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Tolar v. Marion Bank and Trust, Co.

United States District Court, N.D. Alabama, Southern Division

March 29, 2019

GREG TOLAR, et al, Plaintiffs,



         This employment discrimination case is before the Court on defendant Marion Bank and Trust's motions for summary judgment on plaintiffs Greg, Reid, and Andrew Tolar's claims of third-party retaliation under Title VII. The Tolars assert that Marion Bank took a series of adverse actions against them in retaliation for a family member's charge of discrimination with the EEOC and subsequent Title VII lawsuit against the bank. For the reasons described below, the Court grants Marion Bank's motions for summary judgment.


         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). To demonstrate that there is a genuine dispute as to a material fact that precludes summary judgment, a party opposing a motion for summary judgment must cite “to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).

         “A litigant's self-serving statements based on personal knowledge or observation can defeat summary judgment.” United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018); see Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013) (“To be sure, Feliciano's sworn statements are self-serving, but that alone does not permit us to disregard them at the summary judgment stage.”). Even if the Court doubts the veracity of the evidence, the Court cannot make credibility determinations of the evidence at the summary judgment stage; that is the work of a jury. Feliciano, 707 F.3d at 1252 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

         When considering a summary judgment motion, a district court must view the evidence in the record and draw reasonable inferences in the light most favorable to the non-moving party. Asalde v. First Class Parking Sys. LLC, 898 F.3d 1136, 1138 (11th Cir. 2018). Accordingly, the Court presents the summary judgment evidence in the light most favorable to the Tolars.


         This case arises out of another Title VII lawsuit in which Greg Tolar's daughter, Ragan Youngblood, asserted claims of sexual harassment and retaliation against Marion Bank and Trust, Co., her former employer, and Conrad Taylor, the president of the bank. Reid Tolar is Greg Tolar's son and Ms. Youngblood's brother, and Andrew Tolar is Greg Tolar's brother and Ms. Youngblood's uncle. (Doc. 78-2, p. 7, tr. p. 23; Doc. 80-1, p. 4, tr. p. 11). The Tolars contend that Ms. Youngblood's complaints of sexual harassment precipitated a series of retaliatory actions by Marion Bank and against the Tolars. Before discussing the evidence relating to the plaintiffs' retaliation claims, the Court first must address the bank's objections to some of that evidence.

         A. Marion Bank's Evidentiary Objections

         Rule 56 allows a party seeking or opposing summary judgment to “object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). Objections under Rule 56(c)(2) function like trial objections adjusted for the pretrial setting, and “[t]he burden is on the proponent [of the challenged evidence] to show that the material is admissible as presented or to explain the admissible form that is anticipated.” Fed.R.Civ.P. 56(c)(2), advisory committee note (2010 amendments). Rule 56(c)(2) enables a party to submit evidence that ultimately will be admissible at trial in an inadmissible form at the summary judgment stage. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012). A district court has broad discretion to determine at the summary judgment stage what evidence it will consider pursuant to Rule 56(c)(2). See Green v. City of Northport, 2014 WL 1338106, at *1 (N.D. Ala. March 31, 2014).

         In opposition to Marion Bank's motions for summary judgment, the Tolars submitted a declaration from Ms. Youngblood. See Docs. 95, 95-1. The Tolars then moved to amend the declaration. (Doc. 95). Marion Bank objects to the new information contained in Ms. Youngblood's amended declaration as overly prejudicial. (Doc. 96). Marion Bank also challenges certain depositions, declarations, and affidavits that the Tolars submitted, arguing that the evidence is irrelevant, lacks foundation, and contradicts prior sworn testimony. (Doc. 100).0F[1]For the reasons described below, the Court will consider the challenged evidence in resolving Marion Bank's motions for summary judgment.

         1. Ms. Youngblood's Deposition and Affidavit from her Title VII Case. (Docs. 91-1, 91-3).

         Marion Bank argues that Ms. Youngblood's deposition and affidavit from her underlying Title VII case are irrelevant to this retaliation action because her testimony addresses her allegations of employment discrimination, none of which form the basis of this action or address a material fact in this action. (Doc. 100, pp. 3-5). Even though Ms. Youngblood is not a plaintiff in this lawsuit, her testimony and allegations are relevant because they describe the conduct that allegedly caused Marion Bank to retaliate against Ms. Youngblood by taking actions adverse to her father, brother, and uncle. Ms. Youngblood's testimony thus provides context for the Court's analysis of Marion Bank's behavior following Ms. Youngblood's termination from Marion Bank.

