Hannah v. Walmart

Filing 698

ORDER granting in part and denying in part 670 Motion for Reconsideration ; denying 675 Motion for Reconsideration ; denying 676 Motion for Reconsideration ; denying 677 Motion for Reconsideration ; denying 684 Motion to Alter Judgment ; denying 686 Motion to Amend/Correct.The Court will retain jurisdiction to enforce its judgment and address any further attorney's fees. As the Court has now resolved the motions, Kristan Peters-Hamlin shall pay the $1,000 previously ordered. The fine is payable by July 29, 2018, to Clerk, U.S. District Court. Signed by Judge Victor A. Bolden on 6/29/2018. (Giammatteo, John)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MICHAEL BARHAM,
Plaintiff,
v.

No. 3:12-cv-1361-VAB

WAL-MART STORES, INC., and
WAL-MART STORES EAST, LP
Defendants.

RULING ON MOTIONS FOR RECONSIDERATION
On December 21, 2017, following a jury trial, this Court issued judgment in favor of
Michael Barham (“Plaintiff”) against Wal-Mart Stores, Inc. and Wal-Mart Stores East, LP
(“Defendants” or collectively “Walmart”). The parties have filed multiple requests for
reconsideration of various parts of the judgment. See ECF Nos. 670, 675, 676, 677, 684, and 686.
For the reasons stated below, Defendants’ motion, ECF No. 684, and Plaintiff’s motions,
ECF No. 675, 676, 677, 684, and 686 are DENIED in their entirety. Plaintiff’s motion to
reconsider, ECF No. 670, is GRANTED in part and DENIED in part.
I.

FACTUAL AND PROCEDURAL HISTORY
This case arises out of employment discrimination claims brought by Michael Barham,

Kim Hannah, and Tom Irving against Wal-Mart. The Court assumes the parties’ familiarity with
the facts and procedural posture of this long-pending case, and summarizes this history only to
the extent necessary to address these pending motions.
The Court dismissed all of Mr. Irving’s claims at the summary judgment stage. See
Summ. J. Ruling, ECF No. 255. Two separate jury trials were then held as to Mr. Barham’s

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claims and Ms. Hannah’s claims. See Minute Entries, ECF Nos. 427, 552. At the conclusion of
the jury trial as to Mr. Barham’s retaliation and discrimination claims under Title VII, the jury
entered a verdict of $550,000 in compensatory damages and $5,000,000 in punitive damages
against Walmart for retaliation in violation of Title VII. Jury Verdict, ECF No. 430. Following
motions for remittitur, the Court subsequently reduced those awards to $125,000 and $175,000
respectively. See Memorandum and Ruling, ECF No. 618.
As to Ms. Hannah’s claim, after the presentation of her case, the Court granted Walmart’s
motion for judgment as a matter of law and dismissed Ms. Hannah’s claim under Rule 50 of the
Federal Rules of Civil Procedure. Minute Entry, ECF No. 552.
Mr. Barham then moved for attorney’s fees and costs, which the Court granted on
December 18, 2017. See Ruling and Order on Attorney’s Fees and Costs (“Fees Ruling”), ECF
No. 666. The Court also awarded Plaintiff $15,645.27 in pre-judgment interest. Order on PreJudgment Interest, ECF No. 668. Additionally, the Court issued an order sanctioning Ms. PetersHamlin, Mr. Barham’s counsel, because she had filed a premature appeal. See Order Regarding
Sanctions (“Sanctions Ruling”), ECF No. 667. The judgment issued on December 21, 2017. See
Judgment, ECF No. 669. It stated that:
It is therefore: ORDERED, ADJUDGED, and DECREED that
judgment is entered for the plaintiff Michael Barham, against
defendants, Wal-Mart Stores, Inc. and Wal-Mart Stores East, L.P.
as follows:
Compensatory damages: $125,000
Punitive damages: $175,000
Economic damages (back pay): $238,678
Pre-judgment interest (on back pay): $15,645.27
Reinstatement
Id. at 2.
Both parties have now moved for reconsideration or to alter the judgment. Mr. Barham
has filed multiple motions requesting reconsideration of the sanctions order. See Pl. Mots. (“Pl.
2

