Livingston et al v. Marion Bank and Trust Co. et al

Filing 61

ORDER ADOPTING REPORT AND RECOMMENDATIONS, Granting in part and denying in part 44 MOTION for Summary Judgment filed by Conrad Taylor,Marion Bank and Trust Co.; all Title VII claims against dft Conrad Taylor individually, Title VII claims against t he bank for "gender discrimination" other than for creation of a hostile work environment; state-law claims in Count 5 for negligent or wanton hiring, supervision, training and retention; and state-law claims in Count 9 for breach of implied contract are dismissed w/prejudice; motion for summary judgment is otherwise denied. Signed by Judge L Scott Coogler on 7/8/2014. (KAM, )

FILED
2014 Jul-08 PM 04:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RAGAN T. LIVINGSTON and
MITCH LIVINGSTON,
Plaintiffs;
vs.
MARION BANK AND TRUST
CO. and CONRAD TAYLOR,
Defendants.

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2:11-cv-1369-LSC

ORDER
In this action, Plaintiffs Ragan Livingston (“Ragan”) and her husband Mitch
Livingston assert claims against Marion Bank and Trust Co. and its president, Conrad
Taylor (“Defendants”), alleging violations of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq., and Alabama state law. The Magistrate Judge
entered a report and recommendation recommending that Defendants’ motion for
summary judgment (doc. 44) be granted in part and denied in part. (Doc. 56.) No
objections were filed. The Court has considered the entire file in this action, including
the report and recommendation, and has reached an independent conclusion that the
report and recommendation is due to be adopted and accepted.
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The Court does note that as to Ragan’s claim in Count 3 of the complaint for
“gender discrimination” against defendant Marion Bank and Trust Co. (“the bank”),
the Magistrate Judge recommended granting summary judgment in favor of the bank
on this claim because Ragan offered no response to the bank’s argument that it is
entitled to summary judgment, so she has abandoned the claim. That may be true, but
this Court is also required to consider the merits of the bank’s argument. See United
States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Florida, 363 F.3d
1099, 1101-02 (11th Cir. 2004) (Because “the district court cannot base the entry of
summary judgment on the mere fact that it is unopposed, it must consider the merits
of the motion.”); James Wm. Moore et al., Moore’s Federal Practice, § 56.99[b] (3d
ed. 1997) (The court “may neither grant nor deny summary judgment by default.”);
Fed. R. Civ. P. 56 advisory committee’s note (“[S]ummary judgment cannot be
granted by default even if there is a complete failure to respond to the motion, much
less when an attempted response fails to comply with Rule 56(c) requirements.”).
Ragan’s gender discrimination claim is based on alleged differences in her
“work environment, training, promotion, job assignments, job pay, and terms and
conditions of employment.” (Complaint at ¶ 35.) The Court has reviewed the record
and agrees with Defendants that it contains no evidence regarding gender-based

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disparate treatment with respect to Ragan’s training, promotion, job assignments, and
job pay. Ragan was replaced by another female employee, Angela Holifield. (Taylor
dep. 62:16-22). As such, summary judgment is due to be granted as to the bank on this
claim.
Accordingly, the Court finds that the magistrate judge’s report and
recommendation is ADOPTED and ACCEPTED. Defendants’ motion for summary
judgment (doc. 44) is hereby GRANTED IN PART AND DENIED IN PART. The
motion is granted as it relates to the following: (1) all Title VII claims against
defendant, Conrad Taylor, individually; (2) Title VII claims against the bank for
“gender discrimination” other than for creation of a hostile work environment; (3)
state-law claims in Count 5 for negligent or wanton hiring, supervision, training, and
retention; and (4) state-law claims in Count 9 for breach of implied contract. Those
claims are hereby DISMISSED WITH PREJUDICE. Defendants’ motion for
summary judgment is otherwise denied.
Done this 8th day of July 2014.

L. Scott Coogler
United States District Judge
[160704]

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