         Marion Bank's objection to Ms. Youngblood's affidavit is particularly unpersuasive because Marion Bank attempts to use the affidavit to prove a material fact in dispute, namely whether Greg Tolar acted on behalf of his daughter as her attorney when she filed her EEOC charge. Marion Bank cannot object to the evidence as irrelevant while simultaneously using it to try to establish its defense.

         2. Ms. Youngblood's Declaration in this Case. (Doc. 95-1).

         In support of their claims, the Tolars rely not only on Ms. Youngblood's affidavit from her underlying Title VII suit but also on an amended declaration that Ms. Youngblood provided for this case. (Doc. 95-1, pp. 3-7). Marion Bank argues that Ms. Youngblood's amended declaration is irrelevant. (Doc. 100, p. 5). The Court disagrees.

         The amended declaration includes the following paragraphs that do not appear in Ms. Youngblood's original declaration:

21. I would not have pursued my Title VII matter knowing my father, brother and uncle would be sued.
22. I would not have pursued my Title VII matter knowing my father would file bankruptcy because he lost his business due to my complaints.
23. I would not have pursued my Title VII matter knowing my brother would have to answer to the Alabama State Bar for a fraud action filed against him because of the Bank retaliating against me. After three years of law school my complaints against Conrad Taylor almost prohibited him from taking the Bar exam because of the Bank's fraud action.
24. I would not have pursued my Title VII action knowing that my uncle Andrew Tolar would also be sued for fraud.
25. I filed my EEOC Charge of Discrimination on my own and without assistance from Greg Tolar only after I was told the Bank was not going to conduct an internal investigation.

(Doc. 95-1, p. 7, ¶¶ 21-25).

         Marion Bank argues that the new information in the amended declaration is “contrary to undisputed record evidence and would otherwise prejudice Defendant.” (Doc. 96, p. 2, ¶ 4; Doc. 100, p. 5, n. 7). As support for this contention, Marion Bank points to Ms. Youngblood's affidavit in which she stated that her father “met with Mr. Randy Richardson, the Chairman of the Board of Directors, as my attorney.” (Doc. 100, p. 6) (citing Doc. 91-3, p. 9). Marion Bank also cites Greg's deposition testimony from his daughter's underlying Title VII suit, in which he stated that he told Mr. Richardson during this meeting that “we would be filing an EEOC charge on her behalf.” (Doc. 100, p. 6) (citing Doc. 78-7, p. 56). The bank invokes the sham affidavit rule and asks the Court to disregard paragraph 25 of Ms. Youngblood's declaration on that basis.

         Generally, a district court cannot weigh evidence or determine the credibility of evidence at the summary judgment stage. Consistent with this rule, at the summary judgment stage, a court generally must accept and credit the information that the non-movant provides. See United States v. Stein, 881 F.3d 853, 854 (11th Cir. 2018) (“[A]n affidavit which satisfies Rule 56 of the Federal Rules of Civil Procedure may create an issue of material fact and preclude summary judgment even if it is self-serving and uncorroborated.”). But this general rule does not apply when a party attempts to create a material factual dispute “with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984). Under this exception to the general rule regarding credibility, sometimes called the “sham affidavit rule, ” Liebman v. Metro. Life Ins. Co., 708 Fed.Appx. 979, 982 (11th Cir. 2017), a court must “find some inherent inconsistency between an affidavit and a deposition before disregarding the affidavit.” Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1316 (11th Cir. 2007).

         In considering Marion Bank's objection, the Court will disregard Greg Tolar's testimony because under the sham affidavit rule, the Court must determine whether Ms. Youngblood's testimony contradicts her own prior testimony, not another person's prior testimony. Van T. Junkins & Assocs., 736 F.2d at 657 (11th Cir. 1984) (“When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue[.]”). As to Ms. Youngblood's declaration that she filed her EEOC charge on her own, the statement does not directly contradict Ms. Youngblood's affidavit testimony that her father met with Mr. Richardson as her attorney. The two are not mutually exclusive. The evidence shows that Ms. Youngblood handwrote her EEOC charge, see Doc. 95-1, pp. 9-10, and there is no inconsistency that compels the Court to disregard paragraph 25 of the amended declaration.