Fee. Mot.”), ECF Nos. 675, 676, 677; Pl. Mem. in Support (“Pl. Sanctions Mem.”), ECF No.
675-1. He also moves for reconsideration of the Court’s ruling on attorney’s fees, back pay, and
prejudgment interest, Pl. Mot. for Reconsideration (“Pl. Back Pay Mot.”), ECF No. 670; Pl.
Mem. in Support (“Pl. Back Pay Mem.”), ECF No. 670-1, and the award of compensatory
damages, Pl. Mot. to Reconsider (“Pl. Damages Mot.”), ECF No. 686; Pl. Mem. in Support (“Pl.
Damages Mot.”), ECF No. 686-1. Walmart has moved for reconsideration or clarification of
several aspects of the judgment: the award of back pay, the sanction order, the order requiring
reinstatement, and the award of attorney’s fees and costs. See Def. Mot., ECF No. 684; Def.
Mem. in Support (“Def. Mem.”), ECF No. 684-1.
II.

STANDARD OF REVIEW
Rule 59(e) of the Federal Rules of Civil Procedure provides that party may move to “alter

or amend a judgment” no later than 28 days after the entry of the judgment. Rule 60 of the
Federal Rules also allows modification of a judgment in limited circumstances. A court may
“correct a clerical mistake or a mistake arising from oversight or omission[.]” Fed. R. Civ. P.
60(a). Additionally, “the court may relieve a party or its legal representative from a final
judgment, order, or proceeding” for several reasons, including “mistake, inadvertence, surprise,
or excusable neglect,” newly discovered evidence, or “any other reason that justifies relief.” Fed.
R. Civ. P. 60(b).
“The standard for granting [a motion for reconsideration] is strict, and reconsideration
will generally be denied unless the moving party can point to controlling decisions or data that
the court overlooked — matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
“The major grounds justifying reconsideration are an intervening change of controlling law, the

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availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”
Virgin Atlantic Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)
(internal citations omitted). A motion for reconsideration generally does not allow the moving
party to revisit arguments that have already been presented before the court. See Shrader, 70
F.3d at 257 (“a motion for reconsideration should not be granted where the moving party seeks
solely to relitigate an issue already decided.”).
III.

DISCUSSION
On December 21, 2017, following a jury trial and economic damages hearing, judgment

was entered in this long-running case. See Judgment, ECF No. 669. The Court ordered Walmart
to pay Mr. Barham $125,000 in compensatory damages, $175,000 in punitive damages,
$238,678 in back pay, and $15,675.27 in pre-judgment interest, and to reinstate him to the
position he likely would have held had Walmart not retaliated against him. Id. The Court also
awarded attorney’s fees and costs.
Both parties now move for reconsideration on several aspects of the judgment. The
majority of both parties’ arguments merely seek to re-litigate issues that were already vigorously
contested throughout this case and on which the Court had already ruled. While some of these
issues may be appropriate for appeal, “[i]t is well-settled that Rule 59 is not a vehicle for
relitigating old issues, presenting the case under new theories, securing a rehearing on the merits,
or otherwise taking a ‘second bite at the apple’. . . .” Analytical Surveys, Inc. v. Tonga Partners,
L.P., 684 F.3d 36, 52 (2d Cir. 2012), as amended (July 13, 2012) (quoting Sequa Corp. v. GBJ
Corp., 156 F.3d 136, 144 (2d Cir. 1998)).
The motions therefore are denied, with the exception of one of Mr. Barham’s motions,
ECF No. 670, with respect to back pay and pre-judgment interest. The Court will update the back

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pay and pre-judgment interest amounts to include compensation from October 27, 2017, through
the date of judgment.
A.

