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.

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_____________________________________________________ 

 

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. 
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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, 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) 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., 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 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., 96 F.3d 623, 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., 232 F.3d 111, 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.” Id. (emphasis in 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, 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 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., 20 F.3d 1214, 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, Cosgrove, 9 F.3d at 1039. 

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., 337 F.3d 237, 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, 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 Employees’ 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 Walmart’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

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 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, 91 F.3d 316, 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, 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 abuse 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 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, 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 sufficiently argued in the briefs are 

considered waived and normally will not be addressed on appeal.”). 
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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, 194 F.3d 323, 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, 564 F.3d 110, 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., 897 F.3d 42, 55 (2d Cir. 2018), cert. denied sub nom. Huebner v. Midland Credit 

Mgmt., 139 S. Ct. 1282 (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 

Kluwer, 564 F.3d at 114. 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., 4 F.3d 134, 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.” Id. (internal quotation marks and citation omitted). On cross-appeal, Walmart 

challenges the district court’s award of back pay to Barham, arguing primarily that the district 
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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, 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 reinstatement 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 reasonable monetary award 

of front pay, that is, an award of future lost earnings.” Id. (internal quotation 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, 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 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., 166 F.3d 422, 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, 433 F.3d 204, 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 
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reasonable hourly rate,” is given the “strong presumption that [it] represents a reasonable fee.” 

Quaratino, 166 F.3d at 424 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, 

887 F.2d 408, 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