         3. Mitchell Livingston's Deposition from Ms. Youngblood's Underlying Title VII Case. (Doc. 91-18).

         Marion Bank objects to the Court's consideration of Mr. Livingston's deposition from Ms. Youngblood's underlying Title VII case on the grounds that it is irrelevant. (Doc. 100, pp. 7-8). Mr. Livingston was Ms. Youngblood's husband when the critical events in this case took place. The Court finds Mr. Livingston's declaration relevant for the same reasons it found Ms. Youngblood's testimony in her deposition and affidavit from her underlying Title VII case relevant.1F[2]

         B. The Evidence in the Light Most Favorable to the Tolars

         • Ms. Youngblood's Employment with and Title VII Lawsuit against Marion Bank and Conrad Taylor

         Marion Bank and Trust, Co. is a financial institution located in Marion, Alabama. (Doc. 78-16, p. 2, ¶ 3; Doc. 78-17, p. 2, ¶ 3). The bank provides personal and commercial services. (Doc. 78-16, p. 2, ¶ 3; Doc. 78-17, p. 2, ¶ 3). Ms. Youngblood worked for Marion Bank from February 11, 2008 until her termination on September 16, 2008. (Doc. 78-16, p. 4, ¶ 9; Doc. 78-17, p. 4, ¶ 9). Conrad Taylor served as the bank's owner and CEO, and Preston Nichols served as the bank's vice-president during this time period. (Doc. 78-16, p. 2, ¶ 2; Doc. 78-17, p. 2, ¶ 2).2F[3] Ms. Youngblood was Mr. Taylor's personal assistant. (Doc. 91-3, p. 2). Before hiring Ms. Youngblood, Mr. Taylor told her that no one else at the bank had greater authority than him or could make final decisions. (Doc. 91-3, p. 2).

         In her Title VII action against the bank and Mr. Taylor, Ms. Youngblood alleged that during her employment with Marion Bank, Mr. Taylor sexually harassed her by making inappropriate comments and inquiries regarding her dress and appearance, her sex life, and the status and nature of her relationship with her husband at the time, Mr. Livingston, and by making unwanted physical advances. See Doc. 91-3, pp. 3-9. Ms. Youngblood tried to ignore Mr. Taylor's behavior, but in early September 2008, Ms. Youngblood objected to Mr. Taylor's request to “make him happy by having sex with him” and threatened to inform his wife. (Doc. 91-3, p. 6).

         On September 9, 2008, less than a week after Ms. Youngblood made the threat to Mr. Taylor, he called her into his office to discuss a past due journal in Ms. Youngblood's account. (Doc. 91-3, p. 6). During the meeting, Mr. Taylor, “[w]ithout warning . . . changed the subject in the middle of [the] conversation” and began making “hostile remarks” to Ms. Youngblood. (Doc. 91-3, p. 6). Mr. Taylor told Ms. Youngblood that she “carried too much emotional stress” and directed her to go home immediately and take one week's vacation.” (Doc. 91-3, p. 6). During that week, Mr. Taylor terminated Ms. Youngblood when she and Mr. Livingston stopped by the bank to check the balance of their account. (Doc. 91-3, p. 7). Mr. Taylor did not provide an explanation for the termination. (Doc. 91-3, p. 7).

         In October 7, 2008, Ms. Youngblood filed a handwritten EEOC charge against Marion Bank, alleging sexual harassment and retaliation under Title VII. (Doc. 95-1, pp. 9-10). The EEOC asked Ms. Youngblood to resubmit a typed EEOC charge. (Doc. 95-1, p. 4, ¶ 8). On October 17, 2008, the EEOC mailed a notice of charge of discrimination to Mr. Taylor. (Doc. 95-1, pp. 15-16). On October 20, 2008, Ms. Youngblood submitted a typed EEOC charge. (Doc. 95-1, pp. 12-13). On November 18, 2008, Greg Tolar sent the following letter to the EEOC on behalf of his daughter:

Please be advised that I represent Ragan as her legal counsel as well as being her father. Please direct any future communication to me at the above address and phone number.

(Doc. 78-10, p. 75).

         Ms. Youngblood filed suit against the bank and Mr. Taylor on April 21, 2011. Greg Tolar did not represent Ms. Youngblood in her lawsuit. The parties settled, and the Title VII action was dismissed with prejudice on August 11, 2014. Ragan Livingston v. Marion Bank and Trust Co., et al., 2:11-CV-01369-JEO (Docs. 1, 63).

         • Greg Tolar's Work for Marion Bank

         Greg Tolar is a licensed Alabama attorney. (Doc. 78-7, pp. 9-10). In January 1995, he opened a law firm in Selma, Alabama and remained there until 2005 when he relocated his practice to Marion, Alabama. (Doc. 78-1, pp. 7, 32-33, tr. pp. 24, 124-25). His legal work in Selma initially consisted of real estate, criminal defense, and probate work, but eventually he began to focus on his real estate practice. (Doc. 78-1, pp. 8, 10, tr. pp. ...

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