Retaliatory Rehire

Mr. Barham moves for reconsideration under Rule 60 — or, “alternatively” Rule 59(e) —
of the Federal Rules of Civil Procedure. See Pl. Mot. to Reconsider and Am. Judgment (“Pl.
Damages Mot.”), ECF No. 686; Mem. in Support (“Pl. Damages Mem.”), ECF No. 686-1. Mr.
Barham claims that three 2010 positions were never dismissed from the case, and the Court
therefore erred because it calculated damages beginning in February 2011. Pl. Damages Mem. at
3. Alternatively, he argues that the Court should have instructed the jury it could make findings
regarding the three 2010 applications for rehire. Id. at 5. Finally, Mr. Barham argues that if the
three 2010 applications were excluded, he is entitled to a new trial on these claims. Id.
Walmart argue that reconsideration is inappropriate with respect to the 2010 positions.
Def. Opp. to Pl. Mot. to Reconsider (“Def. Damages Opp.”), ECF No. 689. They note that the
Court limited Mr. Barham’s retaliatory failure to rehire claim to only one position and that WalMart “was entitled to judgment as a matter of law on Plaintiff's claims that he was not hired for
other positions because the hiring decisions were not sufficiently temporally proximate in time to
Plaintiffs alleged protected activity.” Id. at 2. Additionally, Walmart argues that “Plaintiff's
argument that the jury charge was not limited to the Waterford MAPM1 position filled in
February 2011 is also categorically false.” Id. Ultimately, then, Walmart argues that the
“Plaintiff’s Motion is nothing more than a regurgitation of the same failing arguments that he
and his counsel have made on several occasions” and “blatantly misrepresent the record in an
apparent attempt to mislead this Court.” Id. at 7.

1

The term “MAPM” refers to a Market Asset Protection Manager.
5

A motion for reconsideration allows a party to seek error correction; it does not permit a
party to re-write history. In partially reconsidering the motion for summary judgment, the Court
concluded that, with respect to Mr. Barham, the “only remaining” claim was “Barham’s
retaliatory failure to rehire claim based on the position listed at paragraph a on page 6” of
Walmart’s memorandum in further support of its motion for reconsideration, ECF No. 291.
The Court then returned to the issue at the charge conference. See Transcript at 1568,
ECF No. 568. At the conference, the Court noted that language would then be included that
limited the Count III retaliation claim to “an open MAPM position in Waterford, Connecticut, in
2011, in retaliation for complaining about race discrimination.” Id. Counsel for Mr. Barham
objected, and the Court responded that “my previous summary judgment ruling basically held . .
. that you had not suggested there was a genuine issue of fact beyond that particular issue . . . .”
Id.
The Court, in charging the jury, noted that “you must follow what I say here in court.” Id.
at 1601. The Court noted that “[w]ith his remaining claim, Mr. Barham alleges that Walmart
violated Title VII by turning him down for an open market asset protection manager position in 
Waterford, Connecticut, in 2011, in retaliation for complaining about race discrimination.” Id. at
1610-11.
In short, this matter was extensively litigated, and the Court only allowed the claim to
proceed with respect to one position: “an open market asset protection manager position in 
Waterford, Connecticut, in 2011.” Id. Mr. Barham thus seeks to do nothing more than relitigate
this issue in his motion for reconsideration. See Shrader, 70 F.3d at 257 (“a motion for
reconsideration should not be granted where the moving party seeks solely to relitigate an issue
already decided.”). Plaintiff’s motion, ECF No. 686, therefore is denied.

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B.

Reinstatement

In addressing Mr. Barham’s damages and proposed relief, this Court “conclude[d] that
reinstatement is the proper remedy here” and “order[ed] that Walmart reinstate Mr. Barham in a
Market Asset Protection Manager position in the state of Connecticut.” Memorandum and
Ruling Re: Economic Damages and Defendants’ Motion for Remittitur (“Economic Damages
Ruling”) at 21, ECF No. 618.
Walmart now “seek[s] clarification of the Judgment to state that reinstatement would be
required only when there is a Connecticut MAPM vacancy” and that “reinstatement is not
feasible at this time.” Def. Mem. at 17. Walmart argues that a subsequent reorganization reduced
the number of MPAM positions in Connecticut, that each person in a MAPM position is an
innocent third party, and that reinstatement “would require the displacement of one of the current
Connecticut MAPM incumbents.” Id.
As Walmart itself recognizes in its own filing, “[c]ourts strongly favor reinstatement over
alternative forms of relief.” Shea v. Icelandair, 925 F. Supp. 1014, 1030 (S.D.N.Y. 1996).
Walmart has not demonstrated that all MAPM positions have disappeared, or that there are no
jobs that are comparable to the positions Mr. Barham would have been hired for apart from the
retaliation in the State of Connecticut. Cf. id. (“A court can grant reinstatement where a
comparable job exists even if it bears a different title.”). The Court can “take into account an
employer’s flexibility in making personnel changes,” id. at 103, and the record evidence
demonstrates that Walmart, one of the largest employers in the country, has considerable
“flexibility in making personnel changes.” See, e.g., Transcript at 1389-1396, ECF No. 567
(noting testimony of Monica Mullins, a vice president at Walmart, describing company’s ability
to accommodate requests to hire “trailing spouses”). As a result, based on this record, the Court

