. We
thus do not disturb the di strict court’s order that Barham be reinstated to an MAPM position in Connecticut or to a job “compa rable to the positions Mr. Barh am would have been hired for apart from the retaliation in the State of Connecticut.” Barham v. Wal-Mart Stores, Inc. , No. 12- cv-1361, 2018 WL 3213289, 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 a ttorney’s fee.” “Because Title VII entrusts the awarding of attorney’s fees to th e discretion of the district court, we will not di sturb the court’s
calculation of reasonable fees absent an abus e of that discretion or an error of law.” Quaratino v. Tiffany & Co. , 166 F.3d 422, 425 (2d Cir. 1999). “[A] dist rict 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 , 433 F.3d 204, 208 (2d Cir. 2005) (internal quotation mark s and citation omitted).

A district court’s calculation of attorney’s fees using the lodestar method, in which the district court multiplies th e “number of hours reasonably ex pended on the litigation times a7 reasonable hourly rate,” is give n the “strong presumption that [it] represents a reasonable fee.” Quaratino , 166 F.3d at 424 n.1, 425 (inter nal quotation marks and citations omitted). We
conclude that Walmart has not me t its burden to establish that a reduction of the presumptively
reasonable lodestar am ount was justified. See U.S. Football League v. Nat’l Football League

, 887 F.2d 408, 413 (2d Cir. 1989). The district court ca refully considered the parties’ submissions
and other cases from the District of Connecticut to determine th e market rate of counsel, and
reduced the total number of bill able 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 Distri ct of Connecticut does not suffi ce to establish clear error.

Walmart also challenges the district court’s award of costs for tran scripts 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 c onnection to his job application is insu fficient 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 th at the testimony had no relevance to Barham’s case generally. Indeed, the district court elimin ated from its award of costs to Barham those costs associated with work performed exclus ively for Irving and Hannah.

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

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk