United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE.
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
STANDARD OF REVIEW
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).
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)).
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.
SUMMARY JUDGMENT EVIDENCE
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.
Marion Bank's Evidentiary Objections
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).
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).0FFor the reasons described
below, the Court will consider the challenged evidence in
resolving Marion Bank's motions for summary judgment.
Ms. Youngblood's Deposition and Affidavit from her Title
VII Case. (Docs. 91-1, 91-3).
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
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.
Ms. Youngblood's Declaration in this Case. (Doc.
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.
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).
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.
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).
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.
Mitchell Livingston's Deposition from Ms.
Youngblood's Underlying Title VII Case. (Doc.
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
The Evidence in the Light Most Favorable to the
Ms. Youngblood's Employment with and Title VII
Lawsuit against Marion Bank and Conrad Taylor
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 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).
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).
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).
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).
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
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. ...