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believes Walmart can figure out how to relocate a single employee back to the State of
Connecticut, where he once worked.
In short, there is no reason for the Court to revisit its order “that Walmart reinstate Mr.
Barham in a Market Asset Protection Manager position in the state of Connecticut.” Economic
Damages Ruling at 21.
C.

Back Pay and Pre-Judgment Interest

Both parties raise challenges to Court’s back pay determination. The Court ordered that
Walmart reinstate Mr. Barham and award him “back pay in the amount of $238,678 with
applicable pre-judgment interest.” Economic Damages Ruling at 1. The Court found that Mr.
Barham was “entitled to an award of back pay representing the difference in earnings between
the two positions.” Id. at 13.
The Court rejected Walmart’s argument that there “was no meaningful difference”
between what Mr. Barham would have earned as a MAPM and what he earned as a co-manager.
Id. at 15. In order to determine the amount of back pay, the Court relied on the record evidence
and found that the difference in pay, as reflected in Mr. Barham’s Social Security and W-2
statements for the two positions, resulted in Mr. Barham earning less in his current position with
Walmart than he would have had he been hired as a MAPM. Id. at 13-14. The Court then again
relied on record evidence to calculate how Mr. Barham’s income in the MAPM position would
have increased over time, based on the testimony of Dr. Walter Dolde.2 Because Dr. Dolde’s
calculation of an increase in salary of 1.92% per year was consistent with the testimony of Lauri
Canales, one of Walmart’s other employees, who testified that during the same time period she

2

Dr. Dolde is an economist retained by Plaintiff. See Dolde Report, Pl. Prop. Findings, Ex. B,
ECF No. 571-1.
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received raises between 2% and 4% as a MAPM, id. at 16, the Court determined that 1.92% was
a “reasonable and conservative estimate of income growth.” Id.
As a result, the Court determined that Mr. Barham “would have consistently made annual
earnings of at least $94,182 from his rejection from the MAPM job in February 2011 and . . .
annual increases in income growth of 1.92% until the date of judgment on October 27, 2017 . . .
.” Id. at 17. The Court’s sum total of $238,678 thus represented the difference between what the
evidence suggested he should have made as a MAPM and what he actually earned as CoManager. Id.
1.

Walmart’s Argument

Walmart now argues that these findings were erroneous. While the Court’s recognition
that Mr. Barham earned less money as a co-manager, “it conflates two issues and results in the
court going off track with its calculations.” Def. Mot. at 13. Walmart claims that they provided
“clear, uncontroverted evidence that Barham would not have received the same total pay” if he
had been re-hired in February 2011. Id. Walmart argues that, based on trial testimony and
evidence previously submitted, the Court should only have awarded $13,846.20.
Again, Walmart presents no reason why the previously submitted evidence, all of which
the Court already considered, requires a different sum than the Court determined in its initial
damages ruling. The motion to reconsider is denied with respect to back pay. Shrader, 70 F.3d at
257 (“The standard for granting [a motion for reconsideration] is strict, and reconsideration will
generally be denied unless the moving party can point to controlling decisions or data that the
court overlooked — matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.”).

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2. Mr. Barham’s Argument
Mr. Barham moves under Rule 60 of the Federal Rules of Civil Procedure, arguing that
he is entitled to back pay and interest “through the judgment, as well as through date of
Barham’s reinstatement.” Pl. Mot. for Reconsideration (“Pl. Back Pay Mot.”), ECF No. 670; Pl.
Mem. in Support (“Pl. Back Pay Mem.”), ECF No. 670-1. Mr. Barham notes that the Court
calculated back pay to October 25, 2017, a date the Court had determined in advance, rather than
December 21, 2017, when judgment actually issued following extensive briefing regarding
attorney’s fees and interest calculations.
Walmart raises two arguments in opposition. First, they argue that “plaintiff’s counsel
generated much of the delay in issuance of the Judgment. (ECF nos. 619,623,625,630, 646).
Defendants should not be called upon to incur additional expense because of that delay.” Def.
Obj. at 2, ECF No. 685. Second, Walmart argues that their own motion to amend the judgment
would render Mr. Barham’s arguments moot. Id.
As the Second Circuit has recognized, “[t]he purpose of back pay is to ‘completely
redress the economic injury the plaintiff has suffered as a result of discrimination.’” Saulpaugh v.
Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir. 1993) (quoting Gutzwiller v. Fenik, 860 F.2d
1317, 1333 (6th Cir. 1988)). “[Pre-judgment interest’s] purpose is to prevent an employer from
attempting “to enjoy an interest-free loan for as long as it can delay paying out back wages.” Id.
(quoting Clarke v. Frank, 960 F.2d 1146, 1154 (2d Cir. 1992)). Both back pay and pre-judgment
interest therefore seek to make Mr. Barham whole. Saulpaugh, 4 F.3d at 145 (“Because the
district court did not make Saulpaugh whole, its failure to apply a compound rate of interest to its
calculation of damages constituted an abuse of discretion.”).

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The Court therefore will amend the judgment accordingly. Mr. Barham is entitled to back
pay and pre-judgment interest through the date of judgment.3 Judgment was entered in this case
on December 21, 2017, but the Court only calculated both figures up until October 25, 2017.
Plaintiff thus is entitled to an additional two months of back pay and interest. The judgment is
amended as follows:


Back pay will be increased an additional $5033.89, for a total of $243,711.89.



Pre-judgment interest will be increased $20.09, for a total of $15,665.37.

The Court notes, however, that Mr. Barham has not been reinstated yet and it is unclear
when he will be reinstated. The Court therefore retains jurisdiction to enforce its judgment. See
Fed. R. Civ. P. 70 (noting Court “may also hold the disobedient party in contempt” if “judgment
requires a party . . . to perform any other specific act and the party fails to comply within the
time specified . . . .”); Covanta Onondaga Ltd. v. Onondaga Cty. Res. Recovery Agency, 318
F.3d 392, 396 (2d Cir. 2003) (“Furthermore, a court that has concluded its adjudication of the
merits of a case within its jurisdiction by entering a final judgment retains authority to take
action with respect to some collateral matters related to the case, such as attorney's fees and
costs, . . . and sanctions, . . . In addition, a court that enters a judgment with continuing effect
retains some authority to enforce its judgment . . . .”) (internal citations omitted); Dulce v. Dulce,
233 F.3d 143, 146 (2d Cir. 2000)(quoting Peacock v. Thomas, 516 U.S. 349 (1996) (“As a
general rule, once a federal court has entered judgment, it has ancillary jurisdiction over
subsequent proceedings necessary to ‘vindicate its authority, and effectuate its decrees.’ This
includes proceedings to enforce the judgment.”).

3

Plaintiff cites no authority that would allow this Court to extend back pay and interest beyond
the judgment at this point.
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D.

Attorney’s Fees and Costs

On December 18, 2017, this Court awarded Mr. Barham $973,083.50 in attorney’s fees
and $30,960.24 in costs following extensive briefing by the parties. See generally Ruling and
Order on Attorney’s Fees and Costs (“Attorney’s Fees Ruling”), ECF No. 666. Mr. Barham
argued that his attorney, Ms. Peters-Hamlin, deserved an hourly rate of $650 an hour. Id. at 5.
Walmart argued that $250 was an appropriate rate but failed to submit any evidence rebutting
Ms. Peters-Hamlin’s submission and did not “cite to any relevant precedent on this issue.” Id. at
6. The Court concluded that “Ms. Peters-Hamlin’s level of skill, experience and relative success,
as well as her own billing, is sufficient to warrant an hourly rate of $500.” Id. at 6.
1.

Walmart’s Arguments

Walmart now seeks to re-litigate the attorney’s fee determination. See Def. Mem. at 19.
Walmart now believes $350 “is more in line with what should have been awarded plaintiffs'
counsel in this matter.” Id. at 21. Walmart also returns to an argument they raised in briefing
before the Court’s prior ruling: that Ms. Peters-Hamlin’s past discipline requires the Court to
penalize. Compare Def. Obj. at 14-15, ECF No. 642 (noting opposing counsel’s disciplinary
history) with Def. Mem. at 22 (“Plaintiffs' counsel's reputation should have prompted a further
reduction of her hourly rate, but the court makes no reference to this factor.”).
To extent that Walmart seeks to cover old ground, the Court already “considered the
arguments raised by both parties” and rejected them. Attorney’s Fee Ruling at 6. And to the
extent that Walmart now raises a new argument — that $350 is appropriate rather than $250 —
they present no change of intervening law, evidence, or binding precedent that requires
reconsideration of the Court’s fee determination. “It is well-settled that Rule 59 is not a vehicle
for relitigating old issues, presenting the case under new theories, securing a rehearing on the

12

merits, or otherwise taking a ‘second bite at the apple’. . . .” Analytical Surveys, Inc., 684 F.3d at
52 (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.1998)).
Walmart also moves for reconsideration of the Court’s cost determinations. See Def.
Mem. at 29. Walmart again advances a narrow understanding of Mr. Barham’s success in this
litigation, and seeks to limit costs accordingly. Id. This argument is identical to one already
raised and rejected by the Court. See Attorney’s Fee Ruling at 10-11 (noting Defendant’s
arguments and reducing costs associated with two unsuccessful plaintiffs). Walmart presents no
reason for the Court to reconsider its decision. See Analytical Surveys, Inc., 684 F.3d at 52.
Defendants’ motion is denied with respect to attorney’s fees and costs.
2.

Mr. Barham’s Arguments

Mr. Barham also moves to amend the fee application. See Pl. Mot. for Reconsideration,
ECF No. 670 (arguing Court should reconsider fee application, back pay, and interest
calculations). With respect to the attorney’s fees, Mr. Barham argues that he is owed an
additional $31,700 in a fees as a result of work on the fee application itself, which would include
an additional 63.4 hours. Id.
The total hours and fee award, however, includes the time submitted between September
29, 2017 until November 29, 2017. See Attorney’s Fee Ruling at 9 n. 5-6 (reflecting time entries
excluded from fee award, but not including any reductions after December, 2016). Had the Court
not taken into account fees from September 29 until November 29, counsel would only have
been awarded 1882.767 hours.
Plaintiff’s motion, ECF No. 670, is denied with respect to the attorney’s fees.

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E.

Sanctions Ruling

This Court sanctioned Mr. Barham’s counsel, Kristan Peters-Hamlin, and ordered her to
pay $1,000 following a premature appeal to the United States Court of Appeals for the Second
Circuit. See Sanctions Ruling at 2. The ruling followed two notices ordering Ms. Peters-Hamlin
to show cause as to why she should not be sanctioned under 28 U.S.C. § 1927 and a hearing
during which both parties submitted evidence. See Order to Show Cause at 3, ECF No. 316
(ordering Plaintiff to show cause “she should not be sanctioned by the Court under Rule 16(f)
and 28 U.S.C. § 1927” for delay); Order to Show Cause, ECF No. 580 (specifying additional
conduct and ordering that “[f]or each of the reasons outlined above, Ms. Peters-Hamlin is hereby
ordered to show cause why she should not be sanctioned by the Court under Rule 16(f) and 28
U.S.C. § 1927”); Minute Entry, ECF No. 624.
The Court ultimately sanctioned Ms. Peters-Hamlin under 28 U.S.C. § 1927 solely for a
premature appeal. The Court concluded “that Ms. Peters-Hamlin’s actions were “so completely
without merit as to require the conclusion that the appeal must have been undertaken for some
improper purpose such as delay.” Sanctions Ruling at 6-7 (quoting Shafii v. British Airways,
PLC, 83 F.3d 566, 571 (2d Cir. 1996)).
Mr. Barham’s counsel raises several arguments seeking reconsideration of the sanctions
ruling. First, she argues that there was no evidence of bad faith and therefore sanctions cannot be
imposed under 28 U.S.C. § 1927. Pl. Mem. in Support at 3-10, ECF No. 675-1. She renews her
argument that the appeal was permissive and, therefore, she should not be sanctioned for
something she thought appropriate under the rules Id. at 4. Second, counsel argues that the
sanctionable conduct did not actually result in any delay. Id. at 10. Third, she argues the sanction
should run to Mr. Barham, not his counsel. Id. at 13.

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Mr. Barham’s motion does not specify which part of Rule 60 of the Federal Rules of
Civil Procedure would justify reconsideration here, although the briefing emphasizes Rule 60(a),
Rule 60(b)(1), and Rule 60(b)(6). See Pl. Sanctions Mem. at 2-3 (quoting Fed. R. Civ. P. 60).
Mr. Barham’s motion seeks relief well beyond a simple “clerical mistake or a mistake arising
from oversight or omission” and therefore Rule 60(a) is an inappropriate procedural mechanism.
See Fed. R. Civ. P. 60(a); Employers Mut. Cas. Co. v. Key Pharm., Inc., 886 F. Supp. 360, 363
(S.D.N.Y. 1995) (“In short, ‘a motion under Rule 60(a) can only be used to make the judgment
or record speak the truth and cannot be used to make it say something other than what originally
was pronounced.’”) (quoting 11 Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 2854).
Rule 60(b)(1) is also incorrect, as Mr. Barham points to alleged errors in the Court’s
findings of facts — that there was delay, and the appeal was taken in bad faith — rather than any
error of law. In re Asbestos Litig., 173 F.R.D. 87, 90 (S.D.N.Y. 1997) (noting arguments that
“the Court overlooked facts [or] that that new evidence has arisen” could be made under Fed. R.
Civ. P. 60(b)(2) or Fed. R. Civ. P. 60(b)(6)). The remaining provision, Rule 60(b)(6), provides a
“catchall provision” available if the other provisions of Rule 60 do not apply and there is a
requirement of “extreme and undue hardship.” Id. (quoting Matarese v. LeFevre, 801 F.2d 98,
106 (2d Cir. 1986)). Mr. Barham has not demonstrated any such hardship here.
In any event, Mr. Barham’s counsel raises arguments already raised in her response to the
original order to show cause. The motions therefore do not meet the strict standard under which
motions for reconsideration are warranted. See Shrader, 70 F.3d at 256-57.
Walmart argues that a $1,000 penalty is insufficient, and that instead they should have
been awarded $14,830.00 in attorneys’ fees and costs. Def. Mem. at 18. Walmart raised an

15

identical argument in response to the original orders to show cause. See generally Defs. Proposed
Sanctions, ECF No. 610 (arguing Defendants should be awarded fees and costs related to the
premature appeal). The Court, however, declined to enter the relief Walmart sought and
concluded that “a monetary penalty is appropriate, and that $1,000 is a sufficient amount to
express the severity of Ms. Peters-Hamlin conduct.” Sanctions Ruling at 7. The Court sees no
reason to revisit that decision. Pierce v. Lee, No. 3:08-cv-1721 (VLB), 2010 WL 4683911, at *1
(D. Conn. Nov. 4, 2010) (applying Shrader to Fed. R. Civ. P. 59(e) and noting a “motion for
reconsideration is not a means to reargue those issues already considered when a party does not
like the way the original motion was resolved”).
Plaintiff’s motions, ECF Nos. 675, 676, 677, are denied. Defendant’s motion, ECF No.
684, is denied with respect to the $1,000 sanction.
IV.

CONCLUSION
For the reasons stated above, Defendants’ motion, ECF No. 684, and Plaintiff’s motions,

ECF No. 675, 676, 677, 684, and 686 are DENIED in their entirety. Plaintiff’s motion to
reconsider, ECF No. 670, is GRANTED in part and DENIED in part.
The judgment is amended as follows:
It is therefore: ORDERED, ADJUDGED, and DECREED that
judgment is entered for the plaintiff Michael Barham, against
defendants, Wal-Mart Stores, Inc. and Wal-Mart Stores East, L.P.
as follows:
Compensatory damages: $125,000
Punitive damages: $175,000
Economic damages (back pay): $ $243,711.89
Pre-judgment interest (on back pay): $15,665.37
Reinstatement
The Court will retain jurisdiction to enforce its judgment and address any further
attorney’s fees. As the Court has now resolved the motions, Kristan Peters-Hamlin shall pay the

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$1,000 previously ordered. See Sanctions Ruling at 8. The fine is payable by July 29, 2018, to
Clerk, U.S. District Court.
SO ORDERED this 29th day of June at Bridgeport, Connecticut